[Federal Register: December 28, 2001 (Volume 66, Number 249)]
[Rules and Regulations]
[Page 67069-67070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de01-1]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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[[Page 67069]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 531
RIN: 3206-AI81
Locality-Based Comparability Payments
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations to clarify and redefine the limitations on locality rates
of pay for categories of non-General Schedule employees approved by the
President's Pay Agent to receive locality-based comparability payments.
This change was prompted by an Executive order that delegated the
President's authority to establish such limitations to the President's
Pay Agent. The final regulations will ensure that all employees
receiving locality payments are treated consistently.
EFFECTIVE DATE: This regulation is effective on December 28, 2001.
FOR FURTHER INFORMATION CONTACT: Jeanne Jacobson, (202) 606-2858, FAX:
(202) 606-0824, or e-mail: payleave@opm.gov.
SUPPLEMENTARY INFORMATION: On March 24, 2000, the Office of Personnel
Management (OPM) published a proposed rule (65 FR 15875) to revise the
locality pay regulations in subpart F of part 531 of title 5, Code of
Federal Regulations. This proposed rule clarified and redefined the
limitations on locality rates of pay for categories of non-General
Schedule employees approved by the President's Pay Agent to receive
locality payments. The proposed rule had a 60-day public comment
period, during which OPM did not receive any formal comments.
Therefore, we are adopting the proposed rule as final without change.
Background
Locality-based comparability payments are authorized under 5 U.S.C.
5304. By law, locality payments automatically apply to General Schedule
(GS) employees. The maximum rate of basic pay (excluding locality
payments) for GS employees is the rate for GS-15, step 10, subject to a
cap linked to the rate of pay for level V of the Executive Schedule.
(See 5 U.S.C. 5303(f).) GS rates of basic pay adjusted by locality
payments are capped at the rate of pay for level IV of the Executive
Schedule. (See 5 U.S.C. 5304(g)(1).)
The locality pay law provides that the President may extend
locality payments to various groups outside the GS pay system, such as
members of the Senior Executive Service (SES), administrative law
judges (ALJs), and other groups for which basic pay is limited to no
more than the rate of pay for level IV of the Executive Schedule. (See
5 U.S.C. 5304(h).) Executive Order 12883 of November 29, 1993, provided
that the President's Pay Agent (the Secretary of Labor and the
Directors of the Office of Management and Budget and the Office of
Personnel Management) may act for the President in exercising the
authority to extend locality payments to such non-GS groups.
Section 5304(g)(2)(A) of title 5, United States Code, provides that
locality rates approved for certain categories of non-GS employees
specified in 5 U.S.C. 5304(h)(1)(A)-(E), including members of the SES
and ALJs, are capped at the rate for level III of the Executive
Schedule. Section 5304(g)(2)(B) of title 5, United States Code,
provides that a level III locality pay cap applies to ``any positions
under subsection (h)(1)(F) which the President may determine.''
Subsection (h)(1)(F) is a catch-all category of non-GS positions to
which locality pay may be extended. This catch-all category includes
Executive agency positions not otherwise listed in the law whose rates
of basic pay are limited to not more than the rate for level IV of the
Executive Schedule. Section 8 of Executive Order 13106 of December 7,
1998, delegated the President's authority under section 5304(g)(2)(B)
of title 5, United States Code, to determine such limitations for
categories of positions covered by 5 U.S.C. 5304(h)(1)(F) to the
President's Pay Agent.
Final Regulations
These final regulations amend 5 CFR 531.604 by revising paragraph
(c) to clarify that a locality rate of pay may not exceed the rate for
level III of the Executive Schedule for categories of positions
specified in 5 U.S.C. 5304(h)(1)(A)-(E). This includes senior-level,
SES, Federal Bureau of Investigation (FBI) and Drug Enforcement
Administration (DEA) SES, administrative law judge, and contract
appeals board positions. This final rule does not change the locality
pay cap applicable to members of the SES and other categories of
positions specified in 5 U.S.C. 5304(h)(1)(A)-(E). The final rule
merely clarifies the level III locality pay cap prescribed in law at 5
U.S.C. 5304(g)(2)(A).
The final rule also amends Sec. 531.604 by revising paragraph (c)
to provide that, for categories of non-GS employees under 5 U.S.C.
5304(h)(1)(F) (i.e., the catch-all category of positions previously
described), locality rates of pay may not exceed:
(1) The rate for level IV of the Executive Schedule, if the maximum
scheduled annual rate of pay for such positions is less than or equal
to the maximum payable scheduled annual rate of pay for GS-15, or
(2) The rate for level III of the Executive Schedule, if the
maximum scheduled annual rate of pay for such positions exceeds the
maximum payable scheduled annual rate of pay for GS-15, but is not more
than the rate for level IV of the Executive Schedule.
The final regulations include pay protection for any employee who
otherwise would suffer a reduction in his or her locality rate of pay
under the locality pay cap provisions. It is possible that the locality
pay cap for a group of non-GS employees under 5 U.S.C. 5304(h)(1)(F)
could be reduced from level III to level IV of the Executive Schedule
as GS rates of basic pay increase. This could occur if the rate of
basic pay for GS-15, step 10, becomes equal to or exceeds the maximum
scheduled annual rate of pay for a non-GS group. To prevent reductions
in pay that would otherwise occur, Sec. 531.606(c)(3) of the final
regulations limit an affected employee's locality pay cap to the higher
of (1) his or her locality rate on the day before the scheduled annual
rate of pay for GS-15, step 10, becomes equal to or exceeds the
[[Page 67070]]
maximum scheduled annual rate of pay for the group of non-GS employees
or (2) the rate for level IV of the Executive Schedule. This means that
the employee's locality rate would be frozen until it is exceeded by
the rate for level IV of the Executive Schedule.
The final regulations add a new paragraph (d) to Sec. 531.604 to
exclude experts and consultants appointed under 5 U.S.C. 3109 from the
locality pay limitations. Unless otherwise authorized by law, the
aggregate pay (including basic pay, locality pay, and premium pay) for
experts and consultants appointed under 5 U.S.C. 3109 may not exceed
the daily rate for GS-15, step 10 (excluding locality pay or any other
additional pay). (See 5 CFR 304.105.)
The final regulations also clarify the definition of employee in
Sec. 531.602 to include positions in the FBI and DEA SES under 5 U.S.C.
5304(h)(1)(C) and other non-GS employee categories under 5 U.S.C.
5304(h)(1)(F) for which the President's Pay Agent has authorized
locality payments. The regulations also amend paragraph (4) in the
definition of scheduled annual rate of pay in Sec. 531.602 to include
the rates of basic pay for employees in the FBI and DEA SES and other
categories of non-GS positions for which the Pay Agent has authorized
locality pay. The proposed regulations clarify that the scheduled
annual rate of pay for such employees must exclude any locality-based
pay adjustments, special basic pay adjustments analogous to special
salary rates established under 5 U.S.C. 5305, or other additional pay
of any kind.
The President's Pay Agent has reviewed and approved this final
rule.
Waiver of Delay in Effective Date
Pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to
make these regulations effective in less than 30 days. These
regulations must be made effective prior to January 1, 2002. If they
become effective after the January 2002 statutory pay adjustments,
agencies may be forced in some scenarios to use the pay protection
provision to freeze the pay of a few employees whose pay was capped at
level III of the Executive Schedule.
Execute Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 531
Government employees, Law enforcement officers, Wages.
Office of Personnel Management.
Kay Coles James,
Director.
Accordingly, OPM is amending part 531 of title 5 of the Code of
Federal Regulations as follows:
PART 531--PAY UNDER THE GENERAL SCHEDULE
1. The authority citation for part 531 is revised to read as
follows:
Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-
89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p.
316;
Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and
7701(b)(2);
Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553; sections
302 and 404 of the Federal Employees Pay Comparability Act of 1990
(FEPCA), Pub. L. 101-509, 104 Stat. 1462 and 1466; and section 3(7) of
Pub. L. 102-378, 106 Stat. 1356;
Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2);
Subpart E also issued under 5 U.S.C. 5336;
Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553;
E.O. 12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682; and E.O. 13106, 63
FR 68151, 3 CFR, 1998 Comp., p. 224;
Subpart G also issued under 5 U.S.C. 5304, 5305, and 5553; section
302 of FEPCA, Pub. L. 101-509, 104 Stat. 1462; and E.O. 12786, 56 FR
67453, 3 CFR, 1991 Comp., p. 376.
Subpart F--Locality-Based Comparability Payments
2. In Sec. 531.602, paragraph (2) of the definition of employee and
paragraph (4) of the definition of scheduled annual rate of pay are
revised to read as follows:
Sec. 531.602 Definitions
* * * * *
Employee means--* * *
(2) An employee in a category of positions described in 5 U.S.C.
5304(h)(1)(A)-(F) for which the President (or designee) has authorized
locality-based comparability payments under 5 U.S.C. 5304(h)(2) and
whose official duty station is located in a locality pay area.
* * * * *
Scheduled annual rate of pay means--* * *
(4) For an employee in a category of positions described in 5
U.S.C. 5304(h)(1)(A)-(F) for which the President (or designee) has
authorized locality-based comparability payments under 5 U.S.C.
5304(h)(2), the rate of basic pay fixed by law or administrative
action, exclusive of any locality-based adjustments (including
adjustments equivalent to local special rate adjustments under 5 U.S.C.
5305) or other additional pay of any kind.
3. In Sec. 531.604, paragraph (c) is revised and a new paragraph
(d) is added to read as follows:
Sec. 531.604 Determining locality rates of pay.
* * * * *
(c)(1) Locality rates of pay approved by the President (or
designee) for employees in a category of positions described in 5
U.S.C. 5304(h)(1)(A)-(E) may not exceed the rate for level III of the
Executive Schedule.
(2) Locality rates of pay approved by the President (or designee)
for employees in a category of positions described in 5 U.S.C.
5304(h)(1)(F) may not exceed--
(i) The rate for level IV of the Executive Schedule, when the
maximum scheduled annual rate of pay (excluding any retained rate) for
such positions is less than or equal to the maximum payable scheduled
annual rate of pay for GS-15; or
(ii) The rate for level III of the Executive Schedule, when the
maximum scheduled annual rate of pay (excluding any retained rate) for
such positions exceeds the maximum payable scheduled annual rate of pay
for GS-15, but is not more than the rate for level IV of the Executive
Schedule.
(3) If application of paragraph (c)(2) of this section would
otherwise reduce an employee's existing locality rate of pay, the
employee's locality rate of pay will be capped at the higher of--
(i) The amount of his or her locality rate of pay on the day before
paragraph (c)(2) of this section is applied, or
(ii) The rate for level IV of the Executive Schedule.
(d) Paragraph (c) of this section does not apply to experts and
consultants appointed under 5 U.S.C. 3109 if the pay for those experts
and consultants is limited to the highest rate payable under 5 U.S.C.
5332 (i.e., the unadjusted maximum GS-15 rate). Pay limitations for
such experts and consultants must be determined in accordance with
Sec. 304.105 of this chapter.
[FR Doc. 01-31901 Filed 12-27-01; 8:45 am]
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