[Federal Register Volume 59, Number 89 (Tuesday, May 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11163]


  Federal Register / Vol. 59, No. 89 / Tuesday, May 10, 1994 /
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[[Page Unknown]]

[Federal Register: May 10, 1994]


                                                    VOL. 59, NO. 89

                                              Tuesday, May 10, 1994
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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 531

RIN 3206-AG04

 

Pay Under the General Schedule; Within-Grade Increases

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is revising a regulation 
relating to interim relief provisions authorized under the 
Whistleblower Protection Act of 1989. The existing regulations on 
interim within-grade increases are being modified to provide that an 
interim within-grade increase must be made effective on the date of the 
appellate decision ordering interim relief.

DATES: These interim regulations were effective on March 2, 1992. 
Comments must be submitted on or before July 11, 1994.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead, 
Acting Assistant Director for Compensation Policy, U.S. Office of 
Personnel Management, room 6H31, 1900 E Street NW., Washington, DC 
20415.

FOR FURTHER INFORMATION CONTACT:
James Weddel, (202) 606-2858.

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) 
published final regulations on interim relief under the Whistleblower 
Protection Act of 1989 (WPA) (5 U.S.C. 7701(b)(2)(A)) in the Federal 
Register on January 31, 1992 (57 FR 3707). The requirements for interim 
within-grade increases in 5 CFR 531.414(b) provide that ``an interim 
within-grade increase granted under paragraph (a) of this section shall 
become effective on the first day of the first pay period beginning on 
or after the date of the favorable within-grade increase 
determination.''
    However, the U.S. Merit Systems Protection Board (MSPB) issued a 
decision on December 22, 1993 (Andrew W. Harrell v. Department of the 
Army, AT-531D-93-0559-I-1), which stated that ``OPM's provision 
contradicts the express language of 5 U.S.C. 7701(b)(2)(A), which 
states that `the employee or applicant shall be granted the relief 
provided in the decision effective upon the making of the decision' 
(emphasis added). Accordingly, we find that the agency has failed to 
provide evidence of complete relief, as ordered, and dismiss the 
agency's petition for review.''
    OPM's final regulation on the effective date of an interim within-
grade increase was intended to carry out the purpose of the statute 
without creating an undue administrative burden for agencies and to be 
consistent with longstanding requirements governing the effective date 
of within-grade increases. OPM believed the regulation was consistent 
with the spirit and purpose of the WPA. While we are not persuaded that 
this regulation is inconsistent with the spirit and purpose of the WPA, 
we recognize that the interpretation reflected in MSPB's recent 
decision is a plausible reading of the law. Further, we do not wish to 
create undue difficulty for agencies that are required to provide 
interim relief under the WPA. Therefore, upon reconsideration, we have 
determined that the effective date of an interim within-grade increase 
must be the date of the appellate decision ordering interim relief 
under 5 U.S.C. 7701(b)(2)(A).

Waiver of Delay in Effective Date

    Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists 
for waiving the general notice of proposed rulemaking and making this 
rule effective in less than 30 days. This regulation is being made 
effective on March 2, 1992, the effective date of the final regulations 
on interim relief (57 FR 3707), in order to be consistent with an 
interpretation of law in a decision of the U.S. Merit Systems 
Protection Board (Andrew W. Harrell v. Department of the Army, AT-531D-
93-0559-I-1, December 22, 1993).

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
apply only to Federal agencies and employees.

List of Subjects in 5 CFR part 531

    Government employees, Law enforcement officers, Wages.

U.S. Office of Personnel Management.
Lorraine A. Green,
Deputy Director.

    Accordingly, OPM is amending part 531 of title 5, 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 the 
Performance Management and Recognition System Termination Act of 
1993, 107 Stat. 981; E.O. 12748, 56 FR 4521, February 4, 1991, 3 CFR 
1991 Comp., p. 316;

    Subpart A also issued under section 302 of the Federal Employees 
Pay Comparability Act of 1990 (FEPCA), 104 Stat. 1462, 5 U.S.C. 
5304, 5305, and 5553, and E.O. 12786, 56 FR 67453, December 30, 
1991, 3 CFR 1991 Comp., p. 376;
    Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and 
7701(b)(2);
    Subpart C also issued under section 404 of FEPCA, 104 Stat. 
1466, section 3(7) of Pub. L. 102-378 (October 2, 1992), section 302 
of FEPCA, 104 Stat. 1462, and 5 U.S.C. 5304, 5305, and 5553;
    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, 
and E.O. 12883, 58 FR 63281, November 29, 1993, 3 CFR, 1993 Comp., 
p. 682.

Subpart D--Within-Grade Increases

    3. In Sec. 531.412, paragraph (a) is revised to read as follows:


Sec. 531.412  Effective date of within-grade increase.

    (a) Except as provided in paragraph (b) of this section, a within-
grade increase shall be effective on the first day of the first pay 
period following completion of the required waiting period and in 
compliance with the conditions of eligibility. Interim within-grade 
increases shall become effective as provided in Sec. 541.414(b).
* * * * *
    3. In Sec. 531.414, paragraph (b) is revised to read as follows:


Sec. 531.414  Interim within-grade increase.

* * * * *
    (b) An interim within-grade increase granted under paragraph (a) of 
this section shall become effective on the date of the appellate 
decision ordering interim relief under 5 U.S.C. 7701(b)(2)(A).
* * * * *
[FR Doc. 94-11163 Filed 5-9-94; 8:45 am]
BILLING CODE 6325-01-M