[Federal Register Volume 59, Number 216 (Wednesday, November 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27743]


  Federal Register / Vol. 59, No. 216 / Wednesday, November 9, 1994 /
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[[Page Unknown]]

[Federal Register: November 9, 1994]


                                                   VOL. 59, NO. 216

                                        Wednesday, November 9, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 576

RIN 3206-AG20

 

Waiver of Repayment of Voluntary Separation Incentive Payments

agency: Office of Personnel Management.

action: Interim rules with request for comments.

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summary: The Federal Workforce Restructuring Act of 1994, Public Law 
103-226, enacted March 30, 1994, generally requires that an employee 
who accepts a voluntary separation incentive payment must repay the 
entire amount of the payment to the agency that paid the payment if the 
employee is reemployed by the Federal Government, in either a temporary 
or permanent status, within 5 years following the effective date of 
separation on which the payment was based. The payment must also be 
repaid if the employee accepts a personal services contract with the 
Federal Government within the 5-year period. The Act allows Executive 
agencies to request waivers of repayment from the Office of Personnel 
Management if the individual the agency wants to reemploy possesses 
unique abilities and is the only qualified applicant available for the 
position. These regulations implement this waiver authority.

dates: Interim rules effective on November 9, 1994. Written comments 
will be considered if received no later than January 9, 1995.

addresses: Send or deliver written comments to Leonard R. Klein, 
Associate Director, Career Entry Group, Room 6F08, 1900 E Street, NW, 
Washington, DC 20415.

for further information contact: Betty Pickering of the Workforce 
Restructuring Office, Career Entry Group, on 202-606-0960 or fax 202-
606-2329.

supplementary information: The Federal Workforce Restructuring Act of 
1994, Public Law 103-226, enacted March 30, 1994, authorizes the 
payment of voluntary separation incentive payments to employees of 
executive branch agencies.
    Public Law 103-226 does not authorize the Department of Defense, 
the Central Intelligence Agency, or the General Accounting Office to 
pay voluntary separation incentive payments to their employees since 
they have separate voluntary separation incentive program authorities. 
However, Public Law 103-226 covers the Department of Defense and the 
Central Intelligence Agency under the provisions dealing with employee 
repayment of voluntary separation incentive payments on reemployment 
with the Federal Government. The provisions dealing with employee 
repayment of voluntary separation incentive payments on reemployment do 
not apply to the General Accounting Office.
    Public Law 103-226 requires an employee who receives a separation 
incentive payment on or after March 30, 1994, from any executive branch 
agency, including the Department of Defense and the Central 
Intelligence Agency, to repay the entire amount, including all 
deductions for taxes, etc., if reemployed in the Federal Government of 
the United States within 5 years of the separation date. This 
requirement applies to any employment, of any length, in any entity of 
the Federal Government of the United States, including the United 
States Postal Service, the White House, and non-appropriated fund 
activities. Employees, except employees of the Department of Defense, 
who receive a voluntary separation incentive payment and accept 
employment with the Federal Government under a personal services 
contract within 5 years of the date of separation must also repay the 
entire amount of the incentive payment.
    The statute establishes specific limited conditions under which 
repayment of the voluntary separation incentive payment may be waived. 
If the individual is to be reemployed by an Executive agency, the 
Director of the Office of Personnel Management may waive repayment. For 
reemployment in the Legislative branch, the head of the organization or 
the appointing official may waive the repayment. For reemployment in 
the Judicial branch, the Director of the Administrative Office of the 
United States Courts has waiver authority. In all cases, a waiver is 
permitted if the individual possesses unique abilities and is the only 
qualified applicant available for the position. The Office of Personnel 
Management does not have authority to approve waivers of repayment for 
individuals who accept personal service contracts, or for individuals 
reemployed in the Legislative or Judicial branches of the Federal 
Government. These regulations, therefore, apply only to individuals who 
are otherwise subject to the reemployment provision of the Federal 
Workforce Restructuring Act and have accepted reemployment with the 
executive branch agencies.

Reemployment and Waivers of Repayment

    The Office of Personnel Management's specific criteria for waiving 
repayment of a separation incentive payment are similar to criteria 
used for waiving reduction in salary or retirement pay for reemployed 
annuitants in that waivers will be approved in response to exceptional 
recruiting difficulty. Requests for waivers must be submitted to the 
Office of Personnel Management by the agency head or a designee at the 
agency or departmental headquarters level. Two special provisions 
reflect the intent of Public Law 103-226.
    If the employee will be reemployed in the same agency, the request 
for a waiver must show that the recruiting need could not have been 
forseen before the employee's separation. An agency should not need to 
rehire employees to whom it pays separation incentives since Public Law 
103-226 gives agencies authority to control separations from critical 
or hard-to-fill positions. The Office of Personnel Management will 
approve waivers of repayment for reemployment in the same agency only 
in rare and unusual circumstances.
    The law authorizes waivers of repayment only for reemployment in 
exceptionally hard-to-fill positions. Therefore, any waiver approved by 
the Office of Personnel Management will apply to a specific position 
and the employee appointed to it may not be reassigned during the 5-
year period following separation unless the employee repays the 
separation incentive or the Office of Personnel Management approves a 
new waiver.

Waiver of Notice of Proposed Rulemaking and 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 because the 
statutory basis for these regulations (Pub. L. 103-226) was effective 
March 30, 1994, and it would be contrary to the public interest to 
delay implementation of rules covering reemployment and waivers of 
repayment. For the same reasons, and pursuant to 5 U.S.C. 553(d)(3), I 
find that good cause exists to waive the delay in effective date and 
make these regulations effective in less than 30 days.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it affects 
only certain Federal employees.

List of Subjects in 5 CFR Part 576

    Government employees, wages.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, the Office of Personnel Management is adding a new 
Part 576 to title 5, Code of Federal Regulations, as follows:

PART 576--WAIVER OF REPAYMENT OF VOLUNTARY SEPARATION INCENTIVE 
PAYMENTS

Subpart A--Reemployment and Waiver of Repayment

Sec.
576.101  Repayment requirement.
576.102  Requesting Office of Personnel Management approval for 
waiver of repayment.

    Authority: 5 U.S.C. 2101 note.

Subpart A--Reemployment and Waiver of Repayment


Sec. 576.101  Repayment requirement.

    (a) Who is covered. This subpart covers any executive agency 
employee who received a voluntary separation incentive payment on or 
after March 30, 1994, including employees of the Department of Defense 
and Central Intelligence Agency.
    (b) What is covered. This subpart covers reemployment of any 
duration, under any authority, in the Federal Government of the United 
States, within 5 years of the date of the separation on which payment 
of an incentive is based.
    (c) What is required. The employee must repay the entire amount of 
the voluntary separation incentive payment, including all deductions 
for taxes, etc., to the agency that made the payment. Repayment will be 
made as provided in 5 U.S.C. 5514, as implemented in part 550, subpart 
K, of this chapter, or other appropriate authority.
    (d) Exception to the repayment requirement. If the individual 
accepts reemployment with an Executive agency, the Office of Personnel 
Management may waive repayment if the individual involved possesses 
unique abilities and is the only qualified applicant available for the 
position. Each waiver must be approved individually, as provided in 
Sec. 576.102 of this part. Waivers of repayment are not required for 
individuals who work as unpaid volunteers for the Federal Government.


Sec. 576.102  Requesting Office of Personnel Management approval for 
waiver of repayment.

    (a) Request by agency head. The head of an Executive agency may 
request the Office of Personnel Management to approve a waiver of 
repayment for an individual when the agency has determined that the 
individual involved possesses unique abilities and is the only 
qualified applicant available for the position. Authority to submit 
such a request may not be redelegated to an official below the agency's 
headquarters level (or, in the case of the Department of Defense, to an 
official below the headquarters level of the military department or 
Defense agency).
    (b) Content of requests. Each request must:
    (1) Identify the individual for whom the exception is requested, 
the appointing authority to be used, and the position to which he or 
she will be appointed.
    (2) Describe how the position is essential to accomplishing the 
agency's mission and how the individual is uniquely qualified for the 
position.
    (3) Describe the length, breadth, and results of the agency's 
recruiting efforts for the position and any other factors demonstrating 
that the individual is the only qualified applicant available for the 
position.
    (4) If the individual is being reemployed in the agency that paid 
the separation incentive, demonstrate why the recruiting need could not 
be foreseen at the time of separation.
    (c) Application of exceptions. A waiver of repayment of a 
separation incentive approved by the Office of Personnel Management 
under this part applies only while the individual for whom it was 
approved continues to serve in the same or a successor position. The 
waiver terminates if the individual is assigned to a different position 
during the 5-year period in which repayment is required, unless OPM 
approves a new waiver.

[FR Doc. 94-27743 Filed 11-8-94; 8:45 am]
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