[Federal Register Volume 59, Number 244 (Wednesday, December 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31247]


  Federal Register / Vol. 59, No. 244 / Wednesday, December 21, 1994 /
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[[Page Unknown]]

[Federal Register: December 21, 1994]


                                                   VOL. 59, NO. 244

                                       Wednesday, December 21, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 531 and 772

RIN 3206-AG04

 

Pay Under The General Schedule; Within-Grade Increases

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management is issuing final 
regulations relating to the interim relief provisions authorized under 
the Whistleblower Protection Act of 1989. The final regulations provide 
that an interim within-grade increase must be made effective on the 
date of the appellate decision ordering interim relief.

EFFECTIVE DATE: January 20, 1995.

FOR FURTHER INFORMATION CONTACT:
Vincent Donahue, (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 existence at that time in 5 CFR 531.414(b) 
provided that ``an interim within-grade increase granted under 
paragraph (a) of that 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 were not persuaded 
that this regulation was inconsistent with the spirit and purpose of 
the WPA, we recognized that the interpretation reflected in MSPB's 
recent decision is a plausible reading of the law. Further, we did not 
wish to create undue difficulty for agencies that are required to 
provide interim relief under the WPA. Therefore, OPM issued interim 
regulations on May 10, 1994 (59 FR 24029), that modified the existing 
regulations on interim within-grade increases to be consistent with 
MSPB's decision.

Comments on the Interim Regulations

    We received one comment on the interim regulations from a Federal 
agency. The agency observed that, since the interim regulations provide 
that an interim within-grade increase will become effective on the date 
of the appellate decision ordering interim relief under 5 U.S.C. 
7701(b)(2)(A) rather than the first day of the first pay period 
beginning on or after the date of the favorable within-grade increase 
determination, it would be consistent for any final decision by MSPB 
upholding the negative within-grade increase determination to become 
effective also on the date of the decision. The agency suggests 
revising 5 CFR 531.414(c) to reflect such a change. We agree, and we 
are adopting this recommendation.

Conforming Change in Part 772

    Because the effective date of an interim within-grade increase is 
being changed in these final regulations, a necessary conforming change 
in 5 CFR 772.102(a) is needed. The reference to interim within-grade 
increases as an exception to the general rule about when interim 
personnel actions are to be made effective is deleted.

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

5 CFR Part 531

    Government employees, Law enforcement officers, Wages.

5 CFR Part 772

    Government employees, Health insurance, Life insurance, Retirement, 
Whistleblowing.

U.S. Office of Personnel Management.
James B. King,
Director.
    Accordingly, the interim rule amending 5 CFR part 531, which was 
published at 59 FR 24029 on May 10, 1994, is adopted as final with the 
following changes:

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, February 4, 1991, 3 
CFR 1991 Comp., p. 316;
    Subpart A also issued under 5 U.S.C. 5304, 5305, and 5553; 
section 302 of the Federal Employees Pay Comparability Act of 1990 
(FEPCA), Pub. L. 101-509 104 Stat. 1462; 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 5 U.S.C. 5304, 5305, and 5553; 
sections 302 and 404 of 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, 
and E.O. 12833, 58 FR 63281, November 29, 1993, 3 CFR 1993 Comp., p. 
682.

Subpart D--Within-Grade Increases

    2. In Sec. 531.414, paragraph (c) is revised to read as follows:


Sec. 531.414  Interim within-grade increase.

* * * * *
    (c) If the final decision of the Merit Systems Protection Board 
upholds the negative within-grade increase determination, an interim 
within-grade increase granted under this section shall be terminated on 
the date of the Board's final decision.
* * * * *

PART 772--INTERIM RELIEF

    3. The authority citation for part 772 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, and 7301; Pub. L. 101-12.

Subpart A--General

    4. In Sec. 772.102, paragraph (a) is revised to read as follows:


Sec. 772.102  Interim personnel actions.

* * * * *
    (a) Interim personnel actions shall be made effective upon the date 
of issuance of the initial decision and must be initiated on or before 
the date of a petition for review by the agency or within a reasonable 
period after the date it becomes aware of a petition for review by the 
appellant;
* * * * *
[FR Doc. 94-31247 Filed 12-20-94; 8:45 am]
BILLING CODE 6325-01-M