[Federal Register: August 27, 2008 (Volume 73, Number 167)]
[Proposed Rules]
[Page 50575-50577]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au08-11]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 50575]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 531 and 550
RIN 3206-AL61
Determining Rate of Basic Pay; Collection by Offset From Indebted
Government Employees
AGENCY: U.S. Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The U.S. Office of Personnel Management is issuing proposed
regulations to conform with provisions of the National Defense
Authorization Act for Fiscal Year 2008. The proposed regulations revise
the rules regarding setting pay for certain employees who move from
nonappropriated fund instrumentality (NAFI) positions to General
Schedule positions. Also, the proposed regulations allow certain NAFIs
to collect debts owed to them by Federal employees via salary offset
and allow Federal agencies to collect debts by offsetting salary
payments of certain NAFI employees.
DATES: Comments must be received on or before October 27, 2008.
ADDRESSES: You may submit comments, identified by RIN ``3206-AL61,''
using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: pay-performance-policy@opm.gov.
Fax: (202) 606-0824.
Mail: Jerome D. Mikowicz, Deputy Associate Director for Pay and
Leave Administration, Room 7H31, 1900 E Street, NW., Washington, DC
20415-8200.
FOR FURTHER INFORMATION CONTACT: David Barash by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-
policy@opm.gov.
SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management
(OPM) is issuing proposed regulations to revise the rules regarding
setting pay for certain employees who move from nonappropriated fund
instrumentality (NAFI) positions to General Schedule (GS) positions.
Also, the proposed regulations allow certain NAFIs to collect debts
owed to them by Federal employees via salary offset and allow Federal
agencies to collect debts by offsetting salary payments of certain NAFI
employees. The proposed regulations conform with sections 652 and 1114
of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L.
110-181, January 28, 2008), hereafter referred to as ``the Act.'' These
amendments became effective on January 28, 2008.
Pay Setting Upon Movement From a NAFI to a GS Position
Section 1114 of the Act amends 5 U.S.C. 5334(f) to provide that a
NAFI employee in the Department of Defense (DOD) or the United States
Coast Guard (USCG) (as described in 5 U.S.C. 2105(c)) who moves
voluntarily to a GS position in DOD or USCG, respectively, without a
break in service of more than 3 days may (at the employing agency's
discretion) have the GS rate of basic pay set at the lowest step rate
of the applicable GS grade that equals or exceeds the former NAFI rate.
Under previous law, the employee's GS rate of basic pay could not
exceed the formerly applicable NAFI rate in such voluntary movements;
thus, setting the rate at a GS step for these former NAFI employees
generally resulted in a reduction in pay. The amendment permits DOD and
USCG to set pay at the next higher step rate, avoiding a pay reduction.
Therefore, we propose revising the regulations at 5 CFR 531.216
governing setting pay when a NAFI employee in DOD or USCG moves to a GS
position in DOD or USCG, respectively, without a break in service of
more than 3 days, to conform with changes made by the Act.
Paragraph (c)(1) in Sec. 531.216 currently states that when an
employee covered under this section moves voluntarily, the agency may
set the employee's initial payable rate of basic pay at any step rate
in the highest applicable rate range currently in effect for the
employee's GS position of record and official worksite which does not
exceed the employee's NAFI highest previous rate of pay, except as
provided in paragraph (c)(2) or (3) of Sec. 531.216. We propose
revising this provision to allow DOD and USCG to set the employee's
initial payable rate of basic pay at the lowest step of the applicable
GS grade that equals or exceeds the NAFI highest previous rate, or at a
lower step. We also propose clarifying that pay may not be set above
the maximum (step 10) rate of the rate range.
We propose similar revisions in paragraph (c)(2) of Sec. 531.216,
which provides the rules for setting pay when a covered NAFI employee
moves voluntarily and the highest applicable rate range would be
different if the official worksite for the employee's GS position of
record were located at the place where the employee was stationed while
earning the NAFI highest previous rate.
Paragraph (d) of Sec. 531.216 provides the rules for when a
covered NAFI employee is moved involuntarily. Under paragraph (d)(1) of
Sec. 531.216, a covered employee who is moved involuntarily is
entitled to an initial payable rate of basic pay at the lowest step
rate of the grade that is equal to or greater than the employee's rate
of basic pay in the NAFI position immediately before the move.
Paragraph (d)(2) of Sec. 531.216 currently states that an agency may
set the initial payable rate of basic pay at a step rate within the
highest applicable rate range for the employee's GS position of record
and official worksite that does not exceed the employee's NAFI highest
previous rate (consistent with the method prescribed in paragraphs
(c)(1) and (2)) if that provides a higher rate of basic pay than the
employee's entitlement under paragraph (d)(1). We propose revising
paragraph (d)(1) of Sec. 531.216 to clarify that, if the employee's
former NAFI rate exceeds the range maximum, the agency must identify
the maximum step rate (step 10) as the employee's maximum payable rate.
We also propose revising paragraph (d)(2)(i) in Sec. 531.216 so an
agency may set the initial payable rate of basic pay at the lowest step
rate within the highest applicable rate range for the employee's GS
position of record and official worksite that equals or exceeds the
employee's NAFI highest previous rate, or any lower step rate
(consistent with the proposed revisions to paragraphs (c)(1) and (2))
if that provides a higher
[[Page 50576]]
rate of basic pay than the employee's entitlement under paragraph
(d)(1).
We are also taking this opportunity to clarify certain provisions.
Section 531.216 uses the phrases ``without a change in employing
agency'' and ``same agency'' to refer to movements within DOD and
within USCG. However, these phrases are inconsistent with the
definition of agency in 5 CFR 531.203, which means (in part) an
executive agency. For example, USCG is a component of the U.S.
Department of Homeland Security (DHS) and is not an executive agency
itself. The NAFI pay setting regulations at Sec. 531.216 do not apply
to a NAFI employee in the USCG who moves to a GS position within DHS,
but outside of USCG. Therefore, we propose to clarify the regulations
by replacing the phrases ``without a change in employing agency'',
``different agency'', and ``same agency'' in paragraphs (a), (c)(1) and
(d)(1) of Sec. 531.216 with more descriptive and accurate phrases such
as, ``from a NAFI position in the Department of Defense or the Coast
Guard to a GS position in the Department of Defense or the Coast Guard,
respectively''.
Salary Offset
Section 652 of the Act provides that employees of a NAFI of DOD or
USCG (as described in 5 U.S.C. 2105(c)) are covered by the salary
offset law in 5 U.S.C. 5514. Section 5514 provides authority for
collection of debts owed the Federal Government by offset of Federal
employee salary payments. This amendment allows DOD and USCG NAFIs to
collect debts owed to them by Federal employees via salary offset. It
also allows Federal agencies to collect debts by offsetting salary
payments of DOD and USCG NAFI employees. Therefore, we are proposing to
revise the regulations at 5 CFR 550.1103 to add ``any nonappropriated
fund instrumentality described in 5 U.S.C. 2105(c)'' to the definition
of agency.
In addition, we are proposing to revise the regulations at 5 CFR
550.1103 to change the name of the Postal Rate Commission to Postal
Regulatory Commission in the definition of agency as a result of
section 604 of the Postal Accountability and Enhancement Act (Pub. L.
109-435, December 20, 2006), which amended 5 U.S.C. 5514(a)(5)(B), to
reflect the Commission's change in name. We also propose adding ``If an
agency under this definition is a component of an agency, the broader
definition of agency may be used in applying the provisions of 5 U.S.C.
5514(b) (concerning the authority to prescribe regulations).'' This
provision makes clear, for example, that DOD may issue salary offset
regulations that cover the military departments and DOD NAFIs (as
described in 5 U.S.C. 2105(c)), even though each of those DOD
components is itself an agency under the definition of agency in
proposed Sec. 550.1103. Since DOD is an executive department, it is a
covered agency and can issue salary offset regulations that cover
employees in every part of DOD, including employees in any DOD
component that has separate status as an agency.
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 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 Parts 531 and 550
Administrative practice and procedure; Claims; Government
employees; Law enforcement officers; Wages.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
Accordingly, OPM is proposing to amend 5 CFR parts 531 and 550 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), 5305, 5333,
5334(a) and (b), and 7701(b)(2); Subpart D also issued under 5
U.S.C. 5335 and 7701(b)(2); Subpart E also issued under 5 U.S.C.
5336; Subpart F also issued under 5 U.S.C. 5304 and 5305; and 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 B--Determining Rate of Basic Pay
2. In Sec. 531.216, paragraphs (a), (c)(1), (c)(2)(i), (c)(2)(ii),
(d)(1), and (d)(2)(i) are revised to read as follows:
Sec. 531.216 Setting pay when an employee moves from a Department of
Defense or Coast Guard nonappropriated fund instrumentality.
(a) General. This section governs the setting of pay for an
employee who moves to a GS position in the Department of Defense or the
Coast Guard from a position in a nonappropriated fund instrumentality
(NAFI) (as described in 5 U.S.C. 2105(c)) of the Department of Defense
or the Coast Guard, respectively, without a break in service of more
than 3 days. If an employee moves from a NAFI position to a GS position
with a break of more than 3 days or moves from a NAFI position in the
Department of Defense or the Coast Guard to a GS position outside of
the Department of Defense or the Coast Guard, respectively, the
employee has no special conversion rights and this section does not
apply.
* * * * *
(c) * * * (1) For a Department of Defense or Coast Guard employee
who moves voluntarily, without a break in service of more than 3 days,
from a NAFI position in the Department of Defense or the Coast Guard to
a GS position in the Department of Defense or the Coast Guard,
respectively, the agency may set the employee's initial payable rate of
basic pay at the lowest step rate in the highest applicable rate range
currently in effect for the employee's GS position of record and
official worksite which equals or exceeds the employee's NAFI highest
previous rate of pay, or any lower step rate, except as provided in
paragraph (c)(2) or (3) of this section. The employee's initial payable
rate of basic pay may not exceed the maximum step rate (step 10).
(2) * * *
(i) Compare the NAFI highest previous rate to the highest
applicable rate range currently in effect in the location where the
employee was stationed while earning that rate. The highest applicable
rate range is determined based on the pay schedules that would be
applicable to the employee's current GS position of record if the
employee were stationed in that location. Identify the lowest step rate
in the highest applicable rate range that was equal to or exceeded the
NAFI highest previous rate. If the NAFI highest previous rate is less
than the range minimum, identify the minimum step rate (step 1). If the
NAFI highest previous rate exceeds the range maximum, identify the
maximum step rate (step 10).
(ii) Identify the step rate in the highest applicable rate range
for the employee's current official worksite and position of record
that corresponds to the step rate derived under paragraph (c)(2)(i) of
this section. That corresponding rate is the maximum payable rate at
which the agency may set the employee's pay
[[Page 50577]]
under this section, except as provided by paragraph (c)(3) of this
section. The agency may set the employee's rate of basic pay at any
step rate that does not exceed that maximum payable rate.
* * * * *
(d) * * * (1) For a Department of Defense or Coast Guard employee
who is moved involuntarily (as defined in paragraph (d)(3) of this
section), without a break in service of more than 3 days, from a NAFI
position in the Department of Defense or the Coast Guard to a GS
position with substantially the same duties in the Department of
Defense or the Coast Guard, respectively, the employee is entitled to
an initial payable rate of basic pay at the lowest step rate of the
grade that is equal to or greater than the employee's rate of basic pay
in the NAFI position immediately before the move. If the employee's
former NAFI rate exceeds the range maximum, identify the maximum step
rate (step 10).
(2) * * *
(i) The lowest step rate within the highest applicable rate range
for the employee's GS position of record and official worksite that
equals or exceeds the employee's NAFI highest previous rate, or any
lower step rate (consistent with the method prescribed in paragraphs
(c)(1) and (2) of this section);
* * * * *
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart K--Collection by Offset From Indebted Government Employees
3. The authority citation for subpart K of part 550 continues to
read as follows:
Authority: 5 U.S.C. 5514; sec. 8(1) of E.O. 11609; redesignated
in sec. 2-1 of E.O. 12107.
4. In Sec. 550.1103, the definition of agency is revised to read
as follows:
Sec. 550.1103 Definitions.
* * * * *
Agency means an executive department or agency; a military
department; the United States Postal Service; the Postal Regulatory
Commission; any nonappropriated fund instrumentality described in 5
U.S.C. 2105(c); the United States Senate; the United States House of
Representatives; any court, court administrative office, or
instrumentality in the judicial or legislative branches of the
Government; or a Government corporation. If an agency under this
definition is a component of an agency, the broader definition of
agency may be used in applying the provisions of 5 U.S.C. 5514(b)
(concerning the authority to prescribe regulations).
* * * * *
[FR Doc. E8-19819 Filed 8-26-08; 8:45 am]
BILLING CODE 6325-39-P