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.

Proposed Rules Federal Register

20440 

Vol. 72, No. 79 

Wednesday, April 25, 2007 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 535 

RIN 3206–AK87 

Critical Position Pay Authority 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: The Office of Personnel 

Management (OPM) is proposing new 

regulations to govern the use of a critical 

position pay authority that allows 

higher rates of pay for positions that 

require a very high level of expertise in 

a scientific, technical, professional, or 

administrative field and are critical to 

the agency’s mission. By law, agency 

requests for critical position pay 

authority must be approved by OPM in 

consultation with the Office of 

Management and Budget. 

DATES: Submit comments on or before 

June 25, 2007. 

ADDRESSES: Send or deliver written 

comments to Charles D. Grimes III, 

Deputy Associate Director for 

Performance Management and Pay 

Systems Design, Office of Personnel 

Management, Room 7H31, 1900 E 

Street, NW., Washington, DC 20415– 

8200; FAX: (202) 606–4264; or e-mail: 

pay-performance-policy@opm.gov. 

FOR FURTHER INFORMATION CONTACT: Joe 

Ratcliffe, (202) 606–2838; FAX: (202) 

606–4264; or e-mail: pay-performancepolicy@opm.gov. 

SUPPLEMENTARY INFORMATION: Section 

5377 of title 5, United States Code, as 

revised by section 102 of the Federal 

Workforce Flexibility Act of 2004 

(Public Law 108–411, October 30, 2004), 

authorizes the Office of Personnel 

Management (OPM), in consultation 

with the Office of Management and 

Budget (OMB), to grant authority to an 

agency to fix the rate of basic pay for 

one or more positions that are 

designated as critical positions. 

Section 102 shifts responsibility for 

the critical position pay authority from 

OMB to OPM to encourage increased 

application of this underutilized 

flexibility as a means of attracting 

talented individuals to critical positions 

in the Federal Government who would 

not otherwise accept or stay in 

Government jobs at lower rates of pay. 

As the agency charged with assisting the 

executive branch to meet its growing 

human capital demands, OPM currently 

works directly with other agencies to 

ensure that they use the broad range of 

existing human resources management 

tools strategically to recruit, retain, and 

manage a high-performing workforce. 

Under the critical position pay 

authority, OPM may, upon the request 

of the head of an agency, grant critical 

position pay authority for positions that 

require a very high level of expertise in 

a scientific, technical, professional, or 

administrative field and are critical to 

the accomplishment of the agency’s 

mission. Critical position pay authority 

may be granted only to the extent 

necessary to recruit or retain an 

individual exceptionally well-qualified 

for a critical position. 

Approval of critical position pay 

authority for a position does not change 

conditions of employment other than 

the rate of basic pay. For example, 

employees who receive critical position 

pay still remain under their normal pay 

plan, may still receive applicable 

performance awards; cash awards; 

recruitment, retention, and relocation 

incentives; and other similar payments; 

and remain subject to the applicable 

aggregate limitation on pay. However, 

employees receiving critical position 

pay may not receive locality pay under 

5 U.S.C. 5304 or similar authority. 

Agencies with employees under the 

critical position pay authority must use 

the pay rate determinant code ‘‘C’’ for 

covered employees in submissions to 

the Central Personnel Data File. 

Guidance on submitting requests for 

critical position pay authority was 

published in OMB Bulletin No. 91–09, 

March 7, 1991. These proposed 

regulations would generally continue 

the policies and procedures established 

by OMB, but critical position pay would 

not be limited to positions classified 

above GS–15. A general summary of the 

proposed regulations is as follows: 

• The head of an agency would 

request critical position pay authority 

by sending a written request and 

supporting documentation to the 

Director of OPM. Requests would be 

prepared in accordance with § 535.104. 

• Heads of agencies with approved 

critical position pay authority would be 

authorized to set the rate of basic pay for 

a critical position up to the rate for level 

II of the Executive Schedule ($168,000 

in 2007) without further approval. 

• In exceptional circumstances, the 

head of an agency could seek approval 

for critical position pay authority up to 

the rate for level I of the Executive 

Schedule ($186,600 in 2007), based on 

information and data that justify the 

higher rate of pay. 

• In rare circumstances, the head of 

an agency could seek approval for 

critical position pay authority at a rate 

higher than the rate for level I of the 

Executive Schedule with approval by 

the President based on information and 

data that justify the higher rate of pay. 

• After establishing a critical position 

pay rate, the head of an agency would 

have authority to make subsequent pay 

adjustments, up to the authorized 

maximum rate of pay. However, the 

employee must have at least a rating of 

Fully Successful or equivalent, and 

subsequent adjustments must be based 

on labor market factors, recruitment and 

retention needs, and individual 

accomplishments and contributions to 

an agency’s mission. 

• A critical position pay rate would 

be a rate of basic pay for most purposes. 

• Critical position pay authority 

could be granted to one or more specific 

positions at an agency. 

• The law requires that OPM submit 

an annual report to Congress on the use 

of the critical position pay authority. To 

produce this report, agencies using the 

critical position pay authority would 

submit to OPM by January 31 of each 

year the information described in 

§ 535.107. The agency would be 

required to report with respect to each 

covered position whether the critical 

position pay authority is still needed. 

• Agencies granted critical position 

pay authority could continue to use the 

authority as long as it is needed. OPM 

would monitor agencies’ use of critical 

position pay authorities through annual 

reports and could terminate the 

authority associated with any given 

position if, in OPM’s judgment in 

consultation with OMB, the authority is 

no longer needed. 


cprice-sewell on PRODPC61 with PROPOSALS
Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 20441 

Executive Order 12866, Regulatory 

Review 

The Office of Management and Budget 

has reviewed this rule 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 affect only Federal 

agencies and employees. 

List of Subjects in 5 CFR Part 535 

Government employees, Wages. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

Accordingly, OPM is proposing to 

amend title 5, Code of Federal 

Regulations, by adding a new part 535 

as follows: 

PART 535—CRITICAL POSITION PAY 

AUTHORITY 

Sec. 

535.101 Purpose. 

535.102 Definitions. 

535.103 Authority. 

535.104 Requests for and granting critical 

position pay authority. 

535.105 Setting and adjusting rates of basic 

pay. 

535.106 Treatment as a rate of basic pay. 

535.107 Annual reporting requirements. 

Authority: 5 U.S.C. 5377; E.O. 13415, 71 

FR 70641. 

§ 535.101 Purpose. 

The purpose of this part is to provide 

a regulatory framework for the critical 

position pay authority authorized by 5 

U.S.C. 5377. The Office of Personnel 

Management (OPM), in consultation 

with the Office of Management and 

Budget (OMB), may grant authority to 

the head of an agency to fix the rate of 

basic pay for one or more positions 

under this part. 

§ 535.102 Definitions. 

(a) Agency has the meaning given that 

term in 5 U.S.C. 5102. 

(b) Employee means an employee (as 

defined in 5 U.S.C. 2105) in or under an 

agency. 

(c) Head of an agency means the 

agency head or an official who has been 

delegated the authority to act for the 

agency head in the matter concerned. 

(d) Critical position means a position 

for which OPM has granted authority to 

the head of an agency to exercise the 

pay-setting authority provided in 5 

U.S.C. 5377. 

(e) Critical position pay authority 

means the authority that may be granted 

to the head of an agency by OPM under 

5 U.S.C. 5377 to set the rate of basic pay 

for a given critical position under the 

provisions of that section. 

(f) Critical position pay rate means the 

specific rate of pay established by the 

head of an agency for an employee in a 

critical position based upon the exercise 

of the critical position pay authority. A 

critical position pay rate is a rate of 

basic pay to the extent provided in 

§ 535.106. 

§ 535.103 Authority. 

(a) Subject to a grant of authority from 

OPM in consultation with OMB and all 

other requirements in this part, the head 

of an agency may fix the rate of basic 

pay for a critical position at a rate not 

less than the rate of basic pay that 

would otherwise be payable for the 

position, but not greater than—

(1) The rate payable for level II of the 

Executive Schedule (unless paragraph 

(a)(2) or (a)(3) applies); 

(2) The rate payable for level I of the 

Executive Schedule in exceptional 

circumstances based on information and 

data that justify a rate higher than the 

rate payable for level II of the Executive 

Schedule; or 

(3) A rate in excess of the rate for level 

I of the Executive Schedule that is 

established in rare circumstances with 

the written approval of the President. 

(b) The head of an agency may 

exercise his or her critical position pay 

authority only—

(1) When such a position requires 

expertise of an extremely high level in 

a scientific, technical, professional, or 

administrative field and is critical to the 

agency’s successful accomplishment of 

an important mission; and 

(2) To the extent necessary to recruit 

or retain an individual exceptionally 

well-qualified for the critical position. 

(c) If critical position pay authority is 

granted for a position, the head of an 

agency may determine whether it is 

appropriate to exercise the authority 

with respect to any proposed appointee 

or incumbent of the position. 

(d) An agency granted critical position 

pay authority may continue to use the 

authority for an authorized position as 

long as needed. OPM will monitor the 

use of critical position pay authorities 

annually, through the agency’s required 

reports under § 535.107, and will 

terminate the authority associated with 

a given position after notifying the 

agency if, in OPM’s judgment in 

consultation with OMB, the authority is 

no longer needed. 

§ 535.104 Requests for and granting 

critical position pay authority. 

(a) An agency may request critical 

position pay authority only after 

determining that the position in 

question cannot be filled with an 

exceptionally well-qualified individual 

through the use of other available 

human resources flexibilities and pay 

authorities. Agency requests must 

include the information in paragraph (d) 

of this subsection. OPM, in consultation 

with OMB, will review agency requests. 

OPM will advise the requesting agency 

as to whether the request is approved 

and when the agency’s critical position 

pay authority becomes effective. 

(b) A request for critical position pay 

authority (or authorities) must be signed 

by the head of an agency and submitted 

to OPM. Requests covering multiple 

positions must include a list of the 

positions in priority order. The head of 

an agency may request coverage of 

positions of a type not listed in 5 U.S.C. 

5377(a)(2), as authorized by 5 U.S.C. 

5377(i)(2) and Executive Order 13415. 

(c) Requests for critical position pay 

authority to set pay above the rate for 

level II of the Executive Schedule and 

up to the rate for level I of the Executive 

Schedule because of exceptional 

circumstances require information and 

data that justify the higher pay. Requests 

for critical position pay authority to set 

pay above the rate for level I of the 

Executive Schedule due to rare 

circumstances require approval by the 

President. The head of an agency must 

submit such requests to OPM with the 

information required in paragraph (d) of 

this section. If OPM, in consultation 

with OMB, concurs with a request to set 

pay above the rate for level I of the 

Executive Schedule, OPM will seek the 

President’s approval. 

(d) At a minimum, all requests for 

critical position pay authority must 

include: 

(1) Position title; 

(2) Position appointment authority 

(for Senior Executive Service positions, 

appointment authority for any 

incumbent); 

(3) Pay plan and grade/level; 

(4) Occupational series of the 

position; 

(5) Geographic location of the 

position; 

(6) Current salary of the position or 

incumbent; 

(7) Name of incumbent (or ‘‘Vacant’’); 

(8) Length of time the incumbent has 

been in the position or length of time 

the position has been vacant; 

(9) A written evaluation of the need 

to designate the position as critical. 

Such an evaluation must include—

(i) The kinds of work required by the 

position and the context within which 

it operates; 

(ii) The range of positions and 

qualification requirements that 


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20442 Federal Register / Vol. 72, No. 79 / Wednesday, April 25, 2007 / Proposed Rules 

characterize the occupational field, 

including those that require extremely 

high levels of expertise; 

(iii) The rates of pay reasonably and 

generally required in the public and 

private sectors for similar positions; and 

(iv) The availability of individuals 

who possess the qualifications to do the 

work required by the position; 

(10) Documentation, with appropriate 

supporting data, of the agency’s 

experience and, as appropriate, the 

experience of other organizations, in 

efforts to recruit or retain exceptionally 

well-qualified individuals for the 

position or for a position sufficiently 

similar with respect to the occupational 

field, required qualifications, and other 

pertinent factors, to provide a reliable 

comparison; 

(11) Assessment of why the agency 

could not, through diligent and 

comprehensive recruitment efforts and 

without using the critical position pay 

authority, fill the position within a 

reasonable period with an individual 

who could perform the duties and 

responsibilities in a manner sufficient to 

fulfill the agency’s mission. This 

assessment must include a justification 

as to why the agency could not, as an 

effective alternative, use other human 

resources flexibilities and pay 

authorities, such as recruitment, 

retention, and relocation incentives 

under 5 CFR part 575; 

(12) An explanation regarding why 

the position should be designated a 

critical position and made eligible for a 

higher rate of pay under this part within 

its organizational context (i.e., relative 

to other positions in the organization) 

and, when applicable, how it compares 

with other critical positions in the 

agency. The agency must include an 

explanation of how it will deal with 

perceived inequities among agency 

employees (e.g., situations in which 

employees in positions designated as 

critical would receive higher rates of 

pay than their peers, supervisors, or 

other employees in positions with 

higher-level duties and responsibilities); 

(13) Documentation of the effect on 

the successful accomplishment of 

important agency missions if the 

position is not designated as a critical 

position; 

(14) Any additional information the 

agency may deem appropriate to 

demonstrate that higher pay is needed 

to recruit or retain an employee for a 

critical position; 

(15) Unless the position is an 

Executive Schedule position, a copy of 

the position description and 

qualification standard for the critical 

position; and 

(16) The desired rate of basic pay for 

requests to set pay above the rate for 

level II of the Executive Schedule and 

justification to show that such a rate is 

necessary to recruit and retain an 

individual exceptionally well-qualified 

for the critical position. 

§ 535.105 Setting and adjusting rates of 

basic pay. 

(a) The rate of basic pay for a critical 

position may not be less than the rate of 

basic pay, including any locality-based 

comparability payments established 

under 5 U.S.C. 5304 (or similar 

geographic adjustment or supplement 

under other legal authority) that would 

otherwise be payable for the position. 

(b) If critical position pay authority is 

granted for a position, the head of an 

agency may set pay initially at any 

amount up to the rate of pay for level 

II or level I of the Executive Schedule, 

as applicable, without further approval 

unless a higher maximum rate is 

approved by the President under 

§ 535.104(c). 

(c) The head of an agency may make 

subsequent adjustments in the rate of 

pay for a critical position each January 

at the same time general pay 

adjustments are authorized for 

Executive Schedule employees under 

section 5318 of title 5, United States 

Code. Such adjustments may not exceed 

the new rate for Executive Schedule 

level II or other applicable maximum 

established for the critical position. 

However, the employee must have at 

least a rating of Fully Successful or 

equivalent, and subsequent adjustments 

must be based on labor market factors, 

recruitment and retention needs, and 

individual accomplishments and 

contributions to an agency’s mission. 

(d) Employees receiving critical 

position pay are not entitled to localitybased comparability payments 

established under 5 U.S.C. 5304 or 

similar geographic adjustments or 

supplements under other provision of 

law. 

(e) If an agency discontinues critical 

position pay for a given position (on its 

own initiative or because OPM, in 

consultation with OMB, terminates the 

authority under § 535.103(d)), the 

employee’s rate of basic pay will be set 

at the rate to which the employee would 

be entitled had he or she not received 

critical pay, as determined by the head 

of the agency. 

§ 535.106 Treatment as rate of basic pay. 

A critical position pay rate is 

considered a rate of basic pay for all 

purposes except—

(a) Application of any saved pay or 

pay retention provisions (e.g., 5 U.S.C. 

5363); or 

(b) Application of any adverse action 

provisions (e.g., 5 U.S.C. 7512). 

§ 535.107 Annual reporting requirements. 

(a) OPM must submit an annual report 

to Congress on the use of the critical 

position pay authority. Agencies must 

submit the following information to 

OPM by January 31 of each year on their 

use of critical position pay authority for 

the previous calendar year: 

(1) The name, title, pay plan, and 

grade/level of each employee receiving 

a higher rate of basic pay under this 

subpart; 

(2) The annual rate or rates of basic 

pay paid in the preceding calendar year 

to each employee in a critical position; 

(3) The beginning and ending dates of 

such rate(s) of basic pay, as applicable; 

(4) The rate or rates of basic pay that 

would have been paid but for the grant 

of critical position pay. This includes 

what the rate or rates of basic pay were, 

or would have been, without critical 

position pay at the time critical position 

pay is initially exercised and any 

subsequent adjustments to basic pay 

that would have been made if critical 

position pay authority had not been 

exercised (estimate rates where a range 

would apply, such as for Senior 

Executive Service positions); and 

(5) Whether the authority is still 

needed for the critical position(s). 

(b) [Reserved] 

[FR Doc. E7–7763 Filed 4–24–07; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 204, 214, and 299 

[CIS No. 2302–05; DHS Docket No. USCIS–

2005–0030] 

RIN 1615–AA16 

Special Immigrant and Nonimmigrant 

Religious Workers 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Proposed rule. 

SUMMARY: This rule proposes to amend 

U.S. Citizenship and Immigration 

Services (USCIS) regulations regarding 

the special immigrant and 

nonimmigrant religious worker visa 

classifications. This rule addresses 

concerns about the integrity of the 

religious worker program by proposing 

a petition requirement for religious 

organizations seeking to classify an 


cprice-sewell on PRODPC61 with PROPOSALS