[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50179-50183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19758]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations

[[Page 50179]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 531, 535, and 536

RIN 3206-AK87


Critical Position Pay Authority

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final 
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: The regulations are effective on September 25, 2008.

FOR FURTHER INFORMATION CONTACT: Joe Ratcliffe, (202) 606-2838; FAX: 
(202) 606-4264; or e-mail: <a href="/cdn-cgi/l/email-protection#403021396d302532262f322d212e23256d302f2c292339002f302d6e272f36"><span class="__cf_email__" data-cfemail="cbbbaab2e6bbaeb9ada4b9a6aaa5a8aee6bba4a7a2a8b28ba4bba6e5aca4bd">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: On April 25, 2007, the U.S. Office of 
Personnel Management issued proposed regulations (72 FR 20440) to 
govern the use of a critical position pay authority that enables the 
head of a Federal agency to request 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 an agency's 
mission. The 60-day comment period ended on June 25, 2007. OPM received 
comments from nine individuals, one employee association, and five 
agencies. The comments are addressed in this final rule.
    One commenter did not approve of the critical pay authority statute 
and recommended the authority not be used. OPM disagrees with that 
assessment and believes the Government must use all available human 
resources management tools at its disposal to ensure Federal agencies 
are able to recruit and retain qualified employees.
    Several commenters asked whether specific positions might qualify 
for a critical position pay rate or recommended the critical position 
pay authority be used for certain positions. Employing agencies will 
decide internally whether to request use of a critical position pay 
authority. While OPM encourages use of a critical position pay 
authority wherever it might be needed and will consider all agency 
requests for the authority, we cannot speculate in advance as to 
whether particular positions might qualify.
    An agency wrote a letter supporting the proposed regulations.
    Section 535.106(a) of the proposed regulations provided a critical 
position pay rate is not considered a rate of basic pay for application 
of any saved pay or pay retention provisions (e.g., 5 U.S.C. 5363). An 
employee association and an agency expressed concern about an 
employee's pay if a critical position pay authority is terminated. Both 
the employee association and the agency recommended revising the 
regulations to allow for pay retention in such cases. We disagree. 
Under 5 U.S.C. 5377(e), a critical position pay authority must be 
terminated if conditions no longer warrant payment of the critical pay 
rate. Providing an entitlement to a saved rate or retained rate based 
on a critical position pay rate would be inconsistent with the 
requirement to terminate the authority. To conform with Sec.  
535.106(a), these final regulations revise Sec.  536.102(b) to clarify 
that an agency may not provide grade or pay retention under 5 CFR part 
536 to an employee in a covered pay system who is reduced in pay upon 
termination of a critical position pay authority. However, upon 
termination of critical position pay authority the employee's pay will 
be set under Sec.  535.105(e) at the rate to which the employee would 
be entitled had he or she not received critical pay. We also note 5 
U.S.C. 5377(e)(2) provides that termination of a critical position pay 
authority may not take effect until the authority has been available 
for the position for at least 1 calendar year, so long as the 
conditions justifying the authority are still met.
    An employee association recommended that all efforts be made to 
utilize current employees and create opportunities within all career 
paths necessary to meet the needs of the agency prior to using the 
critical position pay authority. We agree, but no changes to the 
proposed regulations are needed. Section 535.104(a) provides that an 
agency may request a 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. Section 
535.104(d)(11) requires an agency applying for a critical position pay 
authority to document why it could not, through diligent and 
comprehensive recruitment efforts and without using a 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.
    An employee association recommended amending Sec.  535.107 to 
provide for public access to reports to Congress on the use of the 
critical position pay authority. OPM provides for public access to 
reports to Congress through the OPM Web site. No revision to Sec.  
535.107 is necessary.
    An agency asked whether the critical position pay authority can be 
applied to a group or class of positions. Under 5 U.S.C. 5377(b)(1), 
each individual position must be analyzed to determine eligibility. 
However, relevant factors considered may be similar for a group of 
similar positions. In such cases, OPM would assess each position in the 
group against common factors. Once each individual position in a group 
has been certified as meeting the section 5377(b)(1) requirements, 
approval may apply to the group. Each individual employee approved for 
a critical position pay rate must be ``exceptionally well qualified for 
the position'' as required by 5 U.S.C. 5377(b)(2).
    An agency commented that the proposed regulations did not address 
whether positions with a critical position pay authority are affected 
by adjustments to levels I and II of the Executive Schedule. We 
disagree. Section 535.105(c) provides that the

[[Page 50180]]

head of an agency may make subsequent adjustments in the rate of pay 
for a position with a critical position pay authority each January at 
the same time general pay adjustments are authorized for Executive 
Schedule employees under 5 U.S.C. 5318. Also, such adjustments may not 
exceed the new rate for Executive Schedule level II or other applicable 
maximum rate established for the critical position. We added a sentence 
to Sec.  535.104(c) to clarify that the President may establish a 
maximum limitation on a critical rate of pay that is approved at a rate 
above level I of the Executive Schedule.
    An agency asked OPM to consider whether the proposed regulations 
could allow for more timely and meaningful use of a critical position 
pay authority and whether the proposed regulations might be revised so 
that agencies could use the authority more quickly to better compete 
with non-Federal employers. It is not feasible, given the level of 
review required under 5 U.S.C. 5377, for the regulations to provide for 
immediate application of a critical position pay authority. However, 
OPM will work with agencies to provide pre-hire approval under the 
critical position pay authority.
    Two agencies asked whether the documentation requirements might be 
substantially reduced for agencies applying for a critical position pay 
authority. Government programs involving increased spending are 
appropriately subject to considerable public scrutiny. OPM believes the 
documentation requirements in the proposed regulations are appropriate.
    An agency said the proposed regulations appeared not to preclude 
use of a critical position pay authority for excepted service 
positions, and asked whether this was correct. Agencies are not 
restricted from seeking use of a critical position pay authority for 
excepted service positions.
    An agency said that some of its staff believed the term 
administrative field in Sec.  535.103(b) should be defined in the 
regulations. OPM believes such a definition is unnecessary. In 
considering whether to apply for a critical position pay authority, an 
agency is free to decide internally whether it believes the position is 
one that requires a very high level of expertise in a scientific, 
technical, professional, or administrative field. OPM will consider all 
agency requests for a critical position pay authority.
    An agency asked whether a critical position pay authority could be 
approved for a particular geographic area or across the board for 
certain types of positions rather than for one position at a time. By 
statute, the authority is intended to be applied by position and not by 
geographic area. In addition, under 5 U.S.C. 5377 only 800 positions 
Governmentwide may be approved for a critical position pay authority at 
any given time. An agency asked whether the regulations could be 
revised so that heads of agencies could delegate the decision of 
whether to apply for a critical position pay authority to subordinate 
positions, such as heads of major components. The definition of head of 
an agency in Sec.  535.102 already provides for such delegated 
authority.
    An agency asked OPM to clarify how recruitment, relocation, and 
retention incentives are to be calculated in conjunction with a 
critical position pay authority, particularly in calculating the 
locality pay portion. Employees receiving critical position pay may not 
receive locality pay under 5 U.S.C. 5304 or similar authority. However, 
employees who are eligible for recruitment, relocation, or retention 
incentives under 5 CFR 575 subparts A, B, and C will remain eligible 
for the incentives while receiving critical position pay, subject to 
applicable pay limitations (e.g., the aggregate limitation on pay under 
5 U.S.C. 5307). An employee's rate of basic pay is used to compute the 
maximum amount of a recruitment or relocation incentive that may be 
paid to an employee. Retention incentive lump sum and installment 
payments are computed by multiplying the retention incentive percentage 
rate established for the employee by the total amount of the basic pay 
the employee earned during the service or installment period. A 
critical position pay rate would be the rate of basic pay used for 
these recruitment, relocation, or retention incentive calculations. 
There are examples of calculating incentives in the fact sheets 
``Recruitment and Relocation Incentive Payment and Termination 
Calculations'' and ``Retention Incentive Payment and Termination 
Calculations'' on OPM's Web site.
    An agency recommended revising Sec.  535.105 to clarify eligibility 
for premium pay. OPM believes that such revision of the regulations is 
unnecessary. However, we note in response to the comment that 
eligibility for premium pay under 5 U.S.C. chapter 55, subchapter V, 
depends on the employee's pay system (disregarding the use of the 
critical pay authority) and the coverage rules in 5 U.S.C. 5541(2) and 
5 CFR 550.101.
    An agency recommended revising Sec.  535.104(d) to specify 
procedures and circumstances for submitting urgent requests for a 
critical position pay authority, such as in cases where expedited 
processing of requests for a critical position pay authority is in the 
interest of national security or public health or safety. OPM believes 
that handling of cases where expedited processing might be warranted is 
an administrative matter that need not be addressed in the regulations. 
However, if an agency believes expedited processing of a request for a 
critical position pay authority is in the interest of national security 
or public health or safety or is otherwise warranted, the agency should 
indicate that in its request.
    An agency recommended revising Sec.  535.105(e) to address agency 
flexibility to apply highest previous rate rules in setting basic pay 
if a critical position pay authority is discontinued for a General 
Schedule (GS) position. We agree. Revised Sec.  535.105(e) provides if 
an agency discontinues critical position pay for a given GS position 
(on its own initiative or because OPM, in consultation with OMB, 
terminates the authority), 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, unless 
the employee is eligible for a higher payable rate under the GS maximum 
payable rate rule in Sec.  531.221 and the agency chooses to apply that 
rule. The pay set under the maximum payable rate rule may not exceed 
step 10 of the GS grade. To conform with the revised Sec.  535.105(e), 
these final regulations revise Sec.  531.221(a) to provide that the GS 
maximum payable rate rule may be used upon ``termination of a critical 
position pay authority under 5 CFR part 535''. These final regulations 
also revise Sec.  531.221(a) to provide that when highest previous rate 
is based on a critical position pay rate, an agency must follow the 
rules in Sec.  531.221(d). Section 531.221(d) provides the rules for 
when highest previous rate is based on a rate under a non-GS pay 
system. It is appropriate to follow the rules in Sec.  531.221(d) even 
though GS employees who receive critical position pay will be covered 
by the GS pay plan code because a critical pay rate is not considered a 
GS rate.
    An agency recommended revising Sec.  535.105(e) to require agencies 
to provide documentation to employees under a critical position pay 
authority showing the rate of basic pay the employee would receive 
absent the critical position pay authorization, since the 
responsibility for subsequent pay rate determinations could rest with 
another agency should the employee transfer to another agency. The 
agency

[[Page 50181]]

said that such documentation might appear in the ``remarks'' section of 
the employee's SF-50. We think such a requirement is not necessary in 
the regulations.
    An agency recommended revising Sec.  535.106 to address daily and 
biweekly aggregate limitations to ensure internal pay equity. We are 
not making such a revision because the limitations on critical position 
pay in 5 U.S.C. 5377 are on annual rates, not daily or biweekly 
aggregate pay.
    An agency suggested that OPM issue guidance that discusses the 
process of reviewing requests for a critical position pay authority and 
provides greater detail concerning the review process and its standards 
and timelines. OPM believes the regulations provide sufficient detail 
for agencies that might consider requesting an authority. The broad 
language used in the regulations to describe the types of positions 
that might be considered for a critical position pay authority allows 
for flexibility, and it is not practical to publish detailed standards 
that could apply effectively in every situation. Timing in the review 
process is an administrative matter and may vary by request.
    An agency suggested OPM define what constitutes ``a very high level 
of expertise.'' OPM believes it is not possible to write a definition 
of that term that would cover all the different positions and contexts 
for which it might be appropriate to apply a critical position pay 
authority. This is a matter for agency judgment.
    In Sec.  535.107, we removed language regarding the use of 
estimated rates to make the regulation conform with the language in the 
statute at 5 U.S.C. 5377(h)(2). Also, we made certain other minor 
changes in the language of the proposed regulations to improve clarity.

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 Parts 531, 535, and 536

    Administrative practice and procedure; Freedom of information; 
Government employees; Law enforcement officers; Reporting and 
recordkeeping requirements; Wages.

U.S. Office of Personnel Management.
Michael W. Hager,
Acting Director.

0
Accordingly, the U.S. Office of Personnel Management amends title 5, 
Code of Federal Regulations, by amending part 531, adding a new part 
535, and amending part 536 as follows:

PART 531--PAY UNDER THE GENERAL SCHEDULE

0
1. The authority citation for part 531 continues 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(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, and 5338; 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

0
2. Amend Sec.  531.221 as follows:
0
a. Revise the first sentence of paragraph (a)(1) to read as follows; 
and
0
b. Add paragraph (a)(4) to read as follows:


Sec.  531.221  Maximum payable rate rule.

    (a) General. (1) An agency may apply the maximum payable rate rule 
as described in this section to determine an employee's payable rate of 
basic pay under the GS pay system at a rate higher than the otherwise 
applicable rate upon reemployment, transfer, reassignment, promotion, 
demotion, change in type of appointment, or termination of a critical 
position pay authority under 5 CFR part 535. * * *
* * * * *
    (4) In applying this section, an agency must follow the rules in 
paragraph (d) of this section when highest previous rate is based on a 
critical position pay rate under 5 CFR part 535.
* * * * *

0
3. Add part 535 to read 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.


Sec.  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.


Sec.  535.102  Definitions.

    Agency has the meaning given that term in 5 U.S.C. 5102.
    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.
    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.
    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 Sec.  535.106.
    Employee means an employee (as defined in 5 U.S.C. 2105) in or 
under an agency.
    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.


Sec.  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) of this section 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

[[Page 50182]]

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 Sec.  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.


Sec.  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 section. 
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. The President may establish a maximum limitation 
on the critical pay rate.
    (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 
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, relocation, and retention 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, including an explanation and justification for OPM 
and OMB to expedite processing in cases where the agency believes that 
urgency warrants expedited processing;
    (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.


Sec.  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 special rate supplement 
under 5 U.S.C. 5305 (or other similar payment 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 Sec.  535.104(c).
    (c) The head of an agency may make subsequent adjustments in the 
rate of basic 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

[[Page 50183]]

Code. Such adjusted rates 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 
locality-based comparability payments established under 5 U.S.C. 5304, 
special rate supplements under 5 U.S.C. 5305, or other similar payments 
or supplements under other legal authority.
    (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 Sec.  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, unless the employee is eligible for a higher 
payable rate under the General Schedule maximum payable rate rule in 
Sec.  531.221 and the agency chooses to apply that rule.


Sec.  535.106  Treatment as rate of basic pay.

    A critical position pay rate is considered a rate of basic pay for 
all purposes, including any applicable premium pay, 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).


Sec.  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; and
    (5) Whether the authority is still needed for the critical 
position(s).

PART 536--GRADE AND PAY RETENTION

0
4. The authority citation for part 536 continues to read as follows:

    Authority: 5 U.S.C. 5361-5366; sec. 4 of the Performance 
Management and Recognition System Termination Act of 1993, Pub. L. 
103-89, 107 Stat. 981; Sec.  536.405 also issued under 5 U.S.C. 552, 
Freedom of Information Act, Pub. L. 92-502; Sec.  536.308 also 
issued under section 301(d)(2) of the Federal Workforce Flexibility 
Act of 2004, Pub. L. 108-411, 118 Stat. 2305.

Subpart A-General Provisions

0
5. Amend Sec.  536.102 as follows:
0
a. Remove ``or'' at the end of paragraph (b)(7);
0
b. Remove the period at the end of paragraph (b)(8) and add ``; or'' in 
its place; and
0
c. Add paragraph (b)(9) to read as follows:


Sec.  536.102  Coverage.

* * * * *
    (b) * * *
    (9) Is reduced in pay upon termination of a critical position pay 
authority under 5 CFR part 535.
* * * * *

[FR Doc. E8-19758 Filed 8-25-08; 8:45 am]
BILLING CODE 6325-39-P


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