(a) “Agency" and "employee" have the meanings given them by section 5102 of title 5, United States Code.

(b) "Class" means all positions which are sufficiently similar as to (1) kind or subject-matter of work, (2) level of difficulty and responsibility, and (3) the qualification requirements of the work, to warrant similar treatment in personnel and pay administration.

(c) "Classification" means the analysis and identification of a position and placing it in a class under the position

classification plan established by OPM under chapter 51 of title 5, United States Code.

(d) "Grade" means all classes of positions which (although different with respect to kind or subject-matter of work) are sufficiently equivalent as to (1) level of difficulty and responsibility, and (2) level of qualification requirements of the work, to warrant their inclusion within one range of rates of basic pay.

(e) "Position" means the work, consisting of the duties and responsibilities, assigned by competent authority for performance by an employee.

Subpart B-Coverage of the General Schedule

§ 511.201 Coverage of and exclusions from the General Schedule.

This part and chapter 51 of the title 5, United States Code, apply to all positions in the agencies except those specifically excluded by section 5102 of title 5, United States Code. (5 U.S.C. 5102)

(5 U.S.C. 1104; Pub. L. 95-454, sec. 3(5)) [44 FR 54693, Sept. 21, 1979]

§ 511.202 Authority of agency.

Subject to the provisions of Subpart F of this part and § 511.203, an agency may determine whether a position is subject to, or is excluded from, chapter 51 of title 5, United States Code, by section 5102(c) (7) and (8) thereof.

§ 511.203 Exercise of authority.

An agency may exercise the authority under § 511.202 only in accordance with guidelines and standards issued by OPM.

Subparts C-E-[Reserved]

Subpart F-Appeals

§ 511.601 Applicability of regulations.

This subpart applies to an appeal from an employee or an agency for OPM to review the classification of a position subject to chapter 51 of title 5, United States Code, or for OPM to determine whether a position is subject to that chapter.

§ 511.602 Notification of classification decision.

The incumbent of a position who suffers a loss of grade or pay which is based in whole or in part on a classification decision is entitled to a prompt written notice of the decision from the agency. This notice shall also inform him:

(a) of his right to appeal the classification decision to the agency or to OPM as provided in this subpart; and (b) of the time limits within which he must appeal in order to preserve any retroactive benefits under § 511.703.

§ 511.603 Right of appeal.

(a) Employee appeal. An employee, or his representative designated in writing, may appeal and request an OPM decision as to:

(1) The appropriate class or grade of his position.

(2) The inclusion under or exclusion from chapter 51 of title 5, United States Code, of his position by his agency or OPM, except in the case of the incumbent of a position in the Office of the Architect of the Capitol.

(b) Agency appeal. The head of an agency or his authorized representative may appeal any classification decision made by OPM with respect to any position in the agency.

§ 511.604 Filing appeal.

(a) Employee. An employee may file an appeal with OPM directly or through his agency.

(b) Referral of employee appeal to OPM. An agency shall forward, within 30 calendar days of its receipt in the agency, an employee appeal filed through it to OPM when:

(1) The agency chooses to refer the appeal without action to OPM;

(2) The employee has directed his appeal to OPM and the agency does not act favorably on it; or

(3) The agency is not authorized to act on the employee appeal.

§ 511.605 Time limits.

An employee or an agency may submit a classification appeal at any time. However, the time limits of

§ 511.703 must be met in order to receive the benefits of that section.

§ 511.606 Form and contents of appeal.

(a) Employee appeal. An employee's appeal shall be in writing and shall contain the reasons why he believes his position is erroneously classified, or should be brought under or excluded from chapter 51 of title 5, United States Code. The Agency, when forwarding the appeal of an employee or when requested by OPM, shall furnish OPM with all relevant facts concerning the position and the agency's justification for its decision. The agency shall also comment on the information submitted by the appellant.

An

(b) Agency appeal. agency's appeal shall be in writing, and shall contain its reasons and justification for requesting a review of OPM's decision.

(c) Inspection of appeal file. The employee and the agency will be permitted to inspect the appeal file on request.

§ 511.607 Ascertainment of facts.

The employee and the agency shall furnish such facts as may be requested by OPM. These facts shall be in writing when so requested. OPM, in its discretion, may investigate or audit the position.

§ 511.608 Notification of appeal decision. OPM shall notify the appellant and the agency in writing of its decision.

§ 511.609 Cancellation of employee appeal. An employee appeal shall be canceled and the employee so notified in the following circumstances:

(a) On receipt of the appellant's written request.

(b) On failure to prosecute, when the appellant does not furnish requested information and duly proceed with the advancement of his appeal. In lieu of cancellation for failure to prosecute, an appeal may be adjudicated if the information is sufficient for that purpose. OPM may reopen a canceled appeal in its discretion on a showing that circumstances beyond the control of the appellant prevented him from prosecuting the appeal.

§ 511.612 Review by the Director.

The Director may, in his/her discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that:

(a) New and material evidence is available that was not readily available when the previous decision was issued;

(b) The previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy; or

(c) The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand, or is otherwise of such an exceptional nature as to merit the personal attention of the Director.

[34 FR 11537, July 12, 1969]

Subpart G-Effective Dates of Position-Classification Actions or Deci

sions

§ 511.701 Effective dates generally.

(a) Agency's classification action. The effective date of a classification action taken by an agency is the date

the action is approved in the agency or a subsequent date specifically stated.

(b) OPM's classification decision. The effective date of a classification decision made by means of a certificate issued by OPM is not earlier than the date of receipt of the certificate in the agency and not later than the beginning of the fourth pay period following the receipt of the certificate in the agency, unless a subsequent date is specifically stated in the certificate. Except as otherwise provided by this paragraph, the filing of an appeal from such a decision does not delay its effective date. The implementation of the classification decision may be suspended when for good cause shown it is determined before its effective date that a review of the classification decision is warranted. The determination to suspend implementation may be made by (1) a regional director or his designee when the decision is made by the regional office or by an agency under the classification jurisdiction of the regional office, (2) the Associate Director for Agency Relations, or his designee when the decision is made within the Group, by a region or by an agency, and (3) the Director with respect to any classification decision. Suspending the implementation does not change the effective date of the classification decision being reviewed except when that decision requires that the grade of the position be reduced or results in the reduction in the pay of the incumbent of the position. When the original decision requires that the grade of the position be reduced or results in the reduction in the pay of the incumbent of the position, the reviewing authority shall issue a new certificate and the effective date of the new certificate shall be not earlier than the date the agency receives the certificate and not later than the beginning of the fourth pay period after the date the agency receives the certificate unless a subsequent date is specifically stated in the certificate.

[33 FR 12445, Sept. 4, 1968, as amended at 39 FR 40935, Nov. 22, 1974; 44 FR 76747, Dec. 28, 1979]

§ 511.702 Agency's or OPM's classification decision on appeal.

Subject to § 511.703, the effective date of a change in the classification of a position resulting from an appeal to either an agency or OPM is not earlier than the date of decision on the appeal and not later than the beginning of the fourth pay period following the date of the decision, except that a subsequent date may be specifically provided in a decision by OPM. The implementation of the appeal decision may be suspended by OPM when for good cause shown OPM determines before its effective date that a review of the appeal decision is warranted. The determination to suspend implementation may be made by (a) the regional director or his designee when the decision is made by the regional office or by an agency under the classification jurisdiction of the regional office, (b) the Associate Director for Agency Relations, or his designee when the decision is made within the Group, by a region or by an agency, and (c) the Director with respect to any appeal decision. Suspending the implementation does not change the effective date of the appeal decision being reviewed except when that decision requires that the grade of the position be reduced or results in the reduction in the pay of the incumbent of the position. When the original appeal decision requires that the grade of the position be reduced or results in the reduction in the pay of the incumbent of the position, the reviewing authority shall issue a new appeal decision and the effective date of the new decision shall be not earlier than the date of the new appeal decision and not later than the beginning of the fourth pay period following the date of decision unless a subsequent date is specifically stated in the new decision.

[39 FR 40935, Nov. 22, 1974, as amended at 44 FR 76747, Dec. 28, 1979]

§ 511.703 Retroactive effective date.

(a) Downgrading or loss of pay. The effective date of a classification action resulting from an appeal decision reversing in whole or part either a downgrading or other classification action

that resulted in a reduction of pay shall be made retroactive to the date of adverse action when the initial appeal to either the agency or OPM was submitted not later than 15 calendar days after the effective date of the action taken as a result of the classification decision. However, when the appeal decision raises the grade of the position above its grade immediately preceding the downgrading, retroactivity will apply only to the extent of restoration to the grade immediately preceding the downgrading. The right to a retroactive effective date provided by this section is preserved on subsequent appeal from an agency classification decision to OPM when the appeal is filed not later than 15 calendar days following receipt of written notification of final administrative decision or 15 calendar days after the effective date of the action taken as a result of the classification decision, whichever is later.

new

(b) Grade change based on duties and responsibilities. Retroactivity may be based only on duties and responsibilities existing at the time of downgrading or loss of pay and not on duties and responsibilities later assigned.

(c) Retroactivity when time limits are extended. The right to a retroactive effective date provided by this section may be preserved, in the discretion of OPM, on a showing by the employee that he was not notified of the applicable time limit and was not otherwise aware of the limit or that circumstances beyond his control prevented him from filing an appeal within the prescribed time limit.

PART 530-PAY RATES AND SYSTEMS (GENERAL)

Subparts A-B-[Reserved]

Subpart C-Special Rates for Recruitment and Retention

Sec.

530.301 Entitlement. 530.302 Applicability. 530.303 Definitions.

530.304 Establishing special rates. 530.305 Determining employee rates. 530.306 Discontinuing special rates. 530.307 Effect of statutory pay increase.

AUTHORITY: 5 U.S.C. 5303; E.O. 11073, 8 CFR, 1959-1963 Comp., p. 687.

SOURCE: 33 FR 12448, Sept. 4, 1968, unless otherwise noted.

Subparts A-B-[Reserved]

Subpart C-Special Rates for Recruitment and Retention

§ 530.301 Entitlement.

A department or agency may pay a special rate established under section 5303 of title 5, United States Code, only in accordance with that section, Executive Order 11073, and this subpart.

§ 530.302 Applicability.

This subpart applies to departments and agencies having employees occupying positions paid under (a) section 5332(a) of title 5, United States Code, (b) Part III of title 39, United States Code, relating to personnel in the postal field service, (c) the pay scales for physicians, dentists, and nurses in the Department of Medicine and Surgery of the Veterans' Administration under chapter 73 of title 38, United States Code, or (d) sections 412 and 415 of the Foreign Service Act of 1946, as amended (22 U.S.C. 867 and 870).

§ 530.303 Definitions.

In this subpart:

(a) "Area" means a geographical subdivision which can be described in terms of boundaries, such as the metropolitan limits of a city, the area within 20 miles of the city limits, county, several counties, a State, the United States.

(b) "Executive Order" means Part III, Special Rates for Recruitment and Retention, of Executive Order 11073, issued January 2, 1963.

(c) "Location" means a specific place of employment within an area, such as a particular shipyard or airbase.

(d) "Numerical rank" means (1) a numbered rate of a grade of the General Schedule; (2) a numbered rate of a level of the Postal Field Service Schedule; (3) a numbered step or rate within the minimum and maximum pay scale for a position of physican, dentist, or nurse in the Department of

Medicine and Surgery of the Veterans' Administration; or (4) a rate within a class for a position under the Foreign Service Act; and, (5) a similar numbered rate or step within a special rate range established under any of the enumerated pay systems.

(e) "Special rate range" means a range of rates established by OPM under section 5303 of title 5, United States Code.

(f) "Special rates" mean rates within the special rate range, and include "special minimum rate" which is the first rate of the special rate range.

§ 530.304 Establishing special rates.

(a) OPM establishes special rates in one or more areas or locations to the extent it considers necessary to overcome significant handicaps in the recruitment and retention of well-qualified personnel when these handicaps result from pay rates in private enterprise being substantially above the pay rates of the statutory pay schedules.

(b) The department or agency initiating a request for special rates is responsible for submitting complete supporting data including, upon the specific request by OPM, a survey of prevailing pay rates in private enterprise in the area.

§ 530.305 Determining employee rates.

(a) (1) Except as provided in paragraph (a)(2) of this section, when an employee is in a position to which a special rate range becomes applicable, the department or agency shall fix his rate in the special rate range at the numerical rank in the special rate range for his grade or level which corresponds to his existing numerical rank in the rate range for his grade or level.

(2) When an employee receiving a retained rate under section 5337 of title 5, United States Code, or under section 3560 of title 39, United States Code, relating to personnel in the postal field service, is in a position to which a special rate range becomes applicable, the department or agency shall fix his rate in the special rate range under paragraph (a)(1) of this section without regard to the retained rate. If his retained rate is higher than the rate in the special rate range,