Employment in the Senior Executive Service, Restoration To Duty From Uniformed Service or Compensable Injury, Pay Administration (General), and Pay Administration Under the Fair Labor Standards Act; Miscellaneous Changes to Pay and Leave Rules, 12032-12037 [E7-4696]
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Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations
update VetGuide to further clarify the
application of the 24-month
requirement.
One commenter recommended OPM
replace the word ‘‘badge’’ with ‘‘medal’’
or ‘‘badge or medal’’ in § 211.102(a)(2).
OPM is not adopting this
recommendation because the reference
to ‘‘badge’’ is contained in law at 5
U.S.C. 2108(1)(A). Further, military
personnel receive many awards and
decorations which are determined by
the Department of Defense. OPM and its
predecessor agency, the Civil Service
Commission, have always used the
terms ‘‘badge’’ and ‘‘medal’’
interchangeably, as appropriate. We
believe VetGuide provides sufficient
explanation of the many badges and
medals which qualify for purposes of
veterans’ preference.
The same individual asked OPM to
clarify in the final regulation whether an
Army ‘‘service medal’’ qualifies an
individual for veterans’ preference
under part 211. OPM is not adopting
this suggestion. The list of military
campaigns, expeditions, awards, and
decorations qualifying for veterans’
preference is too lengthy to be contained
in this part. However, OPM lists this
information in Appendix A of VetGuide
available on-line at https://
www.opm.gov/veterans/html/
vgmedal2.asp. In general, service
medals are not qualifying for purposes
of veterans’ preference.
One commenter asked OPM to
explain the significance of changing
‘‘separated’’ to ‘‘released or discharged’’
in § 211.102(a), (b), and (g). OPM
modified part 211 in order to be
consistent with recent statutory changes
to 5 U.S.C. 2108. With these changes the
law, OPM’s implementing regulations,
and Department of Defense (DD) Form
214, Certificate of Release or Discharge
from Active Duty, the form used by
veterans to claim 5-point veterans’
preference, all use the same language
which should make it easier for eligible
veterans to receive their entitlement.
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E.O. 12866, Regulatory Review
This rule has been reviewed by the
Office of Management and Budget in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that this regulation would not
have a significant economic impact on
a substantial number of small entities
(including small businesses, small
organizational units, and small
governmental jurisdictions) because it
affects only Federal agencies employees.
List of Subjects in 5 CFR Part 211
Government employees, Veterans.
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Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, the interim rule
amending part 211 of title 5, Code of
Federal Regulations, which was
published at 71 FR 33375 on June 9,
2006, is adopted as a final rule without
changes.
I
[FR Doc. E7–4697 Filed 3–14–07; 8:45 am]
BILLING CODE 6325–39–P
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR PARTS 317, 353, 550, and 551
RIN 3206–AL21
Employment in the Senior Executive
Service, Restoration To Duty From
Uniformed Service or Compensable
Injury, Pay Administration (General),
and Pay Administration Under the Fair
Labor Standards Act; Miscellaneous
Changes to Pay and Leave Rules
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
SUMMARY: The Office of Personnel
Management is issuing final regulations
to amend a number of rules on pay and
leave administration, including
employment in the Senior Executive
Service, use of paid leave during
uniformed service, time limits for using
compensatory time off earned in lieu of
overtime pay, and other miscellaneous
changes. The final regulations are being
issued to standardize pay and leave
policies in support of the consolidation
of agency human resources and payroll
systems.
DATES: The regulations are effective on
May 14, 2007.
FOR FURTHER INFORMATION CONTACT:
Sharon Dobson by telephone at (202)
606–2858; by fax at (202) 606–0824; or
by e-mail at pay-performancepolicy@opm.gov.
SUPPLEMENTARY INFORMATION: On
January 5, 2005, the Office of Personnel
Management (OPM) issued a
comprehensive package of proposed
regulations on Restoration to Duty From
Uniformed Service or Compensable
Injury; Payrates and Systems (General);
Pay Under the General Schedule; Pay
Administration (General); Pay
Administration Under the Fair Labor
Standards Act; Recruitment and
Relocation Bonuses; Retention
Allowances; Supervisory Differentials;
Hours of Duty; and Absence and Leave
(70 FR 1068). The proposed regulations
are available at https://www.opm.gov/
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fedregis. The 60-day comment period
ended on March 7, 2005. We received a
total of 93 comments on the proposed
regulations.
In these final regulations, we are
addressing the revisions to rules
concerning the retention of pay and
benefits for a Senior Executive Service
(SES) member who accepts a
Presidential appointment, use of paid
leave during uniformed service, time
limits for using compensatory time off
earned in lieu of overtime pay, and
other miscellaneous rules. We have
already published regulations for some
of the subject areas included in the
January 2005 proposed regulations in
separate issuances in the Federal
Register. Comments received on the
proposed changes to the rules on
Adjustments of Work Schedules for
Religious Observances, Hours of Duty,
and Absence and Leave will be
addressed in subsequent issuances in
the Federal Register.
Except as otherwise stated in this
supplementary information, the purpose
of the revisions in these final
regulations is to standardize pay and
leave policies in support of the
consolidation of agency human
resources and payroll systems and in
general to aid agencies in the
administration of these programs. All
revisions are being made to regulations
in title 5, Code of Federal Regulations.
Regulations Already Issued
Some of the changes included in the
January 2005 proposed regulations have
already been addressed in subsequent
regulations issued by OPM on May 13,
2005, May 31, 2005, and August 17,
2006, as discussed below.
The January 2005 regulations
proposed to amend the definition of rate
of basic pay in §§ 575.103, 575.203, and
575.303 to clarify that night pay and
environmental differential pay under
the Federal Wage System are not
included in the rate of basic pay for the
purposes of recruitment, relocation, and
retention incentives. The amended
definition of rate of basic pay for the
purpose of recruitment, relocation, and
retention incentives was included in
OPM’s interim regulations issued on
May 13, 2005, for recruitment,
relocation, and retention incentives (70
FR 25732). The interim regulations are
available at https://www.opm.gov/
fedregis.
The January 2005 regulations
proposed to add a new § 531.605 to
define the requirements for determining
an employee’s official worksite for the
purpose of identifying an employee’s
location-based pay entitlements,
including locality rates and special
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rates. The proposed regulations also
addressed official worksite
determinations for employees
temporarily working at other locations
and teleworking from an alternative
worksite. The comments OPM received
on proposed § 531.605 were addressed
and changes made as an interim rule on
May 31, 2005 (70 FR 31278). The
interim regulations are available at
https://www.opm.gov/fedregis. Section
531.605 was again revised in interim
regulations issued on August 17, 2006,
to clarify the rules for determining an
employee’s official worksite when he or
she teleworks from an alternative
worksite during an emergency situation,
such as a pandemic health crisis (71 FR
47692). The interim regulations are
available on OPM’s Web site at https://
www.opm.gov/fedregis.
Finally, the January 2005 regulations
proposed to amend 5 CFR part 630,
subpart D, concerning the use of sick
leave for family care or bereavement
purposes. The regulations proposed,
among other changes, removing the
requirement that a full-time employee
must maintain 80 hours of sick leave in
his or her sick leave account to use up
to 104 hours (13 workdays) of his or her
sick leave for general family care or
bereavement purposes and up to 480
hours (12 workweeks) of sick leave to
care for a family member with a serious
health condition. The comments OPM
received on the proposed amendments
to 5 CFR part 630, subpart D, were
addressed and changes made as a final
rule on August 17, 2006 (71 FR 47693).
The final regulations on sick leave are
available at https://www.opm.gov/
fedregis.
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Final Regulations in This Issuance
In this issuance, the final regulations
address the changes made to the rules
on employment in the Senior Executive
Service, use of paid leave during
uniformed service, time limits for using
compensatory time off earned in lieu of
overtime pay, and other miscellaneous
changes. For these subject areas, we
received 29 comments on the January
2005 proposed regulations—20 from
agencies, 6 from individuals, 2 from
Federal labor unions, and 1 from a
Federal employee association.
Senior Executive Service
Under 5 U.S.C. 5307(d), a higher
aggregate limitation on pay (equal to the
total annual compensation payable to
the Vice President under 3 U.S.C. 104)
applies to SES members in positions
covered by a certified senior executive
performance appraisal system. An
agency questioned whether a former
SES member may continue to retain the
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higher aggregate limitation on pay under
the authority provided in 5 U.S.C.
3392(c) and § 317.801(b) to retain SES
pay and benefits when he or she accepts
a Presidential appointment. In these
final regulations, we have amended
§ 317.801(b) to clarify that a former SES
member who chooses to retain SES
provisions related to basic pay,
performance awards, awarding of ranks,
severance pay, leave, and retirement
may also choose to retain the higher
aggregate limitation on pay that applied
to the employee.
Paid Leave While Performing
Uniformed Service
OPM proposed to amend § 353.208 to
permit an employee, upon request, to
use any accrued annual leave or military
leave while performing service with the
uniformed service, but not to use sick
leave. An agency objected to the
proposed change. The agency stated that
the use of sick leave during a period of
military service is a legitimate right of
an employee under the provisions and
intent of the Uniformed Services
Employment and Reemployment Rights
Act of 1994 (USERRA), (Public Law
103–353, October 13, 1994). We agree
and are not adopting the proposed
amendment. Section 353.208 will
continue to permit an employee
performing service in the uniformed
service to use sick leave, when
appropriate.
An agency recommended that OPM
permit an employee to use
compensatory time off earned in lieu of
overtime pay and earned credit hours
while performing uniformed service,
since they both provide paid time off.
We are not adopting this suggestion
because employees are entitled to
payment for unused compensatory time
off and credit hours only in certain
situations. We note that
§ 550.114(f)(2)(i) and § 551.531(f)(1)
require agencies to provide payment for
unused earned compensatory time off
when an employee is separated or
placed in a leave without pay status to
perform uniformed service.
We believe it would be appropriate to
allow an employee to use earned
compensatory time off for travel under
5 CFR part 550, subpart N, while
performing uniformed service because
an employee may not receive payment
for unused earned compensatory time
off for travel. (See 5 U.S.C. 5550b(b) and
§ 550.1408.) We have revised § 353.208
to permit an employee to use earned
compensatory time off for travel under
5 CFR part 550, subpart N, to perform
uniformed service.
Section 1106 of the National Defense
Authorization Act for Fiscal Year 2000
(Public Law 106–65, October 5, 1999)
amended 5 U.S.C. 6323(a)(1) to permit
an employee to use his or her
entitlement to 15 days of military leave
for ‘‘inactive duty training’’ (as defined
in section 101 of title 37, United States
Code) in addition to active duty and
active duty training. Consistent with
this statutory amendment, we proposed
to delete the last sentence of § 353.208,
which states an employee may not use
military leave for inactive duty training.
We did not receive any comments, and
therefore, have deleted the last sentence
in § 353.208 in these final regulations.
Time Limits for Using Earned
Compensatory Time Off
The consolidation of human resources
and payroll processing systems has
revealed varying discretionary policies
among agencies concerning time limits
for using compensatory time off earned
in lieu of overtime pay. These varying
policies have resulted in increased costs
for payroll providers to accommodate
the myriad of agency policies within
their systems and those increased costs
are passed on to the agencies. As part of
OPM’s effort to support the
consolidation of human resources and
payroll processing systems, we
proposed a standardized time limit of 26
pay periods for using compensatory
time off earned in lieu of overtime pay
that would be applied Governmentwide.
The 26-pay period time limit would be
applied to both employees not covered
by the FLSA (FLS-exempt) under
§ 550.114 and employees covered by the
FLSA (FLSA-nonexempt) under
§ 551.531. To assist in transitioning to
the new time limitation, we proposed to
provide an employee with unused
compensatory time off to his or her
credit on the effective date of the final
regulations 26 pay periods after the
effective date to use such compensatory
time off.
In § 550.114(d), we proposed to
provide agencies with discretionary
authority to provide payment to FLSAexempt employees for, or require
forfeiture of, compensatory time off that
is not used within the 26-pay period
time limit. The proposed regulations at
§ 550.114(d)(2) allowed that if an FLSAexempt employee is unable to take
earned compensatory time off within 26
pay periods due to an exigency of the
service beyond the employee’s control,
the agency must provide payment for
the unused compensatory time off at the
overtime rate in effect for the period
during which the compensatory time off
was earned. In addition, the proposed
regulations at § 550.114(e)(2)
(§ 550.114(f)(2) in the final regulations)
required that if an FLSA-exempt
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employee separates or goes on extended
leave without pay to perform service in
one of the uniformed services or
because of an on-the-job injury with
entitlement to injury compensation
under 5 U.S.C. chapter 81, the agency
must provide payment for the unused
compensatory time off at the overtime
rate in effect for the period during
which the compensatory time off was
earned.
In addition, to ensure consistent
treatment of affected employees, OPM
proposed amending § 551.531(d) to
require an FLSA-nonexempt employee
to use earned compensatory time off
within 26 pay periods. An FLSAnonexempt employee who fails to use
earned compensatory time off earned
within 26 pay periods or who separates
or transfers from the agency before the
earned compensatory time off is used,
must be paid for the unused
compensatory time off at the overtime
rate in effect for the period during
which the compensatory time off was
earned. The proposed regulations at
§ 551.531(e) (§ 551.531(f) in the final
regulations) also required that, if an
FLSA-nonexempt employee is placed on
leave without pay to perform service in
the uniformed services or because of an
on-the-job injury with entitlement to
injury compensation under 5 U.S.C.
chapter 81, the agency must provide
payment for the unused compensatory
time off at the overtime rate in effect for
the period during which the
compensatory time off was earned.
One agency recommended a shorter
time limitation—e.g., 13 pay periods—
for using compensatory time off earned
in lieu of overtime pay. An individual
opposed the limitation of 26 pay
periods. The two labor organizations
opposed providing agencies with
discretionary authority to determine
whether an FLSA-exempt employee
must forfeit or receive payment for
unused compensatory time off. One
labor organization recommended
expanding the circumstances in which
an employee must receive payment for
unused compensatory time off to
include reduction in force (RIF)
situations. The other labor organization
believed FLSA-exempt employees
should receive payment for
compensatory time off not used within
26 pay periods or be given additional
time to use the compensatory time off.
We disagree with these
recommendations. Unlike FLSAnonexempt employees, who have a
statutory entitlement to receive payment
for unused compensatory time off,
FLSA-exempt employees do not have
any such statutory entitlement.
Legislation is needed to provide FLSA-
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exempt employees with an entitlement
to receive payment for unused
compensatory time off. In addition,
requiring agencies to provide payment
for unused compensatory time off to
FLSA-exempt employees would
significantly increase costs for Federal
agencies. Finally, we believe 26 pay
periods is sufficient time for most
employees to use their earned
compensatory time off. We note that
§ 550.114(d)(2) requires agencies to
provide payment for compensatory time
off if an employee’s failure to use his or
her earned compensatory time off is due
to an exigency of the service beyond the
employee’s control.
An agency was concerned that a
‘‘rolling’’ 26-pay period time limit
would be an administrative burden for
agencies to track. Another agency
suggested using a fixed yearly date for
employees to use earned compensatory
time off because it would provide for
easier tracking and monitoring. We are
not adopting these suggestions. We
believe most agencies already impose on
employees a ‘‘rolling’’ time limit for
using earned compensatory time off.
Therefore, the proposed regulations
would not impose an additional
administrative burden on the agencies.
A fixed yearly date for using earned
compensatory time off would result in
providing varying lengths of time for
individual employees to use earned
compensatory time off, depending on
when the employee earned the
compensatory time off. We believe
imposing a time limit of 26 pay periods
within which to use earned
compensatory time off results in fair and
equitable treatment of affected
employees and supports our goal of
standardizing pay policies. Employees
will all have the same number of pay
periods within which they must use
their earned compensatory time off. We
are adopting the revised regulations in
§ 550.114(d) and (f) and § 551.531(f) as
final.
Two agencies disagreed with
proposed § 550.114(d), which would
give an employee with unused
compensatory time off to his or her
credit as of the effective date of the final
regulations 26 pay periods after the
effective date of the final regulations to
use the compensatory time off. One
agency suggested providing agencies
with discretionary authority to extend
the time limitation for using earned
compensatory time off for employees
who have been unable to use earned
compensatory time off prior to the
effective date of the final regulations
because of work requirements or
scheduling conflicts. Another agency is
concerned that the proposed rule would
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have major budgetary implications if the
agency’s policy were to provide
payment for unused compensatory time
off and employees are unable to use
their earned compensatory time off
within 26 pay periods after the effective
date of the final regulations. The agency
suggested that employees who have
compensatory time off to their credit as
of the effective date of the final
regulations be given a minimum of 3
years to use the compensatory time off.
We agree and have added a new
paragraph (e) to § 550.114 and § 551.531
of the final regulations to allow an
employee who has compensatory time
off to his or her credit as of the effective
date of the final regulations at least 3
years to use the earned compensatory
time off.
One agency suggested revising the
proposed regulations to require an
employee to use earned compensatory
time off within 26 pay periods after the
pay period during which it was earned.
The agency suggested beginning the 26pay period time limit after the pay
period during which it was earned will
ensure standardized recordkeeping and
tracking. We agree and have revised
§ 550.114(d) and § 551.531(d) to require
that compensatory time off that is not
used within 26 pay periods after the pay
period during which it was earned must
be paid by the agency or forfeited by the
employee.
An agency noted that proposed
§ 550.114(e)(1) addresses the treatment
of compensatory time off when an
employee either transfers or separates
from an agency, while § 551.531(d)
addresses the treatment of
compensatory time off only when an
employee separates from an agency. To
remedy this, we have revised
§ 551.531(d) to address the treatment of
compensatory time off when an
employee transfers to a different agency.
Finally, we are redesignating
§ 551.531(e) as § 551.531(g), and
correcting new paragraph (g) by deleting
language that states the value of
compensatory time off for FLSAnonexempt employees is considered in
applying pay limitations. Compensatory
time off for FLSA-nonexempt employees
should not be considered in applying
the biweekly or annual premium pay
limitations established under 5 U.S.C.
5547 or the aggregate limitation on pay
established under 5 U.S.C. 5307. In
addition, we are correcting a citation in
§§ 550.112(j)(1) and 551.422(d) from
‘‘(41 CFR 301–1.3(c)(4))’’ to ‘‘(41 CFR
300–3.1),’’ which references the
definition of official station in the
General Services Administration’s
Federal Travel Regulations.
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An individual requested clarification
of the terms irregular or occasional
overtime work in relationship to earning
compensatory time off. As defined in
§ 550.103, irregular or occasional
overtime work means overtime work
that is not part of an employee’s
regularly scheduled administrative
workweek (i.e., the period within an
administrative workweek in which an
employee is regularly scheduled to
work).
Other Miscellaneous Changes
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Lump-Sum Payments for Annual Leave
The regulations governing lump-sum
payments for accumulated and accrued
annual leave for employees who
separate from Federal service in 5 CFR
550, subpart L, have been revised to
ensure consistency with the guidance
provided in the OPM Operating Manual
on the Federal Wage System. The
revised regulations ensure that a lumpsum payment for employees who work
a regular rotating schedule involving
work on both day and night shifts is
calculated as if the employee had
continued to work beyond the effective
date of separation. An agency asked that
we clarify what is meant by ‘‘work
beyond the effective date of separation.’’
Another agency requested clarification
in determining whether a lump-sum
payment should be extended to the end
of an employee’s last scheduled shift.
Under 5 U.S.C. 5551, a lump-sum
payment must equal the pay an
employee would have received had he
or she remained in Federal service until
expiration of the period of annual leave.
Agencies must project a lump-sum
period to include any accumulated and
accrued annual leave to the employee’s
credit, as of the date of separation. The
lump-sum leave period is the
employee’s annual leave projected
forward for all workdays the employee
would have worked if he or she had
remained in Federal service, including
holidays (even though they are typically
nonworkdays) as required by 5 U.S.C.
5551(a), until the expiration of the
employee’s accumulated and accrued
annual leave. The final regulations in
§ 550.1205(b)(5) state that a night
differential is payable for that portion of
the lump-sum period that would have
occurred when the employee was
scheduled to work night shifts. The
lump-sum period extends only through
the last hour of annual leave.
Restriction on Paying Sunday Premium
Pay
Section 636 of the Treasury and
General Government Appropriations
Act, 1998 (Public Law 105–61, October
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10, 1997), permanently restricted the
payment of Sunday premium pay for all
employees Governmentwide who are
paid from appropriated funds and who
do not actually perform work on
Sunday. Section 624 of the Treasury and
General Government Appropriations
Act, 1999 (Public Law 105–277, October
21, 1998), expanded the permanent
restriction on the payment of Sunday
premium pay to cover employees who
are paid from any Act (including
payments from revolving funds). These
provisions effectively prohibit the
payment of Sunday premium pay to
employees during any period when no
work is performed. This includes
holidays, periods of paid leave, excused
absence (administrative leave),
compensatory time off, credit hours, or
time off as an incentive or performance
award. The restriction covers employees
who are paid from any Act, including
payments from revolving funds.
Consistent with this permanent legal
restriction, we have revised § 550.171(a)
by deleting language stating that Sunday
premium pay is paid during periods of
paid leave or excused absence. We also
will revise our guidance on payment of
Sunday premium pay during periods of
paid leave in the OPM Operating
Manual for the Federal Wage System.
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 would
not have a significant economic impact
on a substantial number of small entities
because they would apply only to
Federal agencies and employees.
List of Subjects in 5 CFR Parts 317, 353,
550, and 551
Administrative practice and
procedure, Claims, Government
employees, Law enforcement officers,
Reporting and recordkeeping
requirements, Wages.
Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM amends parts 317,
353, 550, and 551 of title 5 of the Code
of Federal Regulations to read as
follows:
I
PART 317—EMPLOYMENT IN THE
SENIOR EXECUTIVE SERVICE
1. The authority citation for part 317
continues to read as follows:
I
Authority: 5 U.S.C. 3392, 3393, 3395, 3397,
3592, 3593, 3595, 3596, 8414, and 8421.
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12035
Subpart H—Retention of SES
Provisions
2. In § 317.801, paragraph (b)(1) is
revised to read as follows:
*
*
*
*
*
(b) Election. (1) At the time of
appointment, an appointee covered by
paragraph (a) of this section may elect
to retain some, all, or none of the
following SES provisions related to
basic pay (including the aggregate
limitation on pay established by 5
U.S.C. 5307), performance awards,
awarding of ranks, severance pay, leave,
and retirement. That election will
remain in effect for no less than 1 year,
unless the appointee leaves the position
sooner.
*
*
*
*
*
I
PART 353—RESTORATION TO DUTY
FROM UNIFORMED SERVICE OR
COMPENSABLE INJURY
3. The authority citation for part 353
continues to read as follows:
I
Authority: 38 U.S.C. 4301 et. seq., and 5
U.S.C. 8151
Subpart B—Uniformed Service
4. Section 353.208 is revised to read
as follows:
I
§ 353.208 Use of paid leave during
uniformed service.
An employee performing service with
the uniformed services must be
permitted, upon request, to use any
accrued annual leave under 5 U.S.C.
6304, military leave under 5 U.S.C.
6323, or earned compensatory time off
for travel under 5 U.S.C. 5550b during
such service.
PART 550—PAY ADMINISTRATION
(GENERAL)
Subpart A—Premium Pay
5. The authority citation for subpart A
continues to read as follows:
I
Authority: 5 U.S.C. 5304 note, 5305 note,
5504(d), 5541(2)(iv), 5545a(h)(2)(B) and (i),
5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105–277, 112 Stat.
2681–101 and 2681–828 (5 U.S.C. 5545a);
E.O. 12748, 3 CFR, 1992 Comp., p. 316.
§ 550.112
[Amended]
6. In § 550.112(j)(1), remove the
citation ‘‘(41 CFR 301–1.3(c)(4))’’ and
add in its place ‘‘(41 CFR 300–3.1).’’
I
7. In § 550.114, paragraph (d) is
revised, paragraph (e) is redesignated as
paragraph (g), and new paragraphs (e)
and (f) are added to read as follows:
I
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§ 550.114
Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations
Compensatory time off.
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*
(d) Except as provided in paragraph
(f)(2) of this section, an employee must
use accrued compensatory time off to
which he or she is entitled under
paragraph (a) or (b) of this section by the
end of the 26th pay period after the pay
period during which it was earned. The
head of an agency, at his or her sole and
exclusive discretion, may provide that
an employee who fails to take
compensatory time off to which he or
she is entitled within 26 pay periods
after the pay period during which it was
earned must—
(1) Receive payment for such unused
compensatory time off at the dollar
value prescribed in paragraph (g) of this
section; or
(2) Forfeit the unused compensatory
time off, unless the failure to take the
compensatory time off is due to an
exigency of the service beyond the
employee’s control, in which case the
agency head must provide payment for
the unused compensatory time off at the
dollar value prescribed in paragraph (g)
of this section.
(e) Except as provided in paragraph
(f)(2) of this section, compensatory time
off to an employee’s credit as of May 14,
2007 must be used by the end of the pay
period ending 3 years after May 14,
2007. The head of an agency, at his or
her sole and exclusive discretion, may
provide that an employee who fails to
take compensatory time off to which he
or she is entitled by the end of the pay
period ending 3 years after May 14,
2007 must—
(1) Receive payment for such unused
compensatory time off at the dollar
value prescribed in paragraph (g) of this
section; or
(2) Forfeit the unused compensatory
time off, unless the failure to take the
compensatory time off is due to an
exigency of the service beyond the
employee’s control, in which case the
agency head must provide payment for
the unused compensatory time off at the
dollar value prescribed in paragraph (g)
of this section.
(f)(1) Except as provided in paragraph
(f)(2) of this section, an employee with
unused compensatory time off under
paragraph (a) or (b) of this section who
transfers to another agency or separates
from Federal service before the
expiration of the time limit established
under paragraphs (d) or (e) of this
section may receive overtime pay or
forfeit the unused compensatory time
off, consistent with the employing
agency’s policy established under
paragraphs (d) and (e) of this section.
(2) If an employee with unused
compensatory time off under paragraph
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14:08 Mar 14, 2007
Jkt 211001
(a) or (b) of this section separates from
Federal service or is placed in a leave
without pay status under the following
circumstances, the employee must be
paid for unused compensatory time off
at the dollar value prescribed in
paragraph (g) of this section:
(i) The employee separates or is
placed in a leave without pay status to
perform service in the uniformed
services (as defined in 38 U.S.C. 4303
and § 353.102); or
(ii) The employee separates or is
placed in a leave without pay status
because of an on-the-job injury with
entitlement to injury compensation
under 5 U.S.C. chapter 81.
*
*
*
*
*
I 8. In § 550.171, paragraph (a) is
revised to read as follows:
§ 550.171
work.
Authorization of pay for Sunday
(a) A full-time employee is entitled to
pay at his or her rate of basic pay plus
premium pay at a rate equal to 25
percent of his or her rate of basic pay
for each hour of Sunday work (as
defined in § 550.103).
*
*
*
*
*
Subpart L—Lump-Sum Payment for
Accumulated and Accrued Annual
Leave
9. The authority citation for subpart L
continues to read as follows:
I
Authority: 5 U.S.C. 5553, 6306, and 6311.
10. In § 550.1205, revise paragraph
(b)(5)(i) and paragraph (g) to read as
follows:
I
§ 550.1205.
payment.
Calculating a lump-sum
*
*
*
*
*
(b) * * *
(5) * * *
(i) Night differential under 5 U.S.C.
5343(f) at the applicable percentage rate
received by a prevailing rate employee
for all regularly scheduled periods of
night shift duty covered by the unused
annual leave as if the employee had
continued to work beyond the effective
date of separation, death, or transfer. In
the case of an employee who is assigned
to a regular rotating schedule involving
work on both day and night shifts, the
night differential is payable for that
portion of the lump-sum period that
would have occurred when the
employee was scheduled to work night
shifts.
*
*
*
*
*
(g) For a reemployed annuitant who
becomes eligible for a lump-sum
payment under § 550.1203, the agency
must compute the lump-sum payment
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
using the annuitant’s pay before any
reductions required under § 837.303 of
this chapter.
*
*
*
*
*
PART 551—PAY ADMINISTRATION
UNDER THE FAIR LABOR
STANDARDS ACT
11. The authority citation for part 551
continues to read as follows:
I
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the
Fair Labor Standards Act of 1938, as
amended by Pub. L. 93–259, 88 Stat. 55 (29
U.S.C. 204f).
Subpart D—Hours of Work
§ 551.422
[Amended]
12. In § 551.422(d), remove the
citation ‘‘(41 CFR 301–1.3(c)(4))’’ and
add in its place ‘‘(41 CFR 300–3.1).’’
I
Subpart E—Overtime Pay Provisions
13. In § 551.531, paragraph (d) is
revised, paragraph (e) is revised and
redesignated as paragraph (g), and new
paragraphs (e) and (f) are added to read
as follows:
I
§ 551.531
Compensatory time off.
*
*
*
*
*
(d) If compensatory time off earned
under paragraph (a) or (b) of this section
is not taken within 26 pay periods after
the pay period during which it was
earned or if the employee transfers or
separates from an agency before using
the compensatory time, the employee
must be paid for overtime work at the
dollar value prescribed in paragraph (g)
of this section.
(e) Compensatory time off to an
employee’s credit as of May 14, 2007
must be used by the end of the pay
period ending 3 years after May 14,
2007. If the earned compensatory time
off is not taken by the end of the pay
period ending 3 years after May 14,
2007, the employee must be paid for
overtime work at the dollar value
prescribed in paragraph (g) of this
section.
(f) If an employee with unused
compensatory time off under paragraphs
(a), (b), or (e) of this section separates
from Federal service or is placed in a
leave without pay status under the
following circumstances, the employee
must be paid for overtime work at the
overtime rate at the dollar value
prescribed in paragraph (g) of this
section:
(1) The employee is separated or
placed in a leave without pay status to
perform service in the uniformed
services (as defined in 38 U.S.C. 4303
and § 353.102); or
E:\FR\FM\15MRR1.SGM
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Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations
(2) The employee is separated or
placed in a leave without pay status
because of an on-the-job injury with
entitlement to injury compensation
under 5 U.S.C. chapter 81.
(g) The dollar value of compensatory
time off when it is liquidated is the
amount of overtime pay the employee
otherwise would have received for
hours of the pay period during which
compensatory time off was earned by
performing overtime work.
*
*
*
*
*
[FR Doc. E7–4696 Filed 3–14–07; 8:45 am]
BILLING CODE 6325–39–P
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 875
RIN 3206–AK99
Federal Long Term Care Insurance
Program: Miscellaneous Changes,
Corrections, and Clarifications
Office of Personnel
Management.
ACTION: Final regulation.
rmajette on PROD1PC67 with RULES
AGENCY:
SUMMARY: The Office of Personnel
Management (OPM) is issuing a final
rule to make miscellaneous changes,
corrections, and clarifications to the
Federal Long Term Care Insurance
Program (FLTCIP) regulations.
DATES: Effective Date: April 16, 2007.
FOR FURTHER INFORMATION CONTACT:
Edward M. DeHarde, Center for
Employee and Family Support Policy,
Strategic Human Resources Policy
Division, Office of Personnel
Management, 1900 E Street, NW.,
Washington, DC 20415; or call him at
202–606–0004.
SUPPLEMENTARY INFORMATION: The
current FLTCIP regulations were
published in the Federal Register at 70
FR 30605, May 27, 2005. In those
regulations OPM replaced references to
‘‘Federal civilian and Postal employees
and members of the uniformed services’’
with ‘‘active workforce member’’ in
several places. We are making a similar
change in two additional places:
§ 875.405 and § 875.410. We are also
correcting a section reference in
§ 875.209 of the previously published
regulations.
In addition, § 875.408 of the FLTCIP
regulations discusses incontestability, a
provision that allows coverage based on
an erroneous application to continue
under certain circumstances. The
FLTCIP contractor often doesn’t learn
that coverage is based on an erroneous
application until someone files a claim,
VerDate Aug<31>2005
16:47 Mar 14, 2007
Jkt 211001
and the contractor becomes aware that
the information on the individual’s
application differed from what is shown
in the individual’s medical records. If
the erroneous coverage has been in
effect less than two years, or if the
application contained knowingly false
or misleading information, the
contractor may rescind (void) the
coverage and refund the individual’s
premiums. Section 875.104 of the
FLTCIP regulations contains procedures
for resolving disputes concerning
eligibility for benefits and payment of
claims. These final regulations clarify
that the claims dispute procedures
apply only to persons who have valid
coverage under the Program. They do
not apply to individuals whose
erroneous coverage is rescinded.
A proposed rule was published to
amend 5 CFR part 875 in the Federal
Register at 71 FR 19459, April 14, 2006.
OPM requested comments by June 13,
2006. We received one comment by that
date, from an FLTCIP enrollee. The
issues raised by this commenter are
discussed below.
The commenter did not address the
miscellaneous changes, corrections, and
clarifications that were contained in the
proposed regulation. Instead, the
commenter suggested that OPM should
specifically list in the regulations which
injuries qualify for coverage under
FLTCIP to ensure that enrollees with
similar injuries receive similar coverage.
The comment received is beyond the
scope of the proposed change to FLTCIP
regulations. In addition, coverage under
FLTCIP is not based on an enrollee’s
injury or medical diagnosis; it is based
on an enrollee’s established inability to
perform defined activities of daily living
or an enrollee’s severe cognitive
impairment. Therefore, for the reasons
supplied in the proposed rule, the
proposed rule amending 5 CFR part 875
which was published in the Federal
Register at 71 FR 19459, April 14, 2006,
is adopted as a final rule without
change.
Executive Order 12866, Regulatory
Review
This rule has been reviewed by the
Office of Management and Budget 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 affect only enrollees in the
Federal Long Term Care Insurance
Program.
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
12037
List of Subjects in 5 CFR Part 875
Administrative practices and
procedures, Employee benefit plans,
Government contracts, Government
employees, Health insurance, Military
personnel, Retirement.
Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM is amending 5 CFR
part 875, as follows:
I
PART 875—FEDERAL LONG TERM
CARE INSURANCE PROGRAM
1. The authority citation for 5 CFR
part 875 continues to read as follows:
I
Authority: Authority: 5 U.S.C. 9008.
2. In § 875.104 add paragraph (f) to
read as follows:
I
§ 875.104 What are the steps required to
resolve a dispute involving benefit eligibility
or payment of a claim?
*
*
*
*
*
(f) The procedures described in
paragraphs (a), (b), (c), (d), and (e) of
this section apply only if you have valid
coverage under the FLTCIP. If the
Carrier determines that your coverage
was based on an erroneous application
and voids the coverage as described in
§ 875.408 of this part, these provisions
do not apply. The Carrier will provide
you with information on your review
rights in its rescission letter (letter
voiding your coverage).
3. In § 875.209 revise the last sentence
of paragraph (b) to read as follows:
I
§ 875.209 How do I demonstrate that I am
eligible to apply for coverage?
*
*
*
*
*
(b) * * * The incontestability
provisions in § 875.408 do not apply to
this section.
4. In § 875.405 revise the first
sentence of paragraph (a)(1) to read as
follows:
I
§ 875.405 If I marry, may my new spouse
apply for coverage?
(a)(1) If you are an active workforce
member and you have married, your
spouse is eligible to submit an
application for coverage under this
section within 60 days from the date of
your marriage and will be subject to the
underwriting requirements in force for
the spouses of active workforce
members during the most recent open
season. * * *
*
*
*
*
*
5. In § 875.408 revise paragraph (a) to
read as follows:
I
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]]>Agencies
[Federal Register Volume 72, Number 50 (Thursday, March 15, 2007)]
[Rules and Regulations]
[Pages 12032-12037]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-4696]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PARTS 317, 353, 550, and 551
RIN 3206-AL21
Employment in the Senior Executive Service, Restoration To Duty
From Uniformed Service or Compensable Injury, Pay Administration
(General), and Pay Administration Under the Fair Labor Standards Act;
Miscellaneous Changes to Pay and Leave Rules
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing final
regulations to amend a number of rules on pay and leave administration,
including employment in the Senior Executive Service, use of paid leave
during uniformed service, time limits for using compensatory time off
earned in lieu of overtime pay, and other miscellaneous changes. The
final regulations are being issued to standardize pay and leave
policies in support of the consolidation of agency human resources and
payroll systems.
DATES: The regulations are effective on May 14, 2007.
FOR FURTHER INFORMATION CONTACT: Sharon Dobson by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-
policy@opm.gov.
SUPPLEMENTARY INFORMATION: On January 5, 2005, the Office of Personnel
Management (OPM) issued a comprehensive package of proposed regulations
on Restoration to Duty From Uniformed Service or Compensable Injury;
Payrates and Systems (General); Pay Under the General Schedule; Pay
Administration (General); Pay Administration Under the Fair Labor
Standards Act; Recruitment and Relocation Bonuses; Retention
Allowances; Supervisory Differentials; Hours of Duty; and Absence and
Leave (70 FR 1068). The proposed regulations are available at https://
www.opm.gov/fedregis. The 60-day comment period ended on March 7, 2005.
We received a total of 93 comments on the proposed regulations.
In these final regulations, we are addressing the revisions to
rules concerning the retention of pay and benefits for a Senior
Executive Service (SES) member who accepts a Presidential appointment,
use of paid leave during uniformed service, time limits for using
compensatory time off earned in lieu of overtime pay, and other
miscellaneous rules. We have already published regulations for some of
the subject areas included in the January 2005 proposed regulations in
separate issuances in the Federal Register. Comments received on the
proposed changes to the rules on Adjustments of Work Schedules for
Religious Observances, Hours of Duty, and Absence and Leave will be
addressed in subsequent issuances in the Federal Register.
Except as otherwise stated in this supplementary information, the
purpose of the revisions in these final regulations is to standardize
pay and leave policies in support of the consolidation of agency human
resources and payroll systems and in general to aid agencies in the
administration of these programs. All revisions are being made to
regulations in title 5, Code of Federal Regulations.
Regulations Already Issued
Some of the changes included in the January 2005 proposed
regulations have already been addressed in subsequent regulations
issued by OPM on May 13, 2005, May 31, 2005, and August 17, 2006, as
discussed below.
The January 2005 regulations proposed to amend the definition of
rate of basic pay in Sec. Sec. 575.103, 575.203, and 575.303 to
clarify that night pay and environmental differential pay under the
Federal Wage System are not included in the rate of basic pay for the
purposes of recruitment, relocation, and retention incentives. The
amended definition of rate of basic pay for the purpose of recruitment,
relocation, and retention incentives was included in OPM's interim
regulations issued on May 13, 2005, for recruitment, relocation, and
retention incentives (70 FR 25732). The interim regulations are
available at https://www.opm.gov/fedregis.
The January 2005 regulations proposed to add a new Sec. 531.605 to
define the requirements for determining an employee's official worksite
for the purpose of identifying an employee's location-based pay
entitlements, including locality rates and special
[[Page 12033]]
rates. The proposed regulations also addressed official worksite
determinations for employees temporarily working at other locations and
teleworking from an alternative worksite. The comments OPM received on
proposed Sec. 531.605 were addressed and changes made as an interim
rule on May 31, 2005 (70 FR 31278). The interim regulations are
available at https://www.opm.gov/fedregis. Section 531.605 was again
revised in interim regulations issued on August 17, 2006, to clarify
the rules for determining an employee's official worksite when he or
she teleworks from an alternative worksite during an emergency
situation, such as a pandemic health crisis (71 FR 47692). The interim
regulations are available on OPM's Web site at https://www.opm.gov/
fedregis.
Finally, the January 2005 regulations proposed to amend 5 CFR part
630, subpart D, concerning the use of sick leave for family care or
bereavement purposes. The regulations proposed, among other changes,
removing the requirement that a full-time employee must maintain 80
hours of sick leave in his or her sick leave account to use up to 104
hours (13 workdays) of his or her sick leave for general family care or
bereavement purposes and up to 480 hours (12 workweeks) of sick leave
to care for a family member with a serious health condition. The
comments OPM received on the proposed amendments to 5 CFR part 630,
subpart D, were addressed and changes made as a final rule on August
17, 2006 (71 FR 47693). The final regulations on sick leave are
available at https://www.opm.gov/fedregis.
Final Regulations in This Issuance
In this issuance, the final regulations address the changes made to
the rules on employment in the Senior Executive Service, use of paid
leave during uniformed service, time limits for using compensatory time
off earned in lieu of overtime pay, and other miscellaneous changes.
For these subject areas, we received 29 comments on the January 2005
proposed regulations--20 from agencies, 6 from individuals, 2 from
Federal labor unions, and 1 from a Federal employee association.
Senior Executive Service
Under 5 U.S.C. 5307(d), a higher aggregate limitation on pay (equal
to the total annual compensation payable to the Vice President under 3
U.S.C. 104) applies to SES members in positions covered by a certified
senior executive performance appraisal system. An agency questioned
whether a former SES member may continue to retain the higher aggregate
limitation on pay under the authority provided in 5 U.S.C. 3392(c) and
Sec. 317.801(b) to retain SES pay and benefits when he or she accepts
a Presidential appointment. In these final regulations, we have amended
Sec. 317.801(b) to clarify that a former SES member who chooses to
retain SES provisions related to basic pay, performance awards,
awarding of ranks, severance pay, leave, and retirement may also choose
to retain the higher aggregate limitation on pay that applied to the
employee.
Paid Leave While Performing Uniformed Service
OPM proposed to amend Sec. 353.208 to permit an employee, upon
request, to use any accrued annual leave or military leave while
performing service with the uniformed service, but not to use sick
leave. An agency objected to the proposed change. The agency stated
that the use of sick leave during a period of military service is a
legitimate right of an employee under the provisions and intent of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), (Public Law 103-353, October 13, 1994). We agree and are not
adopting the proposed amendment. Section 353.208 will continue to
permit an employee performing service in the uniformed service to use
sick leave, when appropriate.
An agency recommended that OPM permit an employee to use
compensatory time off earned in lieu of overtime pay and earned credit
hours while performing uniformed service, since they both provide paid
time off. We are not adopting this suggestion because employees are
entitled to payment for unused compensatory time off and credit hours
only in certain situations. We note that Sec. 550.114(f)(2)(i) and
Sec. 551.531(f)(1) require agencies to provide payment for unused
earned compensatory time off when an employee is separated or placed in
a leave without pay status to perform uniformed service.
We believe it would be appropriate to allow an employee to use
earned compensatory time off for travel under 5 CFR part 550, subpart
N, while performing uniformed service because an employee may not
receive payment for unused earned compensatory time off for travel.
(See 5 U.S.C. 5550b(b) and Sec. 550.1408.) We have revised Sec.
353.208 to permit an employee to use earned compensatory time off for
travel under 5 CFR part 550, subpart N, to perform uniformed service.
Section 1106 of the National Defense Authorization Act for Fiscal
Year 2000 (Public Law 106-65, October 5, 1999) amended 5 U.S.C.
6323(a)(1) to permit an employee to use his or her entitlement to 15
days of military leave for ``inactive duty training'' (as defined in
section 101 of title 37, United States Code) in addition to active duty
and active duty training. Consistent with this statutory amendment, we
proposed to delete the last sentence of Sec. 353.208, which states an
employee may not use military leave for inactive duty training. We did
not receive any comments, and therefore, have deleted the last sentence
in Sec. 353.208 in these final regulations.
Time Limits for Using Earned Compensatory Time Off
The consolidation of human resources and payroll processing systems
has revealed varying discretionary policies among agencies concerning
time limits for using compensatory time off earned in lieu of overtime
pay. These varying policies have resulted in increased costs for
payroll providers to accommodate the myriad of agency policies within
their systems and those increased costs are passed on to the agencies.
As part of OPM's effort to support the consolidation of human resources
and payroll processing systems, we proposed a standardized time limit
of 26 pay periods for using compensatory time off earned in lieu of
overtime pay that would be applied Governmentwide. The 26-pay period
time limit would be applied to both employees not covered by the FLSA
(FLS-exempt) under Sec. 550.114 and employees covered by the FLSA
(FLSA-nonexempt) under Sec. 551.531. To assist in transitioning to the
new time limitation, we proposed to provide an employee with unused
compensatory time off to his or her credit on the effective date of the
final regulations 26 pay periods after the effective date to use such
compensatory time off.
In Sec. 550.114(d), we proposed to provide agencies with
discretionary authority to provide payment to FLSA-exempt employees
for, or require forfeiture of, compensatory time off that is not used
within the 26-pay period time limit. The proposed regulations at Sec.
550.114(d)(2) allowed that if an FLSA-exempt employee is unable to take
earned compensatory time off within 26 pay periods due to an exigency
of the service beyond the employee's control, the agency must provide
payment for the unused compensatory time off at the overtime rate in
effect for the period during which the compensatory time off was
earned. In addition, the proposed regulations at Sec. 550.114(e)(2)
(Sec. 550.114(f)(2) in the final regulations) required that if an
FLSA-exempt
[[Page 12034]]
employee separates or goes on extended leave without pay to perform
service in one of the uniformed services or because of an on-the-job
injury with entitlement to injury compensation under 5 U.S.C. chapter
81, the agency must provide payment for the unused compensatory time
off at the overtime rate in effect for the period during which the
compensatory time off was earned.
In addition, to ensure consistent treatment of affected employees,
OPM proposed amending Sec. 551.531(d) to require an FLSA-nonexempt
employee to use earned compensatory time off within 26 pay periods. An
FLSA-nonexempt employee who fails to use earned compensatory time off
earned within 26 pay periods or who separates or transfers from the
agency before the earned compensatory time off is used, must be paid
for the unused compensatory time off at the overtime rate in effect for
the period during which the compensatory time off was earned. The
proposed regulations at Sec. 551.531(e) (Sec. 551.531(f) in the final
regulations) also required that, if an FLSA-nonexempt employee is
placed on leave without pay to perform service in the uniformed
services or because of an on-the-job injury with entitlement to injury
compensation under 5 U.S.C. chapter 81, the agency must provide payment
for the unused compensatory time off at the overtime rate in effect for
the period during which the compensatory time off was earned.
One agency recommended a shorter time limitation--e.g., 13 pay
periods--for using compensatory time off earned in lieu of overtime
pay. An individual opposed the limitation of 26 pay periods. The two
labor organizations opposed providing agencies with discretionary
authority to determine whether an FLSA-exempt employee must forfeit or
receive payment for unused compensatory time off. One labor
organization recommended expanding the circumstances in which an
employee must receive payment for unused compensatory time off to
include reduction in force (RIF) situations. The other labor
organization believed FLSA-exempt employees should receive payment for
compensatory time off not used within 26 pay periods or be given
additional time to use the compensatory time off.
We disagree with these recommendations. Unlike FLSA-nonexempt
employees, who have a statutory entitlement to receive payment for
unused compensatory time off, FLSA-exempt employees do not have any
such statutory entitlement. Legislation is needed to provide FLSA-
exempt employees with an entitlement to receive payment for unused
compensatory time off. In addition, requiring agencies to provide
payment for unused compensatory time off to FLSA-exempt employees would
significantly increase costs for Federal agencies. Finally, we believe
26 pay periods is sufficient time for most employees to use their
earned compensatory time off. We note that Sec. 550.114(d)(2) requires
agencies to provide payment for compensatory time off if an employee's
failure to use his or her earned compensatory time off is due to an
exigency of the service beyond the employee's control.
An agency was concerned that a ``rolling'' 26-pay period time limit
would be an administrative burden for agencies to track. Another agency
suggested using a fixed yearly date for employees to use earned
compensatory time off because it would provide for easier tracking and
monitoring. We are not adopting these suggestions. We believe most
agencies already impose on employees a ``rolling'' time limit for using
earned compensatory time off. Therefore, the proposed regulations would
not impose an additional administrative burden on the agencies. A fixed
yearly date for using earned compensatory time off would result in
providing varying lengths of time for individual employees to use
earned compensatory time off, depending on when the employee earned the
compensatory time off. We believe imposing a time limit of 26 pay
periods within which to use earned compensatory time off results in
fair and equitable treatment of affected employees and supports our
goal of standardizing pay policies. Employees will all have the same
number of pay periods within which they must use their earned
compensatory time off. We are adopting the revised regulations in Sec.
550.114(d) and (f) and Sec. 551.531(f) as final.
Two agencies disagreed with proposed Sec. 550.114(d), which would
give an employee with unused compensatory time off to his or her credit
as of the effective date of the final regulations 26 pay periods after
the effective date of the final regulations to use the compensatory
time off. One agency suggested providing agencies with discretionary
authority to extend the time limitation for using earned compensatory
time off for employees who have been unable to use earned compensatory
time off prior to the effective date of the final regulations because
of work requirements or scheduling conflicts. Another agency is
concerned that the proposed rule would have major budgetary
implications if the agency's policy were to provide payment for unused
compensatory time off and employees are unable to use their earned
compensatory time off within 26 pay periods after the effective date of
the final regulations. The agency suggested that employees who have
compensatory time off to their credit as of the effective date of the
final regulations be given a minimum of 3 years to use the compensatory
time off. We agree and have added a new paragraph (e) to Sec. 550.114
and Sec. 551.531 of the final regulations to allow an employee who has
compensatory time off to his or her credit as of the effective date of
the final regulations at least 3 years to use the earned compensatory
time off.
One agency suggested revising the proposed regulations to require
an employee to use earned compensatory time off within 26 pay periods
after the pay period during which it was earned. The agency suggested
beginning the 26-pay period time limit after the pay period during
which it was earned will ensure standardized recordkeeping and
tracking. We agree and have revised Sec. 550.114(d) and Sec.
551.531(d) to require that compensatory time off that is not used
within 26 pay periods after the pay period during which it was earned
must be paid by the agency or forfeited by the employee.
An agency noted that proposed Sec. 550.114(e)(1) addresses the
treatment of compensatory time off when an employee either transfers or
separates from an agency, while Sec. 551.531(d) addresses the
treatment of compensatory time off only when an employee separates from
an agency. To remedy this, we have revised Sec. 551.531(d) to address
the treatment of compensatory time off when an employee transfers to a
different agency.
Finally, we are redesignating Sec. 551.531(e) as Sec. 551.531(g),
and correcting new paragraph (g) by deleting language that states the
value of compensatory time off for FLSA-nonexempt employees is
considered in applying pay limitations. Compensatory time off for FLSA-
nonexempt employees should not be considered in applying the biweekly
or annual premium pay limitations established under 5 U.S.C. 5547 or
the aggregate limitation on pay established under 5 U.S.C. 5307. In
addition, we are correcting a citation in Sec. Sec. 550.112(j)(1) and
551.422(d) from ``(41 CFR 301-1.3(c)(4))'' to ``(41 CFR 300-3.1),''
which references the definition of official station in the General
Services Administration's Federal Travel Regulations.
[[Page 12035]]
An individual requested clarification of the terms irregular or
occasional overtime work in relationship to earning compensatory time
off. As defined in Sec. 550.103, irregular or occasional overtime work
means overtime work that is not part of an employee's regularly
scheduled administrative workweek (i.e., the period within an
administrative workweek in which an employee is regularly scheduled to
work).
Other Miscellaneous Changes
Lump-Sum Payments for Annual Leave
The regulations governing lump-sum payments for accumulated and
accrued annual leave for employees who separate from Federal service in
5 CFR 550, subpart L, have been revised to ensure consistency with the
guidance provided in the OPM Operating Manual on the Federal Wage
System. The revised regulations ensure that a lump-sum payment for
employees who work a regular rotating schedule involving work on both
day and night shifts is calculated as if the employee had continued to
work beyond the effective date of separation. An agency asked that we
clarify what is meant by ``work beyond the effective date of
separation.'' Another agency requested clarification in determining
whether a lump-sum payment should be extended to the end of an
employee's last scheduled shift. Under 5 U.S.C. 5551, a lump-sum
payment must equal the pay an employee would have received had he or
she remained in Federal service until expiration of the period of
annual leave. Agencies must project a lump-sum period to include any
accumulated and accrued annual leave to the employee's credit, as of
the date of separation. The lump-sum leave period is the employee's
annual leave projected forward for all workdays the employee would have
worked if he or she had remained in Federal service, including holidays
(even though they are typically nonworkdays) as required by 5 U.S.C.
5551(a), until the expiration of the employee's accumulated and accrued
annual leave. The final regulations in Sec. 550.1205(b)(5) state that
a night differential is payable for that portion of the lump-sum period
that would have occurred when the employee was scheduled to work night
shifts. The lump-sum period extends only through the last hour of
annual leave.
Restriction on Paying Sunday Premium Pay
Section 636 of the Treasury and General Government Appropriations
Act, 1998 (Public Law 105-61, October 10, 1997), permanently restricted
the payment of Sunday premium pay for all employees Governmentwide who
are paid from appropriated funds and who do not actually perform work
on Sunday. Section 624 of the Treasury and General Government
Appropriations Act, 1999 (Public Law 105-277, October 21, 1998),
expanded the permanent restriction on the payment of Sunday premium pay
to cover employees who are paid from any Act (including payments from
revolving funds). These provisions effectively prohibit the payment of
Sunday premium pay to employees during any period when no work is
performed. This includes holidays, periods of paid leave, excused
absence (administrative leave), compensatory time off, credit hours, or
time off as an incentive or performance award. The restriction covers
employees who are paid from any Act, including payments from revolving
funds. Consistent with this permanent legal restriction, we have
revised Sec. 550.171(a) by deleting language stating that Sunday
premium pay is paid during periods of paid leave or excused absence. We
also will revise our guidance on payment of Sunday premium pay during
periods of paid leave in the OPM Operating Manual for the Federal Wage
System.
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 would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Parts 317, 353, 550, and 551
Administrative practice and procedure, Claims, Government
employees, Law enforcement officers, Reporting and recordkeeping
requirements, Wages.
Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly, OPM amends parts 317, 353, 550, and 551 of title 5 of the
Code of Federal Regulations to read as follows:
PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE
0
1. The authority citation for part 317 continues to read as follows:
Authority: 5 U.S.C. 3392, 3393, 3395, 3397, 3592, 3593, 3595,
3596, 8414, and 8421.
Subpart H--Retention of SES Provisions
0
2. In Sec. 317.801, paragraph (b)(1) is revised to read as follows:
* * * * *
(b) Election. (1) At the time of appointment, an appointee covered
by paragraph (a) of this section may elect to retain some, all, or none
of the following SES provisions related to basic pay (including the
aggregate limitation on pay established by 5 U.S.C. 5307), performance
awards, awarding of ranks, severance pay, leave, and retirement. That
election will remain in effect for no less than 1 year, unless the
appointee leaves the position sooner.
* * * * *
PART 353--RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE
INJURY
0
3. The authority citation for part 353 continues to read as follows:
Authority: 38 U.S.C. 4301 et. seq., and 5 U.S.C. 8151
Subpart B--Uniformed Service
0
4. Section 353.208 is revised to read as follows:
Sec. 353.208 Use of paid leave during uniformed service.
An employee performing service with the uniformed services must be
permitted, upon request, to use any accrued annual leave under 5 U.S.C.
6304, military leave under 5 U.S.C. 6323, or earned compensatory time
off for travel under 5 U.S.C. 5550b during such service.
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
0
5. The authority citation for subpart A continues to read as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 5541(2)(iv),
5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections
407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5
U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.
Sec. 550.112 [Amended]
0
6. In Sec. 550.112(j)(1), remove the citation ``(41 CFR 301-
1.3(c)(4))'' and add in its place ``(41 CFR 300-3.1).''
0
7. In Sec. 550.114, paragraph (d) is revised, paragraph (e) is
redesignated as paragraph (g), and new paragraphs (e) and (f) are added
to read as follows:
[[Page 12036]]
Sec. 550.114 Compensatory time off.
* * * * *
(d) Except as provided in paragraph (f)(2) of this section, an
employee must use accrued compensatory time off to which he or she is
entitled under paragraph (a) or (b) of this section by the end of the
26th pay period after the pay period during which it was earned. The
head of an agency, at his or her sole and exclusive discretion, may
provide that an employee who fails to take compensatory time off to
which he or she is entitled within 26 pay periods after the pay period
during which it was earned must--
(1) Receive payment for such unused compensatory time off at the
dollar value prescribed in paragraph (g) of this section; or
(2) Forfeit the unused compensatory time off, unless the failure to
take the compensatory time off is due to an exigency of the service
beyond the employee's control, in which case the agency head must
provide payment for the unused compensatory time off at the dollar
value prescribed in paragraph (g) of this section.
(e) Except as provided in paragraph (f)(2) of this section,
compensatory time off to an employee's credit as of May 14, 2007 must
be used by the end of the pay period ending 3 years after May 14, 2007.
The head of an agency, at his or her sole and exclusive discretion, may
provide that an employee who fails to take compensatory time off to
which he or she is entitled by the end of the pay period ending 3 years
after May 14, 2007 must--
(1) Receive payment for such unused compensatory time off at the
dollar value prescribed in paragraph (g) of this section; or
(2) Forfeit the unused compensatory time off, unless the failure to
take the compensatory time off is due to an exigency of the service
beyond the employee's control, in which case the agency head must
provide payment for the unused compensatory time off at the dollar
value prescribed in paragraph (g) of this section.
(f)(1) Except as provided in paragraph (f)(2) of this section, an
employee with unused compensatory time off under paragraph (a) or (b)
of this section who transfers to another agency or separates from
Federal service before the expiration of the time limit established
under paragraphs (d) or (e) of this section may receive overtime pay or
forfeit the unused compensatory time off, consistent with the employing
agency's policy established under paragraphs (d) and (e) of this
section.
(2) If an employee with unused compensatory time off under
paragraph (a) or (b) of this section separates from Federal service or
is placed in a leave without pay status under the following
circumstances, the employee must be paid for unused compensatory time
off at the dollar value prescribed in paragraph (g) of this section:
(i) The employee separates or is placed in a leave without pay
status to perform service in the uniformed services (as defined in 38
U.S.C. 4303 and Sec. 353.102); or
(ii) The employee separates or is placed in a leave without pay
status because of an on-the-job injury with entitlement to injury
compensation under 5 U.S.C. chapter 81.
* * * * *
0
8. In Sec. 550.171, paragraph (a) is revised to read as follows:
Sec. 550.171 Authorization of pay for Sunday work.
(a) A full-time employee is entitled to pay at his or her rate of
basic pay plus premium pay at a rate equal to 25 percent of his or her
rate of basic pay for each hour of Sunday work (as defined in Sec.
550.103).
* * * * *
Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual
Leave
0
9. The authority citation for subpart L continues to read as follows:
Authority: 5 U.S.C. 5553, 6306, and 6311.
0
10. In Sec. 550.1205, revise paragraph (b)(5)(i) and paragraph (g) to
read as follows:
Sec. 550.1205. Calculating a lump-sum payment.
* * * * *
(b) * * *
(5) * * *
(i) Night differential under 5 U.S.C. 5343(f) at the applicable
percentage rate received by a prevailing rate employee for all
regularly scheduled periods of night shift duty covered by the unused
annual leave as if the employee had continued to work beyond the
effective date of separation, death, or transfer. In the case of an
employee who is assigned to a regular rotating schedule involving work
on both day and night shifts, the night differential is payable for
that portion of the lump-sum period that would have occurred when the
employee was scheduled to work night shifts.
* * * * *
(g) For a reemployed annuitant who becomes eligible for a lump-sum
payment under Sec. 550.1203, the agency must compute the lump-sum
payment using the annuitant's pay before any reductions required under
Sec. 837.303 of this chapter.
* * * * *
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
0
11. The authority citation for part 551 continues to read as follows:
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29
U.S.C. 204f).
Subpart D--Hours of Work
Sec. 551.422 [Amended]
0
12. In Sec. 551.422(d), remove the citation ``(41 CFR 301-1.3(c)(4))''
and add in its place ``(41 CFR 300-3.1).''
Subpart E--Overtime Pay Provisions
0
13. In Sec. 551.531, paragraph (d) is revised, paragraph (e) is
revised and redesignated as paragraph (g), and new paragraphs (e) and
(f) are added to read as follows:
Sec. 551.531 Compensatory time off.
* * * * *
(d) If compensatory time off earned under paragraph (a) or (b) of
this section is not taken within 26 pay periods after the pay period
during which it was earned or if the employee transfers or separates
from an agency before using the compensatory time, the employee must be
paid for overtime work at the dollar value prescribed in paragraph (g)
of this section.
(e) Compensatory time off to an employee's credit as of May 14,
2007 must be used by the end of the pay period ending 3 years after May
14, 2007. If the earned compensatory time off is not taken by the end
of the pay period ending 3 years after May 14, 2007, the employee must
be paid for overtime work at the dollar value prescribed in paragraph
(g) of this section.
(f) If an employee with unused compensatory time off under
paragraphs (a), (b), or (e) of this section separates from Federal
service or is placed in a leave without pay status under the following
circumstances, the employee must be paid for overtime work at the
overtime rate at the dollar value prescribed in paragraph (g) of this
section:
(1) The employee is separated or placed in a leave without pay
status to perform service in the uniformed services (as defined in 38
U.S.C. 4303 and Sec. 353.102); or
[[Page 12037]]
(2) The employee is separated or placed in a leave without pay
status because of an on-the-job injury with entitlement to injury
compensation under 5 U.S.C. chapter 81.
(g) The dollar value of compensatory time off when it is liquidated
is the amount of overtime pay the employee otherwise would have
received for hours of the pay period during which compensatory time off
was earned by performing overtime work.
* * * * *
[FR Doc. E7-4696 Filed 3-14-07; 8:45 am]
BILLING CODE 6325-39-P
