[Federal Register: January 27, 2005 (Volume 70, Number 17)]
[Rules and Regulations]
[Page 3855-3858]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja05-1]
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Rules and Regulations
Federal Register
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[[Page 3855]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 550
RIN 3206-AK74
Pay Administration (General)
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: The Office of Personnel Management is issuing interim
regulations to implement a provision of the Federal Workforce
Flexibility Act of 2004, which established a new form of compensatory
time off for time spent by an employee in a travel status away from the
employee's official duty station when such time is not otherwise
compensable.
DATES: Effective Date: The interim regulations will become effective on
January 28, 2005.
Comment Date: Comments must be received on or before March 28,
2005.
ADDRESSES: Send or deliver written comments to Donald J. Winstead,
Deputy Associate Director for Pay and Performance Policy, Office of
Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC
20415, by FAX at (202) 606-0824, or by e-mail at
pay-performance-policy@opm.gov.
FOR FURTHER INFORMATION CONTACT: Vicki Draper by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at
pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing interim regulations to implement a new compensatory time off
provision established by section 203 of the Federal Workforce
Flexibility Act of 2004 (Public Law 108-411, October 30, 2004). Section
203 amended subchapter V of chapter 55 of title 5, United States Code,
by adding a new section 5550b, which establishes a new form of
compensatory time off for time spent by an employee in a travel status
away from the employee's official duty station when such time is not
otherwise compensable. Under 5 U.S.C. 5548, OPM has general authority
to issue regulations necessary to administer the premium pay provisions
in subchapter V of chapter 55. These regulations amend part 550 of
title 5, Code of Federal Regulations, by adding a new subpart N,
Compensatory Time Off for Travel.
Section 203(c) provides that this new form of compensatory time off
for travel takes effect on the earlier of (1) the effective date of
implementing regulations or (2) the 90th day after the date of the
law's enactment (January 28, 2005). These regulations are effective on
January 28, 2005.
In Sec. 550.1403, we provide definitions of various terms used in
subpart N. For example, the term ``travel'' is defined to mean
officially authorized travel--that is, travel for work purposes that is
approved by an authorized agency official or otherwise authorized under
established agency policies. The term ``travel status'' is defined to
mean travel as described in Sec. 550.1404 that is creditable for the
purpose of accruing compensatory time off under subpart N. To make
clear that an employee may not receive double compensation for travel
hours, the term ``travel status'' as used in subpart N does not include
travel time that is otherwise compensable as hours of work. For
example, travel hours outside an employee's regular working hours that
are compensable hours of work under 5 U.S.C. 5542(b)(2)(B) and 5 CFR
550.112(g)(2), may not also be credited as time in a travel status
under subpart N.
The term ``compensable'' is defined to make clear what periods of
time are ``not otherwise compensable'' and thus potentially creditable
for the purpose of compensatory time off for travel under subpart N.
Time is considered compensable if the time is creditable as hours of
work for the purpose of determining a specific pay entitlement. This is
true even when that work time does not result in additional
compensation due to the application of pay limitations. For example,
under the availability pay provisions in 5 U.S.C. 5545a, all
unscheduled duty hours (including any hours in excess of the minimum
hours necessary in a 12-month period to justify the payment of
availability pay) are considered ``compensable'' hours, since
availability pay represents full compensation for all unscheduled duty
hours. In addition, even though a criminal investigator may not receive
the full 25-percent availability pay because of the biweekly premium
pay limitation in 5 U.S.C. 5547, all hours of a type that are
creditable as unscheduled duty hours for the purpose of availability
pay are considered to be compensable. Thus, with respect to any hours
of a type that is creditable as unscheduled duty hours for availability
pay purposes, any travel time during such hours are not creditable
under subpart N.
In Sec. 550.1404(b), we clarify that time in travel status
includes only the time actually spent traveling between the official
duty station and a temporary duty station, or between two temporary
duty stations, and the ``usual waiting time'' that precedes or
interrupts such travel. Generally, passengers are required to arrive at
a transportation terminal (e.g., airport or train station) at a
designated pre-departure time (e.g., 1 to 2 hours prior to the
scheduled departure time of an airplane, depending on whether it is a
domestic or international flight). Such waiting time at the
transportation terminal is considered usual waiting time and is
creditable time in a travel status. The concept of ``usual waiting
time'' is currently used in determining creditable overtime hours of
work under title 5 and the Fair Labor Standards Act of 1938, as
amended.
In addition, when an employee's travel is interrupted (i.e., the
employee travels to an intervening transportation terminal and has to
wait for a connecting flight to continue traveling to a temporary duty
station), usual waiting time at the intervening transportation terminal
also is creditable time in a travel status, subject to exclusions for
bona fide meal periods. If the employee experiences an extended (i.e.,
not usual) waiting time during which he or she is free to use the time
for his or her own purposes (e.g., rest or sleep), the extended waiting
time that is outside the employee's regular working hours is not
creditable time in a travel status. Once the employee arrives at a
temporary duty station, he or she is not
[[Page 3856]]
considered to be in a travel status just because he or she is away from
the official duty station. In other words, the time spent at a
temporary duty station between arrival and departure cannot be credited
as time in a travel status.
In Sec. 550.1404(c) and (d), we clarify when it is appropriate to
offset creditable time in a travel status by the amount of time the
employee spends in normal commuting between home and work. For example,
such an offset applies to an employee who travels directly between his
or her home and a temporary duty station outside the limits of the
employee's official duty station. Also, the commuting time offset
applies if an employee is required to travel between home and a
transportation terminal outside the limits of his or her official duty
station.
Section 550.1405 addresses the crediting of compensatory time off
for travel. Qualifying compensatory time off for travel must be
credited and used in increments of one-tenth of an hour (6 minutes) or
one-quarter of an hour (15 minutes). This is consistent with OPM's
standardized policy for charging annual and sick leave in increments of
one-tenth or one-quarter of an hour. An employee must comply with his
or her agency's procedures for requesting credit of compensatory time
off and the employee must file such requests within the time period
required by the agency.
Section 550.1406 addresses the usage of accrued compensatory time
off for travel. An employee must submit a request to his or her
supervisor to schedule time off from his or her normal tour of duty for
the purpose of using accrued compensatory time off.
In an effort to give employees sufficient time to use their
accumulated compensatory time off and to enhance the efficiency and
effectiveness of standardized payroll policies and processes, Sec.
550.1407(a) provides that an employee must use his or her accrued
compensatory time off within 26 pay periods after it is earned or
forfeit such compensatory time off, except in certain circumstances
(e.g., when an employee separates or is placed in a leave without pay
status to perform service in the uniformed services with restoration
rights).
Section 550.1407(b) provides that, upon voluntary transfer to
another agency, an employee's unused compensatory time off balance must
be forfeited.
Section 550.1407(c) provides that an employee must forfeit any
unused compensatory time off when he or she separates from Federal
service, except in the circumstances described in Sec. 550.1407(a)(2).
Section 550.1407(d) provides that an employee must forfeit any
unused compensatory time off when he or she moves to a Federal position
not covered by subpart N. However, this requirement does not prevent an
agency from using another legal authority to give the employee credit
for compensatory time off for travel equal to the forfeited amount.
Section 550.1408 restates the statutory prohibition on paying
employees for unused compensatory time off for travel earned under this
subpart.
Section 550.1409 makes clear that compensatory time off for travel
earned under this subpart is not considered in applying the biweekly
and annual premium pay limitations in 5 U.S.C. 5547 or the aggregate
pay limitation on pay in 5 U.S.C. 5307.
In exercising our broad regulatory authority under 5 U.S.C. 5548,
we have deliberately taken a conservative approach with respect to the
time limit on the use of earned compensatory time off. We are mindful
that we are dealing with a new type of employee benefit which presents
new issues and administrative challenges for agencies. We believe it is
appropriate to approach this new benefit without imposing overly
burdensome administrative procedures.
Waiver of Notice of Proposed Rulemaking
Pursuant to section 553(b)(3)(B) of title 5 of the United States
Code, I find that good cause exists for waiving the general notice of
proposed rulemaking. Also, pursuant to 5 U.S.C. 553(d)(3), I find that
good cause exists for making this rule effective in less than 30 days.
These regulations implement a provision of Public Law 108-411 that
becomes effective on the effective date of these regulations. The
waiver of the requirements for proposed rulemaking and a delay in the
effective date are necessary to ensure timely implementation of the law
as intended by Congress.
E.O. 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
Office of Personnel Management.
Kay Coles James,
Director.
0
Accordingly, OPM is amending 5 CFR part 550 as follows:
PART 550--PAY ADMINISTRATION (GENERAL)
0
1. The authority citation for part 550 continues to read as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 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.
0
2. A new subpart N is added to read as follows:
Subpart N--Compensatory Time Off for Travel
Sec.
550.1401 Purpose.
550.1402 Coverage.
550.1403 Definitions.
550.1404 Creditable travel time.
550.1405 Crediting compensatory time off.
550.1406 Usage of accrued compensatory time off.
550.1407 Forfeiture of unused compensatory time off.
550.1408 Prohibition against payment for unused compensatory time
off.
550.1409 Inapplicability of premium pay and aggregate pay caps.
Subpart N--Compensatory Time Off for Travel
Sec. 550.1401 Purpose.
This subpart contains OPM regulations implementing 5 U.S.C. 5550b,
which establishes a new type of compensatory time off. Subject to the
conditions specified in this subpart, an employee is entitled to earn,
on an hour-for-hour basis, compensatory time off for time in a travel
status away from the employee's official duty station when the travel
time is not otherwise compensable.
Sec. 550.1402 Coverage.
This subpart applies to an employee as defined in 5 U.S.C. 5541(2)
who is employed by an agency.
Sec. 550.1403 Definitions.
In this subpart:
Agency means an Executive agency as defined in 5 U.S.C. 105.
Compensable refers to periods of time that are creditable as hours
of work for the purpose of determining a specific pay entitlement, even
when that work
[[Page 3857]]
time may not actually generate additional compensation because of
applicable pay limitations.
Compensatory time off means compensatory time off for travel that
is credited under the authority of this subpart.
Official duty station means the geographic area surrounding an
employee's regular work site that is the same as the area designated by
the employing agency for the purpose of determining whether travel time
is compensable for the purpose of determining overtime pay, consistent
with the regulations in 5 CFR 550.112(j) and 551.422(d).
Regular working hours means the days and hours of an employee's
regularly scheduled administrative workweek established under 5 CFR
part 610.
Scheduled tour of duty for leave purposes means an employee's
regular hours for which he or she may be charged leave under 5 CFR part
630 when absent. For full-time employees, it is the 40-hour basic
workweek as defined in 5 CFR 610.102. For employees with an uncommon
tour of duty as defined in 5 CFR 630.201, it is the uncommon tour of
duty.
Travel means officially authorized travel--i.e., travel for work
purposes that is approved by an authorized agency official or otherwise
authorized under established agency policies.
Travel status means travel time as described in Sec. 550.1404 that
is creditable in accruing compensatory time off for travel under this
subpart, excluding travel time that is otherwise compensable under
other legal authority.
Sec. 550.1404 Creditable travel time.
(a) General. Subject to the conditions specified in this subpart,
an agency must credit an employee with compensatory time off for time
in a travel status if--
(1) The employee is required to travel away from the official duty
station; and
(2) The travel time is not otherwise compensable hours of work
under other legal authority.
(b) Travel status. (1) Time in a travel status includes the time an
employee actually spends traveling between the official duty station
and a temporary duty station, or between two temporary duty stations,
and the usual waiting time that precedes or interrupts such travel,
subject to the exclusions specified in paragraphs (b)(2) and (b)(3) of
this section and the requirements in paragraphs (c) and (d) of this
section. Time spent at a temporary duty station between arrival and
departure is not time in a travel status. Determinations regarding what
is creditable as ``usual waiting time'' are within the sole and
exclusive discretion of the employing agency.
(2) Bona fide meal periods during actual travel time or waiting
time are not creditable as time in a travel status.
(3) If an employee experiences an extended (i.e., not usual)
waiting time between actual periods of travel during which the employee
is free to rest, sleep, or otherwise use the time for his or her own
purposes, the extended waiting time is not creditable as time in a
travel status.
(c) Travel between home and a temporary duty station. (1) If an
employee is required to travel directly between his or her home and a
temporary duty station outside the limits of the employee's official
duty station, the travel time is creditable as time in a travel status
if otherwise qualifying under this subpart. However, the agency must
deduct from such travel hours the time the employee would have spent in
normal home-to-work or work-to-home commuting.
(2) In the case of an employee who is offered one mode of
transportation and who is permitted to use an alternative mode of
transportation, or who travels at a time or by a route other than that
selected by the agency, the agency must determine the estimated amount
of time in a travel status the employee would have had if the employee
had used the mode of transportation offered by the agency or traveled
at the time and by the route selected by the agency. In determining
time in a travel status under this subpart, the agency must credit the
employee with the lesser of the estimated time in a travel status or
the actual time in a travel status.
(3) In the case of an employee who is on a multiple-day travel
assignment and who chooses, for personal reasons, not to use temporary
lodgings at the temporary duty station, but to return home at night or
on a weekend, only travel from home to the temporary duty station on
the 1st day and travel from the temporary duty station to home on the
last day that is otherwise qualifying as time in a travel status under
this subpart is mandatorily creditable (subject to the deduction of
normal commuting time). Travel to and from home on other days is not
creditable travel time unless the agency, at its discretion, determines
that credit should be given based on the net savings to the Government
from reduced lodging costs, considering the value of lost labor time
attributable to compensatory time off. The dollar value of an hour of
compensatory time off for this purpose is equal to the employee's
hourly rate of basic pay as defined in Sec. 550.103.
(d) Time spent traveling to or from a transportation terminal as
part of travel away from the official duty station. If an employee is
required to travel between home and a transportation terminal (e.g.,
airport or train station) within the limits of his or her official duty
station as part of travel away from that duty station, the travel time
outside regular working hours to or from the terminal is considered to
be equivalent to commuting time and is not creditable time in a travel
status. If the transportation terminal is outside the limits of the
employee's official duty station, the travel time to or from the
terminal outside regular working hours is creditable as time in a
travel status, but is subject to an offset for the time the employee
would have spent in normal home-to-work or work-to-home commuting. If
the employee travels between a worksite and a transportation terminal,
the travel time outside regular working hours is creditable as time in
a travel status, and no commuting time offset applies.
Sec. 550.1405 Crediting compensatory time off.
(a) Upon a request filed in accordance with the procedures
established under paragraph (b) of this section, an employee is
entitled to credit for compensatory time off for travel under the
conditions specified in this subpart. The employing agency must credit
an employee with compensatory time off for creditable time in a travel
status as provided in Sec. 550.1404. The agency may authorize credit
in increments of one-tenth of an hour (6 minutes) or one-quarter of an
hour (15 minutes). Agencies must track and manage compensatory time off
granted under this subpart separately from other forms of compensatory
time off.
(b) An employee must comply with his or her agency's procedures for
requesting credit of compensatory time off under this section.
Employees must file such requests within the time period required by
the agency.
Sec. 550.1406 Usage of accrued compensatory time off.
(a) An employee must request permission from his or her supervisor
to schedule the use of his or her accrued compensatory time off in
accordance with agency-established policies and procedures.
(b) Compensatory time off may be used when the employee is granted
time off from his or her scheduled tour of duty established for leave
purposes. An
[[Page 3858]]
employee must use earned compensatory time off under this subpart in
increments of one-tenth of an hour (6 minutes) or one-quarter of an
hour (15 minutes).
Sec. 550.1407 Forfeiture of unused compensatory time off.
(a) After 26 pay periods. (1) Except as provided in paragraph
(a)(2) of this section, an employee must use accrued compensatory time
off by the end of the 26th pay period after the pay period during which
it was credited. If an employee fails to use the compensatory time off
within 26 pay periods after it was credited, he or she must forfeit
such compensatory time off.
(2) If an employee with unused compensatory time off separates from
Federal service or is placed in a leave without pay status in the
following circumstances and later returns to service with the same (or
successor) agency, the employee must use all of the compensatory time
off by the end of the 26th pay period following the pay period in which
the employee returns to duty, or such compensatory time off will be
forfeited:
(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 5 CFR 353.102) and later returns to service through the
exercise of a reemployment right provided by law, Executive order, or
regulation; 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 and later recovers sufficiently
to return to work.
(b) Upon transfer to another agency. When an employee voluntarily
transfers to another agency (including a promotion or change to lower
grade action), he or she must forfeit his or her unused compensatory
time off.
(c) Upon separation. (1) When an employee separates from Federal
service, any unused compensatory time off is forfeited, except as
provided in paragraph (c)(2) of this section.
(2) Unused compensatory time off will not be forfeited but will be
held in abeyance in the case of an employee who separates from Federal
service and later returns to service with the same (or successor)
agency under the circumstances described in paragraph (a)(2) of this
section.
(d) Upon movement to a noncovered position. When an employee moves
to a Federal position not covered by this subpart, he or she forfeits
any unused compensatory time off. This requirement does not prevent an
agency from using another legal authority to give the employee credit
for compensatory time off equal to the forfeited amount.
Sec. 550.1408 Prohibition against payment for unused compensatory
time off.
As provided by 5 U.S.C. 5550b(b), an individual may not receive
payment under any circumstances for any unused compensatory time off he
or she earned under this subpart. This prohibition against payment
applies to surviving beneficiaries in the event of the individual's
death.
Sec. 550.1409 Inapplicability of premium pay and aggregate pay caps.
Accrued compensatory time off under this subpart is not considered
in applying the premium pay limitations established under 5 U.S.C. 5547
and 5 CFR 550.105 through 550.107 or the aggregate limitation on pay
established under 5 U.S.C. 5307 and 5 CFR part 530, subpart B.
[FR Doc. 05-1457 Filed 1-26-05; 8:45 am]
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