98-31258. Firefighter Pay  

  • [Federal Register Volume 63, Number 225 (Monday, November 23, 1998)]
    [Rules and Regulations]
    [Pages 64589-64595]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-31258]
    
    
    
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    Federal Register / Vol. 63, No. 225 / Monday, November 23, 1998 / 
    Rules and Regulations
    
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    OFFICE OF PERSONNEL MANAGEMENT
    
    5 CFR Parts 410, 550, 551, 591, 630, and 870
    
    RIN 3206-AI50
    
    
    Firefighter Pay
    
    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 change the method of computing pay for Federal 
    firefighters. These regulations implement a recent law that established 
    a new approach for calculating basic pay, overtime pay, and other 
    entitlements for Federal employees whose positions are classified in 
    the GS-081 classification series (Fire Protection and Prevention) and 
    who have regular tours of duty averaging at least 53 hours per week.
    
    DATES: Effective Date: The regulations are effective on October 4, 
    1998.
        Applicability Dates: The regulations apply on the first day of the 
    first pay period beginning on or after October 1, 1998.
        Comments Date: Comments must be received on or before January 22, 
    1999.
    
    ADDRESSES: Comments may be sent or delivered to Donald J. Winstead, 
    Assistant Director for Compensation Administration, Workforce 
    Compensation and Performance Service, Office of Personnel Management, 
    Room 7H31, 1900 E Street NW., Washington, DC 20415, FAX: (202) 606-
    0824, or email: payleave@opm.gov.
    
    FOR FURTHER INFORMATION CONTACT: Bryce Baker, (202) 606-2858, FAX: 
    (202) 606-0824, or email: payleave@opm.gov.
    
    SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
    issuing interim regulations to implement the new firefighter pay 
    provisions established by section 628 of the Treasury and General 
    Government Appropriations Act, 1999, as incorporated in section 101(h) 
    of Public Law 105-277, the Omnibus Consolidated and Emergency 
    Supplemental Appropriations Act, 1999, which was approved on October 
    21, 1998. The law provides that these provisions are effective on the 
    first day of the first pay period beginning on or after October 1, 
    1998. This legislation is intended to address concerns about the 
    complexity of firefighter pay computations by establishing a more 
    rational and equitable method of compensation. The law adds a new 
    section 5545b to subchapter V (Premium Pay) of chapter 55 of title 5 of 
    the United States Code. OPM has general authority to issue regulations 
    necessary to administer the premium pay provisions in subchapter V and 
    was also given certain specific regulatory responsibilities in section 
    5545b.
    
    Federal Firefighters
    
        There are over 9,000 Federal employees covered by the General 
    Schedule (GS) pay system who are classified in the GS-081 Fire 
    Protection and Prevention job classification series, which includes 
    line firefighters, supervisory firefighters, and fire inspectors. 
    Approximately 94 percent of these firefighters are employed by the 
    Department of Defense. Most of these firefighters have extended tours 
    of duty--most commonly, a 72-hour workweek consisting of three 24-hour 
    shifts. These 24-hour shifts include periods of actual work time and 
    substantial periods of time during which firefighters are in ``standby 
    status.'' While in standby status, firefighters are free to eat, sleep, 
    and engage in other personal activities, but are confined to the 
    worksite and must remain in a state of readiness to perform actual work 
    as required. Some firefighters (most commonly supervisors) have a 
    regular 40-hour workweek consisting of five 8-hour days plus regularly 
    scheduled standby duty (e.g., an extra 16-hour standby shift).
    
    Former Pay Computation Method
    
        Under the law and regulations formerly in effect, firefighters were 
    entitled to the same rate of basic pay that applied to General Schedule 
    employees with a 40-hour workweek. In addition, they generally received 
    standby duty pay under 5 U.S.C. 5545(c)(1) to compensate them for their 
    extended tours of duty. Standby duty pay is a special form of premium 
    pay designed to compensate employees who have regularly scheduled 
    workweeks that are much longer than the normal 40-hour workweek and 
    include substantial time during which employees are in a standby 
    status. Standby duty pay is paid as a percentage of basic pay not to 
    exceed 25 percent of the employee's rate of basic pay (but not more 
    than the rate of basic pay for GS-10, step 1). The percentage rate 
    depends on the number of hours in the employee's regularly scheduled 
    tour, hours of Sunday work, type of shift, and various other factors. 
    (See 5 CFR 550.141-550.144.) Standby duty pay is basic pay for 
    retirement purposes (5 U.S.C. 8331(3)(C)).
        Firefighters covered by the Fair Labor Standards Act (FLSA) 
    overtime provisions also received additional pay under that Act. Under 
    the FLSA, the overtime standard for firefighters is 53 hours per week 
    (or 106 hours biweekly), instead of 40 hours. For overtime hours within 
    their regularly scheduled workweek, firefighters received a 
    supplemental half-rate premium (in addition to the basic pay and 
    standby pay received for regularly scheduled hours). For irregular 
    overtime hours, firefighters received time-and-one-half overtime pay. 
    FLSA computations used the firefighter's ``hourly regular rate'' 
    (consistent with FLSA rules), which was less than the firefighter's 
    rate of basic pay because the hourly regular rate was derived by 
    dividing the firefighter's total remuneration (including standby duty 
    pay) by the total number of hours worked.
    
    Summary of New Law
    
        The new law makes significant changes in how firefighter pay is 
    computed. These changes apply to GS-081 firefighters whose regularly 
    established workweeks average 53 hours or more. In summary, the new 
    law--
        1. Eliminates standby duty pay and pays firefighters on an hourly 
    rate basis. Paying firefighters on an hourly rate basis simplifies the 
    pay computation. It also corrects disproportionality problems in the 
    former pay computation method. (Under the former pay
    
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    computation method, employees at the same grade and step and with the 
    same type of shifts received different effective hourly rates--taking 
    standby duty pay into account--depending on the number of hours in the 
    regular tour. In fact, the more hours worked, the smaller the effective 
    hourly rate.)
        2. Requires that the applicable GS annual rate of basic pay be 
    divided by a 2756-hour factor to derive the ``firefighter hourly rate'' 
    instead of using the 2087-hour factor applicable to other Federal 
    employees. (The 2756-hour factor is derived by multiplying the number 
    of weeks in a year (52) by the FLSA weekly overtime standard (53 
    hours), which yields the number of nonovertime hours in a year for the 
    typical full-time firefighter.)
        3. Provides time-and-one-half overtime pay for both FLSA-covered 
    (nonexempt) and FLSA-exempt firefighters for all overtime hours. (For 
    FLSA-exempt firefighters, the overtime rate is capped at 1\1/2\ times 
    the GS-10, step 1, rate (2087-hour basis), but cannot be less than the 
    individual's firefighter rate of basic pay.)
        4. Provides special pay computations for firefighters whose regular 
    tour of duty includes a basic 40-hour workweek.
        5. Bars payment of any other premium pay, including night pay, 
    Sunday pay, holiday pay, and hazardous duty pay.
        6. Guarantees no loss in regular pay during employer-sanctioned 
    training. (Previously, the move to a training schedule with fewer hours 
    (e.g., 40) could result in a reduction in a firefighter's normal 
    paycheck.)
        7. Treats the straight-rate portion of overtime pay for overtime 
    hours in the firefighter's regular tour of duty as basic pay for 
    retirement and certain other purposes. (The extra half-rate premium for 
    those overtime hours is not basic pay for these purposes.)
        For the typical FLSA-covered firefighter with a 72-hour workweek, 
    the new law results in a total pay increase of about 9 percent. For 
    example, under the former pay computation rules, a GS-6, step 5, 
    firefighter in the Washington, DC, area in 1998 with 144 hours in a 
    biweekly pay period would receive a regular biweekly paycheck of 
    $1,468.38 ($38,177.88 annually), consisting of the following:
         Basic pay of $1,037.60 (GS-6, step 5, annual locality rate 
    of $27,060 divided by 2087 = $12.97, and $12.97 times 80 hours = 
    $1,037.60);
         Standby duty pay of $259.40 ($1,037.60 times 25 percent); 
    and
         Supplemental FLSA overtime pay of $171.38 (38 overtime 
    hours times $4.51, which is one-half of the hourly regular rate of 
    $9.01).
        Under the new law, the same firefighter would receive a regular 
    biweekly paycheck of $1,600.66 ($41,617.16 annually), consisting of the 
    following:
         Basic pay of $1,040.92 (106 nonovertime hours times the 
    firefighter rate of $9.82, which is equal to $27,060 divided by 2756 
    hours); and
         Overtime pay of $559.74 (1\1/2\ times $9.82 = $14.73, and 
    $14.73 times 38 overtime hours = $559.74).
        Retirement-creditable basic pay is also 9 percent higher--$1,414.08 
    biweekly (144 hours times the firefighter rate of $9.82 equals 
    $1,414.08), compared to the old amount of $1,297.00 (basic pay of 
    $1,037.60 plus standby duty pay of $259.40).
        The change in pay for other categories of firefighters varies 
    depending on the number of hours in the workweek, whether the 
    firefighter is covered by the FLSA, the former standby duty pay rate, 
    and the type of schedule (24-hour shift or not). In a small number of 
    cases, the new compensation formula would result in a reduction in pay; 
    however, the law provides special pay protection provisions that either 
    increase affected firefighters' pay or at least prevent any reduction 
    upon conversion to the new system.
    
    Description of Regulatory Provisions
    
        We are adding a new subpart M--Firefighter Pay--to part 550 of 
    title 5, Code of Federal Regulations, that implements 5 U.S.C. 5545b 
    and related statutory provisions. In addition, we are making conforming 
    changes in part 410; subparts A, B, and G of part 550; part 551; part 
    591; part 630; and part 870. A summary description of each new or 
    revised section follows:
        Section 410.402--We are adding a new paragraph in OPM's training 
    regulations that provides that firefighters compensated under subpart M 
    of part 550 (as added by these regulations) continue to receive their 
    regular pay during agency-sanctioned training, consistent with 5 U.S.C. 
    4109(d). This provision is triggered only when the hours in a 
    firefighter's regular tour of duty for any week are reduced due to a 
    temporary training assignment. It does not affect firefighters who 
    voluntarily participate in education or training during non-duty hours, 
    leave hours, or periods of excused absence.
        Sections 550.103 and 550.111--We are adding a new paragraph (g) in 
    Sec. 550.111 to provide a special definition of ``overtime work'' 
    performed by firefighters compensated under subpart M. The definition 
    of ``overtime work'' in Sec. 550.103 is revised accordingly.
        Section 550.113--We are adding a new paragraph (e) that describes 
    how the firefighter overtime hourly rate is computed using a 2756-hour 
    factor. For FLSA-exempt firefighters whose firefighter hourly rate of 
    basic pay exceeds the minimum hourly rate of basic pay for GS-10 
    (computed using a 2087-hour factor), the overtime hourly rate is capped 
    at 1\1/2\ times that GS-10 minimum rate, but may not fall below the 
    firefighter's own firefighter hourly rate of basic pay. (See 5 U.S.C. 
    5542(f).)
        Section 550.202--We are including firefighter straight-time pay for 
    regular overtime hours in the definition of ``basic pay'' for purposes 
    of advances in pay, consistent with Sec. 550.1305(b).
        Sections 550.703 and 550.707(b)--We are including firefighter 
    straight-time pay for regular overtime hours in the definition of 
    ``basic pay'' for severance pay purposes, consistent with 
    Sec. 550.1305(b). We are also providing that an average weekly rate of 
    basic pay be used in computing severance pay for firefighters whose 
    regular tour of duty consists of a cycle of variable workweeks.
        Section 550.1301--This section describes the purpose, 
    applicability, and administration of the new subpart M in part 550. 
    Applicability is linked to the definition of ``firefighter'' in 
    Sec. 550.1302.
        Section 550.1302--This section defines various terms used in 
    subpart M. The term ``basic 40-hour workweek'' is defined to 
    distinguish between firefighters who generally work on a 24-hour shift 
    basis and those who have a regular workweek of 40 actual work hours 
    (consisting of five 8-hour days or an equivalent schedule such as a 
    flexible schedule containing 80 actual work hours in a biweekly pay 
    period). Consistent with 5 U.S.C. 5545b(a), the term ``firefighter'' is 
    defined to cover General Schedule employees classified in the GS-081 
    Fire Protection and Prevention classification series whose regular tour 
    of duty averages at least 106 hours per biweekly pay period.
        The term ``regular tour of duty'' is defined as a firefighter's 
    officially established work schedule, including any overtime hours in 
    that schedule. Generally, a tour of duty must be established on a 
    regular (nontemporary) and recurring basis to be considered a regular 
    tour of duty; however, a regular tour of duty also includes a temporary 
    tour that, when assigned, results in a reduction in the firefighter's 
    regular work hours or a change in the pay computation method used under 
    Sec. 550.1303. The regular tour of duty concept is used in 
    determining--
    
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         The appropriate pay computation method for a firefighter 
    (see definition of ``firefighter'' and Sec. 550.1303);
         A firefighter's basic pay for retirement and other 
    purposes (see Sec. 550.1305);
         The hours in an uncommon tour of duty established for 
    leave purposes, including lump-sum payments for annual leave (see 
    Secs. 550.1306(c), 630.201, and 630.210); and
         The applicability of certain transitional provisions (see 
    Sec. 550.1308).
        The term ``regular tour of duty'' is not equivalent to the term 
    ``regularly scheduled administrative workweek'' (as defined in 
    Sec. 550.103) because ``regularly scheduled'' encompasses overtime 
    hours that are scheduled in advance of the workweek, regardless of 
    whether or not those overtime hours are part of a fixed, regularly 
    recurring schedule. Since the ``regular tour of duty'' concept is used 
    to determine what pay is used in computing retirement and other 
    benefits, it is appropriate that the overtime hours included in the 
    regular tour of duty are generally only those that are part of a 
    firefighter's regular fixed schedule. In addition, we note that it is 
    possible to have irregular nonovertime hours that are not part of the 
    firefighter's regular tour of duty in the case of firefighters with 
    variable workweeks (e.g., a 48-48-72-hour workweek cycle).
        Section 550.1303--This section describes how to compute basic pay 
    for (1) 24-hour shift firefighters and (2) firefighters whose regular 
    tour of duty includes a basic 40-hour workweek. The firefighter hourly 
    rate of basic pay (computed by dividing the annual rate of basic pay by 
    2756 hours) is used for all nonovertime hours for 24-hour shift 
    firefighters. For firefighters with a basic 40-hour workweek, the 
    normal General Schedule hourly rate (using a 2087-hour factor), is used 
    to compute pay for hours in the basic 40-hour workweek, and then the 
    firefighter (2756-basis) hourly rate of basic pay is used to compute 
    pay for nonovertime hours beyond the basic 40-hour workweek (or 80-hour 
    biweekly pay period). This section also addresses the substitution of 
    irregular hours for leave-without-pay hours in a firefighter's regular 
    tour of duty. Such substituted hours are deemed to be part of the 
    firefighter's regular tour of duty. (See the definition of ``regular 
    tour of duty'' in Sec. 550.1302.)
        Section 550.1304--This section provides that the overtime hourly 
    rate of pay for FLSA-covered firefighters is 1\1/2\ times the 
    firefighter (2756-basis) hourly rate of basic pay, regardless of the 
    type of work schedule. (See 5 U.S.C. 5545b(d)(2).)
        Section 550.1305--This section addresses what pay is considered 
    basic pay for various purposes. The sum of pay for regular nonovertime 
    hours and the straight-rate portion of regular overtime pay (excluding 
    the half-rate overtime premium) is treated as basic pay for purposes of 
    retirement, life insurance, severance pay, nonforeign area cost-of-
    living allowances and post differentials, and advances in pay. (See 5 
    U.S.C. 5545b(b)(2) and (c)(2).) Also, the section makes clear that, 
    while locality pay is considered part of basic pay in applying the 
    provisions of this subpart (except Sec. 550.1308), locality pay for 
    firefighters is basic pay for other purposes only to the extent 
    expressly provided in Sec. 531.606(b) or other law.
        For firefighters with a basic 40-hour workweek, basic pay consists 
    of three components: (1) 40 hours of basic pay computed using the 
    regular GS rate (2087 factor); (2) 13 hours of basic pay computed using 
    the firefighter rate (2756 factor); and (3) the straight-rate portion 
    of pay for overtime hours in the firefighter's regular tour computed 
    using the firefighter rate. However, for these firefighters, any basic 
    pay for nonovertime hours outside the basic 40-hour workweek is basic 
    pay only for purposes of subpart M and the listed benefits. It is not 
    basic pay for other purposes, such as pay retention.
        Section 550.1306--This section addresses the relationship of 
    various other entitlements to firefighter pay under subpart M. 
    Firefighters compensated under subpart M are not entitled to any other 
    premium pay, including night pay, Sunday pay, holiday pay, and 
    hazardous duty pay. (See 5 U.S.C. 5545b(d)(1).) All FLSA overtime pay 
    requirements are satisfied by compliance with subpart M. (See 5 U.S.C. 
    5545b(d)(2).) Overtime pay for overtime hours in a firefighter's 
    regular tour of duty (including the half-rate overtime premium) is used 
    in computing a lump-sum payment for annual leave when a firefighter 
    separates from Federal service if the firefighter's regular tour of 
    duty is established as an uncommon tour of duty for purposes of leave 
    accrual and usage at the time of separation. (OPM's regulations require 
    agencies to establish such an uncommon tour of duty for 24-hour shift 
    firefighters. See Sec. 630.210.)
        Section 550.1307--This section provides a procedure for agencies to 
    establish methods of reducing or eliminating variation in the amounts 
    of firefighter paychecks for firefighters whose regular tour of duty 
    includes variable workweeks.
        Section 550.1308--This section establishes certain transitional 
    provisions designed to protect the pay of a relatively small number of 
    firefighters who have shorter workweeks, some of whom would otherwise 
    suffer a reduction in regular pay due to the change in the pay 
    computation method. This implements subsections (f) and (g) of section 
    628 of section 101(h) of Public Law 105-277. Affected firefighters are 
    employed primarily by the Department of Veterans Affairs (VA). A number 
    of VA firefighters have 24-hour shifts, but generally work only 56 or 
    60 hours per week, on average. These firefighters would receive a one-
    time pay increase equal to two GS step increments of their grade at the 
    time of conversion to the new pay computation method. (See paragraph 
    (a).) Using the new boosted rate in the new pay computation method will 
    result in small pay increases for almost all of these firefighters.
        For any firefighter who might still face a small reduction in his 
    or her regular pay, that regular pay will be protected under the 
    special rules in paragraph (b). The employing agency will be required 
    to calculate a ``protected rate of basic pay'' that, when used in the 
    new pay computation method, produces approximately the same amount of 
    ``annualized regular pay'' the firefighter would have received under 
    the old computation method. (The term ``annualized regular pay'' is 
    defined to mean total pay for hours in a firefighter's regular tour of 
    duty. Since some firefighters have a cycle of variable workweeks within 
    their regular tour of duty, it is necessary to make comparisons on an 
    annualized basis.) This comparison is made as of the effective date of 
    the new pay computation method, based on the firefighter's regular tour 
    of duty in effect at that time. For comparison purposes, the annualized 
    regular pay under the old method is based on the rates of pay that 
    would otherwise be in effect at that time, including any changes in 
    rates of pay (e.g., due to within-grade increases or promotions) taking 
    effect on the effective date of the new method, but excluding the two-
    step adjustment made under Sec. 550.1308(a).
        The protected rate is not aligned to a step on the pay schedule, 
    but is a special saved rate. Once established, the protected rate of 
    basic of pay is a frozen dollar rate that is not subject to adjustment. 
    Locality pay, as applicable, is paid on top of the protected rate. The 
    protected rate will be terminated when the firefighter's actual rate is 
    increased (e.g., due to a promotion or annual pay adjustment) to the 
    point where it equals or exceeds the protected rate, or when
    
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    the employee ceases to be covered by subpart M.
        Sections 551.501 and 551.541--We are making conforming changes in 
    part 551, which deals with FLSA overtime pay entitlements.
        Section 591.201--We are including firefighter straight-time pay for 
    regular overtime hours in the definition of ``basic pay'' for the 
    purpose of nonforeign area cost-of-living allowances and post 
    differentials, consistent with Sec. 550.1305(b).
        Sections 630.201 and 630.210--In OPM's leave regulations, we are 
    revising the definition of ``uncommon tour of duty'' in Sec. 630.201 to 
    incorporate a reference to firefighters compensated under subpart M of 
    part 550 and to make other clarifying changes. We are adding a 
    requirement in Sec. 630.210 that agencies must establish uncommon tours 
    of duty for firefighters compensated under Sec. 550.1303(a)--that is, 
    firefighters with regular tours of duty that generally consist of 24-
    hour shifts.
        Section 870.204--We are including firefighter straight-time pay for 
    regular overtime hours in the definition of ``annual pay'' for life 
    insurance purposes, consistent with Sec. 550.1305(b).
    
    Waiver of Notice of Proposed Rule Making and Delay in Effective 
    Date
    
        Pursuant to 5 U.S.C. 553(b)(3)(B), 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 to make this rule 
    effective in less than 30 days. Section 628 of the Treasury and General 
    Government Appropriations Act, 1999 (which is incorporated in section 
    101(h) of Public Law 105-277), which changed the method for computing 
    firefighter pay, was approved on October 21, 1998, and applies on the 
    first day of the first pay period beginning on or after October 1, 
    1998. These regulations are being made effective retroactively to 
    ensure that the new firefighter pay provisions are uniformly 
    implemented in a timely manner.
    
    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 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 Parts 410, 550, 551, 591, 630, and 870
    
        Administrative practice and procedure, Claims, Education, 
    Government employees, Hostages, Iraq, Kuwait, Lebanon, Life insurance, 
    Retirement, Travel and transportation expenses, Wages.
    
    U.S. Office of Personnel Management,
    Janice R. Lachance,
    Director.
    
        Accordingly, OPM is amending parts 410, 550, 551, 591, 630, and 870 
    of title 5 of the Code of Federal Regulations as follows:
    
    PART 410--TRAINING
    
        1. The authority citation for part 410 continues to read as 
    follows:
    
        Authority: 5 U.S.C. 4101, et seq.; E.O. 11348, 3 CFR, 1967 
    Comp., p. 275.
    
    Subpart D--Paying for Training
    
        2. In Sec. 410.402, paragraph (b)(6) is redesignated as paragraph 
    (b)(7), and a new paragraph (b)(6) is added to read as follows:
    
    
    Sec. 410.402  Paying premium pay.
    
    * * * * *
        (b) * * *
        (6) Firefighter overtime pay. A firefighter compensated under part 
    550, subpart M, of this chapter must be paid basic pay and overtime pay 
    for the firefighter's regular tour of duty (as defined in Sec. 550.1302 
    of this chapter) in any week in which attendance at agency-sanctioned 
    training reduces the hours in the firefighter's regular tour of duty. 
    This special pay protection does not apply to firefighters who 
    voluntarily participate in training during non-duty hours, leave hours, 
    or periods of excused absence.
    * * * * *
    
    PART 550--PAY ADMINISTRATION (GENERAL)
    
    Subpart A--Premium Pay
    
        3. The authority citation for subpart A of part 550 is revised to 
    read as follows:
    
        Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5545b, 
    5548, 5553, and 6101(c); E.O. 12748, 3 CFR, 1992 Comp., p. 316.
    
        4. In Sec. 550.103, the definition of overtime work is revised to 
    read as follows:
    
    
    Sec. 550.103  Definitions.
    
    * * * * *
        Overtime work has the meaning given that term in Sec. 550.111 and 
    includes irregular or occasional overtime work and regular overtime 
    work.
    * * * * *
        5. In Sec. 550.111, the introductory text of paragraph (a) is 
    amended by removing the words ``paragraphs (d) and (f)'' and adding in 
    their place ``paragraphs (d), (f), and (g)'', and a new paragraph (g) 
    is added to read as follows:
    
    
    Sec. 550.111  Authorization of overtime pay.
    
    * * * * *
        (g) For firefighters compensated under subpart M of this part, 
    overtime work means officially ordered or approved work in excess of 
    106 hours in a biweekly pay period, or, if the agency establishes a 
    weekly basis for overtime pay computations, in excess of 53 hours in an 
    administrative workweek.
        6. In Sec. 550.113, a new paragraph (e) is added to read as 
    follows:
    
    
    Sec. 550.113  Computation of overtime pay.
    
    * * * * *
        (e)(1) For firefighters compensated under subpart M of this part, 
    the overtime hourly rate for all overtime hours is 1\1/2\ times the 
    firefighter's hourly rate of basic pay under Sec. 550.1303(a) or 
    (b)(2), as applicable, except as provided in paragraph (e)(2) of this 
    section.
        (2) For firefighters compensated under subpart M of this part who 
    areexempt from the overtime provisions of the Fair Labor Standards Act 
    and whose hourly rate of basic pay under Sec. 550.1303(a) or (b)(2), as 
    applicable, exceeds the applicable minimum hourly rate of basic pay for 
    GS-10 (as computed under paragraph (a) of this section by dividing the 
    annual rate of basic pay by 2087 hours), the overtime hourly rate is 
    equal to the greater of--
        (i) One and one-half times the applicable minimum hourly rate of 
    basic pay for GS-10 (as computed under paragraph (a) of this section by 
    dividing the annual rate of basic pay by 2087 hours); or
        (ii) The individual's own firefighter hourly rate of basic pay 
    under Sec. 550.1303(a) and (b)(2), as applicable.
    
    Subpart B--Advances in Pay
    
        7. The authority citation for part 550, subpart B, continues to 
    read as follows:
    
        Authority: 5 U.S.C. 5524a, 5545a(h)(2)(B); sections 302 and 404 
    of the Federal Employees Pay Comparability Act of 1990 (Public Law 
    101-509), 104 Stat. 1462 and 1466, respectively; E.O. 12748, 3 CFR, 
    1992 Comp., p. 316.
    
    
    Sec. 550.202  [Amended]
    
        8. In Sec. 550.202, the definition of rate of basic pay is amended 
    by adding
    
    [[Page 64593]]
    
    ``straight-time pay for regular overtime hours for firefighters under 5 
    U.S.C. 5545b (as provided in Sec. 550.1305(b)),'' immediately before 
    the words ``night differential''.
    
    Subpart G--Severance Pay
    
        9. The authority citation for subpart G of part 550 continues to 
    read as follows:
    
        Authority: 5 U.S.C. 5595; E.O. 11257, 3 CFR, 1964-1965 Comp., p. 
    357.
    
    
    Sec. 550.703  [Amended]
    
        10. The definition of rate of basic pay in 550.703 is amended by 
    adding ``straight-time pay for regular overtime hours for firefighters 
    under 5 U.S.C. 5545b (as provided in Sec. 550.1305(b)),'' before the 
    words ``night differential''.
        11. Section 550.707 is amended by removing ``or'' at the end of 
    paragraph (b)(2), by removing the period at the end of paragraph (b)(3) 
    and adding a semicolon and the word ``and'' in its place, and by adding 
    a new paragraph (b)(4) to read as follows:
    
    
    Sec. 550.707  Computation of severance pay.
    
    * * * * *
        (b) * * *
        (4) In which the employee's pay is computed under subpart M of this 
    part (dealing with firefighter pay) when the employee has a recurring 
    cycle of variable workweeks within his or her regular tour of duty (as 
    defined in Sec. 550.1302).
    * * * * *
    
    Subpart L--[Added and Reserved]
    
        12. Subpart L is added and reserved, and a subpart M is added to 
    read as follows:
    
    Subpart M--Firefighter Pay
    
    Sec.
    550.1301 Purpose, applicability, and administration.
    550.1302 Definitions.
    550.1303 Hourly rates of basic pay.
    550.1304 Overtime hourly rates of pay.
    550.1305 Treatment as basic pay.
    550.1306 Relationship to other entitlements.
    550.1307 Authority to regularize paychecks.
    550.1308 Transitional provisions.
    
        Authority: 5 U.S.C. 5545b, 5548, 5553, and subsections (f) and 
    (g) of section 628 as included in section 101(h) of Public Law 105-
    277.
    
    Subpart M--Firefighter Pay
    
    
    Sec. 550.1301  Purpose, applicability, and administration.
    
        (a) Purpose. This subpart provides regulations governing the pay of 
    covered Federal firefighters. It implements sections 5542(f) and 5545b 
    of title 5, United States Code, as added by section 628 of section 
    101(h) of Pub. L. 105-277, and must be read together with those 
    sections of law.
        (b) Applicability. This subpart applies to any firefighter as 
    defined in Sec. 550.1302.
        (c) Administration. The head of an agency having employees subject 
    to this subpart is responsible for the proper administration of this 
    subpart.
    
    
    Sec. 550.1302  Definitions.
    
        In this subpart:
        Annual rate of basic pay (except as otherwise provided in 
    Secs. 550.1305 and 550.1308) means the annual rate fixed under the rate 
    schedule applicable to the position held by the firefighter, including 
    a locality rate schedule established under 5 U.S.C. 5304 or a special 
    rate schedule established under 5 U.S.C. 5305, before any deductions 
    and exclusive of additional pay of any other kind.
        Basic 40-hour workweek means--
        (1) A standard 40-hour workweek consisting of five 8-hour workdays 
    that is part of the firefighter's regular tour of duty; or
        (2) A designated block of hours within a firefighter's regular tour 
    of duty that, on a fixed and recurring basis, consists of 40 hours of 
    actual work during each administrative week (or 80 hours of actual work 
    in each biweekly pay period), excluding sleep and standby duty hours, 
    provided the regular tour of duty does not consist primarily of 24-hour 
    shifts.
        Firefighter means an employee--
        (1) Who is in a position covered by the General Schedule and 
    classified in the GS-081 Fire Protection and Prevention classification 
    series, consistent with standards published by the Office of Personnel 
    Management; and
        (2) Whose regular tour of duty, as in effect throughout the year, 
    averages at least 106 hours per biweekly pay period.
        Firefighter hourly rate of basic pay means an hourly rate computed 
    by dividing the applicable annual rate of basic pay by 2756 hours, as 
    described in Sec. 550.1303.
        Irregular hours means hours of work that are outside a 
    firefighter's regular tour of duty.
        Overtime hours means hours of work in excess of 106 hours in a 
    biweekly pay period, or, if the agency establishes a weekly basis for 
    overtime pay computations, hours of work in excess of 53 hours in an 
    administrative workweek.
        Overtime pay means pay for overtime hours.
        Regular tour of duty means a firefighter's official work schedule, 
    as established by the employing agency on a regular and recurring basis 
    (or on a temporary basis in cases where a temporary change in schedules 
    results in a reduction in regular work hours or a change in the pay 
    computation method used under Sec. 550.1303). The tour of duty may 
    consist of a fixed number of hours each week or a fixed recurring cycle 
    of work schedules in which the number of hours per week varies in a 
    repeating pattern. The regular tour of duty includes only those 
    overtime hours that are part of the fixed recurring work schedule. 
    However, irregular hours are deemed to be included in a firefighter's 
    regular tour of duty if those hours are substituted for hours in the 
    regular tour of duty for which leave without pay is taken, as provided 
    in Sec. 550.1303(d).
    
    
    Sec. 550.1303  Hourly rates of basic pay.
    
        (a) For firefighters with a regular tour of duty that does not 
    include a basic 40-hour workweek (e.g., firefighters whose schedules 
    generally consist of 24-hour shifts with a significant amount of 
    designated standby and sleep time), the hourly rate of basic pay is 
    computed by dividing the applicable annual rate of basic pay by 2756 
    hours. The resulting firefighter hourly rate of basic pay is multiplied 
    by all nonovertime hours to determine the pay for those hours.
        (b) For firefighters with a regular tour of duty that includes a 
    basic 40-hour workweek, the hourly rate of basic pay is computed by 
    dividing the applicable annual rate of basic pay by--
        (1) 2087 hours, for hours within the basic 40-hour workweek (or 80-
    hour biweekly pay period); and
        (2) 2756 hours, for any additional nonovertime hours.
        (c) A firefighter's daily, weekly, or biweekly rate of basic pay 
    must be computed using the applicable rates, as derived under 
    paragraphs (a) and (b) of this section.
        (d) If a firefighter takes leave without pay during his or her 
    regular tour of duty, the agency must substitute any irregular hours 
    worked in the same biweekly pay period for those hours of leave without 
    pay. (If the firefighter's overtime pay is computed on a weekly basis, 
    the irregular hours must be worked in the same administrative 
    workweek.) For firefighters whose regular tour of duty includes a basic 
    40-hour workweek, irregular hours must be substituted first for hours 
    of leave without pay in the basic 40-hour workweek. Each substituted 
    hour will be paid at the rate applicable to the hour in the regular 
    tour for which substitution is made, consistent with this section and 
    Sec. 550.1304.
    
    [[Page 64594]]
    
    Sec. 550.1304  Overtime hourly rates of pay.
    
        (a) For a firefighter who is covered by (i.e., nonexempt from) the 
    overtime provisions of the Fair Labor Standards Act (FLSA), the 
    overtime hourly rate of pay equals 1\1/2\ times the firefighter hourly 
    rate of basic pay for that firefighter, as established under 
    Sec. 550.1303(a) and (b)(2).
        (b) For a firefighter who is exempt from the FLSA, the overtime 
    hourly rate is computed as provided in Sec. 550.113(e).
        (c) For any firefighter, overtime pay for any pay period is derived 
    by multiplying the applicable overtime hourly rate by all overtime 
    hours within that period.
    
    
    Sec. 550.1305  Treatment as basic pay.
    
        (a) The sum of pay for nonovertime hours that are part of a 
    firefighter's regular tour of duty (as computed under Sec. 550.1303) 
    and the straight-time portion of overtime pay for hours in a 
    firefighter's regular tour of duty is treated as basic pay for the 
    following purposes:
        (1) Retirement deductions and benefits under chapters 83 and 84 of 
    title 5, United States Code;
        (2) Life insurance premiums and benefits under chapter 87 of title 
    5, United States Code;
        (3) Severance pay under section 5595 of title 5, United States 
    Code;
        (4) Cost-of-living allowances and post differentials under section 
    5941 of title 5, United States Code; and
        (5) Advances in pay under section 5524a of title 5, United States 
    Code.
        (b) The straight-time portion of overtime pay for hours in a 
    firefighter's regular tour of duty is derived by multiplying the 
    applicable firefighter hourly rate of basic pay computed under 
    Sec. 550.1303(a) and (b)(2) by the number of overtime hours in the 
    firefighter's regular tour of duty.
        (c) Pay for any nonovertime hours outside a firefighter's regular 
    tour of duty is computed using the firefighter hourly rate of basic pay 
    as provided in Sec. 550.1303(a) and (b)(2), but that pay is not 
    considered basic pay for any purpose.
        (d) For firefighters compensated under Sec. 550.1303(b), pay for 
    nonovertime hours within the regular tour of duty, but outside the 
    basic 40-hour workweek, is basic pay only for the purposes listed in 
    paragraph (a) of this section.
        (e) Locality pay under 5 U.S.C. 5304 is basic pay for firefighters 
    only to the extent provided in this subpart, Sec. 531.606(b) of this 
    chapter, or other specific provision of law.
    
    
    Sec. 550.1306  Relationship to other entitlements.
    
        (a) A firefighter who is compensated under this subpart is entitled 
    to overtime pay as provided under this subpart, but may not receive 
    additional premium pay under any other provision of subchapter V of 
    chapter 55 of title 5, United States Code, including night pay, Sunday 
    pay, holiday pay, and hazardous duty pay.
        (b) A firefighter who is subject to section 7(k) of the Fair Labor 
    Standards Act (FLSA) and who is subject to this subpart is deemed to be 
    appropriately compensated under section 7(k) of the FLSA if the 
    requirements of Sec. 550.1304(a) are satisfied.
        (c) In computing a lump-sum payment for accumulated annual leave 
    under 5 U.S.C. 5551 and 5552 for firefighters with an uncommon tour of 
    duty established under Sec. 631.210 of this chapter for leave purposes, 
    an agency must use the rates of pay for the position held by the 
    firefighter that apply to hours in that uncommon tour of duty, 
    including regular overtime pay for such hours.
    
    
    Sec. 550.1307  Authority to regularize paychecks.
    
        Upon a written request from the head of an agency (or designee), 
    the Office of Personnel Management may approve an agency's plan to 
    reduce or eliminate variation in the amount of firefighters' biweekly 
    paychecks caused by work scheduling cycles that result in varying hours 
    in the firefighters' tours of duty from pay period to pay period. Such 
    a plan must provide that the total pay any firefighter would otherwise 
    receive for regular tours of duty over the firefighter's entire work 
    scheduling cycle must, to the extent practicable, remain the same.
    
    
    Sec. 550.1308  Transitional provisions.
    
        (a)(1) Effective on the first day of the first pay period beginning 
    on or after October 1, 1998, a firefighter subject to this subpart who 
    has a regular tour of duty that averages 60 hours or less per week 
    during a year, and that does not include a basic 40-hour workweek, must 
    be granted an increase in basic pay equal to two within-grade increases 
    for the General Schedule grade applicable to the firefighter.
        (2) An increase granted under paragraph (a)(1) of this section is 
    not considered an equivalent increase in pay for within-grade increase 
    purposes under 5 U.S.C. 5335 and subpart D of part 531 of this chapter.
        (3) If an increase granted under paragraph (a)(1) of this section 
    results in a longer waiting period for the firefighter's next within-
    grade increase, the firefighter must be credited with 52 weeks of 
    service for the purpose of that waiting period.
        (4) If an increase granted under paragraph (a)(1) of this section 
    results in a rate of basic pay that is above the maximum rate of basic 
    pay for the applicable grade, that resulting pay rate must be treated 
    as a retained rate of basic pay consistent with 5 U.S.C. 5363 and part 
    536 of this chapter.
        (b)(1) Effective on the first day of the first pay period beginning 
    on or after October 1, 1998, an employing agency must temporarily 
    establish a protected annual rate of basic pay that exceeds a 
    firefighter's actual annual rate of basic pay (including any adjustment 
    under paragraph (a) of this section), if necessary to ensure that the 
    firefighter's annualized regular pay is not reduced on that date. For 
    this purpose, annualized regular pay means total pay for hours in the 
    firefighter's regular tour of duty, expressed as an annual rate based 
    on the cycle of schedules under the firefighter's regular tour of duty. 
    The annualized regular pay resulting from using the protected rate in 
    applying the pay computation rules under this subpart must 
    approximately equal (but be no less than) the annualized regular pay to 
    which the firefighter would have been entitled on the effective date of 
    this paragraph under the former pay computation method.
        (2) The protected rate of basic pay is fixed and not subject to 
    further adjustments. The protected rate is a scheduled rate of basic 
    pay for purposes of computing locality payments under 5 U.S.C. 5304 and 
    part 531, subpart F of this chapter.
        (3) The protected rate of basic pay is terminated when it is equal 
    to or less than the firefighter's actual rate of basic pay or when the 
    employee is no longer covered by this subpart.
        (c) For purposes of this section, the term basic pay excludes 
    locality pay under 5 U.S.C. 5304 and part 531, subpart F, of this 
    chapter.
    
    PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
    
        13. 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. 240f).
    
    Subpart E--Overtime Pay Provisions
    
        14. In Sec. 551.501, paragraphs (a)(1) and (a)(5) are revised to 
    read as follows:
    
    [[Page 64595]]
    
    Sec. 551.501  Overtime pay.
    
        (a) * * *
        (1) On the basis of periods of duty in excess of 8 hours in a day 
    when the employee receives compensation for that duty under 5 U.S.C. 
    5545(c)(1) or (2) or 5545b;
    * * * * *
        (5) On the basis of hours of work in excess of 40 hours in a 
    workweek for an employee engaged in fire protection or law enforcement 
    activities when the employee receives compensation for those hours of 
    work under 5 U.S.C. 5545(c)(1) or (2) or 5545b;
    * * * * *
        15. In Sec. 551.541, paragraph (a) is amended by adding ``or 
    5545b'' immediately before the period at the end of the paragraph, and 
    a new paragraph (d) is added to read as follows:
    
    
    Sec. 551.541  Employees engaged in fire protection activities or law 
    enforcement activities.
    
    * * * * *
        (d) A firefighter subject to section 7(k) of the Act who is 
    compensated under part 550, subpart M, of this chapter is deemed to be 
    appropriately compensated under section 7(k) of the Act and this part 
    if the requirements of Sec. 550.1304(a) of this chapter are satisfied. 
    (See 5 U.S.C. 5545b(d)(2).)
    
    PART 591--ALLOWANCES AND DIFFERENTIALS
    
    Subpart B--Cost-of-Living Allowance and Post Differential--
    Nonforeign Areas
    
        16. The authority citation for part 591, subpart B, continues to 
    read as follows:
    
        Authority: 5 U.S.C. 5941; E.O. 10000, 3 CFR, 1943-1948 Comp., p. 
    792; and E.O. 12510, 3 CFR, 1985 Comp., p. 338.
        17. In Sec. 591.201, the definition of rate of basic pay is revised 
    to read as follows:
    
    
    Sec. 591.201  Definitions.
    
    * * * * *
        Rate of basic pay means the rate of pay fixed by statute for the 
    position held by an individual before any deductions and exclusive of 
    additional pay of any kind, such as overtime pay, night differential, 
    extra pay for work on holidays, or allowances and differential, except 
    that straight-time pay for regular overtime hours for firefighters 
    under 5 U.S.C. 5545b (as provided in Sec. 550.1305(b) of this chapter) 
    is included as basic pay.
    * * * * *
    
    PART 630--ABSENCE AND LEAVE
    
        18. The authority citation for part 630 continues to read as 
    follows:
        Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub. L. 
    103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C. 
    6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C. 
    6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337, 
    108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108 
    Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228, 
    30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 
    U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I 
    also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, 
    and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5 
    U.S.C. 6362, Pub. L 100-566, and Pub. L. 103-103; subpart K also 
    issued under Pub. L. 102-25, 105 Stat. 92; and subpart L also issued 
    under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23.
    
    Subpart B--Definitions and General Provisions for Annual and Sick 
    Leave
    
        19. In Sec. 630.201, paragraph (b), the definition of uncommon tour 
    of duty is revised to read as follows:
    
    
    Sec. 630.201  Definitions.
    
    * * * * *
        (b) * * *
        Uncommon tour of duty means an established tour of duty that 
    exceeds 80 hours of work in a biweekly pay period, provided the tour--
        (1) Includes hours for which the employee is compensated by standby 
    duty pay under 5 U.S.C. 5545(c)(1) and Sec. 550.141 of this chapter;
        (2) Is a regular tour of duty (as defined in Sec. 550.1302 of this 
    chapter) established for firefighters compensated under 5 U.S.C. 5545b 
    and part 550, subpart M, of this chapter; or
        (3) Is authorized for a category of employees by the Office of 
    Personnel Management.
        20. In Sec. 630.210, a new paragraph (c) is added to read as 
    follows:
    
    
    Sec. 630.210  Uncommon tours of duty.
    
    * * * * *
        (c) An agency must require that firefighters compensated under 
    Sec. 550.1303(a) of this chapter accrue and use leave on the basis of 
    the applicable uncommon tour of duty.
    
    PART 870--FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM
    
        21. The authority citation for part 870 continues to read as 
    follows:
    
        Authority: 5 U.S.C. 8716; subpart J also issued under sec. 599C 
    of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 870.302 also 
    issued under sections 11202(f), 11232(e), and 11246(b) and (c) of 
    Pub. L. 105-33, 111 Stat. 251.
    
    Subpart B--Types and Amount of Insurance
    
        22. Section 870.204 is amended by revising paragraph (a)(2)(ii), by 
    removing the word ``and'' at the end of paragraph (a)(2)(ix), by 
    removing the period at the end of paragraph (a)(2)(x) and adding ``; 
    and'' in its place, and by adding a new paragraph (a)(2)(xi) to read as 
    follows:
    
    
    Sec. 870.204  Annual rates of pay.
    
        (a) * * *
        (2) * * *
        (ii) Premium pay for standby duty under 5 U.S.C. 5545(c)(1);
    * * * * *
        (xi) Straight-time pay for regular overtime hours for firefighters, 
    as provided in 5 U.S.C. 5545b and part 550, subpart M, of this chapter.
    * * * * *
    [FR Doc. 98-31258 Filed 11-20-98; 8:45 am]
    BILLING CODE 6325-01-U
    
    
    

Document Information

Published:
11/23/1998
Department:
Personnel Management Office
Entry Type:
Rule
Action:
Interim rule with request for comments.
Document Number:
98-31258
Pages:
64589-64595 (7 pages)
RINs:
3206-AI50: Firefighter Pay
RIN Links:
https://www.federalregister.gov/regulations/3206-AI50/firefighter-pay
PDF File:
98-31258.pdf
CFR: (23)
5 CFR 550.1303(a)
5 CFR 550.1303(a)
5 CFR 410.402
5 CFR 550.103
5 CFR 550.111
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