[Federal Register Volume 64, Number 130 (Thursday, July 8, 1999)]
[Rules and Regulations]
[Pages 36763-36775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16992]
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Rules and Regulations
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Federal Register / Vol. 64, No. 130 / Thursday, July 8, 1999 / Rules
and Regulations
[[Page 36763]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 531, 550, and 591
RIN 3206-AF38
Pay Administration (General); Lump-Sum Payments for Annual Leave
AGENCY: Office of Personnel Management.
ACTION: Final regulation.
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SUMMARY: The Office of Personnel Management is issuing final
regulations to establish a uniform Governmentwide policy for
calculating lump-sum payments for accumulated and accrued annual leave
for employees who separate from the Federal service.
EFFECTIVE DATE: September 7, 1999.
FOR FURTHER INFORMATION CONTACT: Brenda Roberts, (202) 606-2858, FAX
(202) 606-0824, or email to payleave@opm.gov.
SUPPLEMENTARY INFORMATION: The Technical and Miscellaneous Civil
Service Amendments Act of 1992 (Pub. L. 102-378, October 2, 1992) added
section 5553 to title 5, United States Code, to give the Office of
Personnel Management (OPM) regulatory authority for the administration
of lump-sum payments for accumulated and accrued annual leave. Under 5
U.S.C. 5551 and 5552, an agency must make a lump-sum payment for annual
leave when an employee separates from the Federal service or enters on
active duty in the armed forces and elects to receive a lump-sum
payment. The lump-sum payment must equal the pay the employee would
have received had he or she remained employed until expiration of the
period of annual leave. Section 6306 of title 5, United States Code,
provides that when an employee is reemployed in the Federal service
prior to the expiration of the period of annual leave (i.e., the lump-
sum leave period), he or she must refund the portion of the lump-sum
payment that represents the period between the date of reemployment and
the expiration of the lump-sum period. An agency must recredit to the
employee an amount of annual leave equal to the days or hours of work
remaining between the date of reemployment and the expiration of the
lump-sum leave period.
OPM acknowledges that some of these regulatory provisions involve
items not expressly provided for by statute. However, OPM would
emphasize in this regard that an administrative agency may determine
matters within its expertise that have not been specifically addressed
by statute. Indeed, administrative agencies formulate policy and make
appropriate rules as needed to carry out their regulatory
responsibilities consistent with statutory authority. See Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984)
and United States v. Grimaud, 220 U.S. 506, 517 (1911), as cited in
Davis, K., Administrative Law Treatise, Third Edition, Sec. 2.6, pp.
70-71. The construction of a statute by those charged with its
administration is entitled to great deference, particularly when that
interpretation has been followed over a long period of time. United
States v. Clark, 454 U.S. 555, 565 (1982) and Rosete v. OPM, 48 F.3d
514, 518-519 (Fed. Cir. 1995).
On July 29, 1997, OPM published proposed regulations (62 FR 40475)
to establish a Governmentwide policy for calculating lump-sum payments
for accumulated and accrued annual leave for employees who separate
from Federal service. OPM received comments from 7 agencies, 1 labor
organization, 1 employee association, and 4 individuals, for a total of
13 comments. The majority of the agencies and the labor organization
agreed that regulations are needed to provide consistency throughout
the Federal Government. The labor organization stated that the
development of one set of rules will ensure that employees are aware of
the lump-sum payment policy and are familiar with their rights to
receive payment for unused annual leave when they separate from the
Federal service. The labor organization further stated that the
adoption of one Governmentwide policy eliminates inequities that
necessarily result from agency-specific policies. A summary of the
comments received and the changes made in the regulations is presented
below.
Employees Eligible for a Lump-Sum Payment
The proposed regulations stated that an agency must not make a
lump-sum payment for accumulated or accrued annual leave to an employee
whom the agency determines to be in a continuing employment program
under which the employee is required to work a mixed tour of duty
(i.e., the employee works full-time or part-time for a limited portion
of the year and intermittently for the remainder). Since an employee
working intermittent duty cannot accrue or use leave, the proposed
regulations required the agency to hold any accrued leave in abeyance
during the time the employee is working intermittent duty and to
recredit the annual leave when the employee returns without a break in
service to full-time or part-time employment. In addition, the proposed
regulations required the agency to hold in abeyance any of the
employee's fractional pay periods for leave accrual purposes and
recredit the pro-rata leave as provided in Sec. 630.204 when the
employee returns to full-time or part-time employment.
One agency recommended that the final regulations allow each agency
the discretion to determine whether to pay a lump-sum payment for
annual leave when an employee changes to intermittent duty or to hold
the employee's accrued annual leave in abeyance until he or she returns
to a part-time or full-time position. The agency disagrees with the
proposed regulations and believes that requiring an agency to hold
leave in abeyance results in additional leave being available for use
during periods of part-time and full-time employment when the agency
needs its employees at work the most. The agency believes mission
requirements, staffing needs, and sources of available funds vary
greatly from one organization to another and that applying the same
rule universally may have a negative financial impact on one or more
agencies or organizations. In addition, the agency stated that the
proposed rule would eliminate the financial cushion (i.e., lump-sum
payment) that many employees working mixed tours of duty have become
[[Page 36764]]
accustomed to receiving during non-work periods.
Another agency commented on the administrative burden of paying
lump-sum payments during short periods of intermittent work. The agency
requested approval to hold accrued annual leave in abeyance so that an
employee would have annual leave available at the beginning of his or
her part-time or full-time employment. Under this approach, an employee
also would not lose any fractional hours of creditable service for
purposes of leave accrual when the employee's tour changes to
intermittent.
Upon further review, we believe it would be in the best interest of
the Government to permit more flexibility. Therefore, Sec. 550.1203(i)
of the final regulations permits each agency to prescribe its own
policy for paying lump-sum payments for employees on mixed tours of
duty. Each agency's policy must ensure that employees are treated in a
fair and equitable manner. In developing its policy, we encourage each
agency to consider the likelihood that an employee will return to work,
as well as the agency's mission requirements and staffing needs.
An agency requested clarification as to whether an employee on a
mixed tour of duty is entitled to continue to accrue leave on a
prorated basis during periods of intermittent employment. If an
employee is assigned intermittent duty and does not have an established
regular tour of duty each week, he or she cannot accrue or use leave
during the intermittent period. (See 5 U.S.C. 6301(2).)
A commenter requested clarification about entitlement to a lump-sum
payment when an employee who had annual leave restored under 5 U.S.C.
6304(d)(3) transfers to a component of the Department of Defense (DOD)
that is not undergoing closure or realignment. Section 1611 of Pub. L.
104-201 (September 23, 1996), added paragraph (c) to 5 U.S.C. 5551 to
require DOD to pay a lump-sum payment to an employee for any unused
annual leave that was restored under 5 U.S.C. 6304(d)(3) when the
employee (1) transfers to a position in any other department or agency
of the Federal Government or (2) moves to a position within DOD not
located at an installation undergoing closure or realignment. The
entitlement to a lump-sum payment for affected DOD employees became
effective on September 23, 1996, and applies only to employees
transferring from a DOD component undergoing closure or realignment at
the time of transfer. Further questions on this provision should be
directed to DOD's Civilian Personnel Management Service, Field Advisory
Services, 1400 Key Boulevard, Arlington, VA 22209-5144 (telephone:
(703) 696-6301).
The proposed regulations stated that when an employee enters active
duty, any annual leave previously restored under 5 U.S.C. 6304(d) may
not remain to the employee's credit and may be paid in a lump-sum
payment. An agency commented that this statement is confusing, since 5
U.S.C. 6304(d)(2) requires an agency to make a lump-sum payment for
restored annual leave when an employee enters on active duty. We agree
and have revised Sec. 550.1203(c) of the final regulations to require
an agency to make a lump-sum payment for any annual leave previously
restored under 5 U.S.C. 6304(d) when an employee enters active duty.
The agency may not recredit the restored leave when the employee
returns to Federal service.
Employees Not Eligible for a Lump-Sum Payment
Under the proposed regulations, if an employee transfers to a
position that is not covered by subchapter I of chapter 63 of title 5,
United States Code (e.g., a position in the U.S. Postal Service), and
only a portion of his or her accumulated and accrued annual leave may
be transferred, the losing agency would hold in abeyance the annual
leave that could not be transferred. The agency would then recredit the
annual leave that had been held in abeyance once the employee is
reemployed without a break in service in a position to which his or her
accumulated and accrued annual leave may be transferred. An agency
suggested that OPM seek a statutory change in 5 U.S.C. 5551 to allow
for the immediate lump-sum payment of any annual leave in excess of the
amount accepted by the gaining agency (e.g., the U.S. Postal Service).
The agency believes this change would preclude the need for
establishing and tracking a separate leave account for non-
transferrable leave and result in quicker settlement of the matter for
the employee. The agency stated that this change would, in effect, be
identical to the lump-sum payment provisions in 5 U.S.C. 5551(c) for
employees affected by base realignment or closure (Pub. L. 104-201).
We agree with the substance of the agency's recommendation, but
have determined that this can be accomplished by regulation rather than
legislation. Therefore, Sec. 550.1203(f) of the final regulations
provides that when an employee transfers to a position that is not
covered by subchapter I of chapter 63 of title 5, United States Code,
the losing agency must make a lump-sum payment under Sec. 550.1205 for
the amount of annual leave that cannot be transferred to the gaining
agency. This does not apply to an employee transferring to an excepted
position under 5 U.S.C. 6301(2)(x)-(xiii), (e.g., a member of the
Senior Executive Service who accepts a Presidential appointment).
Under the proposed regulations, an employee who was concurrently
employed in more than one part-time position in more than one agency,
and who separated from one of the part-time positions, would have had
the annual leave that accrued in the agency from which he or she
separated transferred to the current employing agency. An agency
recommended that the agency pay a lump-sum payment to an employee who
separates from any of the part-time appointments. The agency believes
the annual leave should not be transferred because (1) such transfer
would place a financial burden on the gaining agency in terms of a
future lump-sum payment if the employee later separates from Federal
service, (2) the employee would receive an unintended increase or loss
in the value of annual leave if the multiple part-time appointments are
at different grades or levels, and (3) the employee may be absent for
extended periods in the gaining agency and/or may be forced to forfeit
annual leave in excess of the maximum annual leave limitation.
We agree that these are all important factors for employees to
consider when separating from a part-time position. However, the law
provides that an employee is entitled to a lump-sum payment only when
he or she separates from Federal service (or goes on military duty) or
when unused annual leave cannot be transferred or credited at a gaining
agency. Since an employee who is employed in a second part-time
position is not separated from Federal service and could have his or
her accumulated annual leave transferred to a gaining agency, he or she
is not entitled to a lump-sum payment. Therefore, OPM made no changes
in Sec. 550.1203(h)(4) of the final regulations.
Projecting the Lump-Sum Leave Period
An agency asked whether ``use or lose'' or restored annual leave
should be included in the projected lump-sum leave period if the leave
is scheduled to be forfeited within a few days after separation. The
answer is yes. Under 5 U.S.C. 5551, an employee is entitled to receive
a lump-sum payment for accumulated and currently accrued annual leave
to which an employee is entitled by statute on the date of
[[Page 36765]]
separation. This includes all ``use or lose'' and restored annual leave
to the employee's credit on the date of separation. Annual leave that
has not yet been forfeited must be included in a lump-sum payment.
The proposed regulations required an agency to project the lump-sum
leave period so that annual leave restored under 5 U.S.C. 6304(d) in a
separate leave account must be used before using any accumulated annual
leave in the employee's regular annual leave account. This was done so
that if an employee returned to Federal service prior to the expiration
of the lump-sum leave period, the restored annual leave would have
already been used and would not be recredited to the employee. We have
revised the proposed regulations on recrediting annual leave so that
there is no longer any requirement to identify restored annual leave
and recredit it upon reemployment. Therefore, Sec. 550.1204(c) of the
final regulations does not require agencies to project the lump-sum
leave period so that restored annual leave is used before using regular
annual leave.
Section 550.1204(a) of the final regulations states that the period
of leave used for calculating the lump-sum payment may not be extended
by compensatory time off earned under 5 U.S.C. 5543 and
Secs. 550.114(d) or 551.531 or by credit hours accumulated under an
alternative work schedule under 5 U.S.C. 6126. The employee association
expressed concern that agencies may misinterpret this regulation to
mean that they do not have to pay a separating employee for any earned
compensatory time off or credit hours. Section 550.1204(a) merely
ensures that compensatory time off and credit hours, which are not
types of leave under chapter 63 of title 5, United States Code, are not
identified and included in the calculation of a lump-sum payment for
annual leave. Since agencies are responsible for ensuring that
compensatory time off and credit hours (credit hours not in excess of
24 hours) remaining to an employee's credit at the time of separation
are paid separately as part of a final salary payment under existing
law and regulations, we do not believe any change is necessary. (See
Secs. 550.114(d) and 551.531(d) and 5 U.S.C. 6126.)
Pay Received Prior to Separation
Throughout the regulations, we use the phrases ``immediately prior
to separation, death, or transfer'' and ``immediately prior to the date
the employee becomes/became eligible for a lump-sum payment under
Sec. 550.1203'' interchangeably. An agency recommended that OPM
consistently use the phrase ``immediately prior to the date the
employee becomes/became eligible for a lump-sum payment under
Sec. 550.1203'' throughout the regulations. The agency believes this
change would eliminate any confusion and ensure coverage of all
intended employees, including those who choose to receive a lump-sum
payment upon entering active duty in the armed forces. We agree and
have modified the final regulations as suggested.
Calculating the Lump-Sum Payment
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 (excluding any
differential under section 5925 and any allowance under section 5928).
The term ``pay'' is not further defined in law. In the final
regulations, we have interpreted this term to mean the pay the employee
would have received on a biweekly basis had he or she remained in
Federal service on annual leave. For example, an employee's rate of
basic pay, any applicable locality payment, and availability pay for
law enforcement officers (where applicable) are included in a lump-sum
payment, while hazardous duty pay, environmental differentials, and
Sunday premium pay are excluded. Also excluded are allowances that are
paid in addition to a rate of basic pay for the sole purpose of
encouraging an employee to remain in Government service, such as
retention allowances and physicians comparability allowances.
Under Sec. 550.1205(a) of the final regulations, an agency
calculates a lump-sum payment by multiplying the number of hours of
accumulated and accrued annual leave by the employee's applicable
hourly rate of pay, including the types of pay listed in
Sec. 550.1205(b). An algebraically equivalent method that an agency may
also use is to multiply the weeks of annual leave by the employee's
applicable weekly rate of pay.
One agency believes the phrase ``including types of pay'' could be
misconstrued and recommended it be changed to ``plus other applicable
types of pay'' so as to limit the additional types of pay to those
applicable to the employee. To clarify our intent, we have revised
Sec. 550.1205(a) to state that a lump-sum payment must be calculated by
multiplying the number of hours of accumulated and accrued annual leave
by the applicable hourly rate of pay, including other applicable types
of pay listed in Sec. 550.1205(b).
For an employee on an uncommon tour of duty (as defined in
Sec. 630.201), an agency may choose to calculate the lump-sum payment
based on the applicable weekly rate and convert the annual leave
balance to a 40-hour workweek basis. For example, to determine the
number of weeks to use in computing a lump-sum payment for an employee
who normally works an uncommon tour of duty of 72 hours each week, the
agency may convert the employee's annual leave balance from a 72-hour
workweek basis to a 40-hour workweek basis by multiplying the total
hours of annual leave by the fraction 40/72 and dividing the result by
40.
The proposed regulations listed the types of basic pay that must be
included in a lump-sum payment. An agency suggested that OPM include a
retained rate authorized under 5 U.S.C. 5363 and 5 CFR part 536,
subpart B, in the list. We agree and have added a retained rate of pay
to the list in Sec. 550.1205(b)(1)(i). In addition, we have added
supervisory differentials paid under 5 U.S.C. 5755 to the list of the
types of pay to be included in a lump-sum payment, since an employee
who was receiving such a differential would have received supervisory
differential payments on a biweekly basis had he or she remained in
Federal service on annual leave. (See Sec. 550.1205(b)(7).)
General Pay Adjustments
The proposed regulations stated that in the case of a Federal Wage
System (FWS) employee, a lump-sum payment must include the rate of pay
established under 5 U.S.C. 5343. In addition, such an employee would
receive any applicable adjustments in prevailing rates that become
effective during the lump-sum leave period if the employee separated
after issuance of an official order to conduct a wage survey for his or
her applicable wage area. The lump-sum payment would be adjusted to
reflect the increased prevailing rate beginning on the effective date
of the rate adjustment. Since a prevailing rate employee who separated
from Federal service prior to the issuance of an official order to
conduct a wage survey in his or her applicable wage area would not be
entitled to the FWS pay adjustment in that wage area for that year, we
proposed that the FWS pay adjustment should not be included in the
employee's lump-sum payment for annual leave.
An agency recommended that prevailing rate employees be treated the
same as General Schedule employees under Sec. 550.1205(b)(2). Only
those pay adjustments approved before the date of separation must be
included in a lump-
[[Page 36766]]
sum payment. The agency noted that because FWS surveys are ordered 9
weeks before the survey results take effect, the agency would have to
establish temporary payroll files whenever a retroactive recomputation
of a lump-sum payment would be necessary.
We agree that the proposed regulations were unnecessarily
complicated with respect to inclusion of pay adjustments after
separation and would have caused administrative burdens for the
agencies, including the need for additional individual calculations of
lump-sum payments. Because of the concerns we received from agencies
about the complexity in determining an employee's entitlement to a pay
adjustment in his or her lump-sum payment after the employee separates
from Federal service, we have simplified the final regulations. Section
550.1205(b)(2) and (3) provide that lump-sum payments for all covered
Federal employees must include any general pay adjustment and locality
pay adjustment that becomes effective during the employee's lump-sum
leave period. 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 lump-sum payment will be adjusted to reflect the increased rate on
and after the effective date of the pay schedule adjustment. We do not
believe these changes to simplify the calculation of lump-sum payments
will significantly increase costs for Federal agencies, since many
employees separate after the official approval or authorization of a
pay adjustment and/or do not have large amounts of accumulated and
accrued annual leave that extend beyond the effective date of a pay
adjustment.
Night Differential and Night Pay
Under Sec. 550.1205(b)(5)(i) of the final regulations, a lump-sum
payment includes a night differential under 5 U.S.C. 5343(f) for
regularly scheduled nonovertime hours at the percentage rate received
by a prevailing rate employee for the last full workweek immediately
prior to the date the employee becomes eligible for a lump-sum payment.
An agency recommended that the night differential be based on the
average received during a 12-week period, since a single week could
reflect an unusual or anomalous situation. Under 5 U.S.C. 5343(f), a
night differential for a prevailing rate employee is considered part of
basic pay and is included in all regularly scheduled nonovertime
periods of night shift duty, including periods of paid leave. The
language in OPM's proposed regulations was adopted from the Federal
Wage System (FWS) Operating Manual. The FWS Operating Manual comprises
long-standing policies, practices, and recommendations adopted by the
Federal Prevailing Rate Advisory Committee, a labor and management
committee that reports to the Director of OPM. The FWS Operating Manual
states that a night shift differential is included in a lump-sum
payment and is paid at the percentage rate received by the employee for
the last full workweek immediately prior to separation. Therefore, OPM
made no changes in Sec. 550.1205(b)(5)(i).
The proposed regulations provided that a lump-sum payment includes
night pay under 5 U.S.C. 5545 for regularly scheduled nonovertime hours
based on the average amount of night pay received by a General Schedule
(GS) employee during the 12 workweeks immediately prior to the date the
employee becomes eligible for a lump-sum payment. Two agencies objected
to including night pay in a lump-sum payment, since night pay is not
considered part of basic pay for GS employees. In addition, the
agencies noted that 5 U.S.C. 5545(a)(2) prohibits the payment of night
pay for any hours of leave between 6 a.m. and 6 p.m. whenever the total
amount of leave in the pay period equals or exceeds 8 hours. The
agencies believe the proposed regulations would result in an employee
receiving more than he or she would have received had he or she
remained in Federal service. One agency objected to the requirement for
12-week averaging, since such a requirement would force timekeepers to
compute an average amount of night pay manually. The same agency
recommended that OPM treat night pay for GS employees the same as night
differentials for prevailing rate employees by calculating the amount
of night pay to be included in a lump-sum payment based on the rate the
employee received for regularly scheduled nonovertime hours in the
workweek immediately prior to becoming eligible for a lump-sum payment.
We agree that night pay is not part of basic pay for GS employees
and that the proposed regulations would have provided such employees
with a greater benefit than they would have received if they had
remained in Federal service. Therefore, the final regulations do not
include night pay for GS employees among the types of pay that must be
included in a lump-sum payment.
Sunday Premium Pay
The proposed regulations provided that a lump-sum payment includes
Sunday premium pay for nonovertime hours on Sunday based on the average
amount of Sunday premium pay received by the employee during the 12
workweeks immediately prior to the date the employee became eligible
for a lump-sum payment. An agency recommended that Sunday premium pay
be excluded from a lump-sum payment because it is not considered part
of basic pay for retirement purposes. Two agencies recommended that the
amount of Sunday premium pay included in a lump-sum payment be based
solely on the employee's workweek immediately prior to eligibility for
a lump-sum payment. Another agency added that if OPM wishes to use an
average amount received during a 12-week period, the computation should
be based on the average number of hours worked on Sunday rather than on
the amount of Sunday premium pay received. The agency noted that the
actual amount of Sunday premium pay received during an earlier work
period could have been paid at a lower rate if, for example, an
employee received a within-grade increase or promotion during the
latter part of the 12-week period.
Section 636 of the Treasury and General Government Appropriations
Act, 1998 (Pub. L. 105-61, October 10, 1997), permanently restricts 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. In addition, section 624 of the Treasury and General Government
Appropriations Act, 1999 (Pub. L. 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). Consistent with these laws, we removed Sunday premium pay from
the types of pay that must be included in a lump-sum payment.
Overtime Pay
Under the proposed regulations, a lump-sum payment included
overtime pay under the Fair Labor Standards Act of 1938, as amended
(FLSA), for overtime work that is regularly scheduled during an
employee's established uncommon tour of duty (as defined in
Sec. 630.201 and established under Sec. 630.210) for which the
[[Page 36767]]
employee receives standby duty pay under 5 U.S.C. 5545(c)(1) if the
uncommon tour of duty was applicable to the employee immediately prior
to the date the employee became eligible for a lump-sum payment. The
lump-sum payment included the amount of FLSA overtime pay for regularly
scheduled overtime work ordered or approved at the time the employee
became eligible for a lump-sum payment. (This provision applied to most
firefighters and some emergency medical technicians.)
On June 18, 1997, OPM issued an Interagency Advisory Group
Memorandum that encouraged agencies to include in a lump-sum payment
all FLSA overtime pay for overtime hours that are regularly scheduled
during an employee's established uncommon tour of duty if the uncommon
tour of duty was in effect for the employee immediately prior to the
date the employee became eligible for a lump-sum payment under
Sec. 550.1203. OPM based this advice on the results of two lawsuits--
James Calhoun v. The United States (Fed. Cl. No. 95-840C, December 21,
1995) and Theodore Abbott, et al., v. The United States (Fed. Cl. No.
90-756C, January 31, 1994 ). In these cases, the Federal Government
conceded that FLSA overtime pay for regularly scheduled overtime hours
that occur during an uncommon tour of duty must be included in an
employee's lump-sum payment for accumulated and accrued annual leave
under 5 U.S.C. 5551.
Two agencies disagreed with the inclusion of FLSA overtime pay in a
lump-sum payment. One suggested that hours of work that are used for
the purpose of determining entitlement to FLSA overtime pay should not
be used for determining entitlement to other payments under title 5,
United States Code. The other agency believes such inclusion would be
contrary to the intent of Congress' prohibition on the payment of
premium pay during periods of paid leave. An employee association
agreed with the inclusion of FLSA overtime pay, but suggested that the
amount be based on the average number of hours worked during the
preceding 12 weeks.
On October 21, 1998, legislation was enacted that changes the
method of computing basic pay, overtime pay, and other entitlements for
Federal firefighters who 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 (or 106 hours biweekly). (See
section 628 of the Treasury and General Government Appropriations Act,
1999, as incorporated in Division A, section 101(h) of Pub. L. 105-277,
October 21, 1998.) The new law eliminates the use of standby duty pay
for firefighters and provides that firefighters are paid solely on an
hourly rate basis using a special ``firefighter hourly rate.'' Both
FLSA-covered (nonexempt) and FLSA-exempt firefighters will receive
time-and-one-half overtime pay for all overtime hours--i.e., hours in
excess of 53 hours per week (or 106 hours biweekly).
On November 23, 1998, OPM issued interim regulations (63 FR 64589)
that included a revised definition of ``uncommon tour of duty'' in
Sec. 630.201(b)(2) to incorporate a reference to firefighters
compensated under the new law. Also, a new paragraph (c) was added to
Sec. 630.210 to require that agencies establish an uncommon tour of
duty for leave purposes for firefighters with regular tours of duty
that generally consist of 24-hour shifts. An agency may also establish
an uncommon tour of duty under Sec. 630.210(a) for leave purposes for
firefighters with a regular tour of duty that includes a basic 40-hour
workweek, plus regularly scheduled overtime hours. Existing regulations
(Sec. 550.1306(c)) require that in computing a lump-sum payment for
firefighters with an uncommon tour of duty established under
Sec. 630.210 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.
As a result of these changes, a new paragraph (iv) has been added
to Sec. 550.1205(b)(5) of the final regulations to provide that
overtime pay for overtime hours within a firefighter's regular tour of
duty is used in computing a lump-sum payment for annual leave, since
those overtime hours are part of an uncommon tour of duty established
under Sec. 630.210 for leave purposes. Section 550.1205(b)(6) continues
to apply to an employee who receives FLSA overtime pay for overtime
work that is regularly scheduled during an established uncommon tour of
duty as defined in Sec. 630.201(b)(1), for which the employee receives
standby duty pay under 5 U.S.C. 5545(c)(1) (e.g., emergency medical
technicians).
We believe the amount of overtime pay to be included in a lump-sum
payment should reflect the amount the employee would have received had
he or she remained employed in the Federal service. In addition, it is
not our intent to require agencies to establish new methodologies for
calculating overtime pay for lump-sum payment purposes. Therefore, in
response to agency comments that overtime pay in a lump-sum payment for
firefighters should be limited to the normal amount of overtime work
performed in each pay period--i.e., after meeting the overtime weekly
standard of 53 hours (or 106 hours biweekly), we have added a sentence
to Secs. 550.1205(b)(5)(iv) and 550.1205(b)(6) of the final regulations
to state that a lump-sum payment must be calculated using the same
methodology used by the employing agency to calculate the firefighter's
entitlement to regular overtime pay for the pay period immediately
prior to the date the firefighter became eligible for a lump-sum
payment. Therefore, if an agency calculates overtime on a biweekly
basis, the amount of overtime pay to be included in a lump-sum payment
will be determined after the employee meets the overtime standard of
106 hours each biweekly pay period. If an agency calculates overtime
pay on a weekly basis, the amount of overtime pay to be included in a
lump-sum payment will be determined after the employee meets the
overtime standard of 53 hours each week.
Sample Calculation
The following example shows how an agency should calculate the
overtime pay component of a lump-sum payment for a firefighter with an
uncommon tour of duty established under Sec. 630.210(c). In the
example, a firefighter who normally works 144 hours each pay period
(three 24-hour tours of duty in each administrative workweek) separates
at the end of a pay period with 400 hours of accumulated and accrued
annual leave. The firefighter receives a ``firefighter hourly rate''
(as established in 5 CFR 550.1303) for all 400 hours of annual leave,
plus \1/2\ of the ``firefighter hourly rate'' for all overtime hours in
the employee's uncommon tour of duty. The agency determines the
firefighter's entitlement to overtime pay based on a 106-hour biweekly
overtime standard. Thus, in each full 144-hour biweekly pay period, the
firefighter is entitled to overtime pay for 38 regularly scheduled
overtime hours (144 - 106 = 38) within his or her uncommon tour of
duty.
[[Page 36768]]
Example of Lump-Sum Payment for a Firefighter
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Projecting the lump-sum leave Pay Period 1=144 Pay Period 2=144 Pay Period 3=112 Total=400 hours of
period for 400 hours of annual hours. hours. hours. annual leave.
leave. Annual leave Annual leave Annual leave
remaining: 256 remaining: 112 remaining:.
hours. hours. 0 hours.........
(400-144=256)..... (256-144=112)..... (112-112=0)
Firefighter hourly rate......... 144 hours......... 144 hours......... 112 hours......... 400 hours.
Firefighter overtime rate....... 38 hours.......... 38 hours.......... 6 hours........... 82 hours.
----------------------------------------------------------------------------------------------------------------
Although each agency has the right to establish the work schedules
of its employees, this authority may not be used to change an
employee's work schedule just prior to separation or retirement for the
sole purpose of circumventing OPM's regulation requiring agencies to
include FLSA overtime pay in a lump-sum payment. We have added a
provision to Secs. 550.1205(b)(5)(iv) and 550.1205(b)(6) to prevent
such an outcome.
Air Traffic Controllers
An employee recommended that OPM include the ``5 percent
operational differential'' or ``controller pay'' for Federal Aviation
Authority Air Traffic Controllers in the calculation of lump-sum
payments. Pub. L. 104-50 (November 15, 1995), authorized the
Administrator of the Federal Aviation Administration (FAA) to develop
and implement a personnel management system that addresses the unique
demands on that agency's workforce. The compensation provisions in
title 5, United States Code, no longer apply to FAA employees, and OPM
has no authority to prescribe regulations for lump-sum payments to FAA
employees.
Refund of a Lump-Sum Payment
Under 5 U.S.C. 6306, when an employee who receives a lump-sum
payment for accumulated and accrued annual leave under 5 U.S.C. 5551 is
reemployed in the Federal service prior to the end of the period
covered by the lump-sum payment, the employee must refund to the
employing agency an amount equal to the payment covering the period
between the date of reemployment and the expiration of the lump-sum
period. This rule applies whether an employee is reemployed in a
position covered by chapter 63 of title 5, United States Code, or under
a different formal leave system. The refund is based on the pay used to
compute the lump-sum payment; e.g., an employee who received a lump-sum
payment based on the pay for a GS-11 position must refund the lump-sum
payment based on the same GS-11 pay, even if he or she is reemployed at
a lower or higher grade level. The refund is deposited in the Treasury
of the United States to the credit of the employing agency.
In the final regulations, Sec. 550.1206(a) states that an agency
may permit an employee to refund a lump-sum payment for annual leave in
installments. If an agency permits the lump-sum to be paid in
installments, the employee must pay the refund in full within 1 year
after the date of reemployment. A component of an agency recommended
that the agency require a full refund of a lump-sum payment before an
employee returns to the Federal Government. The component further
advised that if this cannot be implemented, employees should be
required to sign an installment agreement before entering on duty.
OPM's regulations at Sec. 550.1206(a) provide agencies with
discretionary authority to establish a policy for refunding lump-sum
payments for annual leave. The only restriction is that the lump-sum
refund must be paid in full within 1 year after the date of
reemployment. Agencies may establish internal policies to require an
employee to sign an installment agreement for refunding a lump-sum
payment. In addition, we have added a statement that an agency may not
waive the refund of a lump-sum payment.
We recently received inquiries about whether a refund for a lump-
sum payment is required from a retired Federal employee who is
reemployed under a temporary appointment of less than 90 days. If an
employee retires from the Federal Government and is immediately
reemployed on the next work day, he or she is not entitled to a lump-
sum payment because this is not a separation from Federal service.
However, if an employee retires from the Federal Government and has a
break in service of 1 or more workdays, he or she is entitled to a
lump-sum payment. If an annuitant is reemployed in the Federal
Government prior to the expiration of the lump-sum period in a
temporary appointment of less than 90 days, he or she must refund to
the employing agency an amount equal to the pay covering the period
between the date of reemployment and the expiration of the lump-sum
period. In addition, the reemploying agency must recredit to the
reemployed annuitant an amount of leave equal to the leave represented
by the refund, and the employee may use the recredited leave during the
temporary appointment. We added a new paragraph (e) to Sec. 550.1206 of
the final regulations to reflect these outcomes, which are required by
law.
Recredit of Annual Leave
The final regulations include a new Sec. 550.1207, Recredit of
Annual Leave. Paragraphs (b), (c), (d), (g) and (h) of Sec. 550.1206 of
the proposed regulations were moved to the new Sec. 550.1207 and
renumbered.
An agency requested clarification of the proposed regulations,
which provided that if any part of a lump-sum refund reflects annual
leave restored under 5 U.S.C. 6304(d), the annual leave must be
restored in a separate account using the expiration date originally
established for using the restored annual leave. If the expiration date
originally established for using the restored annual leave occurs
before the date of reemployment, a refund is required for all of the
unexpired portion, but none of the restored annual leave may be
recredited. The agency does not believe this is the intent of the law.
Another agency asked whether a refund must reflect all remaining annual
leave, including ``use or lose'' annual leave, and whether the ``use or
lose'' annual leave should be recredited to the employee's leave
account. A third agency recommended that an employee should not be
required to pay back any portion of a lump-sum payment that reflects
leave that cannot be recredited to the employee's leave account.
OPM's proposed regulations were intended to ensure that an
employee's leave would be treated the same upon reemployment as it
would have been treated had the employee remained employed. Restored
annual leave and leave in excess of the maximum limitation in 5 U.S.C.
6304(b) would be subject to forfeiture if the employee did not use the
leave within the time periods prescribed. However, when an employee who
receives a lump-sum payment for accumulated and accrued annual leave
under 5 U.S.C. 5551 is reemployed in the Federal service prior to the
end of the period covered by the
[[Page 36769]]
lump-sum payment, the employee must refund to the employing agency an
amount equal to the payment covering the period between the date of
reemployment and expiration of the projected lump-sum period. (See 5
U.S.C. 6306.) In addition, an amount of annual leave equal to the days
or hours of work remaining between the date of reemployment and the
expiration of the lump-sum leave period must be recredited to the
employee by the employing agency.
Thus, both the lump-sum refund and the recredit of annual leave are
based on the date of reemployment and the end of the lump-sum period,
not the amount or type of leave included in the lump-sum payment. We
believe the intent of the law is to recredit any and all annual leave
that is equivalent to the refund of the lump-sum payment. In addition,
former OPM guidance stated that restored annual leave included in a
lump-sum payment is not subject to refund and may not be recredited if
the employee is reemployed prior to the expiration of the lump-sum
leave period. (See attachment to former FPM Letter 630-22, January 11,
1974).
Therefore, we have revised Sec. 550.1206(a) of the final
regulations to provide that an agency should not include restored
annual leave in a lump-sum refund and must subtract restored annual
leave from the lump-sum leave period if an employee is reemployed prior
to the expiration of the lump-sum leave period. In addition, we have
revised Sec. 550.1207(a)(3) to provide that an agency will not recredit
restored annual leave to an employee if the employee is reemployed
prior to the expiration of the lump-sum leave period.
The proposed regulations provided that if annual leave recredited
to an employee is in excess of the maximum annual leave limitation
established under 5 U.S.C. 6304(a), (b), (c), or (f), as appropriate,
for the position in which reemployed, and the employee was subject to a
higher maximum annual leave limitation in the former position, the
employee's maximum annual leave limitation must be determined based on
the amount of annual leave to be recredited. Two agencies expressed
concern that this provision would allow an employee's maximum annual
leave limitation to be set below the 240-hour maximum limitation
established by 5 U.S.C. 6304(a). Another agency noted that there were
no rules for setting an employee's personal leave ceiling when the
amount of annual leave to be recredited is in excess of the maximum
limitation for the position in which reemployed and the maximum annual
leave limitation for the former position is less than the current
maximum annual leave limitation.
The proposed regulations would have applied only when the annual
leave to be recredited was in excess of the maximum annual leave
limitation for the position in which reemployed and the employee was
subject to a higher maximum annual leave limitation in the former
position. Therefore, it would be impossible to set the employee's
maximum annual leave limitation below the 240-hour maximum limitation
established by 5 U.S.C. 6304(a). If the amount of annual leave the
agency is to recredit is less than or equal to the maximum annual leave
limitation for the position in which the employee is reemployed,
Sec. 550.1207(b) of the final regulations requires the agency to set
the employee's maximum annual leave limitation at the maximum annual
leave limitation for the position in which the employee is reemployed.
In response to these comments and additional questions we have
received, we have clarified (Sec. 550.1207(c) and (d)) of the final
regulations as follows.
First, if the amount of annual leave to be recredited is more than
the maximum annual leave limitation for the new position, and the
employee's former maximum annual leave limitation was established under
5 U.S.C. 6304(a), (b), (c), or (f), as appropriate, the agency must
establish the employee's new maximum annual leave limitation on the
date of reemployment as a personal leave ceiling equal to the amount of
annual leave to be recredited.
Examples of Recrediting Annual Leave
------------------------------------------------------------------------
Annual leave to Former maximum New maximum New personal
be recredited leave ceiling leave ceiling leave ceiling
------------------------------------------------------------------------
300 360 240 300
400 360 240 400
900 1000* 240 900
1200 1000* 720 (SES) 1200
------------------------------------------------------------------------
*SES Personal Leave Ceiling established under Sec. 630.306(d).
Second, if the amount of annual leave to be recredited is more than
the maximum annual leave limitation for the new position, and the
employee's former maximum annual leave limitation was established under
an authority other than 5 U.S.C. 6304(a), (b), (c), or (f), as
appropriate, the agency must establish the employee's new maximum
annual leave limitation on the date of reemployment as a personal leave
ceiling equal to the employee's former maximum annual leave limitation.
Example of Recrediting Annual Leave Upon Transfer From USPS
------------------------------------------------------------------------
Annual leave to Former maximum New maximum New personal
be recredited leave ceiling leave ceiling leave ceiling
------------------------------------------------------------------------
540 440* 240 440
------------------------------------------------------------------------
*Maximum Annual Leave Limitation for U.S. Postal Service.
Under 5 U.S.C. 6304(c), an employee's personal leave ceiling will
be reduced if more annual leave is used than earned in a leave year
until it equals the maximum annual leave limitation established for the
position in which reemployed. In addition, an employee must use the
annual leave earned in a leave year or it becomes subject to forfeiture
at the end of the leave year.
Income Taxes and Deductions
Under 5 U.S.C. 5551, a lump-sum payment for annual leave is
considered pay for income tax purposes. A number of agencies requested
guidance on whether a nonforeign area cost-of-living
[[Page 36770]]
allowance (COLA) that is included in a lump-sum payment is subject to
income tax. Under section 912 of title 26, United States Code, a COLA
paid under 5 U.S.C. 5941(a)(1) to an employee stationed in a nonforeign
area outside of the contiguous United States (48 States) is not
included as gross income and is not subject to income tax. OPM posed
the agencies' question to the Internal Revenue Service (IRS).
In a letter to OPM dated March 12, 1998, IRS stated that a
nonforeign area COLA authorized under 5 U.S.C. 5941(a)(1) that is paid
in connection with a lump-sum payment for annual leave is not subject
to Federal income tax. Therefore, in calculating an employee's taxable
Federal income for a lump-sum payment for annual leave, agencies must
first subtract any nonforeign area COLA authorized under 5 U.S.C.
5941(a)(1). Similarly a post allowance in a foreign area authorized
under 5 U.S.C. 5924(1) is not subject to Federal income tax, and the
agency must subtract it from a lump-sum payment when determining
taxable Federal income. However, nonforeign area post differentials
authorized under 5 U.S.C. 5941(a)(2) that are included in a lump-sum
payment for annual leave are included as gross income and are subject
to Federal income tax.
An agency asked about the treatment of lump-sum payments in
relation to deductions for the Federal Insurance Contributions Act
(FICA) and Medicare. The agency stated that some types of pay included
in a lump-sum payment are subject to deductions for FICA/Medicare,
while others are not. The agency requested clarification as to whether
the lump-sum payment should be considered as one separate payment or
whether each type of pay should be considered separately when computing
deductions for FICA/Medicare. The agency also requested that OPM state
in the regulations that (1) if a lump-sum payment is repaid in the same
calendar year, the employee is required to pay back the gross amount of
the lump-sum payment, minus Federal and State income taxes and FICA/
Medicare; and (2) if the employee repays the lump-sum payment in a
subsequent year, he or she must repay the gross amount reduced only by
FICA/Medicare. The agency stated that IRS has ruled that corrections of
earnings for Federal, State, or local withholding taxes cannot be made
for a prior year.
OPM referred these questions and comments to IRS. In a letter to
OPM dated April 22, 1998, IRS responded that it is appropriate to
divide a lump-sum payment into that portion (i.e., different types of
pay) that is subject to FICA taxes and that which is not. In addition,
IRS stated that repayment of a lump-sum payment made in the same year
it is paid affects the treatment of Federal income tax withholding and
FICA taxes, but that a repayment in a subsequent year affects only FICA
taxes. IRS stated that employers should refer to Publication 15,
Circular E, Employers Tax Guide, for additional information on Federal
employment tax consequences and reporting requirements. General
information on Federal income tax forms and instructions can be found
on the Internet at http://www.irs.ustreas.gov/prod/forms__pubs/
index.html. Any questions on State and local tax implications should be
referred to the appropriate State and local taxing authority.
OPM received a comment from the labor organization recommending
that employees be afforded some flexibility in choosing when to receive
their lump-sum payment. The labor organization encouraged OPM to permit
employees to defer a lump-sum payment for a reasonable period of time
so that their tax liability may be mitigated. We referred this comment
to IRS. In its letter to OPM dated April 22, 1998, IRS advised that
such a choice would result in the lump-sum being included for income
tax purposes in the taxable year it is first made available, without
regard to whether an employee chose to receive it immediately or defer
the payment.
Effective Date of Regulations
The final regulations apply only to lump-sum payments made by an
agency on or after the effective date of the final regulations. The
final regulations on lump-sum payments for annual leave are not
retroactive. The issuance of retroactive regulations is neither the
preferred nor usual method for rulemaking. See Alaskan Arctic Gas
Pipeline v. United States, 831 F.2d 1043, 1045-8 (Fed. Cir. 1987).
Retroactivity in rulemaking is permissible where Congress has expressly
authorized it in law, but that is not the case here. See Landgraf v.
USI Film Products, 511 U.S. 244, 255-257 (1984). This is a new rule
that standardizes inconsistent agency practices. The determinations
made by agencies prior to the effective date of the final regulations
are not subject to change based on the provisions of the final
regulations.
Two agencies requested additional time to implement the final rules
in order to modify their payroll systems and operating procedures. We
agree. The final regulations will become effective 60 days after the
date of publication in the Federal Register. The delayed effective date
will also provide additional time for those agencies responsible for
pay authorities outside of title 5 to review their policies and issue
regulations for the administration of lump-sum payments for annual
leave.
Miscellaneous Comments
The components of two large agencies commented that any pay
excluded from retirement basic pay should also be excluded from lump-
sum payments for annual leave. In effect, this would limit a lump-sum
payment to basic pay and certain types of premium pay, such as annual
premium pay under 5 U.S.C. 5545(c)(1) and (2) and 5545a. One of the
agencies stated that it would support a final regulation limiting lump-
sum payments to basic pay, excluding FLSA overtime pay. In addition, an
individual commented that a lump-sum payment should not be adjusted to
include any extra pay or benefits such as Sunday premium pay, night
pay, or any general pay adjustments or within-grade increases that
become effective after the employee separates from Federal service.
Under 5 U.S.C. 5551, a lump-sum payment ``must equal the pay
(excluding any differential under section 5925 and any allowance under
section 5928) the employee or individual would have received had he
remained in the service until expiration of the period of the annual or
vacation leave.'' Issuing final regulations to limit lump-sum payments
to those that are basic pay for retirement purposes would be contrary
to the lump-sum payment law.
The labor organization recommended that OPM consider approaches to
expedite lump-sum payments to employees. In addition, the labor
organization recommended that OPM simplify and expedite the process of
recrediting annual leave when employees are reemployed in the Federal
service. Agencies are responsible for administering lump-sum payments,
consistent with the law and OPM's regulations. A universal rule is not
feasible, since it cannot possibly accommodate the requirements and
complexities of the numerous agency payroll systems that administer
lump-sum payments.
An agency asked whether implementation of the final regulations on
lump-sum payments would be subject to collective bargaining and
inquired about the date by which such bargaining must be completed.
Certain provisions may be subject to collective bargaining--e.g.,
whether an agency permits employees to refund a lump-
[[Page 36771]]
sum payment in installments. Additional questions on this matter should
be addressed to the agency's labor relations office.
An agency commented that agencies responsible for administering
other kinds of pay outside of title 5 should be permitted the greatest
latitude possible and that each agency should decide whether its
regulations should be consistent with OPM's regulations. In contrast,
another agency recommended that such agencies not be permitted to
determine the types of pay to be included in a lump-sum payment because
this would result in the exact situation that OPM is trying to
correct--i.e., inconsistent payment practices and inequities among
Federal employees.
Under 5 U.S.C. 5553, OPM has regulatory authority for the
administration of lump-sum payments for annual leave. Section
550.1205(c) delegates authority to the head of each agency to determine
other kinds of pay authorized in statutes outside of title 5 that
should be included in a lump-sum payment. We continue to believe such
agencies are in the best position to determine the types of pay under
their authority that should be included in a lump-sum payment
consistent with 5 U.S.C. 5551, 5552, and 6306. If inconsistencies and
inequities arise, OPM will reconsider the delegation of these
authorities.
Conforming Amendments
In many parts of title 5, Code of Federal Regulations, there are
existing references to lump-sum payments for annual leave. Because
there is now a new subpart on lump-sum payments in part 550, there is
no further need for these separate references. Therefore, we are
removing these references and reserving the following sections:
Sec. 531.304(d) (special law enforcement officer adjusted rate of pay),
Sec. 531.606(d) (locality rate of pay), Sec. 531.703(c) (continued rate
of pay), and Sec. 550.186(c) (availability pay). In Sec. 591.210(c)(1)
(allowances and differentials in nonforeign areas), we are deleting the
last sentence. However, the references to lump-sum payments for annual
leave in part 532 will need to be reviewed by the Federal Prevailing
Rate Advisory Committee before we make any similar changes.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal employees and agencies.
List of Subjects
5 CFR Part 531
Government employees, Law enforcement officers, Wages.
5 CFR Part 550
Administrative practice and procedure, Claims, Government
employees, Wages.
5 CFR Part 591
Government employees, Travel and transportation expenses, Wages.
Office of Personnel Management
Janice R. Lachance,
Director.
Accordingly, OPM is amending parts 531, 550, and 591 of title 5 of
the Code of Federal Regulations as follows:
PART 531--PAY UNDER THE GENERAL SCHEDULE
1. The authority citation for part 531 continues to read as
follows:
Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-
89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p.
316;
Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and
7701(b)(2);
Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553;
sections 302 and 404 of FEPCA, Pub. L. 101-509, 104 Stat. 1462 and
1466; and section 3(7) of Pub. L. 102-378, 106 Stat. 1356;
2. In Sec. 531.304, paragraph (d) is revised to read as follows:
Sec. 531.304 Administration of special law enforcement adjusted rates
of pay.
* * * * *
(d) A special law enforcement adjusted rate of pay is paid only for
those hours for which a law enforcement officer is in a pay status.
* * * * *
3. In Sec. 531.606, paragraph (d) is revised to read as follows:
Sec. 531.606 Administration of locality rates of pay.
* * * * *
(d) A locality rate of pay is paid only for those hours for which
an employee is in a pay status.
* * * * *
4. In Sec. 531.703, paragraph (c) is revised to read as follows:
Sec. 531.703 Administration of continued rates of pay.
* * * * *
(c) A continued rate of pay is paid only for those hours for which
an employee is in a pay status.
* * * * *
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
5. The authority citation for Subpart A of Part 550 continues 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.
Sec. 550.186 [Amended]
6. In Sec. 550.186, paragraph (c) is removed and paragraph (d) is
redesignated as paragraph (c).
7. Subpart L is added to part 550 to read as follows:
Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual Leave
Sec.
550.1201 Purpose, applicability, and administration.
550.1202 Definitions.
550.1203 Eligibility.
550.1204 Projecting the lump-sum leave period.
550.1205 Calculating a lump-sum payment.
550.1206 Refunding a lump-sum payment.
550.1207 Recrediting annual leave.
Subpart L--Lump-Sum Payment for Accumulated and Accrued Annual
Leave
Authority: 5 U.S.C. 5553, 6306, and 6311.
Sec. 550.1201 Purpose, applicability, and administration.
(a) Purpose. This subpart provides regulations to implement
sections 5551, 5552, and 6306 of title 5, United States Code, and must
be read together with those sections. Sections 5551 and 5552 provide
for the payment of a lump-sum payment for accumulated and accrued
annual leave when an employee:
(1) Separates from Federal service; or
(2) Enters on active duty in the armed forces and elects to receive
a lump-sum payment for accumulated and accrued annual leave. Section
6306 requires that when an employee is reemployed in the Federal
service prior to the expiration of the lump-sum period, he or she must
refund an amount equal to the pay covering the period between the date
of reemployment and the expiration of the period of annual leave (i.e.,
the lump-sum leave period).
(b) Applicability. This subpart applies to--
(1) Any employee who separates, dies, or transfers under the
conditions prescribed in Sec. 550.1203; and
(2) Any employee or individual employed by a territory or
possession of the United States who enters on active
[[Page 36772]]
duty in the armed forces and who elects to receive a lump-sum payment
for accumulated and accrued annual leave.
(c) Administration. The head of an agency having employees subject
to this subpart is responsible for the proper administration of this
subpart.
Sec. 550.1202 Definitions.
In this subpart--
Accumulated and accrued annual leave means any annual leave
accumulated and accrued, as these terms are defined in Sec. 630.201 of
this chapter, plus any annual leave credited to an employee under 5
U.S.C. 6304(c) and Sec. 630.301(d) of this chapter and any annual leave
restored under 5 U.S.C. 6304(d). Accumulated and accrued annual leave
does not include annual leave received by a leave recipient under the
voluntary leave transfer or leave bank programs established under
subchapters III and IV of chapter 63 of title 5, United States Code, or
annual leave advanced to an employee under 5 U.S.C. 6302(d).
Administrative workweek has the meaning given that term in
Sec. 610.102 of this chapter.
Agency means--
(1) An executive agency and a military department as defined in
sections 105 and 102 of title 5, United States Code, respectively; and
(2) A legislative or judicial agency or a unit of the legislative
or judicial branch of the Federal Government that has positions in the
competitive service.
Employee has the meaning given that term in 5 U.S.C. 2105.
Lump-sum payment means a final payment to an employee for
accumulated and accrued annual leave.
Mixed tour of duty means a condition of employment for positions in
which a fluctuating workload requires an employee to work full-time or
part-time for a limited portion of the year and on an intermittent
basis for the remainder of the year.
Rate of basic pay means the rate of pay fixed by law or
administrative action for the position held by an employee before any
deductions and exclusive of additional pay of any kind.
Transfer means the movement of an employee to another position
without a break in service of 1 workday or more.
Sec. 550.1203 Eligibility.
(a) An agency must make a lump-sum payment for accumulated and
accrued annual leave when an employee--
(1) Separates or retires from the Federal service;
(2) Dies; or
(3) Transfers to a position that is not covered by subchapter I of
chapter 63 of title 5, United States Code, and his or her accumulated
and accrued annual leave cannot be transferred, except as provided in
paragraphs (c), (d), and (e) of this section.
(b) The Department of Defense (DOD) must make a lump-sum payment to
an employee who has unused annual leave that was restored under 5
U.S.C. 6304(d)(3) when he or she transfers from a DOD installation
undergoing closure or realignment to a position in any other department
or agency of the Federal Government or moves to a position within DOD
not located at an installation undergoing closure or realignment.
(c) An employee who enters on active duty in the armed forces may
elect to receive a lump-sum payment for accumulated and accrued annual
leave or may request to have the annual leave remain to his or her
credit until return from active duty. However, an agency must make a
lump-sum payment for any annual leave previously restored under 5
U.S.C. 6304(d) when the employee enters active duty. The agency may not
recredit the restored leave when the employee returns to Federal
service.
(d) An employee who transfers to a position in a public
international organization under 5 U.S.C. 3582 may elect to retain
accumulated and accrued annual leave to his or her credit at the time
of transfer or receive a lump-sum payment for such annual leave under 5
U.S.C. 3582(a)(4). However, the agency must make a lump-sum payment for
any annual leave previously restored under 5 U.S.C. 6304(d) when the
employee transfers to the public international organization. The agency
may not recredit the leave under these circumstances.
(e) An agency must make a lump-sum payment to an employee who
transfers to a position excepted from subchapter I of chapter 63 of
title 5, United States Code, by 5 U.S.C. 6301(2)(x)-(xiii) for any
annual leave restored under 5 U.S.C. 6304(d) upon transfer to an
excepted position. However, the agency may not make a lump-sum payment
for any annual leave in the employee's regular leave account upon
transfer to the excepted position. The agency must hold such annual
leave in abeyance for recredit if the employee is subsequently
reemployed without a break in service in a position to which his or her
accumulated and accrued annual leave may be transferred. If the
employee later becomes eligible for a lump-sum payment under the
conditions specified in this section, the current employing agency must
make a lump-sum payment for the annual leave held in abeyance. The
agency must compute the lump-sum payment under Sec. 550.1205(b) based
on the pay the employee was receiving immediately before the date of
the transfer to the position excepted by 5 U.S.C. 6301(2)(x)-(xiii). An
employee who elects to retain his or her leave benefits upon accepting
a Presidential appointment, as permitted by 5 U.S.C. 3392(c), is not
entitled to receive a lump-sum payment.
(f) In the case of an employee who transfers to a position that is
not covered by subchapter I of chapter 63 of title 5, United States
Code, and to which only a portion of his or her accumulated and accrued
annual leave may be transferred, the agency must make a lump-sum
payment for any remaining annual leave that cannot be transferred. The
agency must compute the lump-sum payment under Sec. 550.1205(b) based
on the pay the employee was receiving immediately before the date of
the transfer to the position not covered by subchapter I of chapter 63
of title 5, United States Code. This does not apply to an employee
transferring to an excepted position covered by paragraph (e) of this
section.
(g) An agency must make a lump-sum payment for accumulated and
accrued annual leave to an employee in a missing status (as defined in
5 U.S.C. 5561(5)) on or after January 1, 1965, or the employee may
elect to have such leave restored in a separate leave account under 5
U.S.C. 6304(d)(2) upon his or her return to Federal service. The agency
must compute the lump sum payment under Sec. 550.1205(b) based on the
rate of pay in effect at the time the annual leave became subject to
forfeiture under 5 U.S.C. 6304(a), (b), or (c).
(h) An agency may not make a lump-sum payment for accumulated or
accrued annual leave to--
(1) An employee who transfers between positions covered by
subchapter I of chapter 63 of title 5, United States Code;
(2) An employee who transfers to a position not covered by
subchapter I of chapter 63 of title 5, United States Code, but to which
all of his or her accumulated and accrued annual leave may be
transferred;
(3) An employee who transfers to the government of the District of
Columbia or the U.S. Postal Service;
(4) A nonappropriated fund employee of the Department of Defense or
the Coast Guard who moves without a break in service of more than 3
days to an appropriated fund position within the Department of Defense
or the Coast Guard, respectively, under 5 U.S.C. 6308(b); or
[[Page 36773]]
(5) An employee who is concurrently employed in more than one part-
time position and who separates from one of the part-time positions.
Instead, the former employing agency must transfer the employee's
accumulated and accrued annual leave to the current agency (if the
part-time positions are in different agencies) or credit the employee's
annual leave account in the current position (if the part-time
positions are in the same agency).
(6) An employee who elects to retain his or her leave benefits upon
accepting a Presidential appointment, as permitted by 5 U.S.C. 3392(c).
(i) An agency must establish a policy for determining when an
employee in a continuing employment program with a mixed tour of duty
will receive a lump-sum payment for annual leave. The agency may choose
to pay an employee a lump-sum payment when he or she is assigned
intermittent duty or hold the employee's annual leave in abeyance
during intermittent duty and recredit it when the employee returns
without a break in service to full-time or part-time employment. If the
agency decides to hold the employee's annual leave in abeyance, it must
also hold in abeyance the credit for any fractional pay period earned
and recredit the annual leave on a pro rata basis, as provided in
Sec. 630.204 of this chapter, when the employee returns to full-time or
part-time employment. In developing its policy, each agency must
consider the likelihood that the employee will return to work, as well
as the agency's mission requirements and staffing needs. The agency's
policy must ensure that employees are treated in a fair and equitable
manner.
Sec. 550.1204 Projecting the lump-sum leave period.
(a) A lump-sum payment must equal the pay an employee would have
received had he or she remained in the Federal service until the
expiration of the accumulated and accrued annual leave to the
employee's credit. The agency must project the lump-sum period leave
beginning on the first workday (counting any holiday) occurring after
the date the employee becomes eligible for a lump-sum payment under
Sec. 550.1203 and counting all subsequent workdays and holidays until
the expiration of the period of annual leave. The period of leave used
for calculating the lump-sum payment must not be extended by any
holidays under 5 U.S.C. 6103 (or applicable Executive or administrative
order) which occur immediately after the date the employee becomes
eligible for a lump-sum payment under Sec. 550.1203; annual leave
donated to an employee under the leave transfer or leave bank programs
under subparts I and J of part 630 of this chapter; compensatory time
off earned under 5 U.S.C. 5543 and Sec. 550.114(d) or Sec. 551.531(d)
of this chapter; or credit hours accumulated under an alternative work
schedule established under 5 U.S.C. 6126.
(b) For employees whose annual leave was held in abeyance
immediately prior to becoming eligible for a lump-sum payment, the
agency must project the lump-sum payment beginning on the first workday
occurring immediately after the date the employee becomes eligible for
a lump-sum payment under Sec. 550.1203, consistent with paragraph (a)
of this section.
Sec. 550.1205 Calculating a lump-sum payment.
(a) An agency must compute a lump-sum payment based on the types of
pay listed in paragraph (b) of this section, as in effect at the time
the affected employee becomes eligible for a lump-sum payment under
Sec. 550.1203 and any adjustments in pay included in paragraphs (b)(2),
(3), and (4) of this section. The agency must calculate a lump-sum
payment by multiplying the number of hours of accumulated and accrued
annual leave by the applicable hourly rate of pay, including other
applicable types of pay listed in paragraph (b) of this section, or by
using a mathematically equivalent method, such as multiplying weeks of
annual leave by the applicable weekly rate of pay. If the agency
calculates a lump-sum payment using weekly rates, the number of weeks
of annual leave must be rounded to the fourth decimal place (e.g.,
0.4444). The agency must convert an annual rate of pay to an hourly
rate of pay by dividing the annual rate of pay by 2,087 (or 2,756 for
firefighters, if applicable) and rounding it to the nearest cent,
counting one-half cent and over as the next higher cent.
(b) The agency must compute a lump-sum payment using the following
types of pay and pay adjustments, as applicable:
(1) The greatest of the following rates of pay:
(i) An employee's rate of basic pay, including any applicable
special salary rate established under 5 U.S.C. 5305 or similar
provision of law or a special rate for law enforcement officers under
section 403 of the Federal Employees Pay Comparability Act of 1990
(FEPCA), Pub. L. 101-509, 104 Stat. 1465, or a retained rate of pay
under subpart B of part 536 of this chapter;
(ii) A locality rate of pay under subpart F of part 531 of this
chapter or similar provision or law, where applicable;
(iii) A special law enforcement adjusted rate of pay under subpart
C of part 531 of this chapter, where applicable, including a rate
continued under Sec. 531.307 of this chapter; or
(iv) A continued rate of pay under subpart G of part 531 of this
chapter.
(2) Any statutory adjustments in pay or any general system-wide
increases in pay, such as adjustments under sections 5303, 5304, 5305,
5318, 5362, 5363, 5372, 5372a, 5376, 5382, or 5392 of title 5, United
States Code, that become effective during the lump-sum leave period.
The agency must adjust the lump-sum payment to reflect the increased
rate on and after the effective date of the pay adjustment.
(3) In the case of a prevailing rate employee, the agency must
include in the lump-sum payment the scheduled rate of pay under 5
U.S.C. 5343, 5348, or 5349 and any applicable adjustments in rates that
are determined under 5 U.S.C. 5343, 5348, or 5349 that become effective
during the lump-sum leave period. The agency must adjust the lump-sum
payment to reflect the increased prevailing rate on and after the
effective date of the rate adjustment.
(4) A within-grade increase under 5 U.S.C. 5335 or 5343(e)(2) if
the employee has met the requirements of Sec. 531.404 or Sec. 532.417
of this chapter prior to the date the employee becomes eligible for a
lump-sum payment under Sec. 550.1203.
(5) The following types of premium pay (to the extent such premium
pay was actually payable to the employee):
(i) Night differential under 5 U.S.C. 5343(f) for nonovertime hours
at the percentage rate received by a prevailing rate employee for the
last full workweek immediately prior to separation, death, or transfer;
(ii) Premium pay under 5 U.S.C. 5545(c) or 5545a if the employee
was receiving premium pay for the pay period immediately prior to the
date the employee became eligible for a lump-sum payment under
Sec. 550.1203. The agency must base the lump-sum payment on the
percentage rate received by the employee for the pay period immediately
prior to the date the employee became eligible for a lump-sum payment
under Sec. 550.1203. In cases where the amount of premium pay actually
payable in the final pay period was limited by a statutory cap, the
agency must base the lump-sum payment on a reduced percentage rate that
reflects the actual amount of premium pay the employee received in that
pay period; and
[[Page 36774]]
(iii) Overtime pay under 5 U.S.C. 5545b and Sec. 550.1304 of this
chapter for overtime hours in an employee's uncommon tour of duty (as
defined in Sec. 630.201 of this chapter), established in accordance
with Sec. 630.210 of this chapter. The uncommon tour of duty must be
applicable to the employee for the pay period immediately prior to the
date the employee became eligible for a lump-sum payment under
Sec. 550.1203. The agency must calculate overtime pay using the same
methodology it used to calculate the employee's entitlement to overtime
pay as provided in Sec. 550.1304 of this chapter in the pay period
immediately prior to the date the employee became eligible for a lump-
sum payment under Sec. 550.1203. An agency may not change an employee's
work schedule for the sole purpose of avoiding or providing payment of
premium pay under Sec. 550.1205(b)(5)(i)-(iv) in a lump-sum payment.
(6) Overtime pay under the Fair Labor Standards Act of 1938, as
amended (FLSA), for overtime work that is regularly scheduled during an
employee's established uncommon tour of duty, as defined in
Sec. 630.201(b)(1) of this chapter and established under
Sec. 630.210(a) of this chapter, for which the employee receives
standby duty pay under 5 U.S.C. 5545(c)(1). The agency must include
FLSA overtime pay in a lump-sum payment if an uncommon tour of duty was
applicable to the employee for the pay period immediately prior to the
date the employee became eligible for a lump-sum payment under
Sec. 550.1203. The agency must calculate FLSA overtime pay using the
same methodology it used to calculate the employee's entitlement to
FLSA overtime pay for the pay period immediately prior to the date the
employee became eligible for a lump-sum payment under Sec. 550.1203. An
agency may not change an employee's work schedule for the sole purpose
of avoiding or providing payment of FLSA overtime pay in a lump-sum
payment.
(7) A supervisory differential under 5 U.S.C. 5755 based on the
percentage rate (or dollar amount) received by the employee for the pay
period immediately prior to the date the employee became eligible for a
lump-sum payment under Sec. 550.1203.
(8) A cost-of-living allowance and/or post differential in a
nonforeign area under 5 U.S.C. 5941 if the employee's official duty
station is in the nonforeign area when he or she becomes eligible for a
lump-sum payment under Sec. 550.1203.
(9) A post allowance in a foreign area under 5 U.S.C. 5924(1) and
the Standardized Regulations (Government Civilians, Foreign Areas) if
the employee's official duty station is in the foreign area when he or
she becomes eligible for a lump-sum payment under Sec. 550.1203.
(c) The head of an agency must prescribe regulations or standards
for the inclusion of any other kinds of pay authorized in statutes
other than title 5, United States Code, in a lump-sum payment. Such
regulations or standards must be consistent with 5 U.S.C. 5551, 5552,
6306, and other applicable provisions of law.
(d) A lump-sum payment may not include any other pay not
specifically listed in paragraph (b) of this section, except as
provided in paragraph (c) of this section.
(e) An employee may not earn leave for the period covered by a
lump-sum payment.
(f) A lump-sum payment is not subject to deductions for retirement
under the Civil Service Retirement System or the Federal Employees'
Retirement System established by chapters 83 and 84 of title 5, United
States Code, respectively; health benefits under the Federal Employees
Health Benefits program established by chapter 89 of title 5, United
States Code; life insurance under the Federal Employees' Group Life
Insurance program established by chapter 87 of title 5, United States
Code; and savings under the Thrift Savings Plan established by
subchapter III of chapter 84 of title 5, United States Code.
(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. 831.802 of this chapter.
(h) A lump-sum payment is subject to garnishment under parts 581
and 582 of this chapter and to administrative offset (for recovery of
debts to the Federal Government) under 31 U.S.C. chapter 37.
Sec. 550.1206 Refunding a lump-sum payment.
(a) When an employee who received a lump-sum payment for
accumulated and accrued annual leave under 5 U.S.C. 5551 is reemployed
in the Federal service prior to the end of the period covered by the
lump-sum payment, the employee must refund to the employing agency an
amount equal to the pay included in the lump-sum payment under
Sec. 550.1205(b) that covers the period between the date of
reemployment and the expiration of the lump-sum leave period, except as
provided in paragraphs (b) and (c) of this section. The agency must
compute the refund based on the pay used to compute the lump-sum
payment under Sec. 550.1205(b). However, annual leave restored under 5
U.S.C. 6304(d) that was included in a lump-sum payment is not subject
to refund if an agency reemploys the employee prior to the expiration
of the lump-sum leave period. The agency must subtract such restored
annual leave from the lump-sum leave period before calculating the
refund. An agency may permit an employee to refund the lump-sum payment
for annual leave in installments, but may not waive collection. If an
agency permits the lump-sum refund to be paid in installments, the
employee must refund the lump-sum payment in full within 1 year after
the date of reemployment.
(b) An employee who is reemployed in a position listed in 5 U.S.C.
6301(2)(ii), (iii), (vi), or (vii) is not required to refund a lump-sum
payment under paragraph (a) of this section.
(c) An employee who is reemployed in a position that has no leave
system to which annual leave can be recredited is not required to
refund a lump-sum payment under paragraph (a) of this section, except
that individuals reemployed as Presidential appointees must refund a
lump-sum payment and the annual leave will be held in abeyance, as
provided in Sec. 550.1207(e).
(d) An individual first hired by the District of Columbia
government on or after October 1, 1987, who received a lump-sum payment
upon separation from the District of Columbia government and who is
employed by the Federal Government prior to the expiration of the lump-
sum leave period must refund the lump-sum payment, and the agency must
recredit the annual leave under Sec. 550.1207.
(e) An employee who retired from the Federal Government and
received a lump-sum payment under Sec. 550.1203 of this chapter, and
who is reemployed under a temporary appointment of less than 90 days
prior to the expiration of the lump-sum leave period, is required to
refund the lump-sum payment, and the agency must recredit the annual
leave under Sec. 550.1207. The employee may use the recredited annual
leave during the temporary appointment.
Sec. 550.1207 Recrediting annual leave.
(a) When an employee pays a full refund to an agency under
Sec. 550.1206(a), the agency must recredit to the employee an amount of
annual leave equal to the days or hours of work (including holidays)
remaining between the date of reemployment and the expiration of the
lump-sum period. The recredited annual leave is available for use by
the employee on and after the date the annual leave is recredited. The
[[Page 36775]]
agency must recredit annual leave as follows:
(1) When an employee is reemployed in the Federal service in a
position covered by subchapter I of chapter 63 of title 5, United
States Code, the employing agency must recredit an amount of annual
leave equal to the days or hours of work (including holidays) remaining
between the date of reemployment and the expiration of the lump-sum
period.
(2) When an employee is reemployed in the Federal service in a
position that is not covered by subchapter I of chapter 63 of title 5,
United States Code, but is covered by a different leave system, the
employing agency must recredit to the employee an amount of annual
leave representing the days or hours of work (including holidays)
remaining between the date of reemployment and the expiration of the
lump-sum period, as determined under Sec. 630.501(b) of this chapter.
If the unexpired period of leave covers a larger amount of leave than
can be recredited under the different leave system, the employee must
refund only the amount that represents the leave that can be
recredited.
(3) When an employee is reemployed prior to the expiration of the
lump-sum leave period, the agency may not recredit to the employee the
annual leave restored under 5 U.S.C. 6304(d) that was included in a
lump-sum payment. The agency must subtract such restored annual leave
from the lump-sum leave period before it determines the amount of
annual leave to recredit under paragraph (a)(1) of this section.
(b) Any annual leave the agency recredits to the employee under
paragraph (a) of this section is subject at the beginning of the next
leave year to the maximum annual leave limitation established by 5
U.S.C. 6304(a), (b), (c), or (f), as appropriate, for the position in
which the employee is reemployed, except as provided in paragraphs (c)
and (d) of this section.
(c) If the amount of annual leave to be recredited under paragraph
(a) of this section is more than the maximum annual leave limitation
for the position in which reemployed, and the employee's former maximum
annual leave limitation was established under 5 U.S.C. 6304(a), (b),
(c), or (f), as appropriate, the agency must establish the employee's
new maximum annual leave limitation on the date of reemployment as a
personal leave ceiling equal to the amount of annual leave to be
recredited under paragraph (a) of this section. The new maximum annual
leave limitation is subject to reduction in the same manner as provided
in 5 U.S.C. 6304(c) until the employee's accumulated annual leave is
equal to or less than the maximum annual leave limitation for the
position in which reemployed.
(d) If the amount of annual leave to be recredited under paragraph
(a) of this section is more than the maximum annual leave limitation
for the position in which the employee is reemployed, and the
employee's former maximum annual leave limitation was established under
an authority other than 5 U.S.C. 6304(a), (b), (c), or (f), as
appropriate, the agency must establish the employee's new maximum
annual leave limitation on the date of reemployment as a personal leave
ceiling equal to the employee's former maximum annual leave limitation.
The new maximum annual leave limitation is subject to reduction in the
same manner as provided in 5 U.S.C. 6304(c) until the employee's
accumulated annual leave is equal to or less than the maximum annual
leave limitation for the position in which reemployed.
(e) When an employee is reemployed in a position listed in 5 U.S.C.
6301(2)(x)-(xiii), the agency must recredit and hold in abeyance the
amount of annual leave that would have been recredited under paragraph
(a) of this section. The agency must include unused annual leave in a
lump-sum payment when the employee becomes eligible for a lump-sum
payment under Sec. 550.1203. If the employee transfers from a position
listed in 5 U.S.C. 6301(2)(x)-(xiii) to a position covered by
subchapter I of chapter 63 of title 5, United States Code, or to a
position under a different formal leave system to which his or her
annual leave can be recredited, the employing agency must recredit the
annual leave to the employee's credit as provided in paragraph (a) of
this section.
(f) An agency must document the calculation of an employee's lump-
sum payment as provided in Sec. 550.1205(b) so as to permit the
subsequent calculation of any refund required under Sec. 550.1206(a)
and any recredit of annual leave required under this section.
PART 591--ALLOWANCES AND DIFFERENTIALS
8. The authority citation for subpart B of part 591 continues to
read as follows:
Subpart B--Cost-of-Living Allowance and Post Differential-
Nonforeign Areas
Authority: 5 U.S.C. 5941; E.O. 10000, 3 CFR, 1943-1948 Comp., p.
792; and E.O. 12510, 3 CFR, 1985 Comp., 338.
Sec. 591.210 [Amended]
9. In Sec. 591.210, the last sentence of paragraph (c)(1) is
removed.
[FR Doc. 99-16992 Filed 7-7-99; 8:45 am]
BILLING CODE 6325-01-P
