[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31822]
Federal Register / Vol. 59, No. 248 / Wednesday, December 28, 1994 /
[Federal Register: December 28, 1994]
VOL. 59, NO. 248
Wednesday, December 28, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 451, 531, 550, 551, 591, and 630
RIN: 3206-AG15
Incentive Awards; Pay and Leave Administration
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 incorporate certain incentive awards and pay and leave
administration rules contained in the provisionally retained Federal
Personnel Manual material, which will sunset on December 31, 1994, into
the Code of Federal Regulations and to remove certain recordkeeping and
reporting requirements.
DATES: The interim rules are effective on January 1, 1995. Comments
must be received on or before February 27, 1995.
ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,
Acting Assistant Director for Compensation Policy, Office of Personnel
Management, Room 6H31, 1900 E Street NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
Barbara Colchao, (202) 606-2720, concerning questions about the interim
regulations for incentive awards in 5 CFR 451, and Belva MacDonald
(202) 606-1413, concerning questions about the interim regulations for
pay and leave administration in 5 CFR 531, 550, 551, 591, and 630.
SUPPLEMENTARY INFORMATION: On September 7, 1993, the Report of the
National Performance Review recommended that the Office of Personnel
Management (OPM) deregulate personnel policy by phasing out the 10,000-
page Federal Personnel Manual (FPM). The FPM Sunset Document published
on December 31, 1993, provided that certain FPM materials would be
provisionally retained through December 31, 1994, to allow time for the
development of any regulations, delegations of authority, or manuals
necessary to authorize agency flexibility or, where required, to
continue Governmentwide uniformity. A small number of miscellaneous
incentive awards and pay and leave administration provisions in the FPM
were retained for these reasons, and OPM is incorporating these
provisions into the Code of Federal Regulations (CFR). These rules
relate to:
(1) Incentive awards--cash award limitations, documentation of
informal recognition items, and eligible award recipients;
(2) Application of the two-step promotion rule for promotions from
GS-1 and GS-2 positions;
(3) Application of leave without pay towards the competition of
waiting periods for within-grade increases;
(4) Counting travel time as ``hours of work'';
(5) Sunday premium pay for periods of paid leave and excused
absence;
(6) Payments during evacuation;
(7) Back pay computations;
(8) Computing cost-of-living allowances for employees receiving pay
retention; and
(9) Leave for uncommon tours of duty.
No new requirements will be established by these regulations. In
addition, in an ongoing effort to reduce administrative burden, OPM has
removed the recordkeeping requirements related to waiving the biweekly
pay cap on premium pay and the reporting requirements for payments
during evacuation. A summary of the provisions included in these
regulations follows.
Incentive Awards
Cash Award Limitations
The interim regulations amend 5 CFR 451.106(b) and 451.107(a)(3) to
clarify that group awards may exceed $10,000 and not require OPM
approval, and may exceed $25,000 and not require Presidential approval,
so long as no individual in the group is granted more than $10,000 or
$25,000, respectively. In the past, agencies have sometimes found
confusing the current law and regulation concerning the maximum cash
awards that can be granted with and without OPM approval. These limits
apply to individuals whether the contribution being recognized was
provided solely by the individual or as part of a group. These interim
regulations do not limit the size of group awards. (These interim
regulations reflect material found in FPM Letter 451-11, Attachment 1,
section 2-2, February 9, 1993.)
Documentation of Informal Recognition Items
The interim regulations amend 5 CFR 451.103 and 451.107(b) to
include a new definition, informal recognition items, to help agencies
distinguish nominal informal recognition items from other nonmonetary
awards and to provide for agency flexibility with respect to
documentation and approval requirements for informal recognition items.
This is consistent with agencies' use of their authority under 5 U.S.C.
4503 to incur expenses for routine recognition items of extremely
nominal value (e.g., pens, buttons, pins, name tags, etc.) and with the
current practice in many agencies under which some routine forms of
recognition, such as career service certificates, which are technically
authorized under 5 U.S.C. 4503, are neither documented in the official
personnel folder nor subject to formal nomination and approval
procedures. (These interim regulations reflect material found in
provisionally retained FPM Letter 451-11, Attachment 4, section 7-5b,
February 9, 1993.)
Eligible Award Recipients
The interim regulations amend 5 CFR 451.104(f) to provide that
awards may be granted to the legal heirs or estates of deceased
employees. (These interim regulations reflect material found in
provisionally retained FPM Chapter 451, Subchapter 3, section 3-2b,
August 14, 1981.)
Application of the Two-Step Promotion Rule for Promotions from GS-1 and
GS-2 Positions
The interim regulations amend 5 CFR 531.204 to provide a method for
determining the dollar value of a two-step promotion when step
increases above step 10 must be calculated for employees promoted from
grades GS-1 and GS-2. Under the interim regulations, at grades GS-1 and
GS-2, for the purposes of promotion or transfer to a higher grade, the
dollar value of each step increase above step 10 equals the dollar
amount of the step increase between step 9 and step 10 of grade GS-1
and GS-2, as appropriate.
The dollar value of step increases at grades GS-1 and GS-2 varies.
Consequently, the dollar amounts of the step increases above step 10
for grades GS-1 and GS-2 cannot be determined uniformly without an
explicit rule. The amendment to Sec. 531.204 provides agencies with
uniform procedures for determining the amounts of the step increases
above step 10 for GS-1 and GS-2 employees. (These interim regulations
reflect guidance found in provisionally retained FPM Letter 531-56,
February 16, 1982.)
Application of Leave Without Pay towards the Completion of Waiting
Periods for Within-Grade Increases
The interim regulations amend 5 CFR 531.406 to provide uniform
procedures for treating the time an employee is in a nonpay status for
the purposes of determining whether the employee has completed a
waiting period for a within-grade increase when the employee's
scheduled tour of duty upon return to duty is different from the tour
of duty at the time the leave without pay (nonpay status) began. The
interim regulations require agencies to use the original tour of duty
(from which the time in a nonpay status was charged) for the following
purposes: (1) crediting the time in a nonpay status toward the
completion of a waiting period for a within-grade increase; and (2)
extending the waiting period if the time in a nonpay status exceeds the
allowable amount.
Currently, the regulations provide that time in a nonpay status is
creditable service in the computation of a waiting period if it does
not exceed an aggregate of (1) 2 workweeks for steps 2, 3, and 4 (or
comparable position in the rate range); (2) 4 workweeks for steps 5, 6,
and 7 (or comparable position in the rate range); and (3) 6 workweeks
for steps 8, 9, and 10 (or comparable position in the rate range). Time
in a nonpay status in excess of the allowable amount extends a waiting
period by the excess amount. The interim regulations ensure that
employees are treated equitably by requiring agencies to compute the
waiting period on the basis of the tour of duty in effect at the time
the employee enters into a nonpay status and not on the tour of duty in
effect at the end of the waiting period. (These interim regulations
reflect guidance found in provisionally retained FPM Letter 531-57,
February 9, 1984.)
Counting Travel Time as ``Hours of Work''
OPM is revising regulatory language in 5 CFR 550.112 and 551.422
regarding an agency's authority to establish a mileage radius from an
employee's official duty station for determining entitlement to
overtime pay for travel. The interim regulations relating to overtime
entitlements under both title 5, United States Code (Sec. 550.112(j)),
and the Fair Labor Standards Act of 1938, as amended (FLSA)
(Sec. 551.422(d)), state that agencies may establish a mileage radius
of not greater than 50 miles to determine whether an employee's travel
is within or outside the limits of the employee's official duty station
for overtime pay purposes. However, the interim regulations provide for
one exception: An agency's definition of an employee's official duty
station for determining overtime pay for travel may not be smaller than
an employee's ``official station and post of duty'' under the Federal
Travel Regulation published by the General Services Administration. (An
agency may establish more than one definition of official duty station
for determining overtime pay for travel to be applied in different
geographic locations. for example, an agency could have a large mileage
radius in a remote rural area and a smaller radius in an urban area.)
The interim regulations establish parallel regulations for travel
time as hours of work under both title 5 and the FLSA. The interim
regulations revise the current requirement regarding travel time as
hours of work under the FLSA so that an agency's definition of an
employee's official duty station (including a mileage radius) that is
used to determine entitlement to overtime pay for travel no longer has
to be the same as that used by the agency to determine an employee's
entitlement to per diem. Similarly, the definition of an employee's
official duty station for purposes of overtime pay for travel need not
necessarily be the same as that used to determine an employee's
entitlement to locality pay, interim geographic adjustments, or special
pay adjustments for law enforcement officers. Agencies may have
different definitions of official duty station for different purposes.
For example, the official duty station named on a notification of
personnel action and used for geographic pay determinations must be a
specific city, county, and state (or county and state in rural areas)
to avoid confusion about entitlement to geographic pay entitlements.
(These interim regulations revise guidance for travel time as hours of
work under the FLSA found in provisionally retained FPM Letter 551-11,
October 14, 1977, and incorporate similar provisions for FLSA-exempt
employees. See former FPM letter 550-74, December 29, 1980.)
In addition, the interim regulations (for FLSA-exempt employees)
provide in Sec. 550.112(j)(2) that travel time between home and work is
not hours of work and that the normal time spent in travel between home
and work will be deducted from time spent traveling between home and a
temporary duty location. This is parallel to current regulations in
Sec. 551.422(b) for determining overtime pay under the FLSA.
Sunday Premium Pay for Periods of Paid Leave and Excused Absence
The interim regulations in 5 CFR 550.171 revise the Sunday premium
pay regulations in accordance with the decision of the United States
Court of Appeals for the Federal Circuit in Armitage, et al. v. United
States that employees who are regularly scheduled to work on Sunday are
entitled to Sunday premium pay for periods of paid leave taken on
Sundays. The regulations also state that employees covered by
compressed work schedules are entitled to Sunday premium pay for the
number of hours they are scheduled to work on Sundays. (These interim
regulations reflect guidance found in provisionally retained FPM Letter
550-79, August 20, 1993.)
Payments During Evacuation
The interim regulations incorporate into 5 CFR part 550, subpart D,
regulations published in FPM Supplement 990-2, Book 550, Appendix A,
that may be adopted by agencies for making payments during evacuation
in the United States and certain nonforeign areas. Governmentwide
coordination of these regulations for Federal agencies is required by
Executive Order 10982 of December 25, 1961. (The Secretary of State has
prescribed similar regulations for civilian employees of Federal
agencies who are located in foreign areas. These regulations are found
in the Standardized Regulations (Government Civilians, Foreign Areas).)
The regulations provide for payments during an evacuation to
employees or their dependents, or both, who are ordered to evacuate
from or within United States areas because of imminent danger to their
lives, such as natural disasters, or for military or other reasons.
Currently, if an agency adopts the agency regulations published in
the FPM, the agency is required to notify OPM of the date of adoption
and of the areas in which the regulations would be applied. The interim
regulations delete this notification requirement. Also, the interim
regulations delete requirements for agency evacuation reports; however,
each agency should develop its own internal monitoring system to ensure
that its payments conform to the regulations. As required by section
4(b) of E.O. 10982, an agency that proposes to follow rules that differ
from these regulations must secure prior approval from OPM. (These
interim regulations reflect regulations found in provisionally retained
FPM Supplement 990-2, Book 550, Appendix A. OPM does not plan to
continue publishing the list of agencies having approved agency
regulations for advance and evacuation payments that were published in
provisionally retained FPM Supplement 990-2, Book 550, Appendix B.)
Back Pay Computations
The interim regulations clarify in 5 CFR 550.805(e)(1) that
outside, ``moonlight'' employment engaged in by the employee both while
Federally employed and erroneously separated is not to be deducted when
computing the amount of back pay.
The regulations also revise the back pay computation rules in
Sec. 550.805(e)(2) by identifying the erroneous payments that must be
deducted from a back pay award and enumerating the order in which such
payments must be recovered. When an employee separates or retires from
the Federal service, the employee typically receives certain payments,
such as a refund of the employee's retirement contributions, severance
pay, and/or a lump-sum payment for unused annual leave, as applicable.
If the employee retires, he or she may also receive an annuity, and his
or her health benefits and life insurance may be continued. When an
employee is separated or retired from the Federal service because of an
unwarranted or unjustified personnel action, such payments must be
recovered by the Federal Government upon the employee's return to
service. (These interim regulations reflect guidance found in
provisionally retained FPM supplement 990-2, Book 550, subchapter S8.)
Computing Cost-of-Living Allowances for Employees Receiving Pay
Retention
The interim regulations in 5 CFR 591.210 incorporate OPM's policy
that an employee on pay retention who is entitled to a cost-of-living
allowance or post differential is entitled to an allowance or
differential computed as a percentage of his or her retained rate.
(These interim regulations reflect guidance found in provisionally
retained FPM Letter 591-50, July 26, 1989.)
Leave for Uncommon Tours of Duty
The interim regulations include a definition of ``uncommon tour of
duty'' in 5 CFR 630.201, remove and reserve Sec. 630.205, and revise
Sec. 630.210 to clarify how leave is accrued and charged when an agency
establishes a special leave accrual and usage methodology for employees
on uncommon tours of duty, such as firefighters who have 144-hour
biweekly schedules (i.e., six 24-hour shifts).
The leave accrual rates for such employees must be directly
proportionate to the rates for employees who accrue and use leave on
the basis of an 80-hour biweekly schedule. For example, if a
firefighter's leave is accrued and used on the basis of a 144-hour
biweekly schedule, then the maximum annual leave accrual rate would be
14 hours per biweekly pay period, instead of the standard rate of 8
hours per biweekly pay period. (When 8 hours is multiplied by the
factor of 144/80, the product is approximately 14. A special accrual
rate of 24 hours would be used for the last full pay period in the
calendar year to ensure equivalence in leave accrual over the entire
year.) Such a firefighter would be charged leave proportionally for any
applicable period of absence during the 144-hour uncommon tour of duty.
In addition, the regulations clarify how leave balances are
recomputed for employees who convert to a different tour of duty for
leave purposes. Leave balances must be converted to the proper number
of hours based on the proportion of hours in the new tour of duty
compared to the former tour of duty. For example, if a firefighter who
accrues and uses leave based on a 144-hour biweekly tour of duty
converts to a position in which he or she accrues and uses leave based
on an 80-hour biweekly tour of duty, the converted leave balance is
computed by multiplying the former balance by the factor of 80/144.
(These interim regulations reflect guidance found in provisionally
retained FPM Supplement 990-2, Book 630, S2-6b.)
Removal of Recordkeeping Requirements when Biweekly Pay Caps on
Premium Pay Are Waived
The interim regulations eliminate the requirement in 5 CFR
550.106(d) that agencies document each determination to pay premium pay
under the annual limitation for work performed in connection with an
emergency. (Final regulations allowing agencies to waive the biweekly
limitation on premium pay during an emergency, as provided by section
204 of the Federal Employees Pay Comparability Act of 1990, were
published at 57 FR 31630, July 17, 1992.)
Agencies have found it difficult to retrieve the data necessary to
comply with this recordkeeping requirement. Therefore, OPM is amending
its regulations to eliminate the need to document and keep certain
records related to an emergency when an agency waives the biweekly
premium pay limitation and uses the maximum annual earnings limitation
for premium pay in its place. (These interim regulations are part of
OPM's ongoing effort to reduce administrative burdens consistent with
the goals of the National Performance Review.)
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 and making this
rule effective in less than 30 days. These interim regulations reflect
guidance found in provisionally retained FPM materials that will sunset
on December 31, 1994. The delay in effective date is being waived to
permit continuity in administering Governmentwide pay and leave
administration rules.
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.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866
List of Subjects in 5 CFR Parts 451, 531, 550, 551, 591, and 630
Administrative practice and procedure; Claims; Decorations, medals,
awards; Government employees; Law enforcement officers; Travel and
transportation expenses; Wages.
U.S. Office of Personnel Management
James B. King,
Director.
Accordingly, OPM is amending parts 451, 531, 550, 591, and 630 of
title 5 of the Code of Federal Regulations as follows:
PART 451--INCENTIVE AWARDS
1. The authority citation for part 451 continues to read as
follows:
Authority: 5 U.S.C. 4501-4507.
2. In Sec. 451.103, a new definition, informal recognition items,
is added to read as follows:
Sec. 451.103 Definitions.
* * * * *
Informal recognition items means items of extremely nominal value
granted as immediate, informal recognition of employee accomplishment.
* * * * *
3. In Sec. 451.104, paragraphs (f) through (j) are redesignated as
paragraphs (g) through (k), respectively, and a new paragraph (f) is
added to read as follows:
Sec. 451.104 Policy.
* * * * *
(f) An award under this subpart may be granted to the legal heir or
estate of a deceased employee.
* * * * *
4. In Sec. 451.106, paragraph (b) is revised to read as follows:
Sec. 451.106 Responsibilities of the Office of Personnel Management.
* * * * *
(b) OPM shall review and approve or disapprove all recommendations
for agency awards under this subpart that would grant an individual
employee an award in excess of $10,000 but not over $25,000.
5. In Sec. 451.107, paragraph (a)(3) is revised, paragraph (b) is
redesignated as paragraph (c), and new paragraph (b) is added to read
as follows:
Sec. 451.107 Agency responsibilities.
(a) * * *
(3) Award recommendations that would grant an individual employee
an award in excess of $10,000 but not over $25,000; and
* * * * *
(b) Agencies that make expenditures for informal recognition items
for distribution to employees shall establish criteria and procedures
for granting and, as appropriate, documenting informal recognition
items and for distinguishing such items from formal nonmonetary awards
granted under this part.
* * * * *
PART 531--PAY UNDER THE GENERAL SCHEDULE
6. The authority citation for part 531 is revised 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, February 4, 1991, 3
CFR 1991 Comp., p. 316;
Subpart A also issued under 5 U.S.C. 5304, 5305, and 5553;
section 302 of the Federal Employees Pay Comparability Act of 1990
(FEPCA), Pub. L. 101-509, 104 Stat. 1462; and E.O. 12786, 56 FR
67453, December 30, 1991, 3 CFR 1991 Comp., p. 376;
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;
Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2);
Subpart E also issued under 5 U.S.C. 5336;
Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553;
and E.O. 12883, 58 FR 63281, November 29, 1993, 3 CFR 1993 Comp., p.
682.
Subpart B--Determining Rate of Basic Pay
7. In Sec. 531.204, paragraph (a)(3) is added to read as follows:
Sec. 531.204 Special provisions.
(a) * * *
(3) When an employee at grade GS-1 or grade GS-2 is promoted or
transferred to a higher grade, the amount of a step increase above step
10 of the employee's grade equals the amount of the increment between
step 9 and step 10 of the grade from which promoted.
* * * * *
8. In Sec. 531.406, the introductory text to paragraph (b)(2) is
revised, paragraph (b)(3) is redesignated as paragraph (b)(4), and a
new paragraph (b)(3) is added to read as follows:
Sec. 531.406 Creditable service.
* * * * *
(b) * * *
(2) Time in a nonpay status (based upon the tour of duty from which
the time was charged) is creditable service in the computation of a
waiting period for an employee with a scheduled tour of duty when it
does not exceed an aggregate of:
* * * * *
(3) Except as provided in paragraph (c) of this section, time in a
nonpay status (based upon the tour of duty from which the time was
charged) that is in excess of the allowable amount shall extend a
waiting period by the excess amount.
* * * * *
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart A--Premium Pay
9. The authority citation for part 550, subpart A, is revised to
read as follows:
Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5548, and
6101(c); E.O. 12748, 3 CFR 1991 Comp., p.316.
Sec. 550.106 Annual maximum earnings limitation for work in connection
with an emergency. [Amended]
10. In Sec. 550.106, paragraph (d) is removed, and paragraph (e) is
redesignated as paragraph (d).
11. In Sec. 550.112, paragraph (j) is added to read as follows:
Sec. 550.112 Computation of overtime work.
* * * * *
(j) Official duty station. An agency may prescribe a mileage radius
of not greater than 50 miles to determine whether an employee's travel
is within or outside the limits of the employee's official duty station
for determining entitlement to overtime pay for travel under paragraph
(g) of this section except that--
(1) An agency's definition of an employee's official duty station
for determining overtime pay for travel may not be smaller than the
definition of ``official station and post of duty'' under the Federal
Travel Regulation issued by the General Services Administration (41 CFR
301-1.3(c)(4)); and
(2) Travel from home to work and vice versa is not hours of work.
When an employee travels directly from home to a temporary duty
location outside the limits of his or her official duty station, the
time the employee would have spent in normal home to work travel shall
be deducted from hours of work.
12. Section 550.171 is revised to read as follows:
Sec. 550.171 Authorization of pay for Sunday work.
An employee is entitled to pay at his or her rate of basic pay plus
premium pay at a rate equal to 25 percent of his or her rate of basic
pay for each hour of Sunday work which is not overtime work or for each
hour while in a paid leave or excused absence status on Sunday and
which is not in excess of 8 hours or, for an employee on a compressed
work schedule, not in excess of the number of hours the employee is
scheduled to work on Sunday for each regularly scheduled tour of duty
which begins or ends on Sunday.
13. Subpart D of part 550, consisting of Secs. 550.401 through
550.407, is revised to read as follows:
Subpart D--Payments During Evacuation
550.401 Purpose, applicability, authority, and administration.
550.402 Definitions.
550.403 Advance payments; evacuation payments; special allowances.
550.404 Computation of advance payments and evacuation payments;
time periods.
550.405 Determination of special allowances.
550.406 Work assignments during evacuation; return to duty.
550.407 Termination of payments during evacuation.
550.408 Review of accounts; service credit.
Authority: 5 U.S.C. 5527; E.O. 10982, 3 CFR 1959-1963., p. 502.
Subpart D--Payments During Evacuation
Sec. 550.401 Purpose, applicability, authority, and administration.
(a) Purpose. This subpart provides regulations to administer
subchapter III (except sections 5524a and 5525) of chapter 55 of title
5, United States Code. The regulations provide for Governmentwide
uniformity in making payments during an evacuation to employees or
their dependents, or both, who are evacuated in the United States and
certain non-foreign areas because of natural disasters or for military
or other reasons that create imminent danger to their lives.
(b) Applicability. This subpart applies to--
(1) Executive agencies, as defined in section 105 of title 5,
United States Code.
(2) Employees of an agency who are U.S. citizens or who are U.S.
nationals;
(3) Employees of an agency who are not citizens or nationals of the
United States, but who were recruited with a transportation agreement
that provides return transportation to the area from which recruited;
and
(4) Alien employees of an agency hired within the United States.
(c) Authority. The head of an agency may make advance payments and
evacuation payments and pay special allowances as provided by this
subpart. If the head of an agency proposes to issue regulations that
deviate from the provisions of this subpart, prior approval of the
agency regulations, as required by section 4(b) of Executive Order
10982 of December 25, 1961, must be secured from the Office of
Personnel Management.
(d) Administration. The head of an agency having employees subject
to this subpart is responsible for the proper administration of this
subpart. Payment of advance payments and evacuation payments and any
required adjustments shall be made in accordance with procedures
established by the agency.
Sec. 550.402 Definitions.
Agency means an Executive agency, as defined in section 105 of
title 5, United States Code.
Day means a calendar day, except when otherwise specified by the
head of an agency.
Dependent means a relative of the employee residing with the
employee and dependent on the employee for support.
Designated representative means a person 16 years of age or over
who is named by an employee for the purpose of caring for a dependent.
Evacuated employee means an employee of an agency who has received
an order to evacuate.
Order to evacuate means an oral or written order to evacuate an
employee from an assigned area.
Safe haven means a designated area to which an employee or
dependent will be or has been evacuated.
United States area means the several States, the District of
Columbia,the Commonwealth of Puerto Rico, the Panama Canal Zone, and
any territory or possession of the United States (excluding the Trust
Territory of the Pacific Islands).
Sec. 550.403 Advance payments; evacuation payments; special
allowances.
(a) An advance payment of pay, allowances, and differentials may be
made to an employee who has received an order to evacuate, provided
that, in the opinion of the agency head or designated official, payment
in advance of the date on which an employee otherwise would be entitled
to be paid is required to help the employee defray immediate expenses
incidental to the evacuation.
(b) Evacuation payments of pay, allowances, and differentials may
be made to an employee during an evacuation and shall be paid on the
employee's regular pay days when feasible.
(c) Special allowances, including travel expenses and per diem, may
be paid to evacuated employees to offset any direct added expenses that
are incurred by the employee as a result of his or her evacuation or
the evacuation of his or her dependents.
(d) An advance payment or an evacuation payment may be paid to the
employee, a dependent 16 years of age or over, or a designated
representative. When payment is made to someone other than the
employee, prior written authorization by the employee must have been
provided to the authorizing agency official.
(e) Any agency may make payments in an evacuation situation to an
employee of another Federal agency (or his or her dependent(s) or
personal representative) who has received an order to evacuate. When a
payment is made under this subpart by an agency other than the
employee's agency, the agency making the payment shall immediately
report the amount and date of the payment to the employee's agency in
order that prompt reimbursement may be made.
Sec. 550.404 Computation of advance payments and evacuation payments;
time periods.
(a) Payments shall be based on the rate of pay (including
allowances, differentials, or other authorized payments) to which the
employee was entitled immediately before the issuance of the order of
evacuation. All deductions authorized by law, such as retirement or
social security deductions, authorized allotments, Federal withholding
taxes, and others, when applicable, shall be made before advance
payments or evacuation payments are made.
(b)(1) The amount of advance payments shall cover a time period not
to exceed 30 days or a lesser number of days, as determined by the
authorizing agency official.
(2) Evacuation payments shall cover the period of time during which
the order to evacuate remains in effect, unless terminated earlier, but
shall not exceed 180 days. When feasible, evacuation payments shall be
paid on the employee's regular days.
(c) When an advance payment has been made to or for the account of
an employee, the amount of the advance payment shall not diminish the
amount of the evacuation payments that would otherwise be due the
employee.
(d)(1) For full-time and part-time employees, the amount of an
advance payment or an evacuation payment shall be computed on the basis
of the number of regularly scheduled workdays for the time period
covered.
(2) For intermittent employees, the amount of an advance payment or
evacuation payment shall be computed on the basis of the number of days
on which the employee would be expected to work during the time period
covered. The number of days shall be determined, whenever possible, by
approximating the number of days per week normally worked by the
employee during an average 6-week period, as determined by the agency.
Sec. 550.405 Determination of special allowances.
In determining the direct added expenses that may be payable as
special allowances, the following shall be considered:
(a) The travel expenses and per diem for an evacuated employee and
the travel expenses for his or her dependents shall be determined in
accordance with the Federal Travel Regulation (FTR), whether or not the
employee or dependents would actually be covered or subject to the FTR.
In addition, per diem is authorized for dependents of an evacuated
employee at a rate equal to the rate payable to the employee, as
determined in accordance with the FTR (except that the rate for
dependents under 11 years of age shall be one-half this rate), whether
or not the employee or dependents would actually be covered or subject
to the FTR. Per diem for an employee and his or her dependents shall be
payable from the date of departure from the evacuated area through the
date of arrival at the safe haven, including any period of delay en
route that is beyond an evacuee's control or that may result from
evacuation travel arrangements.
(b) Subsistence expenses for an evacuated employee or his or her
dependents shall be determined at applicable per diem rates for the
safe haven or for a station other than the safe haven that has been
approved by appropriate authority. Such subsistence expenses shall
begin to be paid on the date following arrival and may continue until
terminated. The subsistence expenses shall be computed on a daily rate
basis, as follows:
(1) The applicable maximum per diem rate shall be computed for the
employee and each dependent who is 11 years of age or over. One-half of
such rate shall be computed for each dependent under 11 years of age.
These maximum rates may be paid for a period not to exceed the first 30
days of evacuation.
(2) If, after expiration of the 30-day period, the evacuation has
not been terminated, the per diem rate shall be computed at 60 percent
of the rates prescribed in paragraph (b)(1) of this section until a
determination is made by the agency that subsistence expenses are no
longer authorized. This rate may be paid for a period not to exceed 180
days after the effective date of the order to evacuate.
(3) The daily rate of the subsistence expense allowance actually
paid an employee shall be either a rate determined in accordance with
paragraphs (b) (1) and (2) of this section or a lower rate determined
by the agency to be appropriate for necessary living expenses.
(c) Payment of subsistence expenses shall be decreased by the
applicable per-person amount for any period during which the employee
is authorized regular travel per diem in accordance with the FTR.
Sec. 550.406 Work assignments during evacuation; return to duty.
(a) Evacuated employees at safe havens may be assigned to perform
any work considered necessary or required to be performed during the
period of the evacuation without regard to the grades or titles of the
employees. Failure or refusal to perform assigned work may be a basis
for terminating further evacuation payments.
(b) When part-time employees are given assigned work at the safe
haven, records of the number of hours worked shall be maintained so
that payment may be made for any hours of work that are greater than
the number of hours on which evacuation payments are computed.
(c) Not later than 180 days after the effective date of the order
to evacuate, or when the emergency or evacuation situation is
terminated, whichever is earlier, an employee must be returned to his
or her regular duty station, or appropriate action must be taken to
reassign him or her to another duty station.
Sec. 550.407 Termination of payments during evacuation.
Advance payments or evacuation payments terminate when the agency
determines that--
(a) The employee is assigned to another duty station outside the
evacuation area;
(b) The employee abandons or is otherwise separated from his or her
position;
(c) The employee's employment is terminated by his or her transfer
to retirement rolls or other type of annuity based on cessation of
civilian employment;
(d) The employee resumes his or her duties at the duty station from
which he or she was evacuated;
(e) The agency determines that payments are no longer warranted; or
(f) The date the employee is determined to be covered by the
Missing Persons Act (50 App. U.S.C. 1001 et seq.), unless payment is
earlier terminated under these regulations.
Sec. 550.408 Review of accounts; service credit.
(a) The payroll office having jurisdiction over the employee's
account shall review each employee's account for the purpose of making
adjustments at the earliest possible date after the evacuation is
terminated (or earlier if the circumstances justify), after the
employee returns to his or her assigned duty station, or when the
employee is reassigned officially.
(b) The employee's pay shall be adjusted on the basis of the rates
of pay, allowances, or differentials, if any, to which he or she would
otherwise have been entitled under all applicable statutes other than
section 5527 of title 5, United States Code. Any adjustments in the
employee's account shall also reflect advance payments made to the
employee under Sec. 550.403(a) of this subpart.
(c)(1) After an employee's account is reviewed as required by
paragraph (a) of this section, if it is found that the employee is
indebted for any part of the advance payment made to him or her or his
or her dependent(s) or designated representative, recovery of the
indebtedness shall be effected by the payroll office having
jurisdiction over the employee's account, unless a waiver of recovery
has been approved. Repayment of the indebtedness may be made either in
full or in partial payments, as determined by the head of the agency or
designated official.
(2) Recovery of indebtedness for advance payment shall not be
required when it is determined by the head of the agency or designated
official that the recovery would be against equity or good conscience
or against the public interest. Findings that formed the basis for
waiver of recovery shall be filed in the employee's personnel folder on
the permanent side.
(d) For the period or periods covered by any payments made under
this subpart, the employee shall be considered as performing active
Federal service in his or her position without a break in service.
Subpart H--Back Pay
14. The authority citation for subpart H of part 550 is revised to
read as follows:
Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.
15. In Sec. 550.805, paragraph (e) is revised to read as follows:
Sec. 550.805 Back pay computations.
* * * * *
(e) In computing the amount of back pay under section 5596 of title
5, United States Code, and this subpart, an agency shall deduct--
(1) Any amounts earned by an employee from other employment
undertaken to replace the employment from which the employee had been
separated by the unjustified or unwarranted personnel action during the
period covered by the corrective action, but not including additional
or ``moonlight'' employment the employee may have engaged in both while
Federally employed and erroneously separated; and
(2) Any erroneous payments received from the Government as a result
of the unjustified or unwarranted personnel action, which, in the case
of erroneous payments received from a Federal employee retirement
system, shall be returned to the appropriate system. Such payments
shall be recovered from the back pay award in the following order:
(i) Retirement annuity payments (except health benefits and life
insurance premiums);
(ii) Refunds of retirement contributions;
(iii) Severance pay;
(iv) Lump-sum payment for annual leave (and the annual leave shall
be recredited for the employee's use under part 630);
(v) Health benefits and life insurance premiums, if coverage
continued during the period of erroneous retirement; and
(vi) Other authorized deductions.
* * * * *
PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT
16. The authority citation for part 551 continues to read as
follows:
Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor
Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29
U.S.C. 204f).
Subpart D--Hours of Work
17. In Sec. 551.422, paragraph (d) is added to read as follows:
Sec. 551.422 Time spent traveling
* * * * *
(d) Except as provided in paragraph (b) of this section, an agency
may prescribe a mileage radius of not greater than 50 miles to
determine whether an employee's travel is within or outside the limits
of the employee's official duty station for determining entitlement to
overtime pay for travel under this part. However, an agency's
definition of an employee's official duty station for determining
overtime pay for travel may not be smaller than the definition of
``official station and post of duty'' under the Federal Travel
Regulation issued by the General Services Administration (41 CFR 301-
1.3(c)(4)).
PART 591--ALLOWANCES AND DIFFERENTIALS
Subpart B--Cost-of-Living Allowance and Post Differential--
Nonforeign Areas
18. The authority citation for part 591, subpart B, is revised 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.
19. In Sec. 591.210, paragraph (b)(1) is revised to read as
follows:
Sec. 591.210 Payment of allowances and differentials.
* * * * *
(b)(1) Except as provided in paragraph (b)(2) of this section,
allowances and differentials shall be calculated and paid as a
percentage of an employee's hourly rate of basic pay, including a
retained rate of pay under 5 U.S.C. 3594(c) or 5363, for those hours
for which the employee receives basic pay, including all periods of
paid leave, detail, or travel status outside the allowance or
differential area. Allowances and differentials shall be included in
any lump-sum payment for accumulated and current accrued annual leave
issued under sections 5551 or 5552 of title 5, United States Code, to
an employee who separates while in a duty status in the allowance or
differential area.
* * * * *
PART 630--ABSENCE AND LEAVE
20. The authority citation for part 630 is revised to read as
follows:
Authority: 5 U.S.C. 6311; Sec. 630.303 also issued under 5
U.S.C. 6133(a); Sec. 630.501 and subpart F also issued under E.O.
11228, 30 FR 7739, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart
G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.
6326; subpart I also issued under 5 U.S.C. 6332 and Public Laws 100-
566 (102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also
issued under 5 U.S.C. 6362 and Public Laws 100-566 and 103-103;
subpart K also issued under Public Law 102-25 (105 Stat. 92); and
subpart L also issued under 5 U.S.C. 6387 and Public Law 103-3 (107
Stat. 6, 23).
Subpart B--Definitions and General Provisions for Annual and Sick
Leave
21. In Sec. 630.201, paragraph (b)(7) is redesignated as paragraph
(b)(8), and a new paragraph (b)(7) is added to read as follows:
Sec. 630.201 Definitions.
* * * * *
(b) * * *
(7) Uncommon tour of duty means a tour of duty that exceeds 80
hours of work in a biweekly pay period, including hours of actual work
plus hours in a standby status for which the employee is compensated by
annual premium pay under 5 U.S.C. 5545(c)(1) and part 550 of this
chapter.
* * * * *
22. Section 630.205 is removed and reserved.
Sec. 630.205 [Reserved]
23. Section 630.210 is revised to read as follows:
Sec. 630.210 Uncommon tours of duty.
(a) An agency may require that an employee with an uncommon tour of
duty accrue and use leave on the basis of that uncommon tour of duty.
The leave accrual rates for such employees shall be directly
proportional (based on the number of hours in the biweekly tour of duty
and the accrual rate of the corresponding leave category) to the
standard leave accrual rates for employees who accrue and use leave on
the basis of an 80-hour biweekly tour of duty. One hour (or appropriate
fraction thereof) of leave shall be charged for each hour (or
appropriate fraction thereof) of absence from the uncommon tour of
duty.
(b) When an employee is converted to a different tour of duty for
leave purposes, his or her leave balances shall be converted to the
proper number of hours based on the proportion of hours in the new tour
of duty compared to the former tour of duty.
[FR Doc. 94-31822 Filed 12-27-94; 8:45 am]
BILLING CODE 6325-01-M
