[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72457-72459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33587]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 64, No. 248 / Tuesday, December 28, 1999 /
Rules and Regulations
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 550, 595, and 610
RIN 3206-AI61
Pay Administration; Back Pay; Holidays; and Physicians'
Comparability Allowances
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 reflect changes in law which clarify that back pay
awards are subject to a 6-year statute of limitations unless a shorter
statute of limitations period applies, change the designation of
holidays for certain Federal employees working overseas, and increase
the maximum physicians' comparability allowance from $20,000 to $30,000
per year for employees who have served as a Government physician for
more than 24 months. The changes in law are already effective.
DATES: Effective Date: The regulations are effective on December 28,
1999.
Applicability Dates: The regulations apply on the first day of the
first pay period beginning on or after December 28, 1999.
Comments Date: Comments must be received on or before February 28,
2000.
FOR FURTHER INFORMATION CONTACT: James R. Weddel, (202) 606-2858, FAX:
(202) 606-0824, or email: payleave@opm.gov.
ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,
Assistant Director for Compensation Administration, Workforce
Compensation and Performance Service, Office of Personnel Management,
Room 7H31, 1900 E Street NW., Washington, DC 20415, FAX: (202) 606-
0824, or email: payleave@opm.gov.
SUPPLEMENTARY INFORMATION: These interim regulations reflect changes in
law clarifying the statute of limitations for back pay, raising the
maximum physicians' comparability allowance for employees with more
than 24 months of service as Government physicians, and designating
holidays for certain employees at duty posts outside the United States.
Statute of Limitations for Back Pay
Section 1104 of Public Law 105-261, the Strom Thurmond National
Defense Authorization Act, 1999 (October 17, 1998), amended the back
pay law (5 U.S.C. 5596(b)). Section 1104 added a new provision to
clarify that back pay awards are subject to a 6-year statute of
limitations unless a shorter statute of limitations period applies.
This amendment clarifies that the 6-year limitation period in the
Tucker Act (28 U.S.C. 2402 et seq.) and the Barring Act (31 U.S.C.
3702) applies to cases under the back pay law. Section 1104 also adds a
new provision to 5 U.S.C. 7121 to clarify that settlements of
grievances and arbitration awards under 5 U.S.C. 7121 are subject to
the same 6-year statute of limitations. Note that this amendment does
not modify the current 2-year statute of limitations (3 years for
willful violations) provided by the Portal-to-Portal Act of 1947 for
claims under the Fair Labor Standards Act of 1938, as amended, that are
filed on or after June 30, 1994. These changes became effective on
October 17, 1998, and are reflected in a new paragraph (e) in 5 CFR
550.804.
Maximum Physicians' Comparability Allowance
Section 7 of Public Law 105-266, the Federal Employees Health Care
Protection Act of 1998 (October 19, 1998), amended 5 U.S.C. 5948(a) to
increase the maximum physicians' comparability allowance (PCA) from
$20,000 to $30,000 per year for an employee who has served as a
Government physician for more than 24 months. We are revising 5 CFR
595.105(b) to reflect the higher maximum allowance rate. We are also
correcting references to title 38, United States Code, in
Sec. 595.105(c). In addition, we are making other changes to clarify
the language in Sec. 595.105 generally. As part of these clarifying
changes, the last sentence in Sec. 595.105(c) has been edited and moved
to Sec. 595.102.
Section 7 also provides that agencies may modify any PCA service
agreement in effect on the effective date of the Act to increase the
PCA for a physician up to the new maximum amount during the time
remaining under the service agreement. However, section 7 provides that
any modification of an existing service agreement to increase a PCA
cannot cause the total PCA paid to the employee during the calendar
year to exceed the new $30,000 maximum or any other applicable
limitation (e.g., the aggregate limitation on pay under 5 U.S.C. 5307).
These changes became effective on October 19, 1998. However, the
Office of Management and Budget advises that before agencies may
authorize a PCA in excess of $20,000, they must submit new or updated
PCA plans and obtain OMB approval of the changes. See 5 CFR 595.107(a)
and the criteria for revised Physicians' Comparability Allowance plans
in OMB's Memorandum for the Heads of Departments and Agencies (M-99-04,
December 11, 1998).
Holidays at Duty Posts Outside the United States
Section 1107 of Public Law 105-261, the Strom Thurmond National
Defense Authorization Act, 1999 (October 17, 1998), adds a new
provision to 5 U.S.C. 6103 which changes the designation of holidays
for certain Federal employees who work at duty posts outside the United
States. For this purpose, the Office of Personnel Management has
determined that ``outside the United States'' refers to an employee's
official duty station (or temporary duty station while traveling) that
is not in (1) a State of the United States; (2) the District of
Columbia; (3) Puerto Rico; (4) the U.S. Virgin Islands; (5) Outer
Continental Shelf Lands, as defined in the Outer Continental Shelf
Lands Act (67 Stat. 462); (6) American Samoa; (7) Guam; (8) Midway
Atoll; (9) Wake Island; (10) Johnston Island; or (11) Palmyra. This is
parallel to the definition of exempt area in 5 CFR 551.104 for the
purpose of administering the foreign exemption from the minimum wage,
overtime pay, and child labor provisions of the Fair Labor Standards
Act of 1938, as amended.
Section 1107 provides that whenever Monday is designated as a
holiday
[[Page 72458]]
under 5 U.S.C. 6103(a), the first regularly scheduled workday in the
week is the holiday for a Federal employee at a duty post outside the
United States whose basic workweek includes Monday, but is not the
typical Monday through Friday work schedule found in the United States.
The intent of this new provision of law is to create a 3-day weekend
with a holiday on Sunday for Federal employees who work Sunday through
Thursday with nonworkdays on Friday and Saturday. Thus, if the
regularly scheduled administrative workweek designated by an agency for
an employee is Sunday through Saturday midnight, and the employee's
basic workweek is Sunday through Thursday, this provision will have the
effect of moving the employee's holiday from Monday to Sunday (the day
before) and providing a 3-day weekend (Friday, Saturday, and Sunday) to
the employee. However, when employees working overseas do not have
Sunday through Thursday work schedules, the new law will usually not
have the desired effect unless the agency makes an adjustment in the
administrative workweek.
This change in law became effective on October 17, 1998. See the
conforming revisions in 5 CFR 610.201 and 610.202. Section 610.202 has
also been revised to reflect the fact that employees on alternative
work schedules may have a basic work requirement, as defined in 5
U.S.C. 6121(3).
Waiver of Notice of Proposed Rule Making and Delay in Effective
Date
Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), I find that good
cause exists for waiving the general notice of proposed rulemaking and
making this rule effective on the date of its publication in the
Federal Register. This waiver is appropriate because the attached
changes in regulations update Office of Personnel Management
regulations to make them consistent with changes in law that are
already effective.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR Parts 550, 595, and 610
Administrative practice and procedure, Claims, Government
employees, Health professions, Holidays, Wages.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending parts 550, 595, and 610 of title 5 of
the Code of Federal Regulations as follows:
PART 550--PAY ADMINISTRATION (GENERAL)
Subpart H--Back Pay
3. The authority citation for subpart H of part 550 continues to
read as follows:
Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.
4. In Sec. 550.804, paragraph (e) is added to read as follows:
Sec. 550.804 Determining entitlement to back pay.
* * * * *
(e)(1) The pay, allowances, and differentials paid as back pay
under this subpart (including payments made under any grievance or
arbitration decision or any settlement agreement) may not exceed that
authorized by any applicable law, rule, regulation, or collective
bargaining agreement, including any applicable statute of limitations.
(2) An agency may not authorize pay, allowances, and differentials
under this subpart in any case for a period beginning more than 6 years
before the date of the filing of a timely appeal, or, absent such
filing, the date of the administrative determination that the employee
is entitled to back pay, consistent with 31 U.S.C. 3702(b). (See also
Sec. 178.104 of this chapter.)
(3) For back pay claims dealing with payments under the Fair Labor
Standards Act of 1938, as amended (29 U.S.C. 207, et seq.), an agency
must apply the 2-year statute of limitations (3 years for willful
violations) in 29 U.S.C. 255a. (See also Sec. 551.702 of this chapter.)
PART 595--PHYSICIANS' COMPARABILITY ALLOWANCES
7. The authority citation for part 595 continues to read as
follows:
Authority: 5 U.S.C. 5948; E.O. 12109, 44 FR 1067, Jan. 3, 1979.
8. In Sec. 595.102, paragraph (c) is added to read as follows:
Sec. 595.102 Coverage and exclusions.
* * * * *
(c) Physicians employed and paid under title 38, United States
Code, and Commissioned Corps officers of the Public Health Service
under title 42, United States Code, are not eligible for physicians'
comparability allowances.
9. In Sec. 595.105, paragraphs (b) and (c) are revised to read as
follows:
Sec. 595.105 Determination of amount of comparability allowance.
* * * * *
(b) A physician with 24 months or less of service as a Government
physician may not be paid a physicians' comparability allowance in
excess of $14,000 per annum. A physician with more than 24 months of
service as a Government physician may not be paid a physicians'
comparability allowance in excess of $30,000 per annum.
(c) In determining length of service as a Government physician,
agencies must exclude periods of leave without pay. However, agencies
may credit any prior service as a Government physician, including--
(1) Prior service as a physician under sections 7401 and 7405 of
title 38, United States Code; and
(2) Prior active service as a medical officer in the Commissioned
Corps of the Public Health Service under title II of the Public Health
Service Act (42 U.S.C. chapter 6A).
* * * * *
PART 610--HOURS OF DUTY
Subpart B--Holidays
10. The authority citation for part 610, subpart B, continues to
read as follows:
Authority: 5 U.S.C. 6101; sec. 1(1) of E.O. 11228, 3 CFR, 1964-
1965 Comp., p. 317.
11. Section 610.201 is revised to read as follows:
Sec. 610.201 Identification of holidays.
Holidays are determined under section 6103 of title 5, United
States Code, and Executive Order 11582 of February 11, 1971.
12. In Sec. 610.202, paragraph (a) is revised, and paragraph (d) is
added to read as follows:
Sec. 610.202 Determining the holiday.
* * * * *
(a) Except when a different holiday is designated by section
6103(b)(3) of title 5, United States Code, when a holiday falls on a
day during which part of the employee's basic workweek (as defined in
Sec. 610.102) or basic work requirement (as defined in 5 U.S.C.
6121(3)) is scheduled to be completed, that workday is the employee's
holiday.
* * * * *
(d) The provisions of section 6103(b)(3) of title 5, United States
Code, on determining holidays for certain
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employees at duty posts outside the United States apply to covered
employees who are working outside the United States at a permanent or
temporary station or under travel orders. For the purpose of section
6103(b)(3), United States includes--
(1) A State of the United States;
(2) The District of Columbia;
(3) Puerto Rico;
(4) The U.S. Virgin Islands;
(5) Outer Continental Shelf Lands, as defined in the Outer
Continental Shelf Lands Act (67 Stat. 462);
(6) American Samoa;
(7) Guam;
(8) Midway Atoll;
(9) Wake Island;
(10) Johnston Island; and
(11) Palmyra.
[FR Doc. 99-33587 Filed 12-27-99; 8:45 am]
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