04-10870. Pay Administration (General)

AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The Office of Personnel Management is issuing final regulations to implement a provision of the National Defense Authorization Act for Fiscal Year 2004, which modified the hourly overtime pay cap for certain Federal employees who are exempt from the Fair Labor Standards Act of 1938, as amended.

EFFECTIVE DATE:

May 13, 2004.

FOR FURTHER INFORMATION CONTACT:

Vicki Draper by telephone at [phone]; by FAX at [phone]; or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

The Office of Personnel Management (OPM) is issuing final regulations to implement a new hourly overtime pay provision established by section 1121 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136, November 24, 2003). Section 1121 amended 5 U.S.C. 5542(a)(2), which establishes an hourly overtime pay cap for certain employees who are exempt from the Fair Labor Standards Act of 1938, as amended (FLSA). Prior to the amendments made by section 1121, an employee whose rate of basic pay exceeded the minimum rate for GS-10 (including any applicable special rate of pay for law enforcement officers or special pay adjustment for law enforcement officers under section 403 or 404 of the Federal Employees Pay Comparability Act of 1990, respectively; a locality-based comparability payment under 5 U.S.C. 5304; and any applicable special rate of pay under 5 U.S.C. 5305 or similar provision of law), received an overtime hourly rate of pay equal to one and one-half times the applicable minimum hourly rate of basic pay for GS-10. OPM's regulations implement section 1121 by establishing the hourly overtime pay cap for an employee whose rate of basic pay exceeds the applicable minimum rate for GS-10 at the higher of two rates: (1) One and one-half times the applicable minimum hourly rate of basic pay for GS-10, or (2) the employee's hourly rate of basic pay. This amendment was effective on November 24, 2003, the date of enactment of Public Law 108-136. These regulations reflect the addition of 5 U.S.C. 5542(a)(5) made as part of Public Law 106-558 on December 21, 2000. Section 5542(a)(5) is applicable only to wildland firefighters who are exempt from the overtime pay provisions of the FLSA, and who are employees of the Department of the Interior or the United States Forest Service of the Department of Agriculture. While such employees are engaged in wildland fire suppression activities, they are entitled to an hourly overtime rate of pay equal to one and one-half times their hourly rate of basic pay. It is also appropriate to no longer mention 5 U.S.C. 5542(a)(4) in 5 CFR 550.113(b), because the overtime rate of pay provided for under that section is identical to that which would be made available under the new regulations.

Waiver of Notice of Proposed Rule Making

Pursuant to section 553(b)(3)(B) of title 5 of the United States Code, I find that good cause exists for waiving the general notice of proposed rule making. Also, pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. These regulations implement a provision of Public Law 108-136, which became effective on November 24, 2003. The waiver of the requirements for proposed rulemaking and a delay in the effective date is necessary to ensure timely implementation of the law as intended by Congress.

E.O. 12866, Regulatory Review

The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866.

Regulatory Flexibility Act

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.

List of Subjects in 5 CFR Part 550

• Administrative practice and procedure
• Government employees
• Wages

Office of Personnel Management.

Kay Coles James,

Director.

Accordingly, OPM is amending 5 CFR part 550 as follows:

PART 550—PAY ADMINISTRATION (GENERAL)

Subpart A—Premium Pay

1. The authority citation for part 550 continues to read as follows:

Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections 407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316.

2. In § 550.113, paragraph (b) is revised to read as follows:

§ 550.113

Computation of overtime pay.

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(b) For each employee whose rate of basic pay exceeds the minimum rate for GS-10 (as determined under paragraph (a) of this section), the overtime hourly rate is equal to the greater of—(i) one and one-half times the applicable minimum hourly rate of basic pay for GS-10 (as determined under paragraph (a) of this section); or (ii) the employee's hourly rate of basic pay, except as provided in 5 U.S.C. 5542(a)(3) and (5).

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