02-3410. Administratively Uncontrollable Overtime Pay

AGENCY:

Office of Personnel Management.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Office of Personnel Management is issuing interim regulations concerning the rules governing payment of administratively uncontrollable overtime (AUO) pay. AUO is a form of premium pay paid to employees in positions in which the hours of duty cannot be controlled administratively and which require substantial amounts of irregular or occasional overtime work. This interim rule permits agencies to pay AUO pay to an employee during a temporary assignment that would not otherwise warrant the payment of AUO pay, if the temporary assignment is directly related to a national emergency. In determining the average hours used in computing future AUO payments, this interim rule also excludes from consideration, the time period for which AUO pay is paid during a temporary assignment.

DATES:

This interim rule is effective on September 11, 2001; comments must be received on or before April 15, 2002.

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: [phone], or email: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Kevin Kitchelt, [phone]; FAX: [phone]; email: [e-mail].

SUPPLEMENTARY INFORMATION:

Pay for administratively uncontrollable overtime (AUO) work is a form of premium pay paid to employees in positions in which the hours of duty cannot be controlled administratively and which require substantial amounts of irregular or occasional overtime work. Current OPM regulations at 5 CFR 550.162(c)(1) provide that an agency may continue to pay AUO pay for a period of not more than 10 consecutive workdays on a temporary assignment to other duties in which conditions do not warrant AUO pay and for a total of not more than 30 workdays in a calendar year while on such a temporary assignment. An agency must discontinue an employee's AUO pay when a temporary assignment exceeds these time limits.

In response to the terrorist attacks at the World Trade Center and the Pentagon, the President declared a national emergency. (See the Proclamation issued by the President on September 14, 2001, at http://www.whitehouse.gov/​news/​releases/​2001/​09/​20010914-4.html.) In reaction to this emergency, Federal agencies have temporarily assigned some Federal employees who normally receive AUO pay to positions in which overtime work is generally regularly scheduled and does not warrant AUO pay. An agency has expressed concern that OPM's current regulations are too restrictive and may result in the loss of AUO pay for some employees. Since AUO pay is basic pay for retirement purposes for law enforcement officers, the suspension of AUO pay would reduce agency and employee contributions to the Thrift Savings Plan and may reduce retirement annuities for employees who are close to retirement (by reducing the “high-3” average rate of basic pay for these employees).

These interim regulations add a new provision at 5 CFR 550.162(g) to provide that an agency may continue to pay AUO pay, during a temporary assignment that would not otherwise warrant AUO pay, if the temporary assignment is directly related to a national emergency declared by the President. An agency may continue to pay AUO pay for a period of not more than 30 consecutive workdays for such a temporary assignment and for a total of not more than 90 workdays in a calendar year while on such a temporary assignment. These new provisions apply only during a national emergency declared by the President and only to those employees performing work directly related to the emergency.

In addition, these interim regulations add a provision at 5 CFR 550.154(c) to provide that the period of time during which an employee continues to receive AUO pay under the authority of paragraphs (c) or (g) of § 550.162 is not considered in computing the weekly average number of irregular overtime hours used in determining the amount of an employee's future AUO payments. This change is necessary since the loss of the opportunity to work irregular overtime hours during the temporary assignment otherwise could result in a reduction in future AUO payments, since these payments are based on the weekly average number of irregular overtime hours in a past period.

Waiver of Notice of Proposed Rule Making and Waiver of Delay in Effective Date

Pursuant to 5 U.S.C. 553(b)(3)(B) and 5 U.S.C. 553(d)(3), I find that good cause exists for waiving the general notice of proposed rulemaking and to make these regulations effective in less than 30 days. Due to the terrorist attacks at the World Trade Center and the Pentagon, agencies have temporarily assigned some Federal employees who normally receive AUO pay for irregular or occasional overtime work to positions in which overtime work is generally regularly scheduled and does not warrant AUO pay. An agency has expressed concern that current OPM regulations are too restrictive and may result in the loss of AUO pay, which could have a negative impact on affected employees' retirement benefits. Waiving the notice and the 30-day delay is justified in this national emergency.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget 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
• Claims
• Government employees
• Wages

U.S. Office of Personnel Management.

Kay Coles James,

Director.

Accordingly, OPM is amending part 550 of title 5 of the Code of Federal Regulations as follows:

PART 550—PAY ADMINISTRATION (GENERAL)

Subpart A—Premium Pay

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

Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5545a(h)(2)(B) and (i), 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 § 550.154, paragraph (c) is added to read as follows:

§ 550.154

Rates of premium pay payable under § 550.151.

* * * * *

(c) The period of time during which an employee continues to receive premium pay on an annual basis under § 550.151 under the authority of paragraphs (c) or (g) of § 550.162 is not considered in computing the average hours of irregular and occasional overtime work under this section.

3. In § 550.162, paragraph (g) is added to read as follows:

§ 550.162

Payment provisions.

* * * * *

(g) Notwithstanding paragraph (c)(1) of this section, an agency may continue to pay premium pay under § 550.151 to an employee during a temporary assignment that would not otherwise warrant the payment of AUO pay, if the temporary assignment is directly related to a national emergency. An agency may continue to pay premium pay under § 550.151 for not more than 30 consecutive workdays for such a temporary assignment and for a total of not more than 90 workdays in a calendar year while on such a temporary assignment.