[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Rules and Regulations]
[Pages 19093-19099]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7266]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules
and Regulations
[[Page 19093]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 550
RIN 3206-AK74
Pay Administration (General)
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations on compensatory time off for time spent in a travel status
away from the official duty station when such time is not otherwise
compensable.
DATES: The regulations are effective May 17, 2007.
FOR FURTHER INFORMATION CONTACT: Vicki Draper by telephone at (202)
606-2858, by fax at (202) 606-0824, or by e-mail at pay-performance-
policy@opm.gov.
SUPPLEMENTARY INFORMATION: On January 27, 2005, the Office of Personnel
Management (OPM) published interim regulations (70 FR 3855) in 5 CFR
part 550, subpart N, to implement section 203 of the Federal Workforce
Flexibility Act of 2004 (Pub. L. 108-411, October 30, 2004), hereafter
referred to as ``the Act.'' Section 203 of the Act amended 5 U.S.C.
chapter 55, subchapter V, by adding a new section 5550b, which
established a new form of compensatory time off for time spent by an
employee in a travel status away from the employee's official duty
station when such time is not otherwise compensable. The 60-day comment
period for the interim regulations ended on March 28, 2005. During the
comment period, OPM received comments from 16 Federal agencies, 7
unions, and 81 individuals, all of which are addressed in this final
rule. In addition, in March 2006, we issued additional guidance,
including questions and answers, to address many of the comments we
received on the interim regulations. We encourage agencies and
employees to review these materials on OPM's Web site at http://
www.opm.gov/oca/pay/HTML/compensatory_time.asp. We will continue to
provide additional guidance on the administration of compensatory time
off for travel, as necessary.
Effective Date
Two individuals suggested the new provision be applied
retroactively to cover previous travel times that were not compensable
under title 5, United States Code. Section 203(c) of the Act provided
that the new form of compensatory time off for travel would take effect
on the earlier of (1) the effective date of the implementing
regulations or (2) the 90th day after the date of the law's enactment
(January 28, 2005). The interim regulations became effective on January
28, 2005, and apply prospectively from that date.
Covered Employees
Several commenters requested clarification on the categories of
employees covered by the new compensatory time off provision, while
others objected to omissions of certain categories of employees in
OPM's regulations at 5 CFR 550.1402. Because the law authorizing the
new compensatory time off provision is in 5 U.S.C. chapter 55,
subchapter V, the new provision applies to an ``employee'' as defined
in 5 U.S.C. 5541(2), who is employed in an ``Executive agency,'' as
defined in 5 U.S.C. 105, without regard to whether the employee is
exempt from or covered by the overtime pay provisions of the Fair Labor
Standards Act of 1938 (FLSA), as amended. OPM cannot broaden coverage
to include additional employee groups. The definition includes
employees in senior-level (SL) and scientific or professional (ST)
positions, but not members of the Senior Executive Service, Senior
Foreign Service, Foreign Service officers, or prevailing rate (wage
grade) employees.
The compensatory time off for travel provision also does not apply
to employees of Non-Appropriated Fund Instrumentalities (NAFI). NAFI
employees are not covered by the laws administered by OPM, with a few
narrow exceptions, which are listed in 5 U.S.C. 2105(c). Although title
38 employees are not specifically excluded from the definition of
``employee'' in 5 U.S.C. 5541(2), the title 38 employment system is
administered by the Department of Veterans Affairs (VA) under its own
legal authority and any determinations as to coverage under 5 U.S.C.
5541(2) would be made by VA. A commenter noted that the Department of
Justice (DOJ) has determined the compensatory time off for travel
statute does not apply to attorneys at DOJ. Congress recently enacted
legislation (Pub. L. 109-425, December 20, 2006) which provides that
attorneys at DOJ shall be eligible for compensatory time off for travel
under section 5550b of title 5, United States Code.
Employees who are on intermittent work schedules are not eligible
to earn and use compensatory time off for travel because they do not
have a scheduled tour of duty for leave purposes. Under 5 CFR
550.1406(b), compensatory time off for travel may be used by an
employee when the employee is granted time off from his or her
scheduled tour of duty established for leave purposes. Finally, a part-
time employee may be entitled to compensatory time off for travel if
the travel time does not qualify as compensable hours of work under 5
U.S.C. 5542(b)(2)(B) and 5 CFR 550.112(g)(2) and meets the other
requirements in 5 CFR part 550, subpart N.
Definitions
Many commenters recommended the addition or revision of certain
definitions in Sec. 550.1403. One agency recommended adding a
definition of accrued compensatory time off, which is used in Sec.
550.1406. We agree and have added a definition to Sec. 550.1403. In
addition, we have added a definition of authorized agency official to
mean the head of the agency or an official who is authorized to act for
the head of the agency in the matter concerned.
Two individuals recommended that OPM define time the employee would
have spent in normal home-to-work or work-to-home commuting. We do not
believe this is necessary, since agencies may use procedures already in
place for deducting commuting time from travel hours as required by 5
CFR 550.112(j)(2) and 5 CFR 551.422(b). One agency recommended that OPM
establish a minimum commute time for an employee whose residence is
considered his or her official duty
[[Page 19094]]
station. We are not adopting this recommendation because an employee
whose residence is his or her official duty station does not spend time
commuting to work.
Two individuals recommended revising the definition of official
duty station to be consistent with the term official station as defined
in the Federal Travel Regulation (41 CFR 300-3.1) issued by the General
Services Administration. Official duty station in Sec. 550.1403 means
the geographic area surrounding an employee's regular work site that is
the same as the area designated by the employing agency for the purpose
of determining whether travel time is compensable for the purpose of
determining overtime pay, consistent with the regulations in 5 CFR
550.112(j) and 551.422(d). The term official station prescribes the
geographic limits of an employee's permanent work station for the
purpose of determining the employee's entitlement to subsistence
allowances (per diem). We are not adopting the recommendation because
the geographic area an agency designates for the purpose of determining
whether an employee is entitled to overtime pay for a period of travel
may be different than the geographic area covered by official station
as defined in 41 CFR 300-3.1.
One agency recommended that the definition of travel status be
stated exactly as it is in Sec. 550.1404(b), and one individual
recommended clarifying the definition. We do not believe it is
necessary to revise the definition because it refers directly to Sec.
550.1404(b).
Compensable Travel Time
Several commenters recommended clarifying whether travel under
certain circumstances is compensable. Under Sec. 550.1403, compensable
refers to periods of time that are creditable as hours of work for the
purpose of determining a specific pay entitlement, even when that work
time may not actually generate additional compensation because of
applicable pay limitations. One agency and an individual recommended
clarifying whether an employee who receives administratively
uncontrollable overtime (AUO) pay under 5 U.S.C. 5545(c)(2) is eligible
to receive compensatory time off for travel. An employee receiving AUO
pay may be entitled to compensation for travel time during (1)
nonovertime hours, (2) AUO hours (i.e., irregular or occasional
overtime hours), or (3) regularly scheduled overtime hours--if the
travel hours meet one of the conditions in 5 CFR 550.112(g) or 5 CFR
551.422, as applicable. If an AUO employee has other qualifying travel
time that does not meet the applicable conditions to be treated as
compensable hours of work, such travel time may be used to earn
compensatory time off under 5 CFR part 550, subpart N.
One agency recommended clarifying an employee is not eligible for
compensatory time off for travel when the time spent traveling has been
compensated under the FLSA. Overtime hours compensated under the FLSA
clearly meet the definition of compensable in Sec. 550.1403.
Therefore, we believe no clarification in the regulations is necessary.
One union recommended clarifying that a class of accommodations, such
as business class, does not influence whether the travel time is
compensable. We agree. Allowing an employee to upgrade his or her
travel to business class does not eliminate his or her eligibility to
earn compensatory time off for travel.
One individual and one agency recommended clarifying whether an
employee is eligible to earn compensatory time off for any portion of a
period of travel under 5 CFR 550.112(g)(2) which may not be compensable
because of the biweekly cap on premium pay. One union and one agency
recommended that such an employee should be eligible. We disagree. Even
though an employee may not be paid overtime pay for all of his or her
travel hours because of the biweekly premium pay cap, all of the travel
time is still considered to be compensable under 5 CFR 550.112(g)(2).
Under these circumstances, therefore, the employee has been compensated
fully under the law for all of the travel hours; the employee may not
earn compensatory time off for any portion of such travel.
Earning Compensatory Time Off for Travel
Two unions and one individual recommended an employee should be
able to earn compensatory time off when he or she travels while
performing union representational duties. We are not adopting this
recommendation. The term travel is defined at 5 CFR 550.1403 to mean
officially authorized travel--i.e., travel for work purposes that is
approved by an authorized agency official or otherwise authorized under
established agency policies. The term ``travel for work purposes'' is
intended to mean travel for agency-related work purposes. The Federal
Labor Relations Authority (FLRA) has held that the performance of
representational duties does not involve the performance of work as
used in the phrase ``technology of performing work'' under 5 U.S.C.
7106(b)(1). See AFGE, Council 214, AFL-CIO, 31 FLRA 1259, 1261-62
(1988). The FLRA has similarly held that the performance of
representational activities does not involve ``work'' within the
meaning of 5 U.S.C. 7106(a)(2)(B). See AAFES, Dallas, 53 FLRA at 24.
Finally, the FLRA also has determined that, under 5 U.S.C. chapter 43,
job performance encompasses the performance of agency-assigned duties
and does not include duties performed on behalf of a union. See United
States Department of Health and Human Services., Soc. Sec. Admin.,
Office of Hearings & Appeals, 48 FLRA 357, 364 (1993). Thus, employees
who travel while performing union activities are not entitled to earn
compensatory time off because they are traveling for the benefit of the
union and not for agency-related work purposes. We have revised the
definition of travel in Sec. 550.1403 to clarify that time spent
traveling in connection with union activities is not creditable for the
purpose of earning compensatory time off for travel.
One union and four individuals objected to an employee not being
entitled to compensatory time off for travel when he or she is required
to travel on a Federal holiday (or ``in lieu of'' holiday) during his
or her basic (non-overtime) hours. Although most employees do not
receive holiday premium pay for time spent traveling on a holiday (or
an ``in lieu of'' holiday), an employee continues to be entitled to pay
for the holiday in the same manner as if the travel were not required.
Thus, an employee may not earn compensatory time off for travel during
basic (non-overtime) holiday hours because the employee is entitled to
his or her rate of basic pay for those hours. Compensatory time off for
travel may be earned by an employee only for time spent in a travel
status away from the employee's official duty station when such time is
not otherwise compensable.
Some commenters requested clarification regarding an employee's
travel status as described in Sec. 550.1404(b). Under Sec.
550.1404(b), creditable travel time for the purpose of earning
compensatory time off for travel includes the time an employee actually
spends traveling between the official duty station and a temporary duty
station, or between two temporary duty stations, and the usual waiting
time that precedes or interrupts such travel (subject to certain
exclusions). One union recommended revising Sec. 550.1404(b)(1) to
include situations where an employee may depart from his or her
residence. We do not believe this is necessary, since travel to and
from
[[Page 19095]]
home is addressed in Sec. 550.1404(c). One agency recommended
clarifying compensatory time off for travel requires travel orders and
it is not appropriate when travel is within an employee's normal
commuting area. We are not adopting these recommendations. Agencies are
already required to process travel orders for officially authorized
travel. In addition, Sec. 550.1404(a) already requires an employee to
travel away from (i.e., outside the limits of) his or her official duty
station in order to earn compensatory time off.
Under Sec. 550.1404(b)(1), time spent at a temporary duty station
between arrival and departure is not time in a travel status. One
individual recommended clarifying whether the arrival and departure are
from the temporary duty worksite or lodging. We agree and have revised
Sec. 550.1404(b)(1) to clarify arrival and departure times. Time in a
travel status ends when the employee arrives at the temporary duty
worksite or his or her lodging in the temporary duty station, wherever
the employee arrives first. Time in a travel status resumes when an
employee departs from the temporary duty worksite or his or her lodging
in the temporary duty station, from whichever the employee departs
last.
One agency recommended clarifying whether travel in connection with
a permanent change of station (PCS) is considered time spent in a
travel status, and one individual recommended that it should be.
Although PCS travel is officially authorized travel, it is not travel
between an official duty station and a temporary duty station or
between two temporary duty stations. Therefore, it is not considered
time in a travel status for the purpose of earning compensatory time
off for travel. The law applies to travel ``away from the official duty
station of the employee,'' not travel to a new official duty station.
We believe that the regulation limiting application to temporary duty
travel is consistent with the law and the intent of Congress. We have
revised Sec. 550.1404(b)(1) to clarify that travel time in connection
with an employee's PCS is not time in a travel status for the purpose
of earning compensatory time off.
Six individuals requested clarification of how travel is calculated
when an employee travels between different time zones. We have added a
new paragraph (e) to Sec. 550.1404 to provide clarification regarding
the calculation of an employee's travel time when the employee's travel
involves two or more time zones. Under 5 CFR 550.1404(b)(1), time in a
travel status includes the time an employee ``actually spends
traveling'' and the usual waiting time that precedes or interrupts the
travel, subject to certain exclusions as specified in section 550.1404
of the regulations. When an employee's travel involves two or more time
zones, the time zone from the point of first departure must be used to
determine how many hours (i.e., elapsed time) the employee actually
spent in a travel status for the purpose of accruing compensatory time
off.
We received a number of comments on Sec. 550.1404(b)(1) concerning
the employing agency's sole and exclusive discretion to determine what
is creditable as ``usual waiting time.'' One agency, one union, and two
individuals objected to providing agencies with this authority. The
agency recommended establishing an upper and lower range of what is
considered acceptable ``usual waiting time.'' The union recommended
including examples of ``usual waiting times.'' The two individuals
suggested defining ``usual waiting time'' to include the time it takes
to get service at ticket counters, security, baggage claim, and
transportation counters or using waiting times determined by the
airlines or travel agencies. One individual commented that there may be
different determinations of ``usual waiting time'' within an agency. We
are not adopting any of these recommendations. The concept of ``usual
waiting time'' is currently used in determining overtime hours of work
under title 5 and the FLSA, and agencies are knowledgeable and
experienced in applying this concept. In addition, we believe it is
appropriate to give agencies the flexibility to make this
determination.
Several commenters recommended removing Sec. 550.1404(b)(2), which
states that bona fide meal periods during actual travel time or waiting
time are not creditable as time spent in a travel status. An agency
stated it was absurd to subtract bona fide meal periods from creditable
travel time but allow time periods for making telephone calls, dozing,
chatting, wandering through terminals, etc., to be considered
creditable travel time. Another agency commented that the results of
making distinctions between employees who choose to eat at a terminal
restaurant and employees who choose to eat while walking to or waiting
at the gate are so anomalous that consistent application of the
regulation cannot be expected. OPM included this limitation in the
interim regulations because it is consistent with the requirement to
subtract bona fide meal periods from an employee's creditable overtime
hours of work under 5 CFR 550.112(m) and 551.432(c). However, we agree
that agencies should not try to make distinctions in the employee's
activities during waiting time. Further, we agree it is not efficient
or cost-effective to try to track employees' bona fide meal periods
during travel time or waiting time solely for the purpose of crediting
compensatory time off for travel, and we have removed Sec.
550.1404(b)(2) accordingly.
Many commenters requested clarification of, or objected to, Sec.
550.1404(b)(3), which states that extended waiting time is not
creditable as time in a travel status. Under Sec. 550.1404(b)(3), if
an employee experiences an extended (i.e., not usual) waiting time
between the periods of actual travel during which the employee is free
to rest, sleep, or otherwise use the time for his or her own purposes,
the extended waiting time is not creditable as time in a travel status.
Three agencies recommended providing guidance on a range of acceptable
hours for ``extended waiting time,'' how much discretion an agency has
in determining extended waiting times, or where to draw the line
between ``usual'' and ``extended'' waiting times. Another agency
recommended permitting an employee to earn compensatory time off for
situations beyond the control of the employee, though not a large
amount of compensatory time off. Three agencies and a union recommended
revising Sec. 550.1404(b)(3) to limit extended waiting time to any
period during which an employee must obtain overnight lodging. We are
not adopting any of these recommendations. Under Sec. 550.1404(b)(1),
determinations regarding what is creditable as usual waiting time are
within the sole and exclusive discretion of the agency. The concept of
excluding extended waiting time is currently used in determining
creditable overtime hours of work under title 5 and the FLSA, and
agencies are experienced in applying this limitation. Agencies should
not establish a policy to credit compensatory time off for travel
beyond the usual waiting time applied under title 5 and the FLSA.
We received several comments about subtracting commuting time from
creditable travel time under Sec. 550.1404(c)(1) and Sec.
550.1404(d). Under Sec. 550.1404(c)(1), an agency must deduct the
hours the employee would have spent in normal home-to-work or work-to-
home commuting from travel between the employee's home and a temporary
duty station. Under Sec. 550.1404(d), if a transportation terminal
(such as an airport) is located within the limits of the employee's
official duty station, the employee's
[[Page 19096]]
travel time to and from the airport (outside regular working hours) is
considered to be equivalent to commuting time and is not creditable
time in a travel status. If the airport is located outside the limits
of the employee's official duty station, the travel time to and from
the airport (outside regular working hours) is creditable time in a
travel status, but it is subject to an offset for the time the employee
would have spent in normal home-to-work or work-to-home commuting.
Several commenters objected to deducting normal commuting time on
non-workdays as required by Sec. 550.1404(d). An agency recommended
deleting Sec. 550.1404(d) entirely. Another agency and a union
recommended revising Sec. 550.1404(d) to make travel to and from a
transportation terminal within an employee's official duty station
official travel time rather than equivalent commuting time. The union
also objected to subtracting an employee's normal commuting time under
Sec. 550.1404(c)(1). One individual recommended making an exception
for employees who reside outside the local commuting area or to limit
the amount of normal commuting time the agency deducts for such
employees. We are not adopting any of these recommendations. The
requirement in OPM's regulations in Sec. 550.1404(c) and (d) regarding
the deduction of normal commuting time is consistent with the
requirement to deduct normal commuting time from an employee's travel
time in determining creditable overtime hours of work under 5 CFR
550.112(j)(2) and 5 CFR 551.422(b).
An individual expressed concern regarding how Sec. 550.1404(c)
might be applied by his agency. In particular, he was concerned his
agency might define ``official duty station'' to encompass an
unreasonably large area so that an employee could not be credited for
travel from home to a temporary duty station. It is true that, under
the regulations, travel to a temporary duty station within an
employee's official duty station is not creditable for the purpose of
accruing compensatory time off for travel. However, as explained in an
earlier paragraph regarding comments on the definition of ``official
duty station,'' an agency is required to use the same geographic area
that is used for determining whether travel time is compensable under
the overtime pay provisions. (See 5 CFR 550.112(j) and 551.422(d).)
Thus, agency discretion is limited. We have no information indicating
that the agencies have defined ``official duty station'' for overtime
pay purposes in an unreasonable way. Therefore, we decline to make any
change in the regulations in this regard.
In the case of an employee who is offered one mode of
transportation and who is permitted to use an alternative mode of
transportation, or who travels at a time or by a route other than that
selected by the agency, the agency must determine the estimated amount
of time in a travel status the employee would have had if the employee
had used the mode of transportation offered by the agency or traveled
at the time or by the route selected by the agency under Sec.
550.1404(c)(2). As recommended by an agency, we made a minor editorial
correction to Sec. 550.1404(c)(2) and replaced ``traveled at the time
and by the route selected by the agency'' with ``traveled at the time
or by the route selected by the agency'' [emphasis added].
One agency and an individual asked if compensatory time off for
travel may be authorized when the employee returns a day earlier than
planned. In such cases, the agency must credit an employee with the
lesser of the estimated time in travel status the employee would have
had if the employee had traveled on the day selected by the agency, or
the employee's actual travel hours on a day other than that selected by
the agency.
One individual commented an alternative mode of transportation may
save the agency money and recommended imposing a daily limit on the
amount of compensatory time off for travel rather than crediting the
lesser travel time. We do not agree. The cost of travel may influence
how an agency schedules an employee's travel, but it does not have any
impact on an employee's entitlement to compensatory time off for
travel.
Another individual asked if crediting the lesser travel time when
an employee uses an alternative mode of transportation discriminates
against employees with documented special needs and/or disabilities,
such as a fear of flying, by not allowing the employee to earn
compensatory time off for travel for the extra time spent traveling
using the alternative mode of transportation. The regulatory
requirement in Sec. 550.1404(c)(2) regarding how to credit time when
an employee uses an alternative mode of transportation, or travels at
another time or by a route other than that selected by the agency, is
consistent with the same requirement in determining creditable overtime
hours of work under 5 CFR 551.422(c). In addition, an alternative mode
of transportation or alternative route or time period may influence an
agency's authorization of official travel but does not have an impact
on an employee's entitlement to compensatory time off for travel.
Therefore we have not changed the regulation.
Two agencies recommended clarifying whether an agency may change an
employee's work schedule for travel purposes. An agency may not adjust
the regularly scheduled administrative workweek that normally applies
to an employee (part-time or full-time) solely for the purpose of
including planned travel time that would not otherwise be considered
compensable hours of work. One individual recommended clarifying
whether time spent traveling would be creditable as credit hours or
compensatory time off for travel for an employee who is authorized to
earn credit hours under an alternative work schedule. Credit hours are
hours an employee elects to work, with supervisory approval, in excess
of the employee's basic work requirement under a flexible work
schedule. Under certain conditions, an agency may permit an employee to
earn credit hours by performing productive and essential work while in
a travel status. See OPM's Handbook on Alternative Work Schedules at
http://www.opm.gov/oca/worksch/HTML/Cred_hrs.htm#travel for the
conditions that must be met. If those conditions are met and the
employee does earn credit hours for travel, the time spent traveling
would be compensable and the employee would not be eligible to earn
compensatory time off for travel. If the conditions are not met, the
employee would be eligible to earn compensatory time off for travel.
One agency, one union, and one individual expressed concerns about
the provision in Sec. 550.1405(a) which allows the employing agency to
credit an employee's earned compensatory time off in increments of one-
tenth of an hour (6 minutes) or one-quarter of an hour (15 minutes).
The agency recommended mandating the use of either 6-minute or 15-
minute increments, rather than providing the choice, for payroll
consistency. The union recommended permitting agencies to continue
their established minimum charges to leave rather than modifying the
payroll systems. The requirement to credit and use compensatory time
off for travel in increments of 6 or 15 minutes is consistent with
OPM's standardized policy for charging annual and sick leave in the
same increments. In addition, agency time and attendance and payroll
processing systems have already been modified to accommodate this
change as a result of the interim
[[Page 19097]]
regulations issued in January 2005 on compensatory time off for travel.
Under Sec. 550.1405(b), an employee must comply with his or her
agency's procedures for requesting credit of the employee's
compensatory time off and file such requests within the time period
specified by the agency. An agency recommended adding a requirement
that an employee's request for credit of compensatory time off for
travel may be denied if the request is not filed within the time
periods established by agency policy or guidelines. We agree and have
added this requirement to Sec. 550.1405(b). One union recommended that
an agency should approve a request to earn compensatory time off for
travel at the same time the travel authorization is issued. Another
agency recommended setting a specific time period within which
employees must submit requests for credit of compensatory time off for
travel. We are not adopting these recommendations. We do not believe it
is necessary to limit an agency's discretionary authority to prescribe
such procedures and time limitations in its internal policies.
An agency recommended modification of OPM Form 71, Request for
Leave or Approved Absence, or develop a new form, for employee requests
to earn or use compensatory time off for travel. We do not believe it
is necessary or desirable to mandate the use of a Governmentwide form
for this purpose. However, an agency may choose to develop a form as
part of its internal policies and procedures for requesting and using
compensatory time off for travel.
Three agencies recommended establishing a limit on the number of
hours of compensatory time off for travel an employee may earn.
Establishing a cap on the amount of compensatory time off for travel an
employee may earn would require a legislative change. A union and an
individual recommended not limiting compensatory time off to domestic
travel. These regulations are not limited to domestic travel; OPM's
regulations apply to both domestic and foreign travel.
Using Compensatory Time Off for Travel
Under Sec. 550.1406(a), an employee must request permission from
his or her supervisor to schedule the use of his or her accrued
compensatory time off in accordance with agency-established policies
and procedures. One agency recommended requiring agencies to charge
compensatory time off for travel on a first-in, first-out basis. We
agree and have revised Sec. 550.1406(b) to require agencies to charge
compensatory time off in the chronological order in which it was
earned, with compensatory time off earned first being charged first.
One individual recommended compensatory time off for travel should be
redeemable at the rate of 1.5 times the number of hours spent
traveling. No legal authority exists to permit an employee to be absent
from his or her scheduled tour of duty on the basis of 1.5 hours for
each hour of creditable travel time. In addition, the hour-for-hour
rule in the interim regulation is consistent with the policy for
earning and using compensatory time off in lieu of overtime pay under 5
CFR 550.114 and 551.531.
Under Sec. 550.1406(b), earned compensatory time off may be used
when an employee is granted time off from his or her scheduled tour of
duty for leave purposes. One agency and two individuals requested
clarification of how the use of earned compensatory time off for travel
relates to ``use-or-lose'' annual leave. (``Use or lose'' annual leave
is accrued annual leave in excess of the maximum leave ceilings (i.e.,
30, 45, or 90 days) that is subject to forfeiture at the end of the
leave year.) Section 6304(d) of title 5, United States Code, prescribes
the conditions under which an employee's forfeited annual leave may be
restored to an employee. There is no legal authority to restore an
employee's forfeited annual leave because the employee elected to use
earned compensatory time off for travel instead of using his or her
excess annual leave.
Forfeiting Unused Compensatory Time Off for Travel
We received several comments on Sec. 550.1407(a)(1), which
requires employees to forfeit unused compensatory time off if it is not
used by the end of the 26th pay period after the pay period during
which it was credited, except as provided in Sec. 550.1407(a)(2)
(e.g., when an employee separates or is placed in a leave without pay
status to perform service in the uniformed services with restoration
rights or who has suffered an on-the-job injury with entitlement to
injury compensation under 5 U.S.C. chapter 81 and who later returns to
service.). Two agencies recommended clarifying whether the forfeiture
of unused compensatory time off occurs within 26 pay periods after it
has been earned or credited to their payroll account. We agree and have
revised Sec. 550.1407(a)(1) to clarify that an employee must use his
or her accrued compensatory time off within 26 pay periods after it is
earned or forfeit such compensatory time off.
One agency recommended giving agencies discretionary authority to
provide a time limit for an employee to use compensatory time off for
travel in the same way agencies are allowed to provide time limitations
for the use of other compensatory time off. Another agency recommended
establishing a specific date for using earned compensatory time off for
travel. A union recommended an employee be allowed to use his or her
earned compensatory time off for travel from the date earned until the
end of the next leave year. Two individuals expressed concerns that
agencies would not allow their employees to use their earned
compensatory time for travel within 26 pay periods. One union and an
individual recommended establishing a longer period of time, such as 52
pay periods, before requiring forfeiture of compensatory time off for
travel. Several commenters recommended providing agencies discretionary
authority to extend the time limit for using earned compensatory time
off for travel in emergency situations or when employees are required
to complete mission-critical assignments.
While the use of compensatory time off for travel is subject to
agency work demands, we believe 26 pay periods is a sufficient amount
of time for most employees to use their earned compensatory time off.
However, we believe exceptions may be warranted in exceptional
situations, for example, during emergency situations, to complete
mission-critical assignments, or when employees are deployed to perform
work directly related to a military operation. Therefore, we have added
a new paragraph (e) to Sec. 550.1407 to permit an authorized agency
official, at his or her sole and exclusive discretion, to extend the
time limit for using earned compensatory time off for travel if an
employee's failure to use the compensatory time off within 26 pay
periods is due to an exigency of the service beyond the employee's
control.
Section 550.1407(a)(2) extends the period for using earned
compensatory time off for travel for an employee who separates from
Federal service or is placed in a leave without pay status to perform
service in the uniformed services with restoration rights or who has
suffered an on-the-job injury with entitlement to injury compensation
under 5 U.S.C. chapter 81 and who later returns to service in the same
(or successor) agency. In these circumstances, the employee must use
his or her earned compensatory time off by the end of the 26th pay
period following the pay period in which the employee returns to duty.
One agency
[[Page 19098]]
objected to allowing the 26 pay periods to start over from the
beginning upon an employee's return to duty. We believe it is
reasonable to provide an employee, under these circumstances, a full 26
pay periods following his or her return to duty within which to use
earned compensatory time off for travel.
An agency recommended allowing agencies to consider unused
compensatory time off when determining an employee's separation date.
We are not adopting this recommendation. An agency has the authority
under Sec. 550.1406(a) to approve or disapprove an employee's request
to use his or her accrued compensatory time off in accordance with
agency-established policies and procedures.
Two individuals objected to the provision in Sec. 550.1408 which
prohibits an individual from receiving payment under any circumstances
for any unused compensatory time off for travel that he or she earned.
However, the law explicitly prohibits payment for unused compensatory
time off. (See 5 U.S.C. 5550b(b).)
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, Claims, Government
employees, Wages.
Office of Personnel Management.
Linda M. Springer,
Director.
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Accordingly, the interim rule amending 5 CFR part 550, which was
published at 70 FR 3855 on January 27, 2005, is adopted as final with
the following changes:
PART 550--PAY ADMINISTRATION (GENERAL)
0
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.
Subpart N--Compensatory Time Off for Travel
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2. Revise the first sentence of Sec. 550.1401 to read as follows:
Sec. 550.1401 Purpose.
This subpart contains OPM regulations implementing 5 U.S.C. 5550b,
which establishes a separate type of compensatory time off. * * *
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3. In Sec. 550.1403, add the definitions of accrued compensatory time
off and authorized agency official and revise the definition of travel
to read as follows:
Sec. 550.1403 Definitions.
* * * * *
Accrued compensatory time off means the compensatory time off
earned by an employee that has not been used or forfeited.
Authorized agency official means the head of the agency or an
official who is authorized to act for the head of the agency in the
matter concerned.
* * * * *
Travel means officially authorized travel--i.e., travel for work
purposes that is approved by an authorized agency official or otherwise
authorized under established agency policies. Time spent traveling in
connection with union activities is excluded.
* * * * *
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4. In Sec. 550.1404, revise paragraph (b)(1), remove paragraph (b)(2),
redesignate paragraph (b)(3) as paragraph (b)(2), revise the first
sentence of paragraph (c)(2), and add paragraph (e) to read as follows:
Sec. 550.1404 Creditable travel time.
* * * * *
(b)(1) Travel status. Time in a travel status includes the time an
employee actually spends traveling between the official duty station
and a temporary duty station, or between two temporary duty stations,
and the usual waiting time that precedes or interrupts such travel,
subject to the exclusion specified in paragraph (b)(2) of this section
and the requirements in paragraph (c), (d) and (e) of this section.
Time spent at a temporary duty station between arrival and departure is
not time in a travel status. Time in a travel status ends when the
employee arrives at the temporary duty worksite or his or her lodging
in the temporary duty station, wherever the employee arrives first.
Time in a travel status resumes when an employee departs from the
temporary duty worksite or his or her lodging in the temporary duty
station, from whichever the employee departs last. Travel time in
connection with an employee's permanent change of station is not time
in a travel status. Determinations regarding what is creditable as
``usual waiting time'' are within the sole and exclusive discretion of
the employing agency.
* * * * *
(c) * * *
(2) In the case of an employee who is offered one mode of
transportation and who is permitted to use an alternative mode of
transportation, or who travels at a time or by a route other than that
selected by the agency, the agency must determine the estimated amount
of time in a travel status the employee would have had if the employee
had used the mode of transportation offered by the agency or traveled
at the time or by the route selected by the agency. * * *
* * * * *
(e) Travel involving two or more time zones. When an employee's
travel involves two or more time zones, the time zone from the point of
first departure must be used to determine how many hours the employee
actually spent in a travel status for the purpose of accruing
compensatory time off.
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5. In Sec. 550.1405, paragraph (b) is revised to read as follows:
Sec. 550.1405 Crediting compensatory time off.
* * * * *
(b) An employee must comply with his or her agency's procedures for
requesting credit of compensatory time off under this section.
Employees must file such requests within the time period required by
the agency. An employee's request for credit of compensatory time off
for travel may be denied if the request is not filed within the time
period required by the agency.
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6. In Sec. 550.1406, revise the section heading and paragraph (b) to
read as follows:
Sec. 550.1406 Use of accrued compensatory time off.
* * * * *
(b) Compensatory time off may be used when the employee is granted
time off from his or her scheduled tour of duty established for leave
purposes. An employee must use earned compensatory time off under this
subpart in increments of one-tenth of an hour (6 minutes) or one-
quarter of an hour (15 minutes). Agencies must charge compensatory time
off in the chronological order in which it was earned, with
compensatory time off earned first being charged first.
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7. In Sec. 550.1407, revise paragraph (a)(1) and add a new paragraph
(e) to read as follows:
[[Page 19099]]
Sec. 550.1407 Forfeiture of unused compensatory time off.
(a) After 26 pay periods. (1) Except as provided in paragraphs
(a)(2) and (e) of this section, an employee must use accrued
compensatory time off by the end of the 26th pay period after the pay
period during which it was earned. If an employee fails to use the
compensatory time off within 26 pay periods after it was earned, he or
she must forfeit such compensatory time off.
* * * * *
(e) Exception due to an exigency. If an employee fails to use his
or her compensatory time earned under Sec. 550.1404(a) by the end of
the 26th pay period after the pay period during which it was earned due
to an exigency of the service beyond the employee's control, an
authorized agency official, at his or her sole and exclusive
discretion, may extend the time limit for using such compensatory time
off for travel for up to an additional 26 pay periods.
[FR Doc. E7-7266 Filed 4-16-07; 8:45 am]
BILLING CODE 6325-39-P