[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31650]


  Federal Register / Vol. 59, No. 246 / Friday, December 23, 1994 /
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[[Page Unknown]]

[Federal Register: December 23, 1994]


                                                   VOL. 59, NO. 246

                                          Friday, December 23, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 550, 551, 575, 581, and 870

RIN 3206-AG47

 

Pay Administration; Premium Pay

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management is issuing interim 
regulations on availability pay, a new form of premium pay that applies 
to criminal investigators who are required to work, or be available to 
work, substantial amounts of unscheduled overtime duty based on the 
needs of the employing agency. Availability pay is fixed at 25 percent 
of basic pay (including locality pay).

DATES: Effective Date: The regulations are effective October 30, 1994.
    Applicability Dates: The regulations apply on the first day of the 
first pay period beginning on or after October 30, 1994.
    Comments Date: Comments must be received on or before February 21, 
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: D. Bryce Baker, (202) 606-1413.

SUPPLEMENTARY INFORMATION: Section 633 of the Treasury, Postal Service 
and General Government Appropriations Act for fiscal year 1995 (Public 
Law 103-329, September 30, 1994) amended title 5, United States Code, 
to provide for a new form of premium pay called ``availability pay'' 
for criminal investigators. The availability pay provision takes effect 
on the first day of the first pay period beginning on or after October 
30, 1994, except that implementation may be delayed until September 
1995 for certain criminal investigators employed by Inspectors General. 
Criminal investigators receiving availability pay are exempt from the 
minimum wage and overtime pay provisions of the Fair Labor Standards 
Act and may not receive administratively uncontrollable overtime (AUO) 
pay.

AUO Pay and Availability Pay

    Availability pay replaces AUO pay for covered criminal 
investigators. Some of the major differences between AUO pay and 
availability pay are as follows:
     The use of AUO pay is discretionary on the part of the 
employing agency. In contrast, availability pay is a guaranteed 
employee entitlement that the employing agency must provide, if the 
required conditions are met.
     The level of AUO pay may vary from 10 to 25 percent of 
basic pay, depending on the average number of AUO hours worked per 
week. Availability pay is fixed at 25 percent of basic pay.
     AUO pay is calculated based upon the number of hours 
actually worked. Availability pay also takes into account certain hours 
when a criminal investigator is determined by the employing agency to 
be available to work.
     While both AUO pay and availability pay are the sole 
compensation for irregular and occasional overtime work (i.e., overtime 
hours not scheduled in advance of an employee's administrative 
workweek), availability pay is also the sole compensation for any 
overtime work hours that are the first 2 hours of overtime work on any 
day containing part of the employee's basic 40-hour workweek 
(regardless of how those hours are scheduled).
     AUO pay is not basic pay for severance pay purposes, while 
availability pay is basic pay for severance pay purposes.

Coverage

    Eligibility for availability pay is limited to criminal 
investigators. The regulations make clear that the only General 
Schedule (GS) employees who qualify as criminal investigators for the 
purpose of availability pay are those properly classified in the GS-
1811 (Criminal Investigating) and GS-1812 (Game Law Enforcement) series 
under OPM standards. The GS-1812 series applies to criminal 
investigators with specialized duties and skill requirements associated 
with game law enforcement. Congress indicated its intent that 
availability pay be limited to these two classification series of 
employees in the conference report on the bill that was enacted as 
Public Law 103-329. (See House Congressional Record, September 20, 
1994, page H9268.)
    Availability pay applies only to those GS-1811 and GS-1812 criminal 
investigators who meet the definition of ``law enforcement officer'' in 
5 U.S.C. 5541(3), which generally requires that the employee be covered 
under the early retirement provisions for law enforcement officers. 
However, an investigator may also meet that definition if he or she 
holds a supervisory or administrative position that has been officially 
approved as a ``secondary position'' under the regulations governing 
the law enforcement officer retirement provisions.
    Members of the Senior Executive Service (SES) (including the 
Federal Bureau of Investigations and Drug Enforcement Administration 
SES) are not eligible to receive availability pay. Availability pay is 
one type of premium pay among many that are addressed in subchapter V 
of title 5, United States Code. No premium pay under subchapter V is 
applicable to SES members, since they are excluded from the definition 
of ``employee'' in 5 U.S.C. 5541(2). The term ``criminal investigator'' 
in the availability pay provision is linked to the definition of ``law 
enforcement officer'' in 5 U.S.C. 5541(3), which in turn is linked to 
the definition of ``employee'' in 5 U.S.C. 5541(2). In interpreting a 
term within the context of the premium pay subchapter, all of the 
conditions of these definitions must be met.

Availability Hours

    In determining whether a criminal investigator qualifies for 
availability pay, the employing agency must determine whether the 
investigator is expected to work, or be available to work, an annual 
average of 2 hours of unscheduled duty per regular work day. Available-
to-work hours are those hours during which the employing agency 
determines the investigator is generally and reasonably accessible to 
perform unscheduled duty based on the needs of the agency. Generally, 
the agency will place the investigator in availability status, meaning 
that it directs the investigator to be available during designated 
periods to meet agency needs. Availability hours on a regular workday 
are included in the computation of the annual average, regardless of 
whether an investigator actually works during those hours. However, 
availability hours on a nonregular workday are used in computing the 
annual average only if the investigator is actually required to work 
during those hours. (See 5 U.S.C. 5545a(d)(3) and 5 CFR 550.183(c).)
    Although availability hours during which no work is performed may 
be used to justify entitlement to availability pay, it was the intent 
of Congress that the existence of this availability condition should 
not be interpreted by criminal investigators as license to reduce their 
actual work hours. (See Senate Committee on Appropriations Report 103-
286, June 16, 1994, page 100.) This suggests that agencies should 
ensure that all investigators receiving availability pay are performing 
significant amounts of actual unscheduled overtime work, as opposed to 
being merely available to perform such work.

Regular Workday

    The regular workdays used as the denominator in the annual average 
computation are defined in the regulations as days in the 
investigator's basic workweek during which the investigator works at 
least 4 hours, excluding overtime hours, approved training hours, hours 
engaged in travel under official travel orders, approved leave hours, 
and excused absence hours. (Travel hours are limited to hours during 
which the investigator is traveling under official travel orders so as 
to make clear that local area ``travel'' that is part of an 
investigator's normal duties should not be excluded as work hours in 
determining regular work days. An investigator is ``traveling under 
official orders'' only for out-of-area travel and then only for that 
period of time during which he or she is actually engaged in traveling. 
Once an investigator reaches the out-of-area destination, any local 
travel in that area must be treated the same as local travel in the 
area where the investigator is permanently stationed.)
    The exclusion of training, travel, approved leave, and excused 
absence hours reflects, in part, an interpretation of the of the term 
``works'' as used in the statutory definition of ``regular work day'' 
(5 U.S.C. 5545a(a)(4)). At the same time, the exclusion gives effect to 
another statutory provision requiring that an investigator ``be 
considered to be available when the investigator cannot reasonably and 
generally be accessible'' due to certain assignments or circumstances 
controlled by the agency (5 U.S.C. 5545a(d)(4)).
    Excluding hours in training, travel, approved leave, and excused 
absence in determining whether a day qualifies as a regular workday 
ensures that the time spent in such situations does not adversely 
affect an investigator's annual average hours computation. In effect, 
the same annual average of unscheduled duty hours computed for regular 
workdays is presumed to apply to other days in the basic workweek (such 
as leave days). Thus, consistent with the law, the investigator 
essentially is treated as if he or she were available on such days. 
While training and travel hours are not used in determining regular 
workdays, unscheduled duty hours involving training or travel that are 
otherwise qualifying would be included as hours of unscheduled duty 
(numerator) in the annual average computation.

When Availability Pay Must Be Paid

    The purpose of the availability pay provision is to ensure the 
availability of criminal investigators for unscheduled duty based on 
the needs of the employing agency. (See 5 U.S.C. 5545a (b) and (c).) 
The law provides that availability pay ``shall be paid'' to ensure this 
availability, subject to the conditions of the law. One condition is 
that availability pay can be paid only if the annual average hours 
requirement is and will be met, as certified by the investigator.
    To ensure the availability of criminal investigators as intended by 
the law, agencies generally must ensure that each criminal 
investigator's hours of unscheduled duty are sufficient to enable the 
investigator to meet the average hours requirement and make the 
necessary certification. However, the regulations provide for the 
possibility of not providing availability pay to otherwise qualified 
criminal investigators under several narrow exceptions. (See 5 CFR 
550.182 (d) through (f), 550.184(d), and 550.185 (c) and (d).)
    The regulations provide that an employing agency may, at its 
discretion, approve a criminal investigator's voluntary request that he 
or she generally not be assigned any overtime hours (including 
unscheduled duty) for a designated period based on a personal or family 
hardship situation (e.g., the investigator needs to assist in caring 
for a chronically ill family member). The investigator would be 
required to sign a written statement documenting this request and his 
or her understanding that availability pay will be suspended. This 
voluntary opt-out provision is intended to apply to situations where 
the expected duration of the designated period is long enough that the 
investigator would likely be unable to satisfy the annual average hours 
requirement. Agencies are expected to monitor closely the use of this 
authority to ensure that investigators are not allowed to opt out of 
availability pay for long periods of time, only to opt back in at the 
end of a career as a way of inappropriately inflating the average 
salary used in the retirement annuity computation. OPM invites comments 
on this voluntary opt-out provision and will consider refinements of 
the criteria for opting out when final regulations are issued.
    The regulations also provide that an agency may suspend payment of 
availability pay when the agency determines that an investigator has 
not been performing the required amount of unscheduled duty as assigned 
or reported. This reflects the intent of Congress that agencies would 
have the prerogative to remove availability pay if an investigator 
avoids work or availability. (See Senate Committee on Appropriations 
Report 103-286, June 16, 1994, page 100.) In addition, the regulations 
provide that availability pay may be suspended if an investigator is in 
a duty status but unable to perform unscheduled duty for an extended 
period due to physical or health limitations.
    As required by the law, an involuntary suspension of availability 
pay as a result of a denial or cancellation of an availability pay 
certification is an adverse action under 5 U.S.C. 7512(4) and 5 CFR 
part 752. This means that availability pay is considered to be ``pay'' 
under 5 CFR 752.402(f). Also, a voluntary request that availability pay 
be suspended under the voluntary opt-out provision does not trigger 
adverse action rights.
    A criminal investigator who is not receiving availability pay would 
be entitled to compensation for any overtime work under other 
provisions of law, as applicable. However, given the nature of the 
exceptions described above, it is not expected that any such 
investigator would receive AUO pay.

Criminal Investigators in Inspector General Offices

    The law provides for a delayed effective date for criminal 
investigators employed in offices of Inspectors General who are not 
receiving 25-percent AUO pay. These regulations clarify that the 
employing Inspector General (IG) office, not the criminal investigators 
themselves, shall be responsible for determining the delayed effective 
date for such criminal investigators, subject to the limits in the law. 
(For clarification of congressional intent in this regard, see Senate 
Congressional Record, September 28, 1994, page S13551.)
    These regulations also clarify that criminal investigators in IG 
offices are subject to the same rules, requirements and conditions that 
apply to all other criminal investigators under the availability pay 
provision. Thus, for example, the required initial and annual 
certifications (related to the annual average hours requirement) must 
be made.

Waiver of Notice of Proposed Rule Making and 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 making this rule effective retroactively. Section 633 of 
Public Law 103-329, which authorizes availability pay, was enacted on 
September 30, 1994. The availability pay authority is effective on 
October 30, 1994 and applies on the first day of the first applicable 
pay period beginning on or after October 30, 1994. These regulations 
are being made effective retroactively to the effective date of the law 
to ensure that the availability pay provision is uniformly implemented.

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

5 CFR Part 550

    Administrative practice and procedure, Claims, Government 
employees, Wages.

5 CFR Part 551

    Government employees, Wages.

5 CFR Part 575

    Government employees, Wages.

5 CFR Part 581

    Alimony, Child support, Government employees, Wages.

5 CFR Part 870

    Administrative practice and procedure, Government employees, 
Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, OPM is amending parts 550, 551, 575, 581, and 870 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, is revised to 
read as follows:

    Authority: Subpart A issued under 5 U.S.C. 5304 note, 5305 note, 
5541(2)(iv), 5548, and 6101(c); E.O. 12748, February 1, 1991, 3 CFR 
1992 Comp., p. 316.

    2. In Sec. 550.103, paragraphs (i) and (p) are revised, and 
paragraph (u) is added to read as follows:


Sec. 550.103  Definitions.

* * * * *
    (i) Premium pay means additional pay authorized by subchapter V of 
chapter 55 of title 5, United States Code, and this subpart for 
overtime, night, holiday, or Sunday work, and for standby duty, 
administratively uncontrollable overtime work, or availability duty.
* * * * *
    (p) Regularly scheduled work means work that is scheduled in 
advance of an administrative workweek under an agency's procedures for 
establishing workweeks in accordance with Sec. 610.111, excluding any 
such work to which availability pay under Sec. 550.181 applies.
* * * * *
    (u) Criminal investigator means a law enforcement officer as 
defined in paragraph (t) of this section (other than a special agent in 
the Diplomatic Security Service) who, based on OPM standards, is 
properly classified under the GS-1811 or GS-1812 series in the General 
Schedule classification system, or who would be so classified if 
covered under that system.
    3. In Sec. 550.111, paragraph (a) is revised and paragraph (f) is 
added to read as follows:


Sec. 550.111  Authorization of overtime pay.

    (a) Except as provided in paragraphs (d) and (f) of this section, 
overtime work means work in excess of 8 hours in a day or in excess of 
40 hours in an administrative workweek that is--
    (1) Officially ordered or approved; and
    (2) Performed by an employee. Hours of work in excess of 8 in a day 
are not included in computing hours of work in excess of 40 hours in an 
administrative workweek.
* * * * *
    (f)(1) For any criminal investigator receiving availability pay 
under Sec. 550.181, overtime work means work that is scheduled in 
advance of the administrative workweek--
    (i) In excess of 10 hours on a day containing hours that are part 
of such investigator's basic 40-hour workweek; or
    (ii) On a day not containing hours that are part of such 
investigator's basic 40-hour workweek.
    (2) Any work that would be overtime work under this section but for 
paragraph (f)(1) of this section shall be compensated by availability 
pay under Sec. 550.181.
    4. In Sec. 550.163, paragraph (e) is added to read as follows:


Sec. 550.163  Relationship to other payments.

    (e) Premium pay on an annual basis under Sec. 550.141 or 
Sec. 550.151 may not be paid to a criminal investigator receiving 
availability pay under Sec. 550.181.
    5. Sections 550.181 through 550.187 are added to read as follows:

Law Enforcement Availability Pay


Sec. 550.181  Coverage.

    Each criminal investigator meeting the definition in 
Sec. 550.103(u), and the conditions and requirements of 5 U.S.C. 5545a 
and the regulations in Secs. 550.181 through 550.187, shall receive 
availability pay to ensure the availability of criminal investigators 
for unscheduled duty in excess of the 40-hour workweek based on the 
needs of the employing agency.


Sec. 550.182  Unscheduled duty.

    (a) Unscheduled duty hours. For the purpose of availability pay, 
unscheduled duty hours are those hours during which a criminal 
investigator performs work, or is determined by the employing agency to 
be available for work, that are not--
    (1) Part of the 40-hour basic workweek of the investigator; or
    (2) Overtime hours compensated under 5 U.S.C. 5542 and Sec. 550.111 
(which are those overtime hours scheduled in advance of the 
investigator's administrative workweek, excluding any such hours that 
are the first 2 hours of overtime work on any day containing a part of 
the investigator's basic 40-hour workweek, as required by 
Sec. 550.111(f)).
    (b) Actual work hours. To be considered to be performing work under 
paragraph (a) of this section, a criminal investigator must be 
performing work as officially ordered or approved, including work 
performed without specific supervisory preapproval, if circumstances 
require the criminal investigator to perform the duty to meet the needs 
of the employing agency, subject to agency policies and procedures 
(including any requirements for after-the-fact validation or approval).
    (c) Availability hours. To be considered available for work under 
paragraph (a) of this section, a criminal investigator must be 
determined by the employing agency to be generally and reasonably 
accessible to perform unscheduled duty based on the needs of the 
agency. Generally, the agency will place the investigator in 
availability status by directing the investigator to be available 
during designated periods to meet agency needs, as provided by agency 
policies and procedures. Placing the investigator in availability 
status shall not be considered scheduling the investigator for overtime 
hours compensated under 5 U.S.C. 5542 and 5 CFR 550.111. Availability 
hours may include hours during which an investigator places himself or 
herself in availability status to meet the needs of the agency, subject 
to agency policies and procedures (including any requirements for 
after-the-fact validation or approval).
    (d) Ensuring availability. Except as provided in paragraphs (e) and 
(f) of this section, an employing agency shall ensure that each 
criminal investigator's hours of unscheduled duty are sufficient to 
enable the investigator to meet the substantial hours requirement in 
Sec. 550.183 and make the certification required under Sec. 550.184.
    (e) Voluntary opt-out. Notwithstanding paragraph (d) of this 
section, an employing agency may, at its discretion, approve a criminal 
investigator's voluntary request that the investigator generally be 
assigned no overtime work (including unscheduled duty) for a designated 
period of time because of a personal or family hardship situation. The 
investigator must sign a written statement documenting this request and 
his or her understanding that availability pay will not be payable 
during the designated period.
    (f) When availability pay is suspended. The employing agency is not 
subject to the requirement of paragraph (d) of this section in the case 
of a criminal investigator for whom availability pay is suspended in 
accordance with Sec. 550.184(d) due to denial or cancellation of the 
required certification based on--
    (1) Failure to perform unscheduled duty as assigned or reported; or
    (2) Inability to perform unscheduled duty for an extended period 
because of a physical or health condition.


Sec. 550.183   Substantial hours requirement.

    (a) A criminal investigator shall be eligible for availability pay 
only if the annual average number of hours of unscheduled duty per 
regular workday is 2 hours or more, as certified in accordance with 
Sec. 550.184. This average is computed by dividing the total 
unscheduled duty hours for the annual period (numerator) by the number 
of regular workdays (denominator).
    (b) For the purpose of this section, regular workday means each day 
in the criminal investigator's basic workweek during which the 
investigator works at least 4 hours, excluding--
    (1) Overtime hours compensated under 5 U.S.C. 5542 and 
Sec. 550.111;
    (2) Unscheduled duty hours compensated by availability pay under 5 
U.S.C. 5545a and this subpart; and
    (3) Hours during which an investigator is engaged in agency-
approved training, is traveling under official travel orders, is on 
approved leave, or is on excused absence with pay (including paid 
holidays).
    (c) In computing average hours under paragraph (a) of this section, 
the total unscheduled duty hours in the numerator shall include--
    (1) Any unscheduled duty hours on a regular workday; and
    (2) Any unscheduled duty hours actually worked by an investigator 
on days that are not regular workdays.


Sec. 550.184   Annual certification.

    (a) Each newly hired criminal investigator who will receive 
availability pay and the appropriate supervisory officer (as designated 
by the head of the agency or authorized designee) shall make an initial 
certification to the head of the agency attesting that the investigator 
is expected to meet the substantial hours requirement in Sec. 550.183 
during the upcoming 1-year period. A similar certification shall be 
made for a criminal investigator who will begin receiving availability 
pay after a period of nonreceipt (e.g., a designated voluntary opt-out 
period under Sec. 550.182(e)).
    (b) Each criminal investigator who is receiving availability pay 
and the appropriate supervisory officer (as designated by the head of 
the agency or authorized designee) shall make an annual certification 
to the head of the agency attesting that the investigator currently 
meets, and is expected to continue to meet during the upcoming 1-year 
period, the substantial hours requirement in Sec. 550.183.
    (c) A certification shall no longer apply when the employee 
separates from Federal service, is employed by another agency, moves to 
a position that does not qualify as a criminal investigator position, 
or begins a voluntary opt-out period under Sec. 550.182(e).
    (d) The employing agency shall ensure that criminal investigators 
receiving availability pay comply with the substantial hours 
requirement in Sec. 550.183, as certified in accordance with this 
section. The employing agency may deny or cancel a certification based 
on a finding that an investigator has failed to perform unscheduled 
duty (availability or work) as assigned or reported, or is unable to 
perform unscheduled duty for an extended period due to physical or 
health reasons. If a certification is denied or canceled, the 
investigator's entitlement to availability pay shall be suspended for 
an appropriate period, consistent with agency policies. If the 
investigator's certification was valid when made, the suspension of 
availability pay shall be effected prospectively.
    (e) An involuntary suspension of availability pay resulting from a 
denial or cancellation of certification under paragraph (d) of this 
section shall be a reduction in pay for the purpose of applying the 
adverse action provisions of 5 U.S.C. 7512 and 5 CFR part 752.
    (f) The head of an agency (or authorized designee) may prescribe 
any additional regulations necessary to administer the certification 
requirement, including procedures for retroactive correction in cases 
in which a certification is issued belatedly or lapses due to 
administrative error.


Sec. 550.185  Payment of availability pay.

    (a) Availability pay shall be an amount equal to 25 percent of the 
criminal investigator's rate of basic pay (as defined in 
Sec. 550.103(j)). However, availability pay shall be paid only for 
periods of time during which the investigator receives basic pay.
    (b) Except as provided in paragraph (c) of this section, a criminal 
investigator who is eligible for availability pay shall continue to 
receive such pay during any period such investigator is attending 
agency-sanctioned training, on agency-ordered travel status, on agency-
approved leave with pay, or on excused absence with pay for relocation 
purposes.
    (c) Agencies may, at their discretion, provide availability pay to 
criminal investigators during training that is considered initial, 
basic training usually provided in the first year of service.
    (d) Agencies may, at their discretion, provide for the continuation 
of availability pay when a criminal investigator is on excused absence 
with pay, except where payment is mandatory under paragraph (b) of this 
section.
    (e) The amount of availability pay payable to a criminal 
investigator for a pay period is not affected by the occurrence of a 
paid holiday during that period.


Sec. 550.186  Relationship to other payments.

    (a) Standby duty pay under Sec. 550.141 and administratively 
uncontrollable overtime pay under Sec. 550.151 may not be paid to a 
criminal investigator receiving availability pay. Receipt of 
availability pay does not affect an investigator's entitlement to other 
types of premium pay (including overtime pay under Sec. 550.111) based 
on hours other than unscheduled duty hours. However, a criminal 
investigator receiving availability pay may not be paid any other 
premium pay based on unscheduled duty hours.
    (b) Availability pay shall be treated as part of basic pay only for 
the following purposes:
    (1) 5 U.S.C. 5524a, pertaining to advances in pay;
    (2) 5 U.S.C. 5595(c), pertaining to severance pay;
    (3) 5 U.S.C. 8114(e), pertaining to workers' compensation;
    (4) 5 U.S.C. 8331(3) and 5 U.S.C. 8401(4), pertaining to retirement 
benefits;
    (5) 5 U.S.C. 8431, pertaining to the Thrift Savings Plan; and
    (6) 5 U.S.C. 8704(c), pertaining to life insurance.
    (c) Availability pay shall be used in computing a lump-sum payment 
for accumulated annual leave under 5 U.S.C. 5551 and 5552.
    (d) The minimum wage and the hours of work and overtime pay 
provisions of the Fair Labor Standards Act do not apply to criminal 
investigators receiving availability pay.


Sec. 550.187  Transitional provisions.

    (a) Except as provided in paragraph (b) of this section, not later 
than the first day of the first pay period beginning on or after 
October 30, 1994, each criminal investigator qualified to receive 
availability pay and the appropriate supervisory officer (as designated 
by the agency head or authorized designee) shall make an initial 
certification to the head of the agency that the investigator is 
expected to meet the substantial hours requirement in Sec. 550.183. The 
head of an agency may prescribe procedures necessary to administer this 
paragraph.
    (b)(1) In the case of criminal investigators who are employed in 
offices of Inspectors General and who, immediately prior to September 
30, 1994, were not receiving administratively uncontrollable overtime 
pay, or were receiving such pay at a rate of less than 25 percent, the 
employing office may delay implementation of availability pay; however, 
availability pay shall be implemented (in accordance with Secs. 550.181 
through 550.186) no later than--
    (i) September 30, 1995, for investigators who are not receiving 
administratively uncontrollable overtime pay; or
    (ii) The first day of the last pay period ending on or before 
September 30, 1995, for investigators who were receiving 
administratively uncontrollable overtime pay at a rate of less than 25 
percent immediately prior to September 30, 1994.
    (2) A criminal investigator who is employed in an Inspector General 
office and was receiving administratively uncontrollable overtime pay 
at a rate of less than 25 percent immediately prior to September 30, 
1994, shall continue to receive at least that rate or a higher rate, if 
increased by the employing agency, until the availability pay provision 
is implemented for the position (no later than as provided in paragraph 
(b)(1)(ii) of this section).
    (3) Implementation of availability pay for criminal investigators 
under paragraph (b)(1) of this section shall be in accordance with the 
requirements and conditions set forth in Secs. 550.181 through 550.186. 
For qualified investigators, an initial certification shall be made, 
consistent with paragraph (a) of this section.

Subpart B--Advances in Pay

    6. The authority citation for part 550, subpart B, is revised to 
read as follows:

    Authority: 5 U.S.C. 5524a, 5545a(h)(2)(B); sections 302 and 404 
of the Federal Employees Pay Comparability Act of 1990 (Public Law 
101-509), 104 stat. 1462 and 1466, respectively; E.O. 12748, 
February 1, 1991, 3 CFR 1992 Comp., p. 316.

    7. In Sec. 550.202, the definition of rate of basic pay is revised 
to read as follows:


Sec. 550.202  Definitions.

* * * * *
    Rate of basic pay means the rate of pay fixed by law or 
administrative action for the position held by an employee, including, 
as applicable, annual premium pay under 5 U.S.C. 5545(c), availability 
pay under 5 U.S.C. 5545a, night differential for prevailing rate 
employees under 5 U.S.C. 5343(f), and any interim geographic adjustment 
or special pay adjustment for law enforcement officers under section 
302 or 404 of the Federal Employees Pay Comparability Act of 1990 (Pub. 
L. 101-509), respectively, or locality-based comparability payment 
under 5 U.S.C. 5304, but not including additional pay of any kind.

Subpart G--Severance Pay

    8. The authority citation for part 550, subpart G, is revised to 
read as follows:

    Authority: 5 U.S.C. 5595; E.O. 11257, November 13, 1965, 3 CFR 
1954-1965 Comp., p. 357.

    9. In Sec. 550.703, the definition of rate of basic pay is revised 
to read as follows:


Sec. 550.703  Definitions.

* * * * *
    Rate of basic pay means the rate of pay fixed by law or 
administrative action for the position held by an employee, including, 
as applicable, annual premium pay for standby duty under 5 U.S.C. 
5545(c)(1), availability pay under 5 U.S.C. 5545a, night differential 
for prevailing rate employees under 5 U.S.C. 5343(f), and any interim 
geographic adjustment or special pay adjustment for law enforcement 
officers under section 302 or 404 of the Federal Employees Pay 
Comparability Act of 1990 (Pub. L. 101-509), respectively, or locality-
based comparability payment under 5 U.S.C. 5304, but not including 
additional pay of any kind.
* * * * *

PART 551--PAY ADMINISTRATION UNDER THE FLSA

    10. The authority citation for part 551 is revised to read as 
follows:

    Authority: 5 U.S.C. 5542c; sec. 4(f) of the Fair Labor Standards 
Act for 1938, as amended by Public Law 93-259, 88 Stat. 55 (29 
U.S.C. 204f).

Subpart B--Exemptions

    11. Section 551.209 is added to read as follows:


Sec. 551.209  Exemption of criminal investigators receiving 
availability pay.

    A criminal investigator receiving availability pay under 
Sec. 550.181 is exempt from the hours of work and overtime pay 
provisions of the Act.

Subpart C--Minimum Wage Provisions

    12. In Sec. 551.301, paragraph (a) is revised to read as follows:


Sec. 551.301  Minimum wage.

    (a)(1) Except as provided in paragraph (a)(2) of this section and 
Sec. 551.311, an agency shall pay each of its employees wages at rates 
not less than the minimum wage specified in section 6(a)(1) of the Act 
for all hours of work as defined in subpart D of this part.
    (2) The minimum wage provisions of the Act do not apply to a 
criminal investigator receiving availability pay under Sec. 550.181.
* * * * *

PART 575--RECRUITMENT AND RELOCATION BONUSES; RETENTION ALLOWANCES; 
SUPERVISORY DIFFERENTIALS

    13. The authority citation for part 575 is revised to read as 
follows:

    Authority: 5 U.S.C. 1104(a)(2), 5753, 5754, and 5755; sec. 302 
and 404 of the Federal Employees Pay Comparability Act of 1990 (Pub. 
L. 101-509), 104 Stat. 1462 and 1466, respectively; E.O. 12748, 
February 1, 1991, 3 CFR 1992 Comp., p. 316.

Subpart D--Supervisory Differentials

    14. In Sec. 575.405, paragraphs (c)(5) and (c)(6) are revised and 
paragraph (c)(7) is added to read as follows:


Sec. 575.405  Calculation and payment of supervisory differential.

* * * * *
    (c) * * *
    (5) Any other continuing payment, except night, Sunday, or holiday 
premium pay or a hazardous duty differential under chapter 55 of title 
5, United States Code;
    (6) Premium pay paid on an annual basis under 5 U.S.C. 5545(c); and
    (7) Availability pay under 5 U.S.C. 5545a.
* * * * *

PART 581--PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR 
ALIMONY

    15. The authority citation for part 581 continues to read as 
follows:

    Authority: 42 U.S.C. 659, 661-662; 15 U.S.C. 1673; E.O. 12105 
(43 FR 59465 and 3 CFR 262) (1979).

Subpart A--Purpose and Definitions

    16. In Sec. 581.103, paragraph (a)(6) is revised to read as 
follows:


Sec. 581.103  Moneys which are subject to garnishment.

    (a) * * *
    (6) Standby duty pay, administratively uncontrollable overtime pay, 
and availability pay;
* * * * *

PART 870--BASIC LIFE INSURANCE

    17. The authority citation for part 870 continues to read as 
follows:

    Authority: 5 U.S.C. 8716; Sec. 870.202(c) also issued under 5 
U.S.C. 7701(b)(2); subpart J is also issued under section 599C of 
Pub. L. 101-513, 104 Stat. 2064, as amended.

Subpart C--Amount of Insurance

    18. In Sec. 870.302, paragraph (a) is revised to read as follows:


Sec. 870.302  Annual rates of pay.

    (a) An insured employee's annual pay is his/her annual rate of 
basic pay as fixed by law or regulation, except that annual pay for 
this purpose shall include--
    (1) Standby duty premium pay under 5 U.S.C. 5545(c)(1);
    (2) For a law enforcement officer as defined in Secs. 831.902 or 
842.802, administratively uncontrollable overtime pay under 5 U.S.C. 
5545(c)(2); and
    (3) Availability pay under 5 U.S.C. 5545a.
* * * * *
[FR Doc. 94-31650 Filed 12-22-94; 8:45 am]
BILLING CODE 6325-01-M