[Federal Register Volume 64, Number 19 (Friday, January 29, 1999)]
[Rules and Regulations]
[Pages 4517-4521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2153]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 19 / Friday, January 29, 1999 / Rules 
and Regulations  

[[Page 4517]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AG47


Pay Administration; Premium Pay

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing revised interim 
regulations on availability pay (a form of premium pay that applies to 
criminal investigators who are required to complete substantial amounts 
of unscheduled overtime duty) to incorporate the provisions of three 
laws that have become effective since interim regulations were first 
published on December 23, 1994. These statutory changes extend the 
coverage of availability pay to special agents employed in the 
Diplomatic Security Service of the Department of State and to pilots 
employed by the United States Customs Service who are law enforcement 
officers; permit any Office of Inspector General that employs fewer 
than five criminal investigators to elect to exclude those employees 
from availability pay; and provide alternative requirements for 
compensating overtime work and crediting unscheduled duty hours for 
special agents and other criminal investigators who provide protective 
services for Federal officials and other individuals.

DATES: Effective date: January 29, 1999.
    Applicability dates: Except for availability pay for special agents 
employed by the Department of State, these regulations are applicable 
on January 29, 1999. Availability pay for special agents in the 
Diplomatic Security Service of the Department of State is applicable on 
January 31, 1999.
    Comments date: Comments must be received on or before March 30, 
1999.

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 20415-8200, FAX: (202) 
606-0824, or email: [email protected].

FOR FURTHER INFORMATION CONTACT: James R. Weddel, (202) 606-2858, FAX: 
(202) 606-0824, or email: [email protected].

SUPPLEMENTARY INFORMATION: Section 633 of the Treasury, Postal Service, 
and General Government Appropriations Act, 1995 (Pub. L. 103-329, 
September 30, 1994), amended title 5, United States Code, to provide 
for a form of premium pay called availability pay for criminal 
investigators. Availability pay became effective on the first day of 
the first pay period beginning on or after October 30, 1994, except 
that implementation was 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 of 
1938, as amended (FLSA), and may not receive annual premium pay for 
administratively uncontrollable overtime (AUO) work authorized by 5 
U.S.C. 5545(c)(2).
    On December 23, 1994, the Office of Personnel Management (OPM) 
published interim regulations on availability pay in the Federal 
Register (59 FR 66149). We have received numerous comments on these 
interim regulations. We plan to address those comments, as well as any 
comments we receive on the revised interim regulations, when we publish 
final regulations. Therefore, it is not necessary to resubmit any 
comments that were submitted on the interim regulations published on 
December 23, 1994.

Coverage of Special Agents in the Diplomatic Security Service

    Section 407 of the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations Act, 1999, as contained 
in section 101(b) in Division A of Pub. L. 105-277, the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999 
(October 21, 1998), amended 5 U.S.C. 5545a by adding a new subsection 
(k), which extends coverage of law enforcement availability pay to 
special agents of the Diplomatic Security Service in the Department of 
State. A provision identical to section 407 is also contained in 
section 2316 of the Foreign Affairs Reform and Restructuring Act of 
1998, Division G of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act, 1999. A conforming amendment was also made to 5 
U.S.C. 5545a(a)(2) to delete a provision that previously excluded 
special agents in the Diplomatic Security Service from the definition 
of ``criminal investigator.''
    As implemented in these interim regulations, availability pay 
applies to a law enforcement officer in the Diplomatic Security Service 
if one of the following criteria is met: (1) the employee is a special 
agent in a position properly classified in the GS-1811 occupational 
series; (2) the employee is a special agent in a position that has been 
properly determined by the Department of State to have a Foreign 
Service primary skill code of 2501; (3) the employee is a special agent 
who has been placed by the Department of State in a non-covered 
position on a long-term training assignment that will be career-
enhancing for a current or future assignment as a Diplomatic Security 
Service special agent, provided the employee is expected to return to 
duties as a Special Agent in a Foreign Service position with a 2501 
primary skill code or to a position properly classified in the GS-1811 
series immediately following such training; or (4) the employee 
occupies a position in the Department of State in which he or she 
performs duties and responsibilities of a special agent requiring 
Foreign Service primary skill code 2501, pending the opening of a 
position with primary skill code 2501 and placement in that position as 
a Special Agent.
    In addition, availability pay applies to a special agent with a 
Foreign Service personal primary skill code of 2501 (or whose position 
is properly classified in the GS-1811 series) if he or she meets all of 
the following three conditions:
    (i) The individual is assigned outside the Department of State;

[[Page 4518]]

    (ii) The assigned position would have a primary skill code of 2501 
(or would be properly classified in the GS-1811 series under the 
General Schedule classification system based on OPM classification 
standards) if the position were under the Foreign Service (or General 
Schedule) in the Department of State; and
    (iii) The individual is expected to return to a position as a 
special agent in the Diplomatic Security Service with a 2501 primary 
skill code (or to a position that is properly classified in the GS-1811 
series) immediately following such outside assignment. (See the revised 
definition of criminal investigator in Sec. 550.103.)
    Availability pay does not apply to members of the Senior Foreign 
Service, Foreign Service Officers, or members of the Senior Executive 
Service. These groups of employees are not covered by subchapter V--
Premium Pay--of chapter 55 of title 5, United States Code, including 5 
U.S.C. 5545a, the legal authority for availability pay for criminal 
investigators. (See 5 U.S.C. 5541(2)(xiv), (xv), and (xvi).)
    Section 407 also provides that no later than the effective date for 
availability pay for special agents, each special agent in the 
Diplomatic Security Service who is a criminal investigator (as defined 
in Sec. 550.103), and the appropriate supervisory officer designated by 
the Secretary of State, must make an initial certification to the 
Secretary of State that the special agent is expected to meet the 
unscheduled duty hours requirement for availability pay in 5 U.S.C. 
5545a(d). Section 5545a(d) provides that a criminal investigator must 
have an annual average of 2 unscheduled duty hours for each regular 
workday. Under section 407, General Schedule and Foreign Service 
special agents in the Diplomatic Security Service may not rely on 5 
U.S.C. 5545a(d)(2)(B) to satisfy the unscheduled duty hour requirement 
in section 5545a(d)(1). These special agents may count only hours 
actually worked as unscheduled duty hours, not hours the agent was 
available for work. This requirement is reflected in Secs. 550.182 (a) 
and (d).
    Hours of availability are also not counted as hours of work for the 
purpose of determining overtime pay on an hourly basis under 5 U.S.C. 
5542. Therefore, Sec. 550.111(h) has been added to clarify this point.
    In addition, section 407 provides that, while performing protective 
duties under the State Department Basic Authorities Act of 1956 (22 
U.S.C. 2709(a)(3)), special agents of the Diplomatic Security Service 
may receive overtime pay on an hourly basis for all regularly scheduled 
overtime work (including the first 2 hours of overtime work on a 
regular workday), provided they perform, on the same day, at least 2 
hours of overtime work not scheduled in advance of the administrative 
workweek. This change in law is reflected in Secs. 550.103 (definition 
of ``protective duties''), 550.111(f)(2), and 550.182(b)(2).
    Section 407 provides that in applying the requirement in 5 U.S.C. 
5545a(h) that availability pay will be 25 percent of basic pay, any 
reference to basic pay will be considered to include, with respect to a 
special agent in the Diplomatic Security Service, amounts designated as 
``salary.'' Therefore, Sec. 550.185(a) has been amended to provide that 
availability pay is an amount equal to (1) 25 percent of a criminal 
investigator's rate of basic pay, as defined in Sec. 550.103, including 
amounts designated as ``salary'' for special agents in the Diplomatic 
Security Service; or (2) a lesser amount to avoid exceeding the special 
maximum earnings limitation for law enforcement officers in 5 U.S.C. 
5547(c). This special maximum earnings limitation for law enforcement 
officers is also found in Sec. 550.107 and applies to all criminal 
investigators, including those who are special agents in the Diplomatic 
Security Service.
    Section 407 amended 5 U.S.C. 5545a(h)(2)(A) with regard to special 
agents in the Diplomatic Security Service to provide that availability 
pay will be considered basic pay for the purposes of sections 
609(b)(1), 805, 806, and 856 of the Foreign Service Act of 1980, as 
amended, which pertain to Foreign Service retirement benefits. 
Therefore, a parallel paragraph has been added at Sec. 550.186(b)(7).
    Section 407 amended 5 U.S.C. 5545a(h)(2)(B) to provide that 
availability pay is also basic pay for any other purposes explicitly 
provided for by law or as OPM or the Secretary of State (to the extent 
that matters exclusively within the jurisdiction of the Secretary are 
concerned) may prescribe by regulation. Therefore, a parallel provision 
has been added at Sec. 550.186(b)(8).
    Finally, section 407 requires the Director of OPM and the Secretary 
of State to determine that all regulations necessary to implement 
availability pay for special agents are in effect. The Director of OPM 
and the Secretary of State agree that, with the publication of these 
regulations, all regulations necessary to implement availability pay 
for special agents are in effect.

Suspension of Availability Pay for Special Agents

    Special agents in the Diplomatic Security Service of the Department 
of State who are in the Foreign Service are not covered by the adverse 
action procedures in 5 U.S.C. 7512 and 5 CFR part 752. (See 5 U.S.C. 
7511(b)(6) and 5 CFR 752.401(d)(6).) Therefore, the requirements in 5 
U.S.C. 5545a(e)(2), which provide that involuntary reductions in pay 
resulting from a denial of certification for availability pay must be 
accomplished under the adverse action procedures in subchapter II of 5 
U.S.C. chapter 75, are not applicable to special agents in the Foreign 
Service. Instead, Sec. 550.184(e) has been amended to provide that 
involuntary suspension of availability pay for Foreign Service special 
agents, resulting from a denial or cancellation of certification for 
availability pay under Sec. 550.184(d), will be administered under 
procedures established by regulations of the Department of State.

Coverage in Offices of Inspectors General

    After the publication of the original interim availability pay 
regulations, section 901 of Pub. L. 104-19, July 27, 1995 (109 Stat. 
230), amended section 5545a of title 5, United States Code, to add a 
new subsection (j), which provides that ``[n]otwithstanding any other 
provision of this section, any Office of Inspector General which 
employs fewer than 5 criminal investigators may elect not to cover such 
criminal investigators under this section.'' Therefore, Sec. 550.181(a) 
has been amended, and Sec. 550.181(b) has been added, to reflect the 
authority to exempt criminal investigators in Offices of Inspectors 
General with fewer than five criminal investigators. This authority 
became effective on July 27, 1995, the date of enactment of Pub. L. 
104-19.

Coverage of Customs Service Pilots Who Are Law Enforcement Officers

    After publication of the original interim availability pay 
regulations, section 902 of Pub. L. 104-19, July 27, 1995 (109 Stat. 
230), amended section 5545a of title 5, United States Code, to add a 
new subsection (i), which provides that ``[t]he provisions of 
subsections (a)-(h) providing for availability pay shall apply to a 
pilot employed by the United States Customs Service who is a law 
enforcement officer as defined under section 5541(3).''
    Section 902 also provides that coverage of the designated Customs 
Service pilots under the law authorizing

[[Page 4519]]

availability pay became effective on the first day of the first 
applicable pay period that began on or after the 30th day following the 
date of enactment of Pub. L. 104-19. Pub. L. 104-19 was enacted on July 
27, 1995. Therefore, section 902 became effective on the first day of 
the first pay period that began on or after August 26, 1995. The 
revised interim regulations reflect this change in law by adding 
``[w]ho is a pilot employed by the United States Customs Service'' to 
the definition of criminal investigator in Sec. 550.103.

Overtime Pay for Criminal Investigators Who Perform Protective 
Duties

    After publication of the original interim availability pay 
regulations, section 531 of Pub. L. 104-52, November 19, 1995 (109 
Stat. 496), amended section 5542 of title 5, United States Code, to add 
a new subsection (e), which provides that ``[n]otwithstanding 
subsection (d)(1) of this section, all hours of overtime work scheduled 
in advance of the administrative workweek shall be compensated under 
subsection (a) if that work involves duties as authorized by section 
3056(a) of title 18, United States Code, and if the investigator 
performs, on that same day, at least 2 hours of overtime work not 
scheduled in advance of the administrative workweek.''
    This amendment provides for payment of overtime pay on an hourly 
basis for all regularly scheduled overtime hours of work for criminal 
investigators performing protective duties authorized by section 
3056(a) of title 18, including the first 2 overtime hours on a regular 
workday. However, payment of overtime pay for all regularly scheduled 
overtime hours worked is permitted only if the criminal investigator 
performs 2 hours of overtime work during the same workday that were not 
scheduled in advance of the administrative workweek. Hours of 
availability may not be substituted for the required unscheduled 
overtime work. This change in law became effective on November 19, 
1995, the date of enactment, and is reflected in the revised interim 
regulations at Secs. 550.103 (definition of protective duties), 
550.111(f)(2), and 550.182(b)(2). (Note: Except for days on which 
employees perform protective duties authorized by section 3056(a) of 
title 18, United States Code, or by section 2709(a)(3) of title 22, 
United States Code, the first 2 overtime hours on a regular workday are 
always compensated by availability pay for criminal investigators, even 
if those overtime hours are regularly scheduled in advance of the 
administrative workweek.)

Availability Pay Is Basic Pay for the Thrift Savings Plan

    Pub. L. 104-208, September 30, 1996, repealed 5 U.S.C. 8431 and 
amended 5 U.S.C. 8401(4) to provide that the term ``basic pay'' has the 
meaning given that term by 5 U.S.C. 8331(3) for the purpose of 
regulations issued by the Federal Retirement Thrift Savings Board. 
Paragraph (d) of section 628 of the Treasury and General Government 
Appropriations Act, 1999, as contained in section 101(h) in Division A 
of Public Law 105-277, the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act, 1999, amended 5 U.S.C. 8331(3) to add 
availability pay for a criminal investigator authorized by 5 U.S.C. 
5545a to the definition of ``basic pay'' in 5 U.S.C. 8331(3). Since 5 
U.S.C. 8431 was repealed in 1996, Sec. 550.186(b)(5) has been revised 
to state that availability pay is basic pay for the purpose of the 
Thrift Savings Plan authorized by subchapter III of chapter 84 of title 
5, United States Code.

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 on the date of its 
publication in the Federal Register, except that regulations 
implementing availability pay for special agents in the Diplomatic 
Security Service will become effective on January 31, 1999. Section 407 
of the Departments of Commerce, Justice, and State, the Judiciary, and 
Related Agencies Appropriations Act, 1999, as contained in section 
101(b) in Division A of Pub. L. 105-277, the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act, 1999, provides that the 
amendments providing availability pay for special agents will take 
effect on the first day of the first applicable pay period that begins 
on or after the 90th day following the enactment of the Act, and on 
which date all regulations necessary to carry out such amendments are 
(in the judgment of the Director of the Office of Personnel Management 
and the Secretary of State) in effect. This waiver is also appropriate 
because the attached changes in regulations update Office of Personnel 
Management regulations to make them consistent with the following 
changes in law that are already effective and have previously been 
implemented.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

Regulatory Flexibility Act

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

List of Subjects in 5 CFR Part 550

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

Office of Personnel Management.
Janice R. Lachance,
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, is revised 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 Sec. 550.103, the definition of Criminal investigator is 
revised, and a new definition of Protective duties is added in 
alphabetical order to read as follows:


Sec. 550.103  Definitions.

* * * * *
    Criminal investigator means a law enforcement officer as defined in 
5 U.S.C. 5541(3) and this section--
    (1) Whose position is properly classified under the GS-1811 or GS-
1812 series in the General Schedule classification system based on OPM 
classification standards (or would be so classified if covered under 
that system);
    (2) Who is a pilot employed by the United States Customs Service;
    (3) Who is a special agent in the Diplomatic Security Service in a 
position which has been properly determined by the Department of State 
to have a Foreign Service primary skill code of 2501;
    (4) Who is a special agent in the Diplomatic Security Service who 
has been placed by the Department of State in a non-covered position on 
a long-term training assignment that will be career-enhancing for a 
current or future assignment as a Diplomatic Security

[[Page 4520]]

Service special agent, provided the employee is expected to return to 
duties as a special agent in a Foreign Service position with a 2501 
primary skill code or to a position properly classified in the GS-1811 
series immediately following such training;
    (5) Who occupies a position in the Department of State in which he 
or she performs duties and responsibilities of a special agent 
requiring Foreign Service primary skill code 2501, pending the opening 
of a position with primary skill code 2501 and placement in that 
position as a special agent; or
    (6) Who is a special agent in the Diplomatic Security Service with 
a Foreign Service personal primary skill code of 2501 (or whose 
position immediately prior to the detail was properly classified in the 
GS-1811 series) and who meets all of the following three conditions:
    (i) The individual is assigned outside the Department of State;
    (ii) The assigned position would have a primary skill code of 2501 
(or would be properly classified in the GS-1811 series under the 
General Schedule classification system based on OPM classification 
standards) if the position were under the Foreign Service (or General 
Schedule) in the Department of State; and
    (iii) The individual is expected to return to a position as a 
special agent in the Diplomatic Security Service with a 2501 primary 
skill code (or to a position that is properly classified in the GS-1811 
series) immediately following such outside assignment.
* * * * *
    Protective duties means duties authorized by section 3056(a) of 
title 18, United States Code, or by section 2709(a)(3) of title 22, 
United States Code.
* * * * *
    3. In Sec. 550.111, paragraph (f) is revised, and a new paragraph 
(h) is added to read as follows:


Sec. 550.111  Authorization of overtime pay.

* * * * *
    (f)(1) Except as provided in paragraph (f)(2) of this section, for 
any criminal investigator receiving availability pay under 
Sec. 550.181, overtime work means actual 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) Notwithstanding paragraph (f)(1) of this section, all overtime 
work scheduled in advance of the administrative workweek on a day 
containing part of a criminal investigator's basic 40-hour workweek 
must be compensated under this section if both of the following 
conditions are met:
    (i) The overtime work involves protective duties authorized by 
section 3056(a) of title 18, United States Code, or section 2709(a)(3) 
of title 22, United States Code; and
    (ii) The investigator performs on that same day at least 2 
consecutive hours of overtime work that are not scheduled in advance of 
the administrative workweek and are compensated by availability pay.
    (3) Any work that would be overtime work under this section but for 
paragraphs (f)(1) and (f)(2) of this section will be compensated by 
availability pay under Sec. 550.181.
* * * * *
    (h) Availability hours, as described in Sec. 550.182(c), are not 
hours of work for the purpose of determining overtime pay under this 
section.
    4. Section 550.181 is revised to read as follows:


Sec. 550.181  Coverage.

    (a) Each employee meeting the definition of criminal investigator 
in Sec. 550.103, and fulfilling the conditions and requirements of 5 
U.S.C. 5545a and Secs. 550.181 through 550.186, must receive 
availability pay to compensate the criminal investigator for 
unscheduled duty in excess of the 40-hour workweek based on the needs 
of the employing agency, except as provided in paragraph (b) of this 
section.
    (b) Any Office of Inspector General that employs fewer than five 
criminal investigators may elect not to cover such criminal 
investigators under the availability pay provisions of 5 U.S.C. 5545a.
    5. In Sec. 550.182, paragraph (a) is revised; paragraphs (b) 
through (f) are redesignated as paragraphs (c) through (g), 
respectively; a new paragraph (b) is added; and the newly redesignated 
paragraph (d) is revised to read as follows:


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 (except for a special agent in the 
Diplomatic Security Service) 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) Regularly scheduled overtime hours compensated under 5 U.S.C. 
5542 and Sec. 550.111.
    (b) Regularly Scheduled Overtime Hours. For criminal investigators 
receiving availability pay, regularly scheduled overtime hours 
compensated under 5 U.S.C. 5542 and Sec. 550.111 are those overtime 
hours scheduled in advance of the investigator's administrative 
workweek, excluding--
    (1) 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)(1)); or
    (2) The first 2 hours of overtime work performing protective duties 
authorized by section 3056(a) of title 18, United States Code, or 
section 2709(a)(3) of title 22, United States Code, on any day 
containing a part of the investigator's basic 40-hour workweek, unless 
the investigator performs 2 or more consecutive hours of unscheduled 
overtime work on that same day.
* * * * *
    (d) 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 is not considered scheduling the investigator for overtime hours 
compensated under 5 U.S.C. 5542 and Sec. 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). A special agent in the 
Diplomatic Security Service may not be credited with availability hours 
and will be credited with only hours actually worked.
* * * * *
    6. In Sec. 550.184, paragraph (e) is revised to read as follows:


Sec. 550.184  Annual certification.

* * * * *
    (e) An involuntary suspension of availability pay resulting from a 
denial or cancellation of certification under

[[Page 4521]]

paragraph (d) of this section is a reduction in pay for the purpose of 
applying the adverse action procedures of 5 U.S.C. 7512 and part 752 of 
this chapter, except for special agents in the Foreign Service. For 
special agents in the Foreign Service, an involuntary suspension of 
availability pay resulting from a denial or cancellation of 
certification under paragraph (d) of this section will be administered 
under procedures established by regulations of the Department of State.
* * * * *
    7. In Sec. 550.185, paragraph (a) is revised to read as follows:


Sec. 550.185  Payment of availability pay.

    (a) Availability pay is paid only for periods of time during which 
a criminal investigator receives basic pay. Availability pay is an 
amount equal to the lesser of--
    (1) 25 percent of a criminal investigator's rate of basic pay, as 
defined in Sec. 550.103, including amounts designated as ``salary'' for 
special agents in the Diplomatic Security Service; or
    (2) The maximum amount that may be paid to avoid exceeding the 
maximum earnings limitation on premium pay for law enforcement officers 
in 5 U.S.C. 5547(c).
* * * * *
    8. In Sec. 550.186, paragraph (b) is revised to read as follows:


Sec. 550.186  Relationship to other payments.

* * * * *
    (b) Availability pay is treated as part of basic pay or basic 
salary 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) Subchapter III of chapter 84 of title 5, United States Code, 
pertaining to the Thrift Savings Plan;
    (6) 5 U.S.C. 8704(c), pertaining to life insurance;
    (7) Sections 609(b)(1), 805, 806, and 856 of the Foreign Service 
Act of 1980, as amended (Pub. L. 96-465), pertaining to Foreign Service 
retirement benefits; and
    (8) For any other purposes explicitly provided for by law or as the 
Office of Personnel Management or the Secretary of State (for matters 
exclusively within the jurisdiction of the Secretary) may prescribe by 
regulation.
* * * * *
[FR Doc. 99-2153 Filed 1-27-99; 3:16 pm]
BILLING CODE 6325-01-P