[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72457-72459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33587]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 248 / Tuesday, December 28, 1999 / 
Rules and Regulations  

[[Page 72457]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 550, 595, and 610

RIN 3206-AI61


Pay Administration; Back Pay; Holidays; and Physicians' 
Comparability Allowances

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing interim 
regulations to reflect changes in law which clarify that back pay 
awards are subject to a 6-year statute of limitations unless a shorter 
statute of limitations period applies, change the designation of 
holidays for certain Federal employees working overseas, and increase 
the maximum physicians' comparability allowance from $20,000 to $30,000 
per year for employees who have served as a Government physician for 
more than 24 months. The changes in law are already effective.

DATES: Effective Date: The regulations are effective on December 28, 
1999.
    Applicability Dates: The regulations apply on the first day of the 
first pay period beginning on or after December 28, 1999.
    Comments Date: Comments must be received on or before February 28, 
2000.

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

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead, 
Assistant Director for Compensation Administration, Workforce 
Compensation and Performance Service, Office of Personnel Management, 
Room 7H31, 1900 E Street NW., Washington, DC 20415, FAX: (202) 606-
0824, or email: [email protected].

SUPPLEMENTARY INFORMATION: These interim regulations reflect changes in 
law clarifying the statute of limitations for back pay, raising the 
maximum physicians' comparability allowance for employees with more 
than 24 months of service as Government physicians, and designating 
holidays for certain employees at duty posts outside the United States.

Statute of Limitations for Back Pay

    Section 1104 of Public Law 105-261, the Strom Thurmond National 
Defense Authorization Act, 1999 (October 17, 1998), amended the back 
pay law (5 U.S.C. 5596(b)). Section 1104 added a new provision to 
clarify that back pay awards are subject to a 6-year statute of 
limitations unless a shorter statute of limitations period applies. 
This amendment clarifies that the 6-year limitation period in the 
Tucker Act (28 U.S.C. 2402 et seq.) and the Barring Act (31 U.S.C. 
3702) applies to cases under the back pay law. Section 1104 also adds a 
new provision to 5 U.S.C. 7121 to clarify that settlements of 
grievances and arbitration awards under 5 U.S.C. 7121 are subject to 
the same 6-year statute of limitations. Note that this amendment does 
not modify the current 2-year statute of limitations (3 years for 
willful violations) provided by the Portal-to-Portal Act of 1947 for 
claims under the Fair Labor Standards Act of 1938, as amended, that are 
filed on or after June 30, 1994. These changes became effective on 
October 17, 1998, and are reflected in a new paragraph (e) in 5 CFR 
550.804.

Maximum Physicians' Comparability Allowance

    Section 7 of Public Law 105-266, the Federal Employees Health Care 
Protection Act of 1998 (October 19, 1998), amended 5 U.S.C. 5948(a) to 
increase the maximum physicians' comparability allowance (PCA) from 
$20,000 to $30,000 per year for an employee who has served as a 
Government physician for more than 24 months. We are revising 5 CFR 
595.105(b) to reflect the higher maximum allowance rate. We are also 
correcting references to title 38, United States Code, in 
Sec. 595.105(c). In addition, we are making other changes to clarify 
the language in Sec. 595.105 generally. As part of these clarifying 
changes, the last sentence in Sec. 595.105(c) has been edited and moved 
to Sec. 595.102.
    Section 7 also provides that agencies may modify any PCA service 
agreement in effect on the effective date of the Act to increase the 
PCA for a physician up to the new maximum amount during the time 
remaining under the service agreement. However, section 7 provides that 
any modification of an existing service agreement to increase a PCA 
cannot cause the total PCA paid to the employee during the calendar 
year to exceed the new $30,000 maximum or any other applicable 
limitation (e.g., the aggregate limitation on pay under 5 U.S.C. 5307).
    These changes became effective on October 19, 1998. However, the 
Office of Management and Budget advises that before agencies may 
authorize a PCA in excess of $20,000, they must submit new or updated 
PCA plans and obtain OMB approval of the changes. See 5 CFR 595.107(a) 
and the criteria for revised Physicians' Comparability Allowance plans 
in OMB's Memorandum for the Heads of Departments and Agencies (M-99-04, 
December 11, 1998).

Holidays at Duty Posts Outside the United States

    Section 1107 of Public Law 105-261, the Strom Thurmond National 
Defense Authorization Act, 1999 (October 17, 1998), adds a new 
provision to 5 U.S.C. 6103 which changes the designation of holidays 
for certain Federal employees who work at duty posts outside the United 
States. For this purpose, the Office of Personnel Management has 
determined that ``outside the United States'' refers to an employee's 
official duty station (or temporary duty station while traveling) that 
is not in (1) a State of the United States; (2) the District of 
Columbia; (3) Puerto Rico; (4) the U.S. Virgin Islands; (5) Outer 
Continental Shelf Lands, as defined in the Outer Continental Shelf 
Lands Act (67 Stat. 462); (6) American Samoa; (7) Guam; (8) Midway 
Atoll; (9) Wake Island; (10) Johnston Island; or (11) Palmyra. This is 
parallel to the definition of exempt area in 5 CFR 551.104 for the 
purpose of administering the foreign exemption from the minimum wage, 
overtime pay, and child labor provisions of the Fair Labor Standards 
Act of 1938, as amended.
    Section 1107 provides that whenever Monday is designated as a 
holiday

[[Page 72458]]

under 5 U.S.C. 6103(a), the first regularly scheduled workday in the 
week is the holiday for a Federal employee at a duty post outside the 
United States whose basic workweek includes Monday, but is not the 
typical Monday through Friday work schedule found in the United States. 
The intent of this new provision of law is to create a 3-day weekend 
with a holiday on Sunday for Federal employees who work Sunday through 
Thursday with nonworkdays on Friday and Saturday. Thus, if the 
regularly scheduled administrative workweek designated by an agency for 
an employee is Sunday through Saturday midnight, and the employee's 
basic workweek is Sunday through Thursday, this provision will have the 
effect of moving the employee's holiday from Monday to Sunday (the day 
before) and providing a 3-day weekend (Friday, Saturday, and Sunday) to 
the employee. However, when employees working overseas do not have 
Sunday through Thursday work schedules, the new law will usually not 
have the desired effect unless the agency makes an adjustment in the 
administrative workweek.
    This change in law became effective on October 17, 1998. See the 
conforming revisions in 5 CFR 610.201 and 610.202. Section 610.202 has 
also been revised to reflect the fact that employees on alternative 
work schedules may have a basic work requirement, as defined in 5 
U.S.C. 6121(3).

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

    Pursuant to 5 U.S.C. 553(b)(3)(B) and (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. This waiver is appropriate because the attached 
changes in regulations update Office of Personnel Management 
regulations to make them consistent with changes in law that are 
already effective.

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 Parts 550, 595, and 610

    Administrative practice and procedure, Claims, Government 
employees, Health professions, Holidays, Wages.

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is amending parts 550, 595, and 610 of title 5 of 
the Code of Federal Regulations as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart H--Back Pay

    3. The authority citation for subpart H of part 550 continues to 
read as follows:

    Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.

    4. In Sec. 550.804, paragraph (e) is added to read as follows:


Sec. 550.804  Determining entitlement to back pay.

* * * * *
    (e)(1) The pay, allowances, and differentials paid as back pay 
under this subpart (including payments made under any grievance or 
arbitration decision or any settlement agreement) may not exceed that 
authorized by any applicable law, rule, regulation, or collective 
bargaining agreement, including any applicable statute of limitations.
    (2) An agency may not authorize pay, allowances, and differentials 
under this subpart in any case for a period beginning more than 6 years 
before the date of the filing of a timely appeal, or, absent such 
filing, the date of the administrative determination that the employee 
is entitled to back pay, consistent with 31 U.S.C. 3702(b). (See also 
Sec. 178.104 of this chapter.)
    (3) For back pay claims dealing with payments under the Fair Labor 
Standards Act of 1938, as amended (29 U.S.C. 207, et seq.), an agency 
must apply the 2-year statute of limitations (3 years for willful 
violations) in 29 U.S.C. 255a. (See also Sec. 551.702 of this chapter.)

PART 595--PHYSICIANS' COMPARABILITY ALLOWANCES

    7. The authority citation for part 595 continues to read as 
follows:

    Authority: 5 U.S.C. 5948; E.O. 12109, 44 FR 1067, Jan. 3, 1979.

    8. In Sec. 595.102, paragraph (c) is added to read as follows:


Sec. 595.102  Coverage and exclusions.

* * * * *
    (c) Physicians employed and paid under title 38, United States 
Code, and Commissioned Corps officers of the Public Health Service 
under title 42, United States Code, are not eligible for physicians' 
comparability allowances.
    9. In Sec. 595.105, paragraphs (b) and (c) are revised to read as 
follows:


Sec. 595.105  Determination of amount of comparability allowance.

* * * * *
    (b) A physician with 24 months or less of service as a Government 
physician may not be paid a physicians' comparability allowance in 
excess of $14,000 per annum. A physician with more than 24 months of 
service as a Government physician may not be paid a physicians' 
comparability allowance in excess of $30,000 per annum.
    (c) In determining length of service as a Government physician, 
agencies must exclude periods of leave without pay. However, agencies 
may credit any prior service as a Government physician, including--
    (1) Prior service as a physician under sections 7401 and 7405 of 
title 38, United States Code; and
    (2) Prior active service as a medical officer in the Commissioned 
Corps of the Public Health Service under title II of the Public Health 
Service Act (42 U.S.C. chapter 6A).
* * * * *

PART 610--HOURS OF DUTY

Subpart B--Holidays

    10. The authority citation for part 610, subpart B, continues to 
read as follows:

    Authority: 5 U.S.C. 6101; sec. 1(1) of E.O. 11228, 3 CFR, 1964-
1965 Comp., p. 317.

    11. Section 610.201 is revised to read as follows:


Sec. 610.201  Identification of holidays.

    Holidays are determined under section 6103 of title 5, United 
States Code, and Executive Order 11582 of February 11, 1971.
    12. In Sec. 610.202, paragraph (a) is revised, and paragraph (d) is 
added to read as follows:


Sec. 610.202  Determining the holiday.

* * * * *
    (a) Except when a different holiday is designated by section 
6103(b)(3) of title 5, United States Code, when a holiday falls on a 
day during which part of the employee's basic workweek (as defined in 
Sec. 610.102) or basic work requirement (as defined in 5 U.S.C. 
6121(3)) is scheduled to be completed, that workday is the employee's 
holiday.
* * * * *
    (d) The provisions of section 6103(b)(3) of title 5, United States 
Code, on determining holidays for certain

[[Page 72459]]

employees at duty posts outside the United States apply to covered 
employees who are working outside the United States at a permanent or 
temporary station or under travel orders. For the purpose of section 
6103(b)(3), United States includes--
    (1) A State of the United States;
    (2) The District of Columbia;
    (3) Puerto Rico;
    (4) The U.S. Virgin Islands;
    (5) Outer Continental Shelf Lands, as defined in the Outer 
Continental Shelf Lands Act (67 Stat. 462);
    (6) American Samoa;
    (7) Guam;
    (8) Midway Atoll;
    (9) Wake Island;
    (10) Johnston Island; and
    (11) Palmyra.

[FR Doc. 99-33587 Filed 12-27-99; 8:45 am]
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