[Federal Register Volume 69, Number 93 (Thursday, May 13, 2004)]
[Rules and Regulations]
[Pages 26475-26476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10870]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AK47


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 to implement a provision of the National Defense 
Authorization Act for Fiscal Year 2004, which modified the hourly 
overtime pay cap for certain Federal employees who are exempt from the 
Fair Labor Standards Act of 1938, as amended.

EFFECTIVE DATE: May 13, 2004.

FOR FURTHER INFORMATION CONTACT: Vicki Draper by telephone at (202) 
606-2858; by FAX at (202) 606-0824; or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing final regulations to implement a new hourly overtime pay 
provision established by section 1121 of the National Defense 
Authorization Act for Fiscal Year 2004 (Public Law 108-136, November 
24, 2003). Section 1121 amended 5 U.S.C. 5542(a)(2), which establishes 
an hourly overtime pay cap for certain employees who are exempt from 
the Fair Labor Standards Act of 1938, as amended (FLSA). Prior to the 
amendments made by section 1121, an employee whose rate of basic pay 
exceeded the minimum rate for GS-10 (including any applicable special 
rate of pay for law enforcement officers or special pay adjustment for 
law enforcement officers under section 403 or 404 of the Federal 
Employees Pay Comparability Act of 1990, respectively; a locality-based 
comparability payment under 5 U.S.C. 5304; and any applicable special 
rate of pay under 5 U.S.C. 5305 or similar provision of law), received 
an overtime hourly rate of pay equal to one and one-half times the 
applicable minimum hourly rate of basic pay for GS-10. OPM's 
regulations implement section 1121 by establishing the hourly overtime 
pay cap for an employee whose rate of basic pay exceeds the applicable 
minimum rate for GS-10 at the higher of two rates: (1) One and one-

[[Page 26476]]

half times the applicable minimum hourly rate of basic pay for GS-10, 
or (2) the employee's hourly rate of basic pay. This amendment was 
effective on November 24, 2003, the date of enactment of Public Law 
108-136. These regulations reflect the addition of 5 U.S.C. 5542(a)(5) 
made as part of Public Law 106-558 on December 21, 2000. Section 
5542(a)(5) is applicable only to wildland firefighters who are exempt 
from the overtime pay provisions of the FLSA, and who are employees of 
the Department of the Interior or the United States Forest Service of 
the Department of Agriculture. While such employees are engaged in 
wildland fire suppression activities, they are entitled to an hourly 
overtime rate of pay equal to one and one-half times their hourly rate 
of basic pay. It is also appropriate to no longer mention 5 U.S.C. 
5542(a)(4) in 5 CFR 550.113(b), because the overtime rate of pay 
provided for under that section is identical to that which would be 
made available under the new regulations.

Waiver of Notice of Proposed Rule Making

    Pursuant to section 553(b)(3)(B) of title 5 of the United States 
Code, I find that good cause exists for waiving the general notice of 
proposed rule making. Also, pursuant to 5 U.S.C. 553(d)(3), I find that 
good cause exists for making this rule effective in less than 30 days. 
These regulations implement a provision of Public Law 108-136, which 
became effective on November 24, 2003. The waiver of the requirements 
for proposed rulemaking and a delay in the effective date is necessary 
to ensure timely implementation of the law as intended by Congress.

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, Government employees, Wages.

Office of Personnel Management.
Kay Coles James,
Director.

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Accordingly, OPM is amending 5 CFR part 550 as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart A--Premium Pay

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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.


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2. In Sec.  550.113, paragraph (b) is revised to read as follows:


Sec.  550.113  Computation of overtime pay.

* * * * *
    (b) For each employee whose rate of basic pay exceeds the minimum 
rate for GS-10 (as determined under paragraph (a) of this section), the 
overtime hourly rate is equal to the greater of--(i) one and one-half 
times the applicable minimum hourly rate of basic pay for GS-10 (as 
determined under paragraph (a) of this section); or (ii) the employee's 
hourly rate of basic pay, except as provided in 5 U.S.C. 5542(a)(3) and 
(5).
* * * * *
[FR Doc. 04-10870 Filed 5-12-04; 8:45 am]
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