[Federal Register Volume 70, Number 17 (Thursday, January 27, 2005)]
[Rules and Regulations]
[Pages 3855-3858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1457]



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  Federal Register / Vol. 70, No. 17 / Thursday, January 27, 2005 / 
Rules and Regulations  

[[Page 3855]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AK74


Pay Administration (General)

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 implement a provision of the Federal Workforce 
Flexibility Act of 2004, 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.

DATES: Effective Date: The interim regulations will become effective on 
January 28, 2005.
    Comment Date: Comments must be received on or before March 28, 
2005.

ADDRESSES: Send or deliver written comments to Donald J. Winstead, 
Deputy Associate Director for Pay and Performance Policy, Office of 
Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 
20415, by FAX at (202) 606-0824, or by e-mail at [email protected].

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 interim regulations to implement a new compensatory time off 
provision established by section 203 of the Federal Workforce 
Flexibility Act of 2004 (Public Law 108-411, October 30, 2004). Section 
203 amended subchapter V of chapter 55 of title 5, United States Code, 
by adding a new section 5550b, which establishes 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. Under 5 U.S.C. 5548, OPM has general authority 
to issue regulations necessary to administer the premium pay provisions 
in subchapter V of chapter 55. These regulations amend part 550 of 
title 5, Code of Federal Regulations, by adding a new subpart N, 
Compensatory Time Off for Travel.
    Section 203(c) provides that this new form of compensatory time off 
for travel takes effect on the earlier of (1) the effective date of 
implementing regulations or (2) the 90th day after the date of the 
law's enactment (January 28, 2005). These regulations are effective on 
January 28, 2005.
    In Sec.  550.1403, we provide definitions of various terms used in 
subpart N. For example, the term ``travel'' is defined to mean 
officially authorized travel--that is, travel for work purposes that is 
approved by an authorized agency official or otherwise authorized under 
established agency policies. The term ``travel status'' is defined to 
mean travel as described in Sec.  550.1404 that is creditable for the 
purpose of accruing compensatory time off under subpart N. To make 
clear that an employee may not receive double compensation for travel 
hours, the term ``travel status'' as used in subpart N does not include 
travel time that is otherwise compensable as hours of work. For 
example, travel hours outside an employee's regular working hours that 
are compensable hours of work under 5 U.S.C. 5542(b)(2)(B) and 5 CFR 
550.112(g)(2), may not also be credited as time in a travel status 
under subpart N.
    The term ``compensable'' is defined to make clear what periods of 
time are ``not otherwise compensable'' and thus potentially creditable 
for the purpose of compensatory time off for travel under subpart N. 
Time is considered compensable if the time is creditable as hours of 
work for the purpose of determining a specific pay entitlement. This is 
true even when that work time does not result in additional 
compensation due to the application of pay limitations. For example, 
under the availability pay provisions in 5 U.S.C. 5545a, all 
unscheduled duty hours (including any hours in excess of the minimum 
hours necessary in a 12-month period to justify the payment of 
availability pay) are considered ``compensable'' hours, since 
availability pay represents full compensation for all unscheduled duty 
hours. In addition, even though a criminal investigator may not receive 
the full 25-percent availability pay because of the biweekly premium 
pay limitation in 5 U.S.C. 5547, all hours of a type that are 
creditable as unscheduled duty hours for the purpose of availability 
pay are considered to be compensable. Thus, with respect to any hours 
of a type that is creditable as unscheduled duty hours for availability 
pay purposes, any travel time during such hours are not creditable 
under subpart N.
    In Sec.  550.1404(b), we clarify that time in travel status 
includes only the time actually spent 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. Generally, passengers are required to arrive at 
a transportation terminal (e.g., airport or train station) at a 
designated pre-departure time (e.g., 1 to 2 hours prior to the 
scheduled departure time of an airplane, depending on whether it is a 
domestic or international flight). Such waiting time at the 
transportation terminal is considered usual waiting time and is 
creditable time in a travel status. The concept of ``usual waiting 
time'' is currently used in determining creditable overtime hours of 
work under title 5 and the Fair Labor Standards Act of 1938, as 
amended.
    In addition, when an employee's travel is interrupted (i.e., the 
employee travels to an intervening transportation terminal and has to 
wait for a connecting flight to continue traveling to a temporary duty 
station), usual waiting time at the intervening transportation terminal 
also is creditable time in a travel status, subject to exclusions for 
bona fide meal periods. If the employee experiences an extended (i.e., 
not usual) waiting time during which he or she is free to use the time 
for his or her own purposes (e.g., rest or sleep), the extended waiting 
time that is outside the employee's regular working hours is not 
creditable time in a travel status. Once the employee arrives at a 
temporary duty station, he or she is not

[[Page 3856]]

considered to be in a travel status just because he or she is away from 
the official duty station. In other words, the time spent at a 
temporary duty station between arrival and departure cannot be credited 
as time in a travel status.
    In Sec.  550.1404(c) and (d), we clarify when it is appropriate to 
offset creditable time in a travel status by the amount of time the 
employee spends in normal commuting between home and work. For example, 
such an offset applies to an employee who travels directly between his 
or her home and a temporary duty station outside the limits of the 
employee's official duty station. Also, the commuting time offset 
applies if an employee is required to travel between home and a 
transportation terminal outside the limits of his or her official duty 
station.
    Section 550.1405 addresses the crediting of compensatory time off 
for travel. Qualifying compensatory time off for travel must be 
credited and used in increments of one-tenth of an hour (6 minutes) or 
one-quarter of an hour (15 minutes). This is consistent with OPM's 
standardized policy for charging annual and sick leave in increments of 
one-tenth or one-quarter of an hour. An employee must comply with his 
or her agency's procedures for requesting credit of compensatory time 
off and the employee must file such requests within the time period 
required by the agency.
    Section 550.1406 addresses the usage of accrued compensatory time 
off for travel. An employee must submit a request to his or her 
supervisor to schedule time off from his or her normal tour of duty for 
the purpose of using accrued compensatory time off.
    In an effort to give employees sufficient time to use their 
accumulated compensatory time off and to enhance the efficiency and 
effectiveness of standardized payroll policies and processes, Sec.  
550.1407(a) provides 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, except in certain circumstances 
(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).
    Section 550.1407(b) provides that, upon voluntary transfer to 
another agency, an employee's unused compensatory time off balance must 
be forfeited.
    Section 550.1407(c) provides that an employee must forfeit any 
unused compensatory time off when he or she separates from Federal 
service, except in the circumstances described in Sec.  550.1407(a)(2).
    Section 550.1407(d) provides that an employee must forfeit any 
unused compensatory time off when he or she moves to a Federal position 
not covered by subpart N. However, this requirement does not prevent an 
agency from using another legal authority to give the employee credit 
for compensatory time off for travel equal to the forfeited amount.
    Section 550.1408 restates the statutory prohibition on paying 
employees for unused compensatory time off for travel earned under this 
subpart.
    Section 550.1409 makes clear that compensatory time off for travel 
earned under this subpart is not considered in applying the biweekly 
and annual premium pay limitations in 5 U.S.C. 5547 or the aggregate 
pay limitation on pay in 5 U.S.C. 5307.
    In exercising our broad regulatory authority under 5 U.S.C. 5548, 
we have deliberately taken a conservative approach with respect to the 
time limit on the use of earned compensatory time off. We are mindful 
that we are dealing with a new type of employee benefit which presents 
new issues and administrative challenges for agencies. We believe it is 
appropriate to approach this new benefit without imposing overly 
burdensome administrative procedures.

Waiver of Notice of Proposed Rulemaking

    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 rulemaking. 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 108-411 that 
becomes effective on the effective date of these regulations. The 
waiver of the requirements for proposed rulemaking and a delay in the 
effective date are 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, Claims, Government 
employees, Wages.

Office of Personnel Management.
Kay Coles James,
Director.

0
Accordingly, OPM is amending 5 CFR part 550 as follows:

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.


0
2. A new subpart N is added to read as follows:
Subpart N--Compensatory Time Off for Travel
Sec.
550.1401 Purpose.
550.1402 Coverage.
550.1403 Definitions.
550.1404 Creditable travel time.
550.1405 Crediting compensatory time off.
550.1406 Usage of accrued compensatory time off.
550.1407 Forfeiture of unused compensatory time off.
550.1408 Prohibition against payment for unused compensatory time 
off.
550.1409 Inapplicability of premium pay and aggregate pay caps.

Subpart N--Compensatory Time Off for Travel


Sec.  550.1401  Purpose.

    This subpart contains OPM regulations implementing 5 U.S.C. 5550b, 
which establishes a new type of compensatory time off. Subject to the 
conditions specified in this subpart, an employee is entitled to earn, 
on an hour-for-hour basis, compensatory time off for time in a travel 
status away from the employee's official duty station when the travel 
time is not otherwise compensable.


Sec.  550.1402  Coverage.

    This subpart applies to an employee as defined in 5 U.S.C. 5541(2) 
who is employed by an agency.


Sec.  550.1403  Definitions.

    In this subpart:
    Agency means an Executive agency as defined in 5 U.S.C. 105.
    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

[[Page 3857]]

time may not actually generate additional compensation because of 
applicable pay limitations.
    Compensatory time off means compensatory time off for travel that 
is credited under the authority of this subpart.
    Official duty station 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).
    Regular working hours means the days and hours of an employee's 
regularly scheduled administrative workweek established under 5 CFR 
part 610.
    Scheduled tour of duty for leave purposes means an employee's 
regular hours for which he or she may be charged leave under 5 CFR part 
630 when absent. For full-time employees, it is the 40-hour basic 
workweek as defined in 5 CFR 610.102. For employees with an uncommon 
tour of duty as defined in 5 CFR 630.201, it is the uncommon tour of 
duty.
    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.
    Travel status means travel time as described in Sec.  550.1404 that 
is creditable in accruing compensatory time off for travel under this 
subpart, excluding travel time that is otherwise compensable under 
other legal authority.


Sec.  550.1404  Creditable travel time.

    (a) General. Subject to the conditions specified in this subpart, 
an agency must credit an employee with compensatory time off for time 
in a travel status if--
    (1) The employee is required to travel away from the official duty 
station; and
    (2) The travel time is not otherwise compensable hours of work 
under other legal authority.
    (b) Travel status. (1) 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 exclusions specified in paragraphs (b)(2) and (b)(3) of 
this section and the requirements in paragraphs (c) and (d) of this 
section. Time spent at a temporary duty station between arrival and 
departure 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.
    (2) Bona fide meal periods during actual travel time or waiting 
time are not creditable as time in a travel status.
    (3) If an employee experiences an extended (i.e., not usual) 
waiting time between actual periods of 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.
    (c) Travel between home and a temporary duty station. (1) If an 
employee is required to travel directly between his or her home and a 
temporary duty station outside the limits of the employee's official 
duty station, the travel time is creditable as time in a travel status 
if otherwise qualifying under this subpart. However, the agency must 
deduct from such travel hours the time the employee would have spent in 
normal home-to-work or work-to-home commuting.
    (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 and by the route selected by the agency. In determining 
time in a travel status under this subpart, the agency must credit the 
employee with the lesser of the estimated time in a travel status or 
the actual time in a travel status.
    (3) In the case of an employee who is on a multiple-day travel 
assignment and who chooses, for personal reasons, not to use temporary 
lodgings at the temporary duty station, but to return home at night or 
on a weekend, only travel from home to the temporary duty station on 
the 1st day and travel from the temporary duty station to home on the 
last day that is otherwise qualifying as time in a travel status under 
this subpart is mandatorily creditable (subject to the deduction of 
normal commuting time). Travel to and from home on other days is not 
creditable travel time unless the agency, at its discretion, determines 
that credit should be given based on the net savings to the Government 
from reduced lodging costs, considering the value of lost labor time 
attributable to compensatory time off. The dollar value of an hour of 
compensatory time off for this purpose is equal to the employee's 
hourly rate of basic pay as defined in Sec.  550.103.
    (d) Time spent traveling to or from a transportation terminal as 
part of travel away from the official duty station. If an employee is 
required to travel between home and a transportation terminal (e.g., 
airport or train station) within the limits of his or her official duty 
station as part of travel away from that duty station, the travel time 
outside regular working hours to or from the terminal is considered to 
be equivalent to commuting time and is not creditable time in a travel 
status. If the transportation terminal is outside the limits of the 
employee's official duty station, the travel time to or from the 
terminal outside regular working hours is creditable as time in a 
travel status, but is subject to an offset for the time the employee 
would have spent in normal home-to-work or work-to-home commuting. If 
the employee travels between a worksite and a transportation terminal, 
the travel time outside regular working hours is creditable as time in 
a travel status, and no commuting time offset applies.


Sec.  550.1405  Crediting compensatory time off.

    (a) Upon a request filed in accordance with the procedures 
established under paragraph (b) of this section, an employee is 
entitled to credit for compensatory time off for travel under the 
conditions specified in this subpart. The employing agency must credit 
an employee with compensatory time off for creditable time in a travel 
status as provided in Sec.  550.1404. The agency may authorize credit 
in increments of one-tenth of an hour (6 minutes) or one-quarter of an 
hour (15 minutes). Agencies must track and manage compensatory time off 
granted under this subpart separately from other forms of 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.


Sec.  550.1406  Usage of accrued compensatory time off.

    (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.
    (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

[[Page 3858]]

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).


Sec.  550.1407  Forfeiture of unused compensatory time off.

    (a) After 26 pay periods. (1) Except as provided in paragraph 
(a)(2) 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 credited. If an employee fails to use the compensatory time off 
within 26 pay periods after it was credited, he or she must forfeit 
such compensatory time off.
    (2) If an employee with unused compensatory time off separates from 
Federal service or is placed in a leave without pay status in the 
following circumstances and later returns to service with the same (or 
successor) agency, the employee must use all of the compensatory time 
off by the end of the 26th pay period following the pay period in which 
the employee returns to duty, or such compensatory time off will be 
forfeited:
    (i) The employee separates or is placed in a leave without pay 
status to perform service in the uniformed services (as defined in 38 
U.S.C. 4303 and 5 CFR 353.102) and later returns to service through the 
exercise of a reemployment right provided by law, Executive order, or 
regulation; or
    (ii) The employee separates or is placed in a leave without pay 
status because of an on-the-job injury with entitlement to injury 
compensation under 5 U.S.C. chapter 81 and later recovers sufficiently 
to return to work.
    (b) Upon transfer to another agency. When an employee voluntarily 
transfers to another agency (including a promotion or change to lower 
grade action), he or she must forfeit his or her unused compensatory 
time off.
    (c) Upon separation. (1) When an employee separates from Federal 
service, any unused compensatory time off is forfeited, except as 
provided in paragraph (c)(2) of this section.
    (2) Unused compensatory time off will not be forfeited but will be 
held in abeyance in the case of an employee who separates from Federal 
service and later returns to service with the same (or successor) 
agency under the circumstances described in paragraph (a)(2) of this 
section.
    (d) Upon movement to a noncovered position. When an employee moves 
to a Federal position not covered by this subpart, he or she forfeits 
any unused compensatory time off. This requirement does not prevent an 
agency from using another legal authority to give the employee credit 
for compensatory time off equal to the forfeited amount.


Sec.  550.1408  Prohibition against payment for unused compensatory 
time off.

    As provided by 5 U.S.C. 5550b(b), an individual may not receive 
payment under any circumstances for any unused compensatory time off he 
or she earned under this subpart. This prohibition against payment 
applies to surviving beneficiaries in the event of the individual's 
death.


Sec.  550.1409  Inapplicability of premium pay and aggregate pay caps.

    Accrued compensatory time off under this subpart is not considered 
in applying the premium pay limitations established under 5 U.S.C. 5547 
and 5 CFR 550.105 through 550.107 or the aggregate limitation on pay 
established under 5 U.S.C. 5307 and 5 CFR part 530, subpart B.

[FR Doc. 05-1457 Filed 1-26-05; 8:45 am]
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