[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Rules and Regulations]
[Pages 19093-19099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7266]



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  Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules 
and Regulations  

[[Page 19093]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AK74


Pay Administration (General)

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management is issuing final 
regulations on compensatory time off for time spent in a travel status 
away from the official duty station when such time is not otherwise 
compensable.

DATES: The regulations are effective May 17, 2007.

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: On January 27, 2005, the Office of Personnel 
Management (OPM) published interim regulations (70 FR 3855) in 5 CFR 
part 550, subpart N, to implement section 203 of the Federal Workforce 
Flexibility Act of 2004 (Pub. L. 108-411, October 30, 2004), hereafter 
referred to as ``the Act.'' Section 203 of the Act amended 5 U.S.C. 
chapter 55, subchapter V, by adding a new section 5550b, 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. The 60-day comment 
period for the interim regulations ended on March 28, 2005. During the 
comment period, OPM received comments from 16 Federal agencies, 7 
unions, and 81 individuals, all of which are addressed in this final 
rule. In addition, in March 2006, we issued additional guidance, 
including questions and answers, to address many of the comments we 
received on the interim regulations. We encourage agencies and 
employees to review these materials on OPM's Web site at http://www.opm.gov/oca/pay/HTML/compensatory_time.asp. We will continue to 
provide additional guidance on the administration of compensatory time 
off for travel, as necessary.

Effective Date

    Two individuals suggested the new provision be applied 
retroactively to cover previous travel times that were not compensable 
under title 5, United States Code. Section 203(c) of the Act provided 
that the new form of compensatory time off for travel would take effect 
on the earlier of (1) the effective date of the implementing 
regulations or (2) the 90th day after the date of the law's enactment 
(January 28, 2005). The interim regulations became effective on January 
28, 2005, and apply prospectively from that date.

Covered Employees

    Several commenters requested clarification on the categories of 
employees covered by the new compensatory time off provision, while 
others objected to omissions of certain categories of employees in 
OPM's regulations at 5 CFR 550.1402. Because the law authorizing the 
new compensatory time off provision is in 5 U.S.C. chapter 55, 
subchapter V, the new provision applies to an ``employee'' as defined 
in 5 U.S.C. 5541(2), who is employed in an ``Executive agency,'' as 
defined in 5 U.S.C. 105, without regard to whether the employee is 
exempt from or covered by the overtime pay provisions of the Fair Labor 
Standards Act of 1938 (FLSA), as amended. OPM cannot broaden coverage 
to include additional employee groups. The definition includes 
employees in senior-level (SL) and scientific or professional (ST) 
positions, but not members of the Senior Executive Service, Senior 
Foreign Service, Foreign Service officers, or prevailing rate (wage 
grade) employees.
    The compensatory time off for travel provision also does not apply 
to employees of Non-Appropriated Fund Instrumentalities (NAFI). NAFI 
employees are not covered by the laws administered by OPM, with a few 
narrow exceptions, which are listed in 5 U.S.C. 2105(c). Although title 
38 employees are not specifically excluded from the definition of 
``employee'' in 5 U.S.C. 5541(2), the title 38 employment system is 
administered by the Department of Veterans Affairs (VA) under its own 
legal authority and any determinations as to coverage under 5 U.S.C. 
5541(2) would be made by VA. A commenter noted that the Department of 
Justice (DOJ) has determined the compensatory time off for travel 
statute does not apply to attorneys at DOJ. Congress recently enacted 
legislation (Pub. L. 109-425, December 20, 2006) which provides that 
attorneys at DOJ shall be eligible for compensatory time off for travel 
under section 5550b of title 5, United States Code.
    Employees who are on intermittent work schedules are not eligible 
to earn and use compensatory time off for travel because they do not 
have a scheduled tour of duty for leave purposes. Under 5 CFR 
550.1406(b), compensatory time off for travel may be used by an 
employee when the employee is granted time off from his or her 
scheduled tour of duty established for leave purposes. Finally, a part-
time employee may be entitled to compensatory time off for travel if 
the travel time does not qualify as compensable hours of work under 5 
U.S.C. 5542(b)(2)(B) and 5 CFR 550.112(g)(2) and meets the other 
requirements in 5 CFR part 550, subpart N.

Definitions

    Many commenters recommended the addition or revision of certain 
definitions in Sec.  550.1403. One agency recommended adding a 
definition of accrued compensatory time off, which is used in Sec.  
550.1406. We agree and have added a definition to Sec.  550.1403. In 
addition, we have added a definition of authorized agency official to 
mean the head of the agency or an official who is authorized to act for 
the head of the agency in the matter concerned.
    Two individuals recommended that OPM define time the employee would 
have spent in normal home-to-work or work-to-home commuting. We do not 
believe this is necessary, since agencies may use procedures already in 
place for deducting commuting time from travel hours as required by 5 
CFR 550.112(j)(2) and 5 CFR 551.422(b). One agency recommended that OPM 
establish a minimum commute time for an employee whose residence is 
considered his or her official duty

[[Page 19094]]

station. We are not adopting this recommendation because an employee 
whose residence is his or her official duty station does not spend time 
commuting to work.
    Two individuals recommended revising the definition of official 
duty station to be consistent with the term official station as defined 
in the Federal Travel Regulation (41 CFR 300-3.1) issued by the General 
Services Administration. Official duty station in Sec.  550.1403 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). The term official station prescribes the 
geographic limits of an employee's permanent work station for the 
purpose of determining the employee's entitlement to subsistence 
allowances (per diem). We are not adopting the recommendation because 
the geographic area an agency designates for the purpose of determining 
whether an employee is entitled to overtime pay for a period of travel 
may be different than the geographic area covered by official station 
as defined in 41 CFR 300-3.1.
    One agency recommended that the definition of travel status be 
stated exactly as it is in Sec.  550.1404(b), and one individual 
recommended clarifying the definition. We do not believe it is 
necessary to revise the definition because it refers directly to Sec.  
550.1404(b).

Compensable Travel Time

    Several commenters recommended clarifying whether travel under 
certain circumstances is compensable. Under Sec.  550.1403, 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 
time may not actually generate additional compensation because of 
applicable pay limitations. One agency and an individual recommended 
clarifying whether an employee who receives administratively 
uncontrollable overtime (AUO) pay under 5 U.S.C. 5545(c)(2) is eligible 
to receive compensatory time off for travel. An employee receiving AUO 
pay may be entitled to compensation for travel time during (1) 
nonovertime hours, (2) AUO hours (i.e., irregular or occasional 
overtime hours), or (3) regularly scheduled overtime hours--if the 
travel hours meet one of the conditions in 5 CFR 550.112(g) or 5 CFR 
551.422, as applicable. If an AUO employee has other qualifying travel 
time that does not meet the applicable conditions to be treated as 
compensable hours of work, such travel time may be used to earn 
compensatory time off under 5 CFR part 550, subpart N.
    One agency recommended clarifying an employee is not eligible for 
compensatory time off for travel when the time spent traveling has been 
compensated under the FLSA. Overtime hours compensated under the FLSA 
clearly meet the definition of compensable in Sec.  550.1403. 
Therefore, we believe no clarification in the regulations is necessary. 
One union recommended clarifying that a class of accommodations, such 
as business class, does not influence whether the travel time is 
compensable. We agree. Allowing an employee to upgrade his or her 
travel to business class does not eliminate his or her eligibility to 
earn compensatory time off for travel.
    One individual and one agency recommended clarifying whether an 
employee is eligible to earn compensatory time off for any portion of a 
period of travel under 5 CFR 550.112(g)(2) which may not be compensable 
because of the biweekly cap on premium pay. One union and one agency 
recommended that such an employee should be eligible. We disagree. Even 
though an employee may not be paid overtime pay for all of his or her 
travel hours because of the biweekly premium pay cap, all of the travel 
time is still considered to be compensable under 5 CFR 550.112(g)(2). 
Under these circumstances, therefore, the employee has been compensated 
fully under the law for all of the travel hours; the employee may not 
earn compensatory time off for any portion of such travel.

Earning Compensatory Time Off for Travel

    Two unions and one individual recommended an employee should be 
able to earn compensatory time off when he or she travels while 
performing union representational duties. We are not adopting this 
recommendation. The term travel is defined at 5 CFR 550.1403 to mean 
officially authorized travel--i.e., travel for work purposes that is 
approved by an authorized agency official or otherwise authorized under 
established agency policies. The term ``travel for work purposes'' is 
intended to mean travel for agency-related work purposes. The Federal 
Labor Relations Authority (FLRA) has held that the performance of 
representational duties does not involve the performance of work as 
used in the phrase ``technology of performing work'' under 5 U.S.C. 
7106(b)(1). See AFGE, Council 214, AFL-CIO, 31 FLRA 1259, 1261-62 
(1988). The FLRA has similarly held that the performance of 
representational activities does not involve ``work'' within the 
meaning of 5 U.S.C. 7106(a)(2)(B). See AAFES, Dallas, 53 FLRA at 24. 
Finally, the FLRA also has determined that, under 5 U.S.C. chapter 43, 
job performance encompasses the performance of agency-assigned duties 
and does not include duties performed on behalf of a union. See United 
States Department of Health and Human Services., Soc. Sec. Admin., 
Office of Hearings & Appeals, 48 FLRA 357, 364 (1993). Thus, employees 
who travel while performing union activities are not entitled to earn 
compensatory time off because they are traveling for the benefit of the 
union and not for agency-related work purposes. We have revised the 
definition of travel in Sec.  550.1403 to clarify that time spent 
traveling in connection with union activities is not creditable for the 
purpose of earning compensatory time off for travel.
    One union and four individuals objected to an employee not being 
entitled to compensatory time off for travel when he or she is required 
to travel on a Federal holiday (or ``in lieu of'' holiday) during his 
or her basic (non-overtime) hours. Although most employees do not 
receive holiday premium pay for time spent traveling on a holiday (or 
an ``in lieu of'' holiday), an employee continues to be entitled to pay 
for the holiday in the same manner as if the travel were not required. 
Thus, an employee may not earn compensatory time off for travel during 
basic (non-overtime) holiday hours because the employee is entitled to 
his or her rate of basic pay for those hours. Compensatory time off for 
travel may be earned by an employee only for time spent in a travel 
status away from the employee's official duty station when such time is 
not otherwise compensable.
    Some commenters requested clarification regarding an employee's 
travel status as described in Sec.  550.1404(b). Under Sec.  
550.1404(b), creditable travel time for the purpose of earning 
compensatory time off for travel 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 certain 
exclusions). One union recommended revising Sec.  550.1404(b)(1) to 
include situations where an employee may depart from his or her 
residence. We do not believe this is necessary, since travel to and 
from

[[Page 19095]]

home is addressed in Sec.  550.1404(c). One agency recommended 
clarifying compensatory time off for travel requires travel orders and 
it is not appropriate when travel is within an employee's normal 
commuting area. We are not adopting these recommendations. Agencies are 
already required to process travel orders for officially authorized 
travel. In addition, Sec.  550.1404(a) already requires an employee to 
travel away from (i.e., outside the limits of) his or her official duty 
station in order to earn compensatory time off.
    Under Sec.  550.1404(b)(1), time spent at a temporary duty station 
between arrival and departure is not time in a travel status. One 
individual recommended clarifying whether the arrival and departure are 
from the temporary duty worksite or lodging. We agree and have revised 
Sec.  550.1404(b)(1) to clarify arrival and departure times. Time in a 
travel status ends when the employee arrives at the temporary duty 
worksite or his or her lodging in the temporary duty station, wherever 
the employee arrives first. Time in a travel status resumes when an 
employee departs from the temporary duty worksite or his or her lodging 
in the temporary duty station, from whichever the employee departs 
last.
    One agency recommended clarifying whether travel in connection with 
a permanent change of station (PCS) is considered time spent in a 
travel status, and one individual recommended that it should be. 
Although PCS travel is officially authorized travel, it is not travel 
between an official duty station and a temporary duty station or 
between two temporary duty stations. Therefore, it is not considered 
time in a travel status for the purpose of earning compensatory time 
off for travel. The law applies to travel ``away from the official duty 
station of the employee,'' not travel to a new official duty station. 
We believe that the regulation limiting application to temporary duty 
travel is consistent with the law and the intent of Congress. We have 
revised Sec.  550.1404(b)(1) to clarify that travel time in connection 
with an employee's PCS is not time in a travel status for the purpose 
of earning compensatory time off.
    Six individuals requested clarification of how travel is calculated 
when an employee travels between different time zones. We have added a 
new paragraph (e) to Sec.  550.1404 to provide clarification regarding 
the calculation of an employee's travel time when the employee's travel 
involves two or more time zones. Under 5 CFR 550.1404(b)(1), time in a 
travel status includes the time an employee ``actually spends 
traveling'' and the usual waiting time that precedes or interrupts the 
travel, subject to certain exclusions as specified in section 550.1404 
of the regulations. When an employee's travel involves two or more time 
zones, the time zone from the point of first departure must be used to 
determine how many hours (i.e., elapsed time) the employee actually 
spent in a travel status for the purpose of accruing compensatory time 
off.
    We received a number of comments on Sec.  550.1404(b)(1) concerning 
the employing agency's sole and exclusive discretion to determine what 
is creditable as ``usual waiting time.'' One agency, one union, and two 
individuals objected to providing agencies with this authority. The 
agency recommended establishing an upper and lower range of what is 
considered acceptable ``usual waiting time.'' The union recommended 
including examples of ``usual waiting times.'' The two individuals 
suggested defining ``usual waiting time'' to include the time it takes 
to get service at ticket counters, security, baggage claim, and 
transportation counters or using waiting times determined by the 
airlines or travel agencies. One individual commented that there may be 
different determinations of ``usual waiting time'' within an agency. We 
are not adopting any of these recommendations. The concept of ``usual 
waiting time'' is currently used in determining overtime hours of work 
under title 5 and the FLSA, and agencies are knowledgeable and 
experienced in applying this concept. In addition, we believe it is 
appropriate to give agencies the flexibility to make this 
determination.
    Several commenters recommended removing Sec.  550.1404(b)(2), which 
states that bona fide meal periods during actual travel time or waiting 
time are not creditable as time spent in a travel status. An agency 
stated it was absurd to subtract bona fide meal periods from creditable 
travel time but allow time periods for making telephone calls, dozing, 
chatting, wandering through terminals, etc., to be considered 
creditable travel time. Another agency commented that the results of 
making distinctions between employees who choose to eat at a terminal 
restaurant and employees who choose to eat while walking to or waiting 
at the gate are so anomalous that consistent application of the 
regulation cannot be expected. OPM included this limitation in the 
interim regulations because it is consistent with the requirement to 
subtract bona fide meal periods from an employee's creditable overtime 
hours of work under 5 CFR 550.112(m) and 551.432(c). However, we agree 
that agencies should not try to make distinctions in the employee's 
activities during waiting time. Further, we agree it is not efficient 
or cost-effective to try to track employees' bona fide meal periods 
during travel time or waiting time solely for the purpose of crediting 
compensatory time off for travel, and we have removed Sec.  
550.1404(b)(2) accordingly.
    Many commenters requested clarification of, or objected to, Sec.  
550.1404(b)(3), which states that extended waiting time is not 
creditable as time in a travel status. Under Sec.  550.1404(b)(3), if 
an employee experiences an extended (i.e., not usual) waiting time 
between the periods of actual 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. 
Three agencies recommended providing guidance on a range of acceptable 
hours for ``extended waiting time,'' how much discretion an agency has 
in determining extended waiting times, or where to draw the line 
between ``usual'' and ``extended'' waiting times. Another agency 
recommended permitting an employee to earn compensatory time off for 
situations beyond the control of the employee, though not a large 
amount of compensatory time off. Three agencies and a union recommended 
revising Sec.  550.1404(b)(3) to limit extended waiting time to any 
period during which an employee must obtain overnight lodging. We are 
not adopting any of these recommendations. Under Sec.  550.1404(b)(1), 
determinations regarding what is creditable as usual waiting time are 
within the sole and exclusive discretion of the agency. The concept of 
excluding extended waiting time is currently used in determining 
creditable overtime hours of work under title 5 and the FLSA, and 
agencies are experienced in applying this limitation. Agencies should 
not establish a policy to credit compensatory time off for travel 
beyond the usual waiting time applied under title 5 and the FLSA.
    We received several comments about subtracting commuting time from 
creditable travel time under Sec.  550.1404(c)(1) and Sec.  
550.1404(d). Under Sec.  550.1404(c)(1), an agency must deduct the 
hours the employee would have spent in normal home-to-work or work-to-
home commuting from travel between the employee's home and a temporary 
duty station. Under Sec.  550.1404(d), if a transportation terminal 
(such as an airport) is located within the limits of the employee's 
official duty station, the employee's

[[Page 19096]]

travel time to and from the airport (outside regular working hours) is 
considered to be equivalent to commuting time and is not creditable 
time in a travel status. If the airport is located outside the limits 
of the employee's official duty station, the travel time to and from 
the airport (outside regular working hours) is creditable time in a 
travel status, but it is subject to an offset for the time the employee 
would have spent in normal home-to-work or work-to-home commuting.
    Several commenters objected to deducting normal commuting time on 
non-workdays as required by Sec.  550.1404(d). An agency recommended 
deleting Sec.  550.1404(d) entirely. Another agency and a union 
recommended revising Sec.  550.1404(d) to make travel to and from a 
transportation terminal within an employee's official duty station 
official travel time rather than equivalent commuting time. The union 
also objected to subtracting an employee's normal commuting time under 
Sec.  550.1404(c)(1). One individual recommended making an exception 
for employees who reside outside the local commuting area or to limit 
the amount of normal commuting time the agency deducts for such 
employees. We are not adopting any of these recommendations. The 
requirement in OPM's regulations in Sec.  550.1404(c) and (d) regarding 
the deduction of normal commuting time is consistent with the 
requirement to deduct normal commuting time from an employee's travel 
time in determining creditable overtime hours of work under 5 CFR 
550.112(j)(2) and 5 CFR 551.422(b).
    An individual expressed concern regarding how Sec.  550.1404(c) 
might be applied by his agency. In particular, he was concerned his 
agency might define ``official duty station'' to encompass an 
unreasonably large area so that an employee could not be credited for 
travel from home to a temporary duty station. It is true that, under 
the regulations, travel to a temporary duty station within an 
employee's official duty station is not creditable for the purpose of 
accruing compensatory time off for travel. However, as explained in an 
earlier paragraph regarding comments on the definition of ``official 
duty station,'' an agency is required to use the same geographic area 
that is used for determining whether travel time is compensable under 
the overtime pay provisions. (See 5 CFR 550.112(j) and 551.422(d).) 
Thus, agency discretion is limited. We have no information indicating 
that the agencies have defined ``official duty station'' for overtime 
pay purposes in an unreasonable way. Therefore, we decline to make any 
change in the regulations in this regard.
    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 or by the route selected by the agency under Sec.  
550.1404(c)(2). As recommended by an agency, we made a minor editorial 
correction to Sec.  550.1404(c)(2) and replaced ``traveled at the time 
and by the route selected by the agency'' with ``traveled at the time 
or by the route selected by the agency'' [emphasis added].
    One agency and an individual asked if compensatory time off for 
travel may be authorized when the employee returns a day earlier than 
planned. In such cases, the agency must credit an employee with the 
lesser of the estimated time in travel status the employee would have 
had if the employee had traveled on the day selected by the agency, or 
the employee's actual travel hours on a day other than that selected by 
the agency.
    One individual commented an alternative mode of transportation may 
save the agency money and recommended imposing a daily limit on the 
amount of compensatory time off for travel rather than crediting the 
lesser travel time. We do not agree. The cost of travel may influence 
how an agency schedules an employee's travel, but it does not have any 
impact on an employee's entitlement to compensatory time off for 
travel.
    Another individual asked if crediting the lesser travel time when 
an employee uses an alternative mode of transportation discriminates 
against employees with documented special needs and/or disabilities, 
such as a fear of flying, by not allowing the employee to earn 
compensatory time off for travel for the extra time spent traveling 
using the alternative mode of transportation. The regulatory 
requirement in Sec.  550.1404(c)(2) regarding how to credit time when 
an employee uses an alternative mode of transportation, or travels at 
another time or by a route other than that selected by the agency, is 
consistent with the same requirement in determining creditable overtime 
hours of work under 5 CFR 551.422(c). In addition, an alternative mode 
of transportation or alternative route or time period may influence an 
agency's authorization of official travel but does not have an impact 
on an employee's entitlement to compensatory time off for travel. 
Therefore we have not changed the regulation.
    Two agencies recommended clarifying whether an agency may change an 
employee's work schedule for travel purposes. An agency may not adjust 
the regularly scheduled administrative workweek that normally applies 
to an employee (part-time or full-time) solely for the purpose of 
including planned travel time that would not otherwise be considered 
compensable hours of work. One individual recommended clarifying 
whether time spent traveling would be creditable as credit hours or 
compensatory time off for travel for an employee who is authorized to 
earn credit hours under an alternative work schedule. Credit hours are 
hours an employee elects to work, with supervisory approval, in excess 
of the employee's basic work requirement under a flexible work 
schedule. Under certain conditions, an agency may permit an employee to 
earn credit hours by performing productive and essential work while in 
a travel status. See OPM's Handbook on Alternative Work Schedules at 
http://www.opm.gov/oca/worksch/HTML/Cred_hrs.htm#travel for the 
conditions that must be met. If those conditions are met and the 
employee does earn credit hours for travel, the time spent traveling 
would be compensable and the employee would not be eligible to earn 
compensatory time off for travel. If the conditions are not met, the 
employee would be eligible to earn compensatory time off for travel.
    One agency, one union, and one individual expressed concerns about 
the provision in Sec.  550.1405(a) which allows the employing agency to 
credit an employee's earned compensatory time off in increments of one-
tenth of an hour (6 minutes) or one-quarter of an hour (15 minutes). 
The agency recommended mandating the use of either 6-minute or 15-
minute increments, rather than providing the choice, for payroll 
consistency. The union recommended permitting agencies to continue 
their established minimum charges to leave rather than modifying the 
payroll systems. The requirement to credit and use compensatory time 
off for travel in increments of 6 or 15 minutes is consistent with 
OPM's standardized policy for charging annual and sick leave in the 
same increments. In addition, agency time and attendance and payroll 
processing systems have already been modified to accommodate this 
change as a result of the interim

[[Page 19097]]

regulations issued in January 2005 on compensatory time off for travel.
    Under Sec.  550.1405(b), an employee must comply with his or her 
agency's procedures for requesting credit of the employee's 
compensatory time off and file such requests within the time period 
specified by the agency. An agency recommended adding a requirement 
that an employee's request for credit of compensatory time off for 
travel may be denied if the request is not filed within the time 
periods established by agency policy or guidelines. We agree and have 
added this requirement to Sec.  550.1405(b). One union recommended that 
an agency should approve a request to earn compensatory time off for 
travel at the same time the travel authorization is issued. Another 
agency recommended setting a specific time period within which 
employees must submit requests for credit of compensatory time off for 
travel. We are not adopting these recommendations. We do not believe it 
is necessary to limit an agency's discretionary authority to prescribe 
such procedures and time limitations in its internal policies.
    An agency recommended modification of OPM Form 71, Request for 
Leave or Approved Absence, or develop a new form, for employee requests 
to earn or use compensatory time off for travel. We do not believe it 
is necessary or desirable to mandate the use of a Governmentwide form 
for this purpose. However, an agency may choose to develop a form as 
part of its internal policies and procedures for requesting and using 
compensatory time off for travel.
    Three agencies recommended establishing a limit on the number of 
hours of compensatory time off for travel an employee may earn. 
Establishing a cap on the amount of compensatory time off for travel an 
employee may earn would require a legislative change. A union and an 
individual recommended not limiting compensatory time off to domestic 
travel. These regulations are not limited to domestic travel; OPM's 
regulations apply to both domestic and foreign travel.

Using Compensatory Time Off for Travel

    Under Sec.  550.1406(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. One agency recommended requiring agencies to charge 
compensatory time off for travel on a first-in, first-out basis. We 
agree and have revised Sec.  550.1406(b) to require agencies to charge 
compensatory time off in the chronological order in which it was 
earned, with compensatory time off earned first being charged first. 
One individual recommended compensatory time off for travel should be 
redeemable at the rate of 1.5 times the number of hours spent 
traveling. No legal authority exists to permit an employee to be absent 
from his or her scheduled tour of duty on the basis of 1.5 hours for 
each hour of creditable travel time. In addition, the hour-for-hour 
rule in the interim regulation is consistent with the policy for 
earning and using compensatory time off in lieu of overtime pay under 5 
CFR 550.114 and 551.531.
    Under Sec.  550.1406(b), earned compensatory time off may be used 
when an employee is granted time off from his or her scheduled tour of 
duty for leave purposes. One agency and two individuals requested 
clarification of how the use of earned compensatory time off for travel 
relates to ``use-or-lose'' annual leave. (``Use or lose'' annual leave 
is accrued annual leave in excess of the maximum leave ceilings (i.e., 
30, 45, or 90 days) that is subject to forfeiture at the end of the 
leave year.) Section 6304(d) of title 5, United States Code, prescribes 
the conditions under which an employee's forfeited annual leave may be 
restored to an employee. There is no legal authority to restore an 
employee's forfeited annual leave because the employee elected to use 
earned compensatory time off for travel instead of using his or her 
excess annual leave.

Forfeiting Unused Compensatory Time Off for Travel

    We received several comments on Sec.  550.1407(a)(1), which 
requires employees to forfeit unused compensatory time off if it is not 
used by the end of the 26th pay period after the pay period during 
which it was credited, except as provided in Sec.  550.1407(a)(2) 
(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 or who has suffered an on-the-job injury with entitlement to 
injury compensation under 5 U.S.C. chapter 81 and who later returns to 
service.). Two agencies recommended clarifying whether the forfeiture 
of unused compensatory time off occurs within 26 pay periods after it 
has been earned or credited to their payroll account. We agree and have 
revised Sec.  550.1407(a)(1) to clarify 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.
    One agency recommended giving agencies discretionary authority to 
provide a time limit for an employee to use compensatory time off for 
travel in the same way agencies are allowed to provide time limitations 
for the use of other compensatory time off. Another agency recommended 
establishing a specific date for using earned compensatory time off for 
travel. A union recommended an employee be allowed to use his or her 
earned compensatory time off for travel from the date earned until the 
end of the next leave year. Two individuals expressed concerns that 
agencies would not allow their employees to use their earned 
compensatory time for travel within 26 pay periods. One union and an 
individual recommended establishing a longer period of time, such as 52 
pay periods, before requiring forfeiture of compensatory time off for 
travel. Several commenters recommended providing agencies discretionary 
authority to extend the time limit for using earned compensatory time 
off for travel in emergency situations or when employees are required 
to complete mission-critical assignments.
    While the use of compensatory time off for travel is subject to 
agency work demands, we believe 26 pay periods is a sufficient amount 
of time for most employees to use their earned compensatory time off. 
However, we believe exceptions may be warranted in exceptional 
situations, for example, during emergency situations, to complete 
mission-critical assignments, or when employees are deployed to perform 
work directly related to a military operation. Therefore, we have added 
a new paragraph (e) to Sec.  550.1407 to permit an authorized agency 
official, at his or her sole and exclusive discretion, to extend the 
time limit for using earned compensatory time off for travel if an 
employee's failure to use the compensatory time off within 26 pay 
periods is due to an exigency of the service beyond the employee's 
control.
    Section 550.1407(a)(2) extends the period for using earned 
compensatory time off for travel for an employee who separates from 
Federal service or is placed in a leave without pay status to perform 
service in the uniformed services with restoration rights or who has 
suffered an on-the-job injury with entitlement to injury compensation 
under 5 U.S.C. chapter 81 and who later returns to service in the same 
(or successor) agency. In these circumstances, the employee must use 
his or her earned compensatory time off by the end of the 26th pay 
period following the pay period in which the employee returns to duty. 
One agency

[[Page 19098]]

objected to allowing the 26 pay periods to start over from the 
beginning upon an employee's return to duty. We believe it is 
reasonable to provide an employee, under these circumstances, a full 26 
pay periods following his or her return to duty within which to use 
earned compensatory time off for travel.
    An agency recommended allowing agencies to consider unused 
compensatory time off when determining an employee's separation date. 
We are not adopting this recommendation. An agency has the authority 
under Sec.  550.1406(a) to approve or disapprove an employee's request 
to use his or her accrued compensatory time off in accordance with 
agency-established policies and procedures.
    Two individuals objected to the provision in Sec.  550.1408 which 
prohibits an individual from receiving payment under any circumstances 
for any unused compensatory time off for travel that he or she earned. 
However, the law explicitly prohibits payment for unused compensatory 
time off. (See 5 U.S.C. 5550b(b).)

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.
Linda M. Springer,
Director.

0
Accordingly, the interim rule amending 5 CFR part 550, which was 
published at 70 FR 3855 on January 27, 2005, is adopted as final with 
the following changes:

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.

Subpart N--Compensatory Time Off for Travel

0
2. Revise the first sentence of Sec.  550.1401 to read as follows:


Sec.  550.1401  Purpose.

    This subpart contains OPM regulations implementing 5 U.S.C. 5550b, 
which establishes a separate type of compensatory time off. * * *

0
3. In Sec.  550.1403, add the definitions of accrued compensatory time 
off and authorized agency official and revise the definition of travel 
to read as follows:


Sec.  550.1403  Definitions.

* * * * *
    Accrued compensatory time off means the compensatory time off 
earned by an employee that has not been used or forfeited.
    Authorized agency official means the head of the agency or an 
official who is authorized to act for the head of the agency in the 
matter concerned.
* * * * *
    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. Time spent traveling in 
connection with union activities is excluded.
* * * * *

0
4. In Sec.  550.1404, revise paragraph (b)(1), remove paragraph (b)(2), 
redesignate paragraph (b)(3) as paragraph (b)(2), revise the first 
sentence of paragraph (c)(2), and add paragraph (e) to read as follows:


Sec.  550.1404  Creditable travel time.

* * * * *
    (b)(1) Travel status. 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 exclusion specified in paragraph (b)(2) of this section 
and the requirements in paragraph (c), (d) and (e) of this section. 
Time spent at a temporary duty station between arrival and departure is 
not time in a travel status. Time in a travel status ends when the 
employee arrives at the temporary duty worksite or his or her lodging 
in the temporary duty station, wherever the employee arrives first. 
Time in a travel status resumes when an employee departs from the 
temporary duty worksite or his or her lodging in the temporary duty 
station, from whichever the employee departs last. Travel time in 
connection with an employee's permanent change of station 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.
* * * * *
    (c) * * *
    (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 or by the route selected by the agency. * * *
* * * * *
    (e) Travel involving two or more time zones. When an employee's 
travel involves two or more time zones, the time zone from the point of 
first departure must be used to determine how many hours the employee 
actually spent in a travel status for the purpose of accruing 
compensatory time off.

0
5. In Sec.  550.1405, paragraph (b) is revised to read as follows:


Sec.  550.1405  Crediting 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. An employee's request for credit of compensatory time off 
for travel may be denied if the request is not filed within the time 
period required by the agency.

0
6. In Sec.  550.1406, revise the section heading and paragraph (b) to 
read as follows:


Sec.  550.1406  Use of accrued compensatory time off.

* * * * *
    (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 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). Agencies must charge compensatory time 
off in the chronological order in which it was earned, with 
compensatory time off earned first being charged first.

0
7. In Sec.  550.1407, revise paragraph (a)(1) and add a new paragraph 
(e) to read as follows:

[[Page 19099]]

Sec.  550.1407  Forfeiture of unused compensatory time off.

    (a) After 26 pay periods. (1) Except as provided in paragraphs 
(a)(2) and (e) 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 earned. If an employee fails to use the 
compensatory time off within 26 pay periods after it was earned, he or 
she must forfeit such compensatory time off.
* * * * *
    (e) Exception due to an exigency. If an employee fails to use his 
or her compensatory time earned under Sec.  550.1404(a) by the end of 
the 26th pay period after the pay period during which it was earned due 
to an exigency of the service beyond the employee's control, an 
authorized agency official, at his or her sole and exclusive 
discretion, may extend the time limit for using such compensatory time 
off for travel for up to an additional 26 pay periods.

 [FR Doc. E7-7266 Filed 4-16-07; 8:45 am]
BILLING CODE 6325-39-P