[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Proposed Rules]
[Pages 53695-53700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21221]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 78, No. 169 / Friday, August 30, 2013 / 
Proposed Rules  

[[Page 53695]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AL55


Compensatory Time Off for Religious Observances and Other 
Miscellaneous Changes

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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

SUMMARY: The U.S. Office of Personnel Management is issuing proposed 
regulations to amend its current regulations on compensatory time off 
for religious observances. The proposal would clarify employee and 
agency responsibilities, provide timeframes for earning and using 
religious compensatory time off, and define key terms. In addition, we 
are making other miscellaneous changes in the pay and leave area.

DATES: Comments must be received on or before October 29, 2013.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AL55,'' using any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected].
    Mail: Jeanne Jacobson, Acting Deputy Associate Director, Pay and 
Leave, Employee Services, U.S. Office of Personnel Management, Room 
7H31, 1900 E Street NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: David Barash, by telephone at (202) 
606-2858; by fax at (202) 606-0824; or by email at [email protected].

SUPPLEMENTARY INFORMATION: Based on comments we received on our 
proposed regulations issued on January 5, 2005 (70 FR 1068), recent 
recommendations made in the U.S. Government Accountability Office's 
report entitled ``Religious Compensatory Time: Office of Personnel 
Management Action Needed to Clarify Policies for Agencies'' (GAO-13-96, 
October 12, 2012), and our general experience with the adjustment of 
work schedules for religious observances (i.e., religious compensatory 
time off), the U.S. Office of Personnel Management (OPM) is proposing 
to amend its regulations in 5 CFR part 550, subpart J, Compensatory 
Time Off for Religious Observances. Under 5 U.S.C. 5550a, OPM is 
responsible for issuing regulations providing for work schedules under 
which an employee, whose personal religious beliefs require the 
abstention from work during certain periods of time, may elect to 
perform overtime work to make up for time lost for meeting those 
religious obligations. Any employee who elects to perform such overtime 
work must be granted equal compensatory time off from his or her 
scheduled tour of duty (in lieu of overtime pay or other pay that would 
otherwise apply) for such religious observances, notwithstanding any 
other provision of law. In summary, the religious compensatory time off 
authority permits an employee to rearrange work hours to fulfill his or 
her religious obligations. The intent of our proposal is to help 
agencies more effectively manage religious compensatory time off by 
clarifying employee and agency responsibilities, providing timeframes 
for earning and using religious compensatory time off, and defining key 
terms.
    OPM's current regulations provide only limited rules and 
information and require agencies to provide opportunities for employees 
to earn and use religious compensatory time off to the extent that 
doing so does not interfere with the efficient carrying out of 
agencies' missions. The regulations also explicitly allow the religious 
compensatory time off to be earned either before or after the 
corresponding absence from work. Agencies must keep appropriate records 
on religious compensatory time off that is earned and used to ensure 
effective administration of religious compensatory time off.

Previous Proposed Regulations

    In 2005, OPM issued proposed regulations to put safeguards in place 
to address some problems with the administration of the religious 
compensatory time off program that were surfacing. Those regulations 
proposed to expand the current regulations to provide more structure 
and consistency by adding new definitions, allowing agencies to require 
documentation of the need for religious compensatory time off, and 
requiring employees to perform additional work within 3 pay periods to 
make up for religious compensatory time off already used. In addition, 
the regulations proposed to place limits on an employee's accumulation 
of earned religious compensatory time off, and to provide rules 
regarding how agencies must deal with employees who have a negative or 
positive balance of earned religious compensatory time off when the 
employee's Federal employment ends or when the employee is transferred 
to another Federal agency.

Comments on Previous Proposed Regulations

    Most of the comments we received on the 2005 proposal focused on 
the provisions regarding the documentation requirements related to the 
need for time off and the timeframe limits for earning religious 
compensatory time off. Several commenters expressed concern that 
allowing agencies to require documentation of the need for religious 
compensatory time off would lead to agencies making inappropriate 
judgments about the legitimacy of these requests for religious 
compensatory time off. Other commenters believed the proposed 
regulations were not clear enough about the nature of the documentation 
that could be required. Meanwhile, some commenters thought the 
requirement to perform overtime work for purposes of earning religious 
compensatory time off within 3 pay periods after using advanced 
compensatory time off was too restrictive. It was noted, for example, 
that there is a cluster of Jewish religious holidays in the fall during 
which an employee may need to abstain from work for at least 7 days 
during a 1-month period. We have reexamined our 2005 proposal and have 
substantially altered the provisions relating to documentation and 
timeframes; therefore, we are now reissuing proposed regulations with a 
request for comments.
    Based on the comments we received in 2005, we are striving to 
balance the

[[Page 53696]]

protection of an employee's right to practice his or her religious 
freedoms with management's responsibility to carry out the agency's 
mission. We believe our proposal balances these needs, and incorporates 
the comments we received from our 2005 proposal to improve the proposed 
regulations by (1) increasing the number of pay periods within which an 
employee can repay advanced religious compensatory time off after using 
it, and (2) requiring the employee to provide the agency with specific 
information regarding his or her request to use religious compensatory 
time off.

Section-by-Section Analysis of Proposed Regulations

    OPM continues to believe there is a need for a clearer regulatory 
structure for the earning and use of religious compensatory time off. 
However, we found some of the objections to our 2005 proposal were 
persuasive. Consequently, we are proposing to restructure subpart J of 
5 CFR part 550 with eight sections as follows:
    Section 550.1001 Purpose. This section sets forth the purpose of 
the subpart, which is to implement the statutory authority for 
religious compensatory time off under 5 U.S.C. 5550a.
    Section 550.1002 Coverage. The proposed regulations provide that 
coverage applies to each employee in or under an Executive agency (as 
defined in 5 U.S.C. 105) who has a scheduled tour of duty.
    Employees of the Federal Aviation Administration (FAA) are excluded 
from coverage under most title 5 provisions, including section 5550a. 
(See 49 U.S.C. 40122(g).) Employees of the Transportation Security 
Administration (TSA) are excluded from the same title 5 provisions as 
FAA employees; thus, they are also not covered by section 5550a. (See 
49 U.S.C. 114(n).) Both FAA and TSA may adopt a religious compensatory 
time off program under their own personnel authorities.
    The proposed new coverage section, section 550.1002, also provides 
that section 5550a and OPM's implementing regulations apply only to 
employees who have a ``scheduled tour of duty.'' In 5 U.S.C. 5550a(a), 
the law prescribes that an employee is granted compensatory time off 
``from his scheduled tour of duty'' when the employee's personal 
religious beliefs require ``the abstention from work during certain 
periods of time.'' A further discussion of the term ``scheduled tour of 
duty'' is included in the definition section of this supplementary 
information.
    Section 550.1003 Definitions. This section contains definitions of 
key terms used in subpart J. These terms are ``overtime work,'' ``rate 
of basic pay,'' ``religious compensatory time off,'' and ``scheduled 
tour of duty.'' All of these proposed definitions are new and are being 
added to this section.
    We are providing further explanation of certain terms that are 
defined in this section. For the purposes of subpart J, ``overtime 
work'' is performed to earn religious compensatory time off and 
provides no entitlement to overtime pay or other premium pay. 
``Overtime work'' earned as religious compensatory time off is a 
limited exception that is not considered in applying the premium pay 
limitations in 5 U.S.C. 5547 and 5 CFR 550.105-550.107. (See 62 Comp. 
Gen. 589, July 26, 1983.) In contrast, the dollar value of overtime 
work resulting in compensatory time off in lieu of overtime pay under 5 
U.S.C. 5543 is considered to be premium pay in applying those 
limitations. We are clarifying in the regulations that overtime work is 
deemed to include (1) work performed by a part-time employee outside of 
his or her scheduled tour of duty, even if that work is below 
applicable overtime thresholds (e.g., below 40 hours in a week), and 
(2) work performed by an employee on a legal holiday.
    The term ``rate of basic pay'' is the rate of pay fixed by law or 
administrative action for the position held by an employee, including 
any applicable locality payment under 5 CFR part 531, subpart F; 
special rate supplement under 5 CFR part 530, subpart C; retained rate 
under 5 CFR part 536; or similar payment or supplement under other 
legal authority, before any deductions and exclusive of additional pay 
of any other kind. It is used in determining the amount paid to an 
employee upon separation or transfer for any unused hours of religious 
compensatory time off earned based on the rate of basic pay in effect 
when the extra hours of work were performed.
    ``Religious compensatory time off'' is compensatory time off for an 
employee whose personal religious beliefs require that he or she 
abstain from work at certain times of the workday or workweek. To the 
extent that modifications in work schedules do not interfere with the 
efficient accomplishment of an agency's mission, an employee must be 
permitted to work overtime hours to meet the religious obligation, and 
such hours do not create any entitlement to premium pay.
    A ``scheduled tour of duty'' means the regular work hours in an 
established full-time or part-time work schedule during which the 
employee is charged leave or time off when absent. The law (5 U.S.C. 
5550a) specifically refers to employees using religious compensatory 
time off by taking time off out of their ``scheduled tour of duty.'' 
Only employees with an established full-time or part-time schedule have 
a scheduled tour of duty. Employees who do not have a scheduled tour of 
duty, such as intermittent employees or leave-exempt Presidential 
appointees (see 5 CFR 630.211), cannot use leave or other time off, 
including religious compensatory time off. However, in the spirit of 
the religious compensatory time off law, supervisors should strive to 
accommodate such employees in their observance of religious activities 
required by their personal religious beliefs.
    Section 550.1004 Employee responsibilities. This section enumerates 
an employee's responsibilities when he or she requests to earn and use 
religious compensatory time off. An employee is required to provide his 
or her supervisor with a request for religious compensatory time off in 
advance of the religious observance. Under paragraph (b) of this 
section, at the time the religious compensatory time off is requested, 
the employee must provide the agency with (1) the name and/or 
description of the particular religious observance for which the 
employee's absence is required; (2) the date(s) and time(s) the 
employee plans to be absent for religious observances; and (3) the 
date(s) and time(s) the employee plans to perform overtime work to earn 
religious compensatory time off to make up for the absence. This 
information provides appropriate documentation to enable the agency to 
consider the request. An employee must comply with the agency's 
procedures for requesting, earning, and using religious compensatory 
time off, including time limitations, as prescribed in sections 
550.1004 and 550.1005.
    Section 550.1005 Agency responsibilities. This section enumerates 
agency responsibilities when considering an employee's request to earn 
and use religious compensatory time off. Paragraph (a) of this section 
permits an agency to require an employee to submit his or her religious 
compensatory time off request either orally or in writing, including 
the information listed in section 550.1004(b), in a manner that is 
administratively acceptable to the agency. Although this paragraph 
provides authority for an agency to

[[Page 53697]]

require an employee to submit his or her request in writing under 
section 550.1004(b), the agency may allow supervisors to approve 
requests on a more informal basis as long as the supervisor documents 
the required information regarding the employee's request.
    Paragraph (b) of this section states that an agency is required to 
approve religious compensatory time off to the extent that 
modifications in work schedules do not interfere with the efficient 
accomplishment of its mission, consistent with 5 U.S.C. 5550(c).
    Paragraph (c) of this section states that the agency must provide 
the employee with an opportunity to earn religious compensatory time 
off before the end of the 26th pay period following the use of the time 
off. However, the specific timing of when an employee is allowed to 
earn religious compensatory time off is at the agency's discretion. 
This is consistent with guidance in former Federal Personnel Manual 
Letter 550-71, September 29, 1978, which stated that ``[A]n agency is 
expected to accommodate to an employee's request to work compensatory 
overtime. If no productive overtime is available to be worked by the 
employee at such time as he or she may initially request, alternative 
times should be arranged for the performance of the compensatory 
overtime work.'' A key difference between using and earning religious 
compensatory time off is that using religious compensatory time off is 
tied to a specific religious observance on a fixed date, whereas 
greater flexibility exists regarding when religious compensatory time 
off may be earned. However, the agency must provide an opportunity for 
the employee to earn religious compensatory time off before the end of 
26th pay period after it was used. Agencies have latitude in scheduling 
exactly when overtime hours will be worked to earn religious 
compensatory time off.
    Section 550.1006 Scheduling time to earn and use religious 
compensatory time off. This section provides rules for scheduling time 
to earn and use religious compensatory time off to establish a 
consistent and effective Governmentwide approach. An employee must 
inform his or her agency of the date(s) and time(s) he or she plans to 
be absent for religious observances and the date(s) and time(s) he or 
she plans to work to earn religious compensatory time off to make up 
for the absence. The agency must consider its mission requirements when 
determining whether to approve changes in work schedules for scheduling 
religious compensatory time off, as explained in section 550.1005.
    This section also empowers agencies to require employees who are 
submitting requests for this time off to make the requests sufficiently 
in advance to allow for workforce adjustments that may be required to 
accommodate the religious compensatory time off.
    For an employee who earns religious compensatory time off prior to 
using it, religious compensatory time off may be earned up to 26 pay 
periods in advance of the pay period in which it is intended to be 
used, as long as the scheduling of religious compensatory time off is 
linked to specific dates and times and its scheduling is compatible 
with agency mission requirements. While most agencies may have always 
required employees to identify specific, future religious observances 
as a condition for allowing them to earn religious compensatory time 
off, this proposal now provides a common approach, with specific 
information regarding the details the employee must supply under 
section 550.1004.
    Where an employee uses religious compensatory time off prior to 
earning it (i.e., spending an equal amount of time in overtime work), 
that employee must schedule and fulfill his or her obligation to 
perform overtime work in exchange for religious compensatory time off 
within 26 pay periods (52 weeks) after the pay period in which he or 
she used religious compensatory time off. The 26 pay periods are 
calculated beginning with the first pay period after the pay period in 
which the religious compensatory time off was used.
    OPM believes that providing 26 pay periods before and after a 
religious observance is a sufficient timeframe for an employee to earn 
religious compensatory time, and is consistent with the 26 pay period 
rule for using compensatory time off in lieu of overtime pay after it 
is earned.
    If the employee fails to perform overtime work in exchange for 
advanced religious compensatory time off within 26 pay periods after 
the pay period in which it was used, section 550.1006(c) provides that 
the agency may take corrective action to eliminate or reduce the 
negative balance by making a corresponding reduction in the employee's 
annual leave balance. Any remaining negative balance must be resolved 
by charging the employee leave without pay, which will result in an 
indebtedness that is subject to the agency's internal debt collection 
procedures. This approach is consistent with OPM's longstanding 
position that if an employee has taken advanced religious compensatory 
time off and has a negative balance, the employee must be charged 
annual leave or leave without pay to account for that negative balance. 
(See also the more detailed discussion regarding section 550.1008(b).)
    OPM reminds agencies and employees of the availability of 
additional workforce flexibilities, including annual leave, advanced 
annual leave, regular compensatory time off, alternative work 
schedules, and leave without pay, all of which may play a part in 
accommodating an employee's need to abstain from work for religious 
observances. We believe providing 26 pay periods for employees to repay 
such advanced religious compensatory time off, permitting employees to 
perform work in advance of a religious observance, and using other 
existing workforce flexibilities will provide employees with several 
viable alternatives for meeting religious requirements, while ensuring 
agencies are able to carry out their missions in a timely manner.
    Section 550.1007 Accumulation and documentation. This section 
requires agencies to keep appropriate records on the amount of 
religious compensatory time off each employee earns and uses. The 
agency must credit religious compensatory time off for work performed 
on a time-for-time basis, under an agency's time and attendance 
procedures. Except as provided in paragraph (c) of section 550.1007, an 
employee may accumulate only the amount of religious compensatory time 
off needed to cover an approved absence for a religious observance or 
an anticipated absence for a future religious observance for specific 
dates and times that the employee has identified.
    Under section 550.1007(c), if the employee does not use his or her 
earned religious compensatory time off as planned, the employee may not 
earn any additional religious compensatory time off until the retained 
amount of religious compensatory time off has been used or the need to 
earn additional religious compensatory time off has been established 
and documented. In other words, earned religious compensatory time off 
that has not been used as planned may be applied toward a future 
religious observance that has been properly requested and approved--
even if that event is more than 26 pay periods after when the religious 
compensatory time off was originally earned. If the number of hours of 
unused religious compensatory time off is not sufficient to cover the 
future religious observance, the employee may

[[Page 53698]]

earn additional religious compensatory time off to cover extra hours--
either 26 pay periods before or after the pay period in which the 
employee takes time off for the approved future religious observance, 
as provided in section 550.1006.
    For example, an employee earns 16 hours of religious compensatory 
time off toward religious observance ``A.'' The employee is unable to 
use the 16 hours as planned due to unforeseen circumstances. The 
employee then requests and receives approval for religious observance 
``B.'' The employee needs an additional 8 hours to attend the new 
religious observance. The 16 hours of earned religious compensatory 
time off from religious observance ``A'' may be applied toward 24 hours 
needed for religious observance ``B.'' The employee may earn the 
additional 8 hours of religious compensatory time off within 26 pay 
periods before or after religious observance ``B'' to cover the 
religious observance.
    Agencies must monitor any accumulation to ensure that the employee 
is using the religious compensatory time off for the intended religious 
observance and is not stockpiling the compensatory time off for 
purposes that do not meet the intent of the law and regulations.
    Section 550.1008 Employee separation or transfer. This section 
addresses how positive and negative balances of religious compensatory 
time off are to be treated when employees leave Federal service or 
transfer to another Federal agency. In the case of an employee with a 
positive balance who is separating from Federal service or transferring 
to another Federal agency, the losing agency pays the employee at the 
hourly rate of basic pay in effect when the religious compensatory time 
off was earned. Though OPM has published this disposition procedure as 
guidance on its Web site, it is now including it in the regulations to 
ensure compliance throughout the Federal Government.
    Any earned religious compensatory time off may be paid only when an 
employee separates or transfers to another Federal agency. Religious 
compensatory time off cannot be forfeited, nor can it be paid out as 
compensatory time off in lieu of overtime or any other forms of time 
off. Since religious compensatory time off is earned and approved for 
specific dates and times, the amount of religious compensatory time off 
paid out in a lump sum should be minimal.
    Regarding the case of an employee with a negative balance of 
religious compensatory time off who is separating from Federal service 
or transferring to another Federal agency under 5 CFR 550.1008(b), an 
agency may take corrective action to eliminate or reduce the negative 
balance by making a corresponding charge of annual leave. In other 
words, since the religious compensatory time off was never earned by 
working overtime hours, the prior use of religious compensatory time 
off was invalid. Accordingly, the hours improperly used as religious 
compensatory time off would be converted to annual leave hours by 
reducing the employee's annual leave balance. Any negative balance 
remaining after charging annual leave would be resolved by charging 
leave without pay. The resulting indebtedness is subject to the 
agency's internal debt collection procedures. The losing agency is 
required to determine the monetary value of the employee's remaining 
negative balance and use applicable debt collection procedures (e.g., 
those authorized under 5 U.S.C. 5514 and applicable agency regulations 
prepared consistent with subpart K of 5 CFR part 550). The same 
approach applies to employees covered by section 550.1006(c) who fail 
to earn advanced religious compensatory time off within 26 pay periods 
after using religious compensatory time off.
    It should be noted that, unlike annual and sick leave, there is no 
statutory authority to provide for a transfer of unused earned 
religious compensatory time off when an employee transfers to another 
agency. Therefore, the proposed regulations do not authorize employees 
to transfer a balance of earned religious compensatory time off when 
they move to another agency.
    Section 550.1009 Relationship to premium pay and overtime work. 
This section makes explicit that an employee who earned religious 
compensatory time off under subpart J will have no entitlement to 
overtime pay or other premium pay based on the overtime work performed. 
It further clarifies that religious compensatory time off under subpart 
J is fundamentally different from other types of compensatory time off 
in that religious compensatory time off is only for the purpose of 
adjusting an employee's work schedule so that the employee may perform 
overtime work to take time off for religious observances, and such time 
off is not considered premium pay, as defined in section 550.103.
    We are also taking this opportunity to make the following 
miscellaneous regulatory changes that are unrelated to compensatory 
time off for religious observances:

Section 550.103 Miscellaneous Change to Definition of Rate of Basic Pay

    We propose amending the definition of rate of basic pay in 5 CFR 
550.103 to include a retained rate under 5 CFR part 536. This is 
consistent with the provision in 5 CFR 536.307(a)(3) that a retained 
rate is considered to be an employee's rate of basic pay for the 
purpose of computing premium pay under 5 U.S.C. chapter 55, subchapter 
V, and 5 CFR part 532 and part 550, subparts A and I.

Section 550.1302 Miscellaneous Change to Citation Referenced in the 
Definition of Firefighter

    In section 550.1302, we are correcting a citation referencing 
section 362.203(e) in paragraph (2)(iii) of the definition of 
firefighter. The correct citation is section 362.203(f).

E.O. 13563 and E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Orders 13563 and 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.

U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director.

    Accordingly, OPM is proposing to amend 5 CFR part 550 as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart A--Premium Pay

0
1. Revise the authority citation for subpart A to read as follows:

    Authority: 5 U.S.C. 5304 note, 5305 note, 5504(d), 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, 56 FR 4521, 3 CFR, 1991 Comp., p. 316.
0
2. In Sec.  550.103, revise the definition of rate of basic pay to read 
as follows:


Sec.  550.103  Definitions.

* * * * *
    Rate of basic pay means the rate of pay fixed by law or 
administrative action for the position held by an

[[Page 53699]]

employee, including any applicable locality payment under 5 CFR part 
531, subpart F; special rate supplement under 5 CFR part 530, subpart 
C; retained rate under 5 CFR part 536; or similar payment or supplement 
under other legal authority, before any deductions and exclusive of 
additional pay of any other kind.
* * * * *
0
3. Revise subpart J to read as follows:

Subpart J--Compensatory Time Off for Religious Observances

Sec.
550.1001 Purpose.
550.1002 Coverage.
550.1003 Definitions.
550.1004 Employee responsibilities.
550.1005 Agency responsibilities.
550.1006 Scheduling time to earn and use religious compensatory time 
off.
550.1007 Accumulation and documentation.
550.1008 Employee separation or transfer.
550.1009 Relationship to premium pay and overtime work.

    Authority: 5 U.S.C. 5550a.

Subpart J--Compensatory Time Off for Religious Observances


Sec.  550.1001  Purpose.

    This subpart implements 5 U.S.C. 5550a, which permits an employee 
whose personal religious beliefs require the abstention from work 
during certain periods of time to elect to engage in overtime work and 
earn a special form of compensatory time off to make up for the time 
lost in meeting those religious requirements. Religious compensatory 
time off differs from other forms of compensatory time off in that the 
sole purpose is to adjust an employee's work schedule to accommodate a 
religious observance. The employee earns religious compensatory time 
off by spending an equal amount of time in overtime work either before 
or after taking time from the employee's scheduled tour of duty to meet 
religious requirements.


Sec.  550.1002  Coverage.

    This subpart applies to each employee in or under an Executive 
agency (as defined in 5 U.S.C. 105) who has a scheduled tour of duty.


Sec.  550.1003  Definitions.

    In this subpart:
    Overtime work means work performed by an employee outside his or 
her scheduled tour of duty for the purpose of making up time lost for 
meeting religious requirements, for which overtime pay would normally 
be payable. It is also deemed to include work performed by a part-time 
employee outside of his or her scheduled tour of duty, even if that 
work is below applicable overtime thresholds (e.g., below 40 hours in a 
week), and work performed by an employee on a legal holiday.
    Rate of basic pay means the rate of pay fixed by law or 
administrative action for the position held by an employee, including 
any special rate under 5 CFR part 530, subpart C; locality rate under 5 
CFR part 531, subpart F; retained rate under 5 CFR part 536; or similar 
rate under other legal authority, before any deductions and excluding 
additional pay of any other kind. For example, a rate of basic pay does 
not include additional pay such as night shift differentials under 5 
U.S.C. 5343(f) or environmental differentials under 5 U.S.C. 
5343(c)(4).
    Religious compensatory time off means compensatory time off, as 
authorized by 5 U.S.C. 5550a, under which an employee whose personal 
religious beliefs require the abstention from work during certain 
periods of time may elect to perform overtime work in order to make up 
for time the employee takes off to meet those religious requirements. 
An employee approved to perform overtime work under this subpart will 
be granted an equal amount of compensatory time off from his or her 
scheduled tour of duty (in lieu of overtime pay or other pay otherwise 
payable) to meet his or her religious obligations.
    Scheduled tour of duty means the regular work hours in an 
established full-time or part-time work schedule during which the 
employee is charged leave or time off when absent.


Sec.  550.1004  Employee responsibilities.

    (a) An employee is required to provide his or her supervisor with a 
request for religious compensatory time off in advance of the religious 
observance by following the agency's procedures established in 
accordance with Sec. Sec.  550.1005 and 550.1006.
    (b) At the time the religious compensatory time off is requested, 
the employee must provide the agency with the following information:
    (1) The name and/or description of the religious observance for 
which the employee's absence from work is required based on the 
employee's personal religious beliefs;
    (2) The date(s) and time(s) the employee plans to be absent to 
participate in the religious observances identified in paragraph (b)(1) 
of this section; and
    (3) The date(s) and time(s) the employee plans to perform overtime 
work to earn religious compensatory time off to make up for the 
absence.
    (c) An employee must comply with the agency's procedures for 
requesting religious compensatory time off, including any time 
limitations prescribed under Sec.  550.1006.


Sec.  550.1005  Agency responsibilities.

    (a) An agency may require an employee to submit his or her request 
to use religious compensatory time off in writing (including electronic 
communications) with all the information specified in Sec.  550.1004(b) 
in a manner that is administratively acceptable to the agency. If the 
agency accepts an oral request, the supervisor must document all the 
information specified in Sec.  550.1004(b). An agency may require an 
employee to submit a request to use religious compensatory time off 
sufficiently in advance to accommodate necessary scheduling changes 
without interfering with the agency's ability to efficiently carry out 
its mission.
    (b) An agency must approve an employee's request to use religious 
compensatory time off unless the agency determines that approving the 
request would interfere with the agency's ability to efficiently carry 
out its mission.
    (c) The agency must provide the employee with an opportunity to 
earn religious compensatory time off before the end of the 26th pay 
period following the use of the time off, although the specific timing 
of when an employee will be allowed to earn religious compensatory time 
off by performing overtime work is a matter of agency discretion based 
on the needs of the agency.


Sec.  550.1006  Scheduling time to earn and use religious compensatory 
time off.

    (a) The scheduling of time to earn and use religious compensatory 
time off by an employee is subject to the agency's approval as provided 
in Sec.  550.1005.
    (b) For an employee who earns religious compensatory time off prior 
to using it, religious compensatory time off may be earned up to 26 pay 
periods in advance of the pay period in which the targeted religious 
observance commences and must be linked to specific dates and times for 
future use, as compatible with agency mission requirements.
    (c)(1) An employee who uses religious compensatory time off prior 
to earning it must fulfill his or her obligation to perform overtime 
work in exchange for the advanced religious compensatory time off 
within 26 pay periods after the pay period in which he or she used 
religious compensatory time off, or the

[[Page 53700]]

agency must take action as provided in paragraph (c)(3) of this 
section.
    (2) The 26 pay periods described in paragraph (c)(1) of this 
section are calculated beginning with the first pay period beginning 
after the date on which the religious compensatory time off was used.
    (3) If the employee fails to earn religious compensatory time off 
within 26 pay periods after taking religious compensatory time off, the 
agency may take corrective action to eliminate or reduce the negative 
balance by making a corresponding reduction in the employee's annual 
leave balance. Any negative balance of religious compensatory time off 
remaining after charging annual leave must be resolved by charging the 
employee leave without pay, which would result in an indebtedness that 
is subject to the agency's internal debt collection procedures.


Sec.  550.1007  Accumulation and documentation.

    (a) Agencies must keep appropriate records of the name and/or 
description of the religious observance, and the dates, times, and 
amount of religious compensatory time off each employee earns and uses. 
An agency must credit religious compensatory time off for work 
performed on a time-for-time basis, under its time and attendance 
procedures.
    (b) Except as provided in paragraph (c) of this section, an 
employee may accumulate only the amount of religious compensatory time 
off needed to cover an approved absence for a religious observance that 
has already occurred or to cover an approved absence for a future 
religious observance. An employee may only accumulate the amount of 
religious compensatory time off needed to cover the specific dates and 
times for which the employee has submitted a request for religious 
compensatory time off under Sec.  550.1004.
    (c) If the employee does not use his or her earned religious 
compensatory time off as planned--
    (1) The positive balance of unused compensatory time off may be 
redirected toward a future religious observance that has been approved, 
even if that future observance is more than 26 pay periods after the 
compensatory time off was originally earned (notwithstanding Sec.  
550.1006(b));
    (2) The employee may not earn any additional religious compensatory 
time off until the retained amount of religious compensatory time off 
has been used or the need to earn additional religious compensatory 
time off has been properly established and documented.


Sec.  550.1008  Employee separation or transfer.

    (a) Upon an employee's separation from Federal service or transfer 
to another Federal agency, the losing agency must compensate the 
employee for any positive balance of earned religious compensatory time 
off to his or her credit. The agency must pay the employee for hours of 
earned religious compensatory time off at the hourly rate of basic pay 
in effect at the time religious compensatory time off was earned.
    (b) For an employee who has a negative balance of religious 
compensatory time off upon an employee's separation from Federal 
service or transfer to another Federal agency, the losing agency may 
take corrective action to eliminate or reduce the negative balance by 
making a corresponding reduction in the employee's annual leave 
balance. Any negative balance of religious compensatory time off 
remaining after charging annual leave must be resolved by charging the 
employee leave without pay, which would result in an indebtedness that 
is subject to the agency's internal debt collection procedures.
    (c) For purposes of applying paragraphs (a) and (b) of this 
section, an hourly rate of basic pay is computed by dividing the annual 
rate of basic pay by 2,087 hours (or 2,756 hours for firefighter hours 
subject to that divisor under subpart F of this part).


Sec.  550.1009  Relationship to premium pay and overtime work.

    The premium pay provisions for overtime work in subpart A of this 
part and section 7 of the Fair Labor Standards Act of 1938, as amended 
(FLSA), do not apply to overtime work performed by an employee that is 
used to earn religious compensatory time off under this subpart. The 
overtime hours worked to earn religious compensatory time off under 
this subpart do not create an entitlement to premium pay (including 
overtime pay) under subpart A of this part or FLSA overtime pay under 5 
CFR part 551. Religious compensatory time off is not considered in 
applying the premium pay limitations described in Sec. Sec.  550.105, 
550.106, and 550.107 of this part.

Subpart M--Firefighter Pay

0
4. The authority citation for subpart M of part 550 continues to read 
as follows:

    Authority: 5 U.S.C. 5545b, 5548, and 5553.

0
5. In Sec.  550.1302, revise paragraph (2)(iii) of the definition of 
``firefighter'' to read as follows:


Sec.  550.1302  Definitions.

* * * * *
    Firefighter * * *
    (2) * * *
    (iii) Covered by the General Schedule and classified in the GS-
0099, General Student Trainee Series (as required by Sec.  362.203(f) 
of this chapter), if the position otherwise would be classified in the 
GS-0081 series.
* * * * *
[FR Doc. 2013-21221 Filed 8-29-13; 8:45 am]
BILLING CODE 6325-39-P