Pay Administration; Premium Pay

SUMMARY: The Office of Personnel Management is issuing interim

regulations on availability pay, a new form of premium pay that applies

to criminal investigators who are required to work, or be available to

work, substantial amounts of unscheduled overtime duty based on the

needs of the employing agency. Availability pay is fixed at 25 percent

of basic pay (including locality pay).

DATES: Effective Date: The regulations are effective October 30, 1994.

Applicability Dates: The regulations apply on the first day of the

first pay period beginning on or after October 30, 1994.

Comments Date: Comments must be received on or before February 21,

1995.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,

Acting Assistant Director for Compensation Policy, Office of Personnel

Management, room 6H31, 1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: D. Bryce Baker, (202) 606-1413.

SUPPLEMENTARY INFORMATION: Section 633 of the Treasury, Postal Service

and General Government Appropriations Act for fiscal year 1995 (Public

Law 103-329, September 30, 1994) amended title 5, United States Code,

to provide for a new form of premium pay called ``availability pay''

for criminal investigators. The availability pay provision takes effect

on the first day of the first pay period beginning on or after October

30, 1994, except that implementation may be delayed until September

1995 for certain criminal investigators employed by Inspectors General.

Criminal investigators receiving availability pay are exempt from the

minimum wage and overtime pay provisions of the Fair Labor Standards

Act and may not receive administratively uncontrollable overtime (AUO)

pay.

AUO Pay and Availability Pay

Availability pay replaces AUO pay for covered criminal

investigators. Some of the major differences between AUO pay and

availability pay are as follows:

The use of AUO pay is discretionary on the part of the

employing agency. In contrast, availability pay is a guaranteed

employee entitlement that the employing agency must provide, if the

required conditions are met.

The level of AUO pay may vary from 10 to 25 percent of

basic pay, depending on the average number of AUO hours worked per

week. Availability pay is fixed at 25 percent of basic pay.

AUO pay is calculated based upon the number of hours

actually worked. Availability pay also takes into account certain hours

when a criminal investigator is determined by the employing agency to

be available to work.

While both AUO pay and availability pay are the sole

compensation for irregular and occasional overtime work (i.e., overtime

hours not scheduled in advance of an employee's administrative

workweek), availability pay is also the sole compensation for any

overtime work hours that are the first 2 hours of overtime work on any

day containing part of the employee's basic 40-hour workweek

(regardless of how those hours are scheduled).

AUO pay is not basic pay for severance pay purposes, while

availability pay is basic pay for severance pay purposes.

Coverage

Eligibility for availability pay is limited to criminal

investigators. The regulations make clear that the only General

Schedule (GS) employees who qualify as criminal investigators for the

purpose of availability pay are those properly classified in the GS-

1811 (Criminal Investigating) and GS-1812 (Game Law Enforcement) series

under OPM standards. The GS-1812 series applies to criminal

investigators with specialized duties and skill requirements associated

with game law enforcement. Congress indicated its intent that

availability pay be limited to these two classification series of

employees in the conference report on the bill that was enacted as

Public Law 103-329. (See House Congressional Record, September 20,

1994, page H9268.)

Availability pay applies only to those GS-1811 and GS-1812 criminal

investigators who meet the definition of ``law enforcement officer'' in

5 U.S.C. 5541(3), which generally requires that the employee be covered

under the early retirement provisions for law enforcement officers.

However, an investigator may also meet that definition if he or she

holds a supervisory or administrative position that has been officially

approved as a ``secondary position'' under the regulations governing

the law enforcement officer retirement provisions.

Members of the Senior Executive Service (SES) (including the

Federal Bureau of Investigations and Drug Enforcement Administration

SES) are not eligible to receive availability pay. Availability pay is

one type of premium pay among many that are addressed in subchapter V

of title 5, United States Code. No premium pay under subchapter V is

applicable to SES members, since they are excluded from the definition

of ``employee'' in 5 U.S.C. 5541(2). The term ``criminal investigator''

in the availability pay provision is linked to the definition of ``law

enforcement officer'' in 5 U.S.C. 5541(3), which in turn is linked to

the definition of ``employee'' in 5 U.S.C. 5541(2). In interpreting a

term within the context of the premium pay subchapter, all of the

conditions of these definitions must be met.

Availability Hours

In determining whether a criminal investigator qualifies for

availability pay, the employing agency must determine whether the

investigator is expected to work, or be available to work, an annual

average of 2 hours of unscheduled duty per regular work day. Available-

to-work hours are those hours during which the employing agency

determines the investigator is generally and reasonably accessible to

perform unscheduled duty based on the needs of the agency. Generally,

the agency will place the investigator in availability status, meaning

that it directs the investigator to be available during designated

periods to meet agency needs. Availability hours on a regular workday

are included in the computation of the annual average, regardless of

whether an investigator actually works during those hours. However,

availability hours on a nonregular workday are used in computing the

annual average only if the investigator is actually required to work

during those hours. (See 5 U.S.C. 5545a(d)(3) and 5 CFR 550.183(c).)

Although availability hours during which no work is performed may

be used to justify entitlement to availability pay, it was the intent

of Congress that the existence of this availability condition should

not be interpreted by criminal investigators as license to reduce their

actual work hours. (See Senate Committee on Appropriations Report 103-

286, June 16, 1994, page 100.) This suggests that agencies should

ensure that all investigators receiving availability pay are performing

significant amounts of actual unscheduled overtime work, as opposed to

being merely available to perform such work.

Regular Workday

The regular workdays used as the denominator in the annual average

computation are defined in the regulations as days in the

investigator's basic workweek during which the investigator works at

least 4 hours, excluding overtime hours, approved training hours, hours

engaged in travel under official travel orders, approved leave hours,

and excused absence hours. (Travel hours are limited to hours during

which the investigator is traveling under official travel orders so as

to make clear that local area ``travel'' that is part of an

investigator's normal duties should not be excluded as work hours in

determining regular work days. An investigator is ``traveling under

official orders'' only for out-of-area travel and then only for that

period of time during which he or she is actually engaged in traveling.

Once an investigator reaches the out-of-area destination, any local

travel in that area must be treated the same as local travel in the

area where the investigator is permanently stationed.)

The exclusion of training, travel, approved leave, and excused

absence hours reflects, in part, an interpretation of the of the term

``works'' as used in the statutory definition of ``regular work day''

(5 U.S.C. 5545a(a)(4)). At the same time, the exclusion gives effect to

another statutory provision requiring that an investigator ``be

considered to be available when the investigator cannot reasonably and

generally be accessible'' due to certain assignments or circumstances

controlled by the agency (5 U.S.C. 5545a(d)(4)).

Excluding hours in training, travel, approved leave, and excused

absence in determining whether a day qualifies as a regular workday

ensures that the time spent in such situations does not adversely

affect an investigator's annual average hours computation. In effect,

the same annual average of unscheduled duty hours computed for regular

workdays is presumed to apply to other days in the basic workweek (such

as leave days). Thus, consistent with the law, the investigator

essentially is treated as if he or she were available on such days.

While training and travel hours are not used in determining regular

workdays, unscheduled duty hours involving training or travel that are

otherwise qualifying would be included as hours of unscheduled duty

(numerator) in the annual average computation.

When Availability Pay Must Be Paid

The purpose of the availability pay provision is to ensure the

availability of criminal investigators for unscheduled duty based on

the needs of the employing agency. (See 5 U.S.C. 5545a (b) and (c).)

The law provides that availability pay ``shall be paid'' to ensure this

availability, subject to the conditions of the law. One condition is

that availability pay can be paid only if the annual average hours

requirement is and will be met, as certified by the investigator.

To ensure the availability of criminal investigators as intended by

the law, agencies generally must ensure that each criminal

investigator's hours of unscheduled duty are sufficient to enable the

investigator to meet the average hours requirement and make the

necessary certification. However, the regulations provide for the

possibility of not providing availability pay to otherwise qualified

criminal investigators under several narrow exceptions. (See 5 CFR

550.182 (d) through (f), 550.184(d), and 550.185 (c) and (d).)

The regulations provide that an employing agency may, at its

discretion, approve a criminal investigator's voluntary request that he

or she generally not be assigned any overtime hours (including

unscheduled duty) for a designated period based on a personal or family

hardship situation (e.g., the investigator needs to assist in caring

for a chronically ill family member). The investigator would be

required to sign a written statement documenting this request and his

or her understanding that availability pay will be suspended. This

voluntary opt-out provision is intended to apply to situations where

the expected duration of the designated period is long enough that the

investigator would likely be unable to satisfy the annual average hours

requirement. Agencies are expected to monitor closely the use of this

authority to ensure that investigators are not allowed to opt out of

availability pay for long periods of time, only to opt back in at the

end of a career as a way of inappropriately inflating the average

salary used in the retirement annuity computation. OPM invites comments

on this voluntary opt-out provision and will consider refinements of

the criteria for opting out when final regulations are issued.

The regulations also provide that an agency may suspend payment of

availability pay when the agency determines that an investigator has

not been performing the required amount of unscheduled duty as assigned

or reported. This reflects the intent of Congress that agencies would

have the prerogative to remove availability pay if an investigator

avoids work or availability. (See Senate Committee on Appropriations

Report 103-286, June 16, 1994, page 100.) In addition, the regulations

provide that availability pay may be suspended if an investigator is in

a duty status but unable to perform unscheduled duty for an extended

period due to physical or health limitations.

As required by the law, an involuntary suspension of availability

pay as a result of a denial or cancellation of an availability pay

certification is an adverse action under 5 U.S.C. 7512(4) and 5 CFR

part 752. This means that availability pay is considered to be ``pay''

under 5 CFR 752.402(f). Also, a voluntary request that availability pay

be suspended under the voluntary opt-out provision does not trigger

adverse action rights.

A criminal investigator who is not receiving availability pay would

be entitled to compensation for any overtime work under other

provisions of law, as applicable. However, given the nature of the

exceptions described above, it is not expected that any such

investigator would receive AUO pay.

Criminal Investigators in Inspector General Offices

The law provides for a delayed effective date for criminal

investigators employed in offices of Inspectors General who are not

receiving 25-percent AUO pay. These regulations clarify that the

employing Inspector General (IG) office, not the criminal investigators

themselves, shall be responsible for determining the delayed effective

date for such criminal investigators, subject to the limits in the law.

(For clarification of congressional intent in this regard, see Senate

Congressional Record, September 28, 1994, page S13551.)

These regulations also clarify that criminal investigators in IG

offices are subject to the same rules, requirements and conditions that

apply to all other criminal investigators under the availability pay

provision. Thus, for example, the required initial and annual

certifications (related to the annual average hours requirement) must

be made.

Waiver of Notice of Proposed Rule Making and Delay in Effective

Date

Pursuant to 5 U.S.C. 553(b)(3)(B) and 5 U.S.C. 553(d)(3), I find

that good cause exists for waiving the general notice of proposed

rulemaking and making this rule effective retroactively. Section 633 of

Public Law 103-329, which authorizes availability pay, was enacted on

September 30, 1994. The availability pay authority is effective on

October 30, 1994 and applies on the first day of the first applicable

pay period beginning on or after October 30, 1994. These regulations

are being made effective retroactively to the effective date of the law

to ensure that the availability pay provision is uniformly implemented.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

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

5 CFR Part 550

Administrative practice and procedure, Claims, Government

employees, Wages.

5 CFR Part 551

Government employees, Wages.

5 CFR Part 575

Government employees, Wages.

5 CFR Part 581

Alimony, Child support, Government employees, Wages.

5 CFR Part 870

Administrative practice and procedure, Government employees,

Hostages, Iraq, Kuwait, Lebanon, Life insurance, Retirement.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending parts 550, 551, 575, 581, and 870 of

title 5 of the Code of Federal Regulations as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart A--Premium Pay

1. The authority citation for part 550, subpart A, is revised to

read as follows:

Authority: Subpart A issued under 5 U.S.C. 5304 note, 5305 note,

5541(2)(iv), 5548, and 6101(c); E.O. 12748, February 1, 1991, 3 CFR

1992 Comp., p. 316.

2. In Sec. 550.103, paragraphs (i) and (p) are revised, and

paragraph (u) is added to read as follows:

Sec. 550.103 Definitions.

* * * * *

(i) Premium pay means additional pay authorized by subchapter V of

chapter 55 of title 5, United States Code, and this subpart for

overtime, night, holiday, or Sunday work, and for standby duty,

administratively uncontrollable overtime work, or availability duty.

* * * * *

(p) Regularly scheduled work means work that is scheduled in

advance of an administrative workweek under an agency's procedures for

establishing workweeks in accordance with Sec. 610.111, excluding any

such work to which availability pay under Sec. 550.181 applies.

* * * * *

(u) Criminal investigator means a law enforcement officer as

defined in paragraph (t) of this section (other than a special agent in

the Diplomatic Security Service) who, based on OPM standards, is

properly classified under the GS-1811 or GS-1812 series in the General

Schedule classification system, or who would be so classified if

covered under that system.

3. In Sec. 550.111, paragraph (a) is revised and paragraph (f) is

added to read as follows:

Sec. 550.111 Authorization of overtime pay.

(a) Except as provided in paragraphs (d) and (f) of this section,

overtime work means work in excess of 8 hours in a day or in excess of

40 hours in an administrative workweek that is--

(1) Officially ordered or approved; and

(2) Performed by an employee. Hours of work in excess of 8 in a day

are not included in computing hours of work in excess of 40 hours in an

administrative workweek.

* * * * *

(f)(1) For any criminal investigator receiving availability pay

under Sec. 550.181, overtime work means work that is scheduled in

advance of the administrative workweek--

(i) In excess of 10 hours on a day containing hours that are part

of such investigator's basic 40-hour workweek; or

(ii) On a day not containing hours that are part of such

investigator's basic 40-hour workweek.

(2) Any work that would be overtime work under this section but for

paragraph (f)(1) of this section shall be compensated by availability

pay under Sec. 550.181.

4. In Sec. 550.163, paragraph (e) is added to read as follows:

Sec. 550.163 Relationship to other payments.

(e) Premium pay on an annual basis under Sec. 550.141 or

Sec. 550.151 may not be paid to a criminal investigator receiving

availability pay under Sec. 550.181.

5. Sections 550.181 through 550.187 are added to read as follows:

Law Enforcement Availability Pay

Sec. 550.181 Coverage.

Each criminal investigator meeting the definition in

Sec. 550.103(u), and the conditions and requirements of 5 U.S.C. 5545a

and the regulations in Secs. 550.181 through 550.187, shall receive

availability pay to ensure the availability of criminal investigators

for unscheduled duty in excess of the 40-hour workweek based on the

needs of the employing agency.

Sec. 550.182 Unscheduled duty.

(a) Unscheduled duty hours. For the purpose of availability pay,

unscheduled duty hours are those hours during which a criminal

investigator performs work, or is determined by the employing agency to

be available for work, that are not--

(1) Part of the 40-hour basic workweek of the investigator; or

(2) Overtime hours compensated under 5 U.S.C. 5542 and Sec. 550.111

(which are those overtime hours scheduled in advance of the

investigator's administrative workweek, excluding any such hours that

are the first 2 hours of overtime work on any day containing a part of

the investigator's basic 40-hour workweek, as required by

Sec. 550.111(f)).

(b) Actual work hours. To be considered to be performing work under

paragraph (a) of this section, a criminal investigator must be

performing work as officially ordered or approved, including work

performed without specific supervisory preapproval, if circumstances

require the criminal investigator to perform the duty to meet the needs

of the employing agency, subject to agency policies and procedures

(including any requirements for after-the-fact validation or approval).

(c) Availability hours. To be considered available for work under

paragraph (a) of this section, a criminal investigator must be

determined by the employing agency to be generally and reasonably

accessible to perform unscheduled duty based on the needs of the

agency. Generally, the agency will place the investigator in

availability status by directing the investigator to be available

during designated periods to meet agency needs, as provided by agency

policies and procedures. Placing the investigator in availability

status shall not be considered scheduling the investigator for overtime

hours compensated under 5 U.S.C. 5542 and 5 CFR 550.111. Availability

hours may include hours during which an investigator places himself or

herself in availability status to meet the needs of the agency, subject

to agency policies and procedures (including any requirements for

after-the-fact validation or approval).

(d) Ensuring availability. Except as provided in paragraphs (e) and

(f) of this section, an employing agency shall ensure that each

criminal investigator's hours of unscheduled duty are sufficient to

enable the investigator to meet the substantial hours requirement in

Sec. 550.183 and make the certification required under Sec. 550.184.

(e) Voluntary opt-out. Notwithstanding paragraph (d) of this

section, an employing agency may, at its discretion, approve a criminal

investigator's voluntary request that the investigator generally be

assigned no overtime work (including unscheduled duty) for a designated

period of time because of a personal or family hardship situation. The

investigator must sign a written statement documenting this request and

his or her understanding that availability pay will not be payable

during the designated period.

(f) When availability pay is suspended. The employing agency is not

subject to the requirement of paragraph (d) of this section in the case

of a criminal investigator for whom availability pay is suspended in

accordance with Sec. 550.184(d) due to denial or cancellation of the

required certification based on--

(1) Failure to perform unscheduled duty as assigned or reported; or

(2) Inability to perform unscheduled duty for an extended period

because of a physical or health condition.

Sec. 550.183 Substantial hours requirement.

(a) A criminal investigator shall be eligible for availability pay

only if the annual average number of hours of unscheduled duty per

regular workday is 2 hours or more, as certified in accordance with

Sec. 550.184. This average is computed by dividing the total

unscheduled duty hours for the annual period (numerator) by the number

of regular workdays (denominator).

(b) For the purpose of this section, regular workday means each day

in the criminal investigator's basic workweek during which the

investigator works at least 4 hours, excluding--

(1) Overtime hours compensated under 5 U.S.C. 5542 and

Sec. 550.111;

(2) Unscheduled duty hours compensated by availability pay under 5

U.S.C. 5545a and this subpart; and

(3) Hours during which an investigator is engaged in agency-

approved training, is traveling under official travel orders, is on

approved leave, or is on excused absence with pay (including paid

holidays).

(c) In computing average hours under paragraph (a) of this section,

the total unscheduled duty hours in the numerator shall include--

(1) Any unscheduled duty hours on a regular workday; and

(2) Any unscheduled duty hours actually worked by an investigator

on days that are not regular workdays.

Sec. 550.184 Annual certification.

(a) Each newly hired criminal investigator who will receive

availability pay and the appropriate supervisory officer (as designated

by the head of the agency or authorized designee) shall make an initial

certification to the head of the agency attesting that the investigator

is expected to meet the substantial hours requirement in Sec. 550.183

during the upcoming 1-year period. A similar certification shall be

made for a criminal investigator who will begin receiving availability

pay after a period of nonreceipt (e.g., a designated voluntary opt-out

period under Sec. 550.182(e)).

(b) Each criminal investigator who is receiving availability pay

and the appropriate supervisory officer (as designated by the head of

the agency or authorized designee) shall make an annual certification

to the head of the agency attesting that the investigator currently

meets, and is expected to continue to meet during the upcoming 1-year

period, the substantial hours requirement in Sec. 550.183.

(c) A certification shall no longer apply when the employee

separates from Federal service, is employed by another agency, moves to

a position that does not qualify as a criminal investigator position,

or begins a voluntary opt-out period under Sec. 550.182(e).

(d) The employing agency shall ensure that criminal investigators

receiving availability pay comply with the substantial hours

requirement in Sec. 550.183, as certified in accordance with this

section. The employing agency may deny or cancel a certification based

on a finding that an investigator has failed to perform unscheduled

duty (availability or work) as assigned or reported, or is unable to

perform unscheduled duty for an extended period due to physical or

health reasons. If a certification is denied or canceled, the

investigator's entitlement to availability pay shall be suspended for

an appropriate period, consistent with agency policies. If the

investigator's certification was valid when made, the suspension of

availability pay shall be effected prospectively.

(e) An involuntary suspension of availability pay resulting from a

denial or cancellation of certification under paragraph (d) of this

section shall be a reduction in pay for the purpose of applying the

adverse action provisions of 5 U.S.C. 7512 and 5 CFR part 752.

(f) The head of an agency (or authorized designee) may prescribe

any additional regulations necessary to administer the certification

requirement, including procedures for retroactive correction in cases

in which a certification is issued belatedly or lapses due to

administrative error.

Sec. 550.185 Payment of availability pay.

(a) Availability pay shall be an amount equal to 25 percent of the

criminal investigator's rate of basic pay (as defined in

Sec. 550.103(j)). However, availability pay shall be paid only for

periods of time during which the investigator receives basic pay.

(b) Except as provided in paragraph (c) of this section, a criminal

investigator who is eligible for availability pay shall continue to

receive such pay during any period such investigator is attending

agency-sanctioned training, on agency-ordered travel status, on agency-

approved leave with pay, or on excused absence with pay for relocation

purposes.

(c) Agencies may, at their discretion, provide availability pay to

criminal investigators during training that is considered initial,

basic training usually provided in the first year of service.

(d) Agencies may, at their discretion, provide for the continuation

of availability pay when a criminal investigator is on excused absence

with pay, except where payment is mandatory under paragraph (b) of this

section.

(e) The amount of availability pay payable to a criminal

investigator for a pay period is not affected by the occurrence of a

paid holiday during that period.

Sec. 550.186 Relationship to other payments.

(a) Standby duty pay under Sec. 550.141 and administratively

uncontrollable overtime pay under Sec. 550.151 may not be paid to a

criminal investigator receiving availability pay. Receipt of

availability pay does not affect an investigator's entitlement to other

types of premium pay (including overtime pay under Sec. 550.111) based

on hours other than unscheduled duty hours. However, a criminal

investigator receiving availability pay may not be paid any other

premium pay based on unscheduled duty hours.

(b) Availability pay shall be treated as part of basic pay only for

the following purposes:

(1) 5 U.S.C. 5524a, pertaining to advances in pay;

(2) 5 U.S.C. 5595(c), pertaining to severance pay;

(3) 5 U.S.C. 8114(e), pertaining to workers' compensation;

(4) 5 U.S.C. 8331(3) and 5 U.S.C. 8401(4), pertaining to retirement

benefits;

(5) 5 U.S.C. 8431, pertaining to the Thrift Savings Plan; and

(6) 5 U.S.C. 8704(c), pertaining to life insurance.

(c) Availability pay shall be used in computing a lump-sum payment

for accumulated annual leave under 5 U.S.C. 5551 and 5552.

(d) The minimum wage and the hours of work and overtime pay

provisions of the Fair Labor Standards Act do not apply to criminal

investigators receiving availability pay.

Sec. 550.187 Transitional provisions.

(a) Except as provided in paragraph (b) of this section, not later

than the first day of the first pay period beginning on or after

October 30, 1994, each criminal investigator qualified to receive

availability pay and the appropriate supervisory officer (as designated

by the agency head or authorized designee) shall make an initial

certification to the head of the agency that the investigator is

expected to meet the substantial hours requirement in Sec. 550.183. The

head of an agency may prescribe procedures necessary to administer this

paragraph.

(b)(1) In the case of criminal investigators who are employed in

offices of Inspectors General and who, immediately prior to September

30, 1994, were not receiving administratively uncontrollable overtime

pay, or were receiving such pay at a rate of less than 25 percent, the

employing office may delay implementation of availability pay; however,

availability pay shall be implemented (in accordance with Secs. 550.181

through 550.186) no later than--

(i) September 30, 1995, for investigators who are not receiving

administratively uncontrollable overtime pay; or

(ii) The first day of the last pay period ending on or before

September 30, 1995, for investigators who were receiving

administratively uncontrollable overtime pay at a rate of less than 25

percent immediately prior to September 30, 1994.

(2) A criminal investigator who is employed in an Inspector General

office and was receiving administratively uncontrollable overtime pay

at a rate of less than 25 percent immediately prior to September 30,

1994, shall continue to receive at least that rate or a higher rate, if

increased by the employing agency, until the availability pay provision

is implemented for the position (no later than as provided in paragraph

(b)(1)(ii) of this section).

(3) Implementation of availability pay for criminal investigators

under paragraph (b)(1) of this section shall be in accordance with the

requirements and conditions set forth in Secs. 550.181 through 550.186.

For qualified investigators, an initial certification shall be made,

consistent with paragraph (a) of this section.

Subpart B--Advances in Pay

6. The authority citation for part 550, subpart B, is revised to

read as follows:

Authority: 5 U.S.C. 5524a, 5545a(h)(2)(B); sections 302 and 404

of the Federal Employees Pay Comparability Act of 1990 (Public Law

101-509), 104 stat. 1462 and 1466, respectively; E.O. 12748,

February 1, 1991, 3 CFR 1992 Comp., p. 316.

7. In Sec. 550.202, the definition of rate of basic pay is revised

to read as follows:

Sec. 550.202 Definitions.

* * * * *

Rate of basic pay means the rate of pay fixed by law or

administrative action for the position held by an employee, including,

as applicable, annual premium pay under 5 U.S.C. 5545(c), availability

pay under 5 U.S.C. 5545a, night differential for prevailing rate

employees under 5 U.S.C. 5343(f), and any interim geographic adjustment

or special pay adjustment for law enforcement officers under section

302 or 404 of the Federal Employees Pay Comparability Act of 1990 (Pub.

L. 101-509), respectively, or locality-based comparability payment

under 5 U.S.C. 5304, but not including additional pay of any kind.

Subpart G--Severance Pay

8. The authority citation for part 550, subpart G, is revised to

read as follows:

Authority: 5 U.S.C. 5595; E.O. 11257, November 13, 1965, 3 CFR

1954-1965 Comp., p. 357.

9. In Sec. 550.703, the definition of rate of basic pay is revised

to read as follows:

Sec. 550.703 Definitions.

* * * * *

Rate of basic pay means the rate of pay fixed by law or

administrative action for the position held by an employee, including,

as applicable, annual premium pay for standby duty under 5 U.S.C.

5545(c)(1), availability pay under 5 U.S.C. 5545a, night differential

for prevailing rate employees under 5 U.S.C. 5343(f), and any interim

geographic adjustment or special pay adjustment for law enforcement

officers under section 302 or 404 of the Federal Employees Pay

Comparability Act of 1990 (Pub. L. 101-509), respectively, or locality-

based comparability payment under 5 U.S.C. 5304, but not including

additional pay of any kind.

* * * * *

PART 551--PAY ADMINISTRATION UNDER THE FLSA

10. The authority citation for part 551 is revised to read as

follows:

Authority: 5 U.S.C. 5542c; sec. 4(f) of the Fair Labor Standards

Act for 1938, as amended by Public Law 93-259, 88 Stat. 55 (29

U.S.C. 204f).

Subpart B--Exemptions

11. Section 551.209 is added to read as follows:

Sec. 551.209 Exemption of criminal investigators receiving

availability pay.

A criminal investigator receiving availability pay under

Sec. 550.181 is exempt from the hours of work and overtime pay

provisions of the Act.

Subpart C--Minimum Wage Provisions

12. In Sec. 551.301, paragraph (a) is revised to read as follows:

Sec. 551.301 Minimum wage.

(a)(1) Except as provided in paragraph (a)(2) of this section and

Sec. 551.311, an agency shall pay each of its employees wages at rates

not less than the minimum wage specified in section 6(a)(1) of the Act

for all hours of work as defined in subpart D of this part.

(2) The minimum wage provisions of the Act do not apply to a

criminal investigator receiving availability pay under Sec. 550.181.

* * * * *

PART 575--RECRUITMENT AND RELOCATION BONUSES; RETENTION ALLOWANCES;

SUPERVISORY DIFFERENTIALS

13. The authority citation for part 575 is revised to read as

follows:

Authority: 5 U.S.C. 1104(a)(2), 5753, 5754, and 5755; sec. 302

and 404 of the Federal Employees Pay Comparability Act of 1990 (Pub.

L. 101-509), 104 Stat. 1462 and 1466, respectively; E.O. 12748,

February 1, 1991, 3 CFR 1992 Comp., p. 316.

Subpart D--Supervisory Differentials

14. In Sec. 575.405, paragraphs (c)(5) and (c)(6) are revised and

paragraph (c)(7) is added to read as follows:

Sec. 575.405 Calculation and payment of supervisory differential.

* * * * *

(c) * * *

(5) Any other continuing payment, except night, Sunday, or holiday

premium pay or a hazardous duty differential under chapter 55 of title

5, United States Code;

(6) Premium pay paid on an annual basis under 5 U.S.C. 5545(c); and

(7) Availability pay under 5 U.S.C. 5545a.

* * * * *

PART 581--PROCESSING GARNISHMENT ORDERS FOR CHILD SUPPORT AND/OR

ALIMONY

15. The authority citation for part 581 continues to read as

follows:

Authority: 42 U.S.C. 659, 661-662; 15 U.S.C. 1673; E.O. 12105

(43 FR 59465 and 3 CFR 262) (1979).

Subpart A--Purpose and Definitions

16. In Sec. 581.103, paragraph (a)(6) is revised to read as

follows:

Sec. 581.103 Moneys which are subject to garnishment.

(a) * * *

(6) Standby duty pay, administratively uncontrollable overtime pay,

and availability pay;

* * * * *

PART 870--BASIC LIFE INSURANCE

17. The authority citation for part 870 continues to read as

follows:

Authority: 5 U.S.C. 8716; Sec. 870.202(c) also issued under 5

U.S.C. 7701(b)(2); subpart J is also issued under section 599C of

Pub. L. 101-513, 104 Stat. 2064, as amended.

Subpart C--Amount of Insurance

18. In Sec. 870.302, paragraph (a) is revised to read as follows:

Sec. 870.302 Annual rates of pay.

(a) An insured employee's annual pay is his/her annual rate of

basic pay as fixed by law or regulation, except that annual pay for

this purpose shall include--

(1) Standby duty premium pay under 5 U.S.C. 5545(c)(1);

(2) For a law enforcement officer as defined in Secs. 831.902 or

842.802, administratively uncontrollable overtime pay under 5 U.S.C.

5545(c)(2); and

(3) Availability pay under 5 U.S.C. 5545a.

* * * * *

[FR Doc. 94-31650 Filed 12-22-94; 8:45 am]

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