Pay Administration; Back Pay; Holidays; and Physicians' Comparability Allowances

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 550, 595, and 610

RIN 3206-AI61

Pay Administration; Back Pay; Holidays; and Physicians'

Comparability Allowances

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing interim

regulations to reflect changes in law which clarify that back pay

awards are subject to a 6-year statute of limitations unless a shorter

statute of limitations period applies, change the designation of

holidays for certain Federal employees working overseas, and increase

the maximum physicians' comparability allowance from $20,000 to $30,000

per year for employees who have served as a Government physician for

more than 24 months. The changes in law are already effective.

DATES: Effective Date: The regulations are effective on December 28,

1999.

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

first pay period beginning on or after December 28, 1999.

Comments Date: Comments must be received on or before February 28,

2000.

FOR FURTHER INFORMATION CONTACT: James R. Weddel, (202) 606-2858, FAX:

(202) 606-0824, or email: [email protected].

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

Assistant Director for Compensation Administration, Workforce

Compensation and Performance Service, Office of Personnel Management,

Room 7H31, 1900 E Street NW., Washington, DC 20415, FAX: (202) 606-

0824, or email: [email protected].

SUPPLEMENTARY INFORMATION: These interim regulations reflect changes in

law clarifying the statute of limitations for back pay, raising the

maximum physicians' comparability allowance for employees with more

than 24 months of service as Government physicians, and designating

holidays for certain employees at duty posts outside the United States.

Statute of Limitations for Back Pay

Section 1104 of Public Law 105-261, the Strom Thurmond National

Defense Authorization Act, 1999 (October 17, 1998), amended the back

pay law (5 U.S.C. 5596(b)). Section 1104 added a new provision to

clarify that back pay awards are subject to a 6-year statute of

limitations unless a shorter statute of limitations period applies.

This amendment clarifies that the 6-year limitation period in the

Tucker Act (28 U.S.C. 2402 et seq.) and the Barring Act (31 U.S.C.

3702) applies to cases under the back pay law. Section 1104 also adds a

new provision to 5 U.S.C. 7121 to clarify that settlements of

grievances and arbitration awards under 5 U.S.C. 7121 are subject to

the same 6-year statute of limitations. Note that this amendment does

not modify the current 2-year statute of limitations (3 years for

willful violations) provided by the Portal-to-Portal Act of 1947 for

claims under the Fair Labor Standards Act of 1938, as amended, that are

filed on or after June 30, 1994. These changes became effective on

October 17, 1998, and are reflected in a new paragraph (e) in 5 CFR

550.804.

Maximum Physicians' Comparability Allowance

Section 7 of Public Law 105-266, the Federal Employees Health Care

Protection Act of 1998 (October 19, 1998), amended 5 U.S.C. 5948(a) to

increase the maximum physicians' comparability allowance (PCA) from

$20,000 to $30,000 per year for an employee who has served as a

Government physician for more than 24 months. We are revising 5 CFR

595.105(b) to reflect the higher maximum allowance rate. We are also

correcting references to title 38, United States Code, in

Sec. 595.105(c). In addition, we are making other changes to clarify

the language in Sec. 595.105 generally. As part of these clarifying

changes, the last sentence in Sec. 595.105(c) has been edited and moved

to Sec. 595.102.

Section 7 also provides that agencies may modify any PCA service

agreement in effect on the effective date of the Act to increase the

PCA for a physician up to the new maximum amount during the time

remaining under the service agreement. However, section 7 provides that

any modification of an existing service agreement to increase a PCA

cannot cause the total PCA paid to the employee during the calendar

year to exceed the new $30,000 maximum or any other applicable

limitation (e.g., the aggregate limitation on pay under 5 U.S.C. 5307).

These changes became effective on October 19, 1998. However, the

Office of Management and Budget advises that before agencies may

authorize a PCA in excess of $20,000, they must submit new or updated

PCA plans and obtain OMB approval of the changes. See 5 CFR 595.107(a)

and the criteria for revised Physicians' Comparability Allowance plans

in OMB's Memorandum for the Heads of Departments and Agencies (M-99-04,

December 11, 1998).

Holidays at Duty Posts Outside the United States

Section 1107 of Public Law 105-261, the Strom Thurmond National

Defense Authorization Act, 1999 (October 17, 1998), adds a new

provision to 5 U.S.C. 6103 which changes the designation of holidays

for certain Federal employees who work at duty posts outside the United

States. For this purpose, the Office of Personnel Management has

determined that ``outside the United States'' refers to an employee's

official duty station (or temporary duty station while traveling) that

is not in (1) a State of the United States; (2) the District of

Columbia; (3) Puerto Rico; (4) the U.S. Virgin Islands; (5) Outer

Continental Shelf Lands, as defined in the Outer Continental Shelf

Lands Act (67 Stat. 462); (6) American Samoa; (7) Guam; (8) Midway

Atoll; (9) Wake Island; (10) Johnston Island; or (11) Palmyra. This is

parallel to the definition of exempt area in 5 CFR 551.104 for the

purpose of administering the foreign exemption from the minimum wage,

overtime pay, and child labor provisions of the Fair Labor Standards

Act of 1938, as amended.

Section 1107 provides that whenever Monday is designated as a

holiday

[[Page 72458]]

under 5 U.S.C. 6103(a), the first regularly scheduled workday in the

week is the holiday for a Federal employee at a duty post outside the

United States whose basic workweek includes Monday, but is not the

typical Monday through Friday work schedule found in the United States.

The intent of this new provision of law is to create a 3-day weekend

with a holiday on Sunday for Federal employees who work Sunday through

Thursday with nonworkdays on Friday and Saturday. Thus, if the

regularly scheduled administrative workweek designated by an agency for

an employee is Sunday through Saturday midnight, and the employee's

basic workweek is Sunday through Thursday, this provision will have the

effect of moving the employee's holiday from Monday to Sunday (the day

before) and providing a 3-day weekend (Friday, Saturday, and Sunday) to

the employee. However, when employees working overseas do not have

Sunday through Thursday work schedules, the new law will usually not

have the desired effect unless the agency makes an adjustment in the

administrative workweek.

This change in law became effective on October 17, 1998. See the

conforming revisions in 5 CFR 610.201 and 610.202. Section 610.202 has

also been revised to reflect the fact that employees on alternative

work schedules may have a basic work requirement, as defined in 5

U.S.C. 6121(3).

Waiver of Notice of Proposed Rule Making and Delay in Effective

Date

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

cause exists for waiving the general notice of proposed rulemaking and

making this rule effective on the date of its publication in the

Federal Register. This waiver is appropriate because the attached

changes in regulations update Office of Personnel Management

regulations to make them consistent with changes in law that are

already effective.

E.O. 12866, Regulatory Review

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

in accordance with Executive Order 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 Parts 550, 595, and 610

Administrative practice and procedure, Claims, Government

employees, Health professions, Holidays, Wages.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM is amending parts 550, 595, and 610 of title 5 of

the Code of Federal Regulations as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart H--Back Pay

3. The authority citation for subpart H of part 550 continues to

read as follows:

Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.

4. In Sec. 550.804, paragraph (e) is added to read as follows:

Sec. 550.804 Determining entitlement to back pay.

* * * * *

(e)(1) The pay, allowances, and differentials paid as back pay

under this subpart (including payments made under any grievance or

arbitration decision or any settlement agreement) may not exceed that

authorized by any applicable law, rule, regulation, or collective

bargaining agreement, including any applicable statute of limitations.

(2) An agency may not authorize pay, allowances, and differentials

under this subpart in any case for a period beginning more than 6 years

before the date of the filing of a timely appeal, or, absent such

filing, the date of the administrative determination that the employee

is entitled to back pay, consistent with 31 U.S.C. 3702(b). (See also

Sec. 178.104 of this chapter.)

(3) For back pay claims dealing with payments under the Fair Labor

Standards Act of 1938, as amended (29 U.S.C. 207, et seq.), an agency

must apply the 2-year statute of limitations (3 years for willful

violations) in 29 U.S.C. 255a. (See also Sec. 551.702 of this chapter.)

PART 595--PHYSICIANS' COMPARABILITY ALLOWANCES

7. The authority citation for part 595 continues to read as

follows:

Authority: 5 U.S.C. 5948; E.O. 12109, 44 FR 1067, Jan. 3, 1979.

8. In Sec. 595.102, paragraph (c) is added to read as follows:

Sec. 595.102 Coverage and exclusions.

* * * * *

(c) Physicians employed and paid under title 38, United States

Code, and Commissioned Corps officers of the Public Health Service

under title 42, United States Code, are not eligible for physicians'

comparability allowances.

9. In Sec. 595.105, paragraphs (b) and (c) are revised to read as

follows:

Sec. 595.105 Determination of amount of comparability allowance.

* * * * *

(b) A physician with 24 months or less of service as a Government

physician may not be paid a physicians' comparability allowance in

excess of $14,000 per annum. A physician with more than 24 months of

service as a Government physician may not be paid a physicians'

comparability allowance in excess of $30,000 per annum.

(c) In determining length of service as a Government physician,

agencies must exclude periods of leave without pay. However, agencies

may credit any prior service as a Government physician, including--

(1) Prior service as a physician under sections 7401 and 7405 of

title 38, United States Code; and

(2) Prior active service as a medical officer in the Commissioned

Corps of the Public Health Service under title II of the Public Health

Service Act (42 U.S.C. chapter 6A).

* * * * *

PART 610--HOURS OF DUTY

Subpart B--Holidays

10. The authority citation for part 610, subpart B, continues to

read as follows:

Authority: 5 U.S.C. 6101; sec. 1(1) of E.O. 11228, 3 CFR, 1964-

1965 Comp., p. 317.

11. Section 610.201 is revised to read as follows:

Sec. 610.201 Identification of holidays.

Holidays are determined under section 6103 of title 5, United

States Code, and Executive Order 11582 of February 11, 1971.

12. In Sec. 610.202, paragraph (a) is revised, and paragraph (d) is

added to read as follows:

Sec. 610.202 Determining the holiday.

* * * * *

(a) Except when a different holiday is designated by section

6103(b)(3) of title 5, United States Code, when a holiday falls on a

day during which part of the employee's basic workweek (as defined in

Sec. 610.102) or basic work requirement (as defined in 5 U.S.C.

6121(3)) is scheduled to be completed, that workday is the employee's

holiday.

* * * * *

(d) The provisions of section 6103(b)(3) of title 5, United States

Code, on determining holidays for certain

[[Page 72459]]

employees at duty posts outside the United States apply to covered

employees who are working outside the United States at a permanent or

temporary station or under travel orders. For the purpose of section

6103(b)(3), United States includes--

(1) A State of the United States;

(2) The District of Columbia;

(3) Puerto Rico;

(4) The U.S. Virgin Islands;

(5) Outer Continental Shelf Lands, as defined in the Outer

Continental Shelf Lands Act (67 Stat. 462);

(6) American Samoa;

(7) Guam;

(8) Midway Atoll;

(9) Wake Island;

(10) Johnston Island; and

(11) Palmyra.

[FR Doc. 99-33587 Filed 12-27-99; 8:45 am]

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