12032 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 

update VetGuide to further clarify the 

application of the 24-month 

requirement. 

One commenter recommended OPM 

replace the word ‘‘badge’’ with ‘‘medal’’

or ‘‘badge or medal’’ in § 211.102(a)(2). 

OPM is not adopting this 

recommendation because the reference 

to ‘‘badge’’ is contained in law at 5 

U.S.C. 2108(1)(A). Further, military 

personnel receive many awards and 

decorations which are determined by 

the Department of Defense. OPM and its 

predecessor agency, the Civil Service 

Commission, have always used the 

terms ‘‘badge’’ and ‘‘medal’’

interchangeably, as appropriate. We 

believe VetGuide provides sufficient 

explanation of the many badges and 

medals which qualify for purposes of 

veterans’ preference. 

The same individual asked OPM to 

clarify in the final regulation whether an 

Army ‘‘service medal’’ qualifies an 

individual for veterans’ preference 

under part 211. OPM is not adopting 

this suggestion. The list of military 

campaigns, expeditions, awards, and 

decorations qualifying for veterans’

preference is too lengthy to be contained 

in this part. However, OPM lists this 

information in Appendix A of VetGuide 

available on-line at http:// 

www.opm.gov/veterans/html/ 

vgmedal2.asp. In general, service 

medals are not qualifying for purposes 

of veterans’ preference. 

One commenter asked OPM to 

explain the significance of changing 

‘‘separated’’ to ‘‘released or discharged’’

in § 211.102(a), (b), and (g). OPM 

modified part 211 in order to be 

consistent with recent statutory changes 

to 5 U.S.C. 2108. With these changes the 

law, OPM’s implementing regulations, 

and Department of Defense (DD) Form 

214, Certificate of Release or Discharge 

from Active Duty, the form used by 

veterans to claim 5-point veterans’

preference, all use the same language 

which should make it easier for eligible 

veterans to receive their entitlement. 

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 this regulation would not 

have a significant economic impact on 

a substantial number of small entities 

(including small businesses, small 

organizational units, and small 

governmental jurisdictions) because it 

affects only Federal agencies employees. 

List of Subjects in 5 CFR Part 211 

Government employees, Veterans. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, the interim rule 

amending part 211 of title 5, Code of 

Federal Regulations, which was 

published at 71 FR 33375 on June 9, 

2006, is adopted as a final rule without 

changes. 

[FR Doc. E7–4697 Filed 3–14–07; 8:45 am] 

BILLING CODE 6325–39–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR PARTS 317, 353, 550, and 551 

RIN 3206–AL21 

Employment in the Senior Executive 

Service, Restoration To Duty From 

Uniformed Service or Compensable 

Injury, Pay Administration (General), 

and Pay Administration Under the Fair 

Labor Standards Act; Miscellaneous 

Changes to Pay and Leave Rules 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management is issuing final regulations 

to amend a number of rules on pay and 

leave administration, including 

employment in the Senior Executive 

Service, use of paid leave during 

uniformed service, time limits for using 

compensatory time off earned in lieu of 

overtime pay, and other miscellaneous 

changes. The final regulations are being 

issued to standardize pay and leave 

policies in support of the consolidation 

of agency human resources and payroll 

systems. 

DATES: The regulations are effective on 

May 14, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Sharon Dobson by telephone at (202) 

606–2858; by fax at (202) 606–0824; or 

by e-mail at pay-performancepolicy@opm.gov. 

SUPPLEMENTARY INFORMATION: On 

January 5, 2005, the Office of Personnel 

Management (OPM) issued a 

comprehensive package of proposed 

regulations on Restoration to Duty From 

Uniformed Service or Compensable 

Injury; Payrates and Systems (General); 

Pay Under the General Schedule; Pay 

Administration (General); Pay 

Administration Under the Fair Labor 

Standards Act; Recruitment and 

Relocation Bonuses; Retention 

Allowances; Supervisory Differentials; 

Hours of Duty; and Absence and Leave 

(70 FR 1068). The proposed regulations 

are available at http://www.opm.gov/ 

fedregis. The 60-day comment period 

ended on March 7, 2005. We received a 

total of 93 comments on the proposed 

regulations. 

In these final regulations, we are 

addressing the revisions to rules 

concerning the retention of pay and 

benefits for a Senior Executive Service 

(SES) member who accepts a 

Presidential appointment, use of paid 

leave during uniformed service, time 

limits for using compensatory time off 

earned in lieu of overtime pay, and 

other miscellaneous rules. We have 

already published regulations for some 

of the subject areas included in the 

January 2005 proposed regulations in 

separate issuances in the Federal 

Register. Comments received on the 

proposed changes to the rules on 

Adjustments of Work Schedules for 

Religious Observances, Hours of Duty, 

and Absence and Leave will be 

addressed in subsequent issuances in 

the Federal Register. 

Except as otherwise stated in this 

supplementary information, the purpose 

of the revisions in these final 

regulations is to standardize pay and 

leave policies in support of the 

consolidation of agency human 

resources and payroll systems and in 

general to aid agencies in the 

administration of these programs. All 

revisions are being made to regulations 

in title 5, Code of Federal Regulations. 

Regulations Already Issued 

Some of the changes included in the 

January 2005 proposed regulations have 

already been addressed in subsequent 

regulations issued by OPM on May 13, 

2005, May 31, 2005, and August 17, 

2006, as discussed below. 

The January 2005 regulations 

proposed to amend the definition of rate 

of basic pay in §§ 575.103, 575.203, and 

575.303 to clarify that night pay and 

environmental differential pay under 

the Federal Wage System are not 

included in the rate of basic pay for the 

purposes of recruitment, relocation, and 

retention incentives. The amended 

definition of rate of basic pay for the 

purpose of recruitment, relocation, and 

retention incentives was included in 

OPM’s interim regulations issued on 

May 13, 2005, for recruitment, 

relocation, and retention incentives (70 

FR 25732). The interim regulations are 

available at http://www.opm.gov/ 

fedregis. 

The January 2005 regulations 

proposed to add a new § 531.605 to 

define the requirements for determining 

an employee’s official worksite for the 

purpose of identifying an employee’s 

location-based pay entitlements, 

including locality rates and special 


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Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 12033 

rates. The proposed regulations also 

addressed official worksite 

determinations for employees 

temporarily working at other locations 

and teleworking from an alternative 

worksite. The comments OPM received 

on proposed § 531.605 were addressed 

and changes made as an interim rule on 

May 31, 2005 (70 FR 31278). The 

interim regulations are available at 

http://www.opm.gov/fedregis. Section 

531.605 was again revised in interim 

regulations issued on August 17, 2006, 

to clarify the rules for determining an 

employee’s official worksite when he or 

she teleworks from an alternative 

worksite during an emergency situation, 

such as a pandemic health crisis (71 FR 

47692). The interim regulations are 

available on OPM’s Web site at http:// 

www.opm.gov/fedregis. 

Finally, the January 2005 regulations 

proposed to amend 5 CFR part 630, 

subpart D, concerning the use of sick 

leave for family care or bereavement 

purposes. The regulations proposed, 

among other changes, removing the 

requirement that a full-time employee 

must maintain 80 hours of sick leave in 

his or her sick leave account to use up 

to 104 hours (13 workdays) of his or her 

sick leave for general family care or 

bereavement purposes and up to 480 

hours (12 workweeks) of sick leave to 

care for a family member with a serious 

health condition. The comments OPM 

received on the proposed amendments 

to 5 CFR part 630, subpart D, were 

addressed and changes made as a final 

rule on August 17, 2006 (71 FR 47693). 

The final regulations on sick leave are 

available at http://www.opm.gov/ 

fedregis. 

Final Regulations in This Issuance 

In this issuance, the final regulations 

address the changes made to the rules 

on employment in the Senior Executive 

Service, use of paid leave during 

uniformed service, time limits for using 

compensatory time off earned in lieu of 

overtime pay, and other miscellaneous 

changes. For these subject areas, we 

received 29 comments on the January 

2005 proposed regulations—20 from 

agencies, 6 from individuals, 2 from 

Federal labor unions, and 1 from a 

Federal employee association. 

Senior Executive Service 

Under 5 U.S.C. 5307(d), a higher 

aggregate limitation on pay (equal to the 

total annual compensation payable to 

the Vice President under 3 U.S.C. 104) 

applies to SES members in positions 

covered by a certified senior executive 

performance appraisal system. An 

agency questioned whether a former 

SES member may continue to retain the 

higher aggregate limitation on pay under 

the authority provided in 5 U.S.C. 

3392(c) and § 317.801(b) to retain SES 

pay and benefits when he or she accepts 

a Presidential appointment. In these 

final regulations, we have amended 

§ 317.801(b) to clarify that a former SES 

member who chooses to retain SES 

provisions related to basic pay, 

performance awards, awarding of ranks, 

severance pay, leave, and retirement 

may also choose to retain the higher 

aggregate limitation on pay that applied 

to the employee. 

Paid Leave While Performing 

Uniformed Service 

OPM proposed to amend § 353.208 to 

permit an employee, upon request, to 

use any accrued annual leave or military 

leave while performing service with the 

uniformed service, but not to use sick 

leave. An agency objected to the 

proposed change. The agency stated that 

the use of sick leave during a period of 

military service is a legitimate right of 

an employee under the provisions and 

intent of the Uniformed Services 

Employment and Reemployment Rights 

Act of 1994 (USERRA), (Public Law 

103–353, October 13, 1994). We agree 

and are not adopting the proposed 

amendment. Section 353.208 will 

continue to permit an employee 

performing service in the uniformed 

service to use sick leave, when 

appropriate. 

An agency recommended that OPM 

permit an employee to use 

compensatory time off earned in lieu of 

overtime pay and earned credit hours 

while performing uniformed service, 

since they both provide paid time off. 

We are not adopting this suggestion 

because employees are entitled to 

payment for unused compensatory time 

off and credit hours only in certain 

situations. We note that 

§ 550.114(f)(2)(i) and § 551.531(f)(1) 

require agencies to provide payment for 

unused earned compensatory time off 

when an employee is separated or 

placed in a leave without pay status to 

perform uniformed service. 

We believe it would be appropriate to 

allow an employee to use earned 

compensatory time off for travel under 

5 CFR part 550, subpart N, while 

performing uniformed service because 

an employee may not receive payment 

for unused earned compensatory time 

off for travel. (See 5 U.S.C. 5550b(b) and 

§ 550.1408.) We have revised § 353.208 

to permit an employee to use earned 

compensatory time off for travel under 

5 CFR part 550, subpart N, to perform 

uniformed service. 

Section 1106 of the National Defense 

Authorization Act for Fiscal Year 2000 

(Public Law 106–65, October 5, 1999) 

amended 5 U.S.C. 6323(a)(1) to permit 

an employee to use his or her 

entitlement to 15 days of military leave 

for ‘‘inactive duty training’’ (as defined 

in section 101 of title 37, United States 

Code) in addition to active duty and 

active duty training. Consistent with 

this statutory amendment, we proposed 

to delete the last sentence of § 353.208, 

which states an employee may not use 

military leave for inactive duty training. 

We did not receive any comments, and 

therefore, have deleted the last sentence 

in § 353.208 in these final regulations. 

Time Limits for Using Earned 

Compensatory Time Off 

The consolidation of human resources 

and payroll processing systems has 

revealed varying discretionary policies 

among agencies concerning time limits 

for using compensatory time off earned 

in lieu of overtime pay. These varying 

policies have resulted in increased costs 

for payroll providers to accommodate 

the myriad of agency policies within 

their systems and those increased costs 

are passed on to the agencies. As part of 

OPM’s effort to support the 

consolidation of human resources and 

payroll processing systems, we 

proposed a standardized time limit of 26 

pay periods for using compensatory 

time off earned in lieu of overtime pay 

that would be applied Governmentwide. 

The 26-pay period time limit would be 

applied to both employees not covered 

by the FLSA (FLS-exempt) under 

§ 550.114 and employees covered by the 

FLSA (FLSA-nonexempt) under 

§ 551.531. To assist in transitioning to 

the new time limitation, we proposed to 

provide an employee with unused 

compensatory time off to his or her 

credit on the effective date of the final 

regulations 26 pay periods after the 

effective date to use such compensatory 

time off. 

In § 550.114(d), we proposed to 

provide agencies with discretionary 

authority to provide payment to FLSAexempt employees for, or require 

forfeiture of, compensatory time off that 

is not used within the 26-pay period 

time limit. The proposed regulations at 

§ 550.114(d)(2) allowed that if an FLSAexempt employee is unable to take 

earned compensatory time off within 26 

pay periods due to an exigency of the 

service beyond the employee’s control, 

the agency must provide payment for 

the unused compensatory time off at the 

overtime rate in effect for the period 

during which the compensatory time off 

was earned. In addition, the proposed 

regulations at § 550.114(e)(2) 

(§ 550.114(f)(2) in the final regulations) 

required that if an FLSA-exempt 


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employee separates or goes on extended 

leave without pay to perform service in 

one of the uniformed services or 

because of an on-the-job injury with 

entitlement to injury compensation 

under 5 U.S.C. chapter 81, the agency 

must provide payment for the unused 

compensatory time off at the overtime 

rate in effect for the period during 

which the compensatory time off was 

earned. 

In addition, to ensure consistent 

treatment of affected employees, OPM 

proposed amending § 551.531(d) to 

require an FLSA-nonexempt employee 

to use earned compensatory time off 

within 26 pay periods. An FLSAnonexempt employee who fails to use 

earned compensatory time off earned 

within 26 pay periods or who separates 

or transfers from the agency before the 

earned compensatory time off is used, 

must be paid for the unused 

compensatory time off at the overtime 

rate in effect for the period during 

which the compensatory time off was 

earned. The proposed regulations at 

§ 551.531(e) (§ 551.531(f) in the final 

regulations) also required that, if an 

FLSA-nonexempt employee is placed on 

leave without pay to perform service in 

the uniformed services or because of an 

on-the-job injury with entitlement to 

injury compensation under 5 U.S.C. 

chapter 81, the agency must provide 

payment for the unused compensatory 

time off at the overtime rate in effect for 

the period during which the 

compensatory time off was earned. 

One agency recommended a shorter 

time limitation—e.g., 13 pay periods—

for using compensatory time off earned 

in lieu of overtime pay. An individual 

opposed the limitation of 26 pay 

periods. The two labor organizations 

opposed providing agencies with 

discretionary authority to determine 

whether an FLSA-exempt employee 

must forfeit or receive payment for 

unused compensatory time off. One 

labor organization recommended 

expanding the circumstances in which 

an employee must receive payment for 

unused compensatory time off to 

include reduction in force (RIF) 

situations. The other labor organization 

believed FLSA-exempt employees 

should receive payment for 

compensatory time off not used within 

26 pay periods or be given additional 

time to use the compensatory time off. 

We disagree with these 

recommendations. Unlike FLSAnonexempt employees, who have a 

statutory entitlement to receive payment 

for unused compensatory time off, 

FLSA-exempt employees do not have 

any such statutory entitlement. 

Legislation is needed to provide FLSAexempt employees with an entitlement 

to receive payment for unused 

compensatory time off. In addition, 

requiring agencies to provide payment 

for unused compensatory time off to 

FLSA-exempt employees would 

significantly increase costs for Federal 

agencies. Finally, we believe 26 pay 

periods is sufficient time for most 

employees to use their earned 

compensatory time off. We note that 

§ 550.114(d)(2) requires agencies to 

provide payment for compensatory time 

off if an employee’s failure to use his or 

her earned compensatory time off is due 

to an exigency of the service beyond the 

employee’s control. 

An agency was concerned that a 

‘‘rolling’’ 26-pay period time limit 

would be an administrative burden for 

agencies to track. Another agency 

suggested using a fixed yearly date for 

employees to use earned compensatory 

time off because it would provide for 

easier tracking and monitoring. We are 

not adopting these suggestions. We 

believe most agencies already impose on 

employees a ‘‘rolling’’ time limit for 

using earned compensatory time off. 

Therefore, the proposed regulations 

would not impose an additional 

administrative burden on the agencies. 

A fixed yearly date for using earned 

compensatory time off would result in 

providing varying lengths of time for 

individual employees to use earned 

compensatory time off, depending on 

when the employee earned the 

compensatory time off. We believe 

imposing a time limit of 26 pay periods 

within which to use earned 

compensatory time off results in fair and 

equitable treatment of affected 

employees and supports our goal of 

standardizing pay policies. Employees 

will all have the same number of pay 

periods within which they must use 

their earned compensatory time off. We 

are adopting the revised regulations in 

§ 550.114(d) and (f) and § 551.531(f) as 

final. 

Two agencies disagreed with 

proposed § 550.114(d), which would 

give an employee with unused 

compensatory time off to his or her 

credit as of the effective date of the final 

regulations 26 pay periods after the 

effective date of the final regulations to 

use the compensatory time off. One 

agency suggested providing agencies 

with discretionary authority to extend 

the time limitation for using earned 

compensatory time off for employees 

who have been unable to use earned 

compensatory time off prior to the 

effective date of the final regulations 

because of work requirements or 

scheduling conflicts. Another agency is 

concerned that the proposed rule would 

have major budgetary implications if the 

agency’s policy were to provide 

payment for unused compensatory time 

off and employees are unable to use 

their earned compensatory time off 

within 26 pay periods after the effective 

date of the final regulations. The agency 

suggested that employees who have 

compensatory time off to their credit as 

of the effective date of the final 

regulations be given a minimum of 3 

years to use the compensatory time off. 

We agree and have added a new 

paragraph (e) to § 550.114 and § 551.531 

of the final regulations to allow an 

employee who has compensatory time 

off to his or her credit as of the effective 

date of the final regulations at least 3 

years to use the earned compensatory 

time off. 

One agency suggested revising the 

proposed regulations to require an 

employee to use earned compensatory 

time off within 26 pay periods after the 

pay period during which it was earned. 

The agency suggested beginning the 26- 

pay period time limit after the pay 

period during which it was earned will 

ensure standardized recordkeeping and 

tracking. We agree and have revised 

§ 550.114(d) and § 551.531(d) to require 

that compensatory time off that is not 

used within 26 pay periods after the pay 

period during which it was earned must 

be paid by the agency or forfeited by the 

employee. 

An agency noted that proposed 

§ 550.114(e)(1) addresses the treatment 

of compensatory time off when an 

employee either transfers or separates 

from an agency, while § 551.531(d) 

addresses the treatment of 

compensatory time off only when an 

employee separates from an agency. To 

remedy this, we have revised 

§ 551.531(d) to address the treatment of 

compensatory time off when an 

employee transfers to a different agency. 

Finally, we are redesignating 

§ 551.531(e) as § 551.531(g), and 

correcting new paragraph (g) by deleting 

language that states the value of 

compensatory time off for FLSAnonexempt employees is considered in 

applying pay limitations. Compensatory 

time off for FLSA-nonexempt employees 

should not be considered in applying 

the biweekly or annual premium pay 

limitations established under 5 U.S.C. 

5547 or the aggregate limitation on pay 

established under 5 U.S.C. 5307. In 

addition, we are correcting a citation in 

§§ 550.112(j)(1) and 551.422(d) from 

‘‘(41 CFR 301–1.3(c)(4))’’ to ‘‘(41 CFR 

300–3.1),’’ which references the 

definition of official station in the 

General Services Administration’s 

Federal Travel Regulations. 


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Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 12035 

An individual requested clarification 

of the terms irregular or occasional 

overtime work in relationship to earning 

compensatory time off. As defined in 

§ 550.103, irregular or occasional 

overtime work means overtime work 

that is not part of an employee’s 

regularly scheduled administrative 

workweek (i.e., the period within an 

administrative workweek in which an 

employee is regularly scheduled to 

work). 

Other Miscellaneous Changes 

Lump-Sum Payments for Annual Leave 

The regulations governing lump-sum 

payments for accumulated and accrued 

annual leave for employees who 

separate from Federal service in 5 CFR 

550, subpart L, have been revised to 

ensure consistency with the guidance 

provided in the OPM Operating Manual 

on the Federal Wage System. The 

revised regulations ensure that a lumpsum payment for employees who work 

a regular rotating schedule involving 

work on both day and night shifts is 

calculated as if the employee had 

continued to work beyond the effective 

date of separation. An agency asked that 

we clarify what is meant by ‘‘work 

beyond the effective date of separation.’’

Another agency requested clarification 

in determining whether a lump-sum 

payment should be extended to the end 

of an employee’s last scheduled shift. 

Under 5 U.S.C. 5551, a lump-sum 

payment must equal the pay an 

employee would have received had he 

or she remained in Federal service until 

expiration of the period of annual leave. 

Agencies must project a lump-sum 

period to include any accumulated and 

accrued annual leave to the employee’s 

credit, as of the date of separation. The 

lump-sum leave period is the 

employee’s annual leave projected 

forward for all workdays the employee 

would have worked if he or she had 

remained in Federal service, including 

holidays (even though they are typically 

nonworkdays) as required by 5 U.S.C. 

5551(a), until the expiration of the 

employee’s accumulated and accrued 

annual leave. The final regulations in 

§ 550.1205(b)(5) state that a night 

differential is payable for that portion of 

the lump-sum period that would have 

occurred when the employee was 

scheduled to work night shifts. The 

lump-sum period extends only through 

the last hour of annual leave. 

Restriction on Paying Sunday Premium 

Pay 

Section 636 of the Treasury and 

General Government Appropriations 

Act, 1998 (Public Law 105–61, October 

10, 1997), permanently restricted the 

payment of Sunday premium pay for all 

employees Governmentwide who are 

paid from appropriated funds and who 

do not actually perform work on 

Sunday. Section 624 of the Treasury and 

General Government Appropriations 

Act, 1999 (Public Law 105–277, October 

21, 1998), expanded the permanent 

restriction on the payment of Sunday 

premium pay to cover employees who 

are paid from any Act (including 

payments from revolving funds). These 

provisions effectively prohibit the 

payment of Sunday premium pay to 

employees during any period when no 

work is performed. This includes 

holidays, periods of paid leave, excused 

absence (administrative leave), 

compensatory time off, credit hours, or 

time off as an incentive or performance 

award. The restriction covers employees 

who are paid from any Act, including 

payments from revolving funds. 

Consistent with this permanent legal 

restriction, we have revised § 550.171(a) 

by deleting language stating that Sunday 

premium pay is paid during periods of 

paid leave or excused absence. We also 

will revise our guidance on payment of 

Sunday premium pay during periods of 

paid leave in the OPM Operating 

Manual for the Federal Wage System. 

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 would 

not have a significant economic impact 

on a substantial number of small entities 

because they would apply only to 

Federal agencies and employees. 

List of Subjects in 5 CFR Parts 317, 353, 

550, and 551 

Administrative practice and 

procedure, Claims, Government 

employees, Law enforcement officers, 

Reporting and recordkeeping 

requirements, Wages. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, OPM amends parts 317, 

353, 550, and 551 of title 5 of the Code 

of Federal Regulations to read as 

follows: 

PART 317—EMPLOYMENT IN THE 

SENIOR EXECUTIVE SERVICE 

■ 1. The authority citation for part 317 

continues to read as follows: 

Authority: 5 U.S.C. 3392, 3393, 3395, 3397, 

3592, 3593, 3595, 3596, 8414, and 8421. 

Subpart H—Retention of SES 

Provisions 

■ 2. In § 317.801, paragraph (b)(1) is 

revised to read as follows: 

* * * * * 

(b) Election. (1) At the time of 

appointment, an appointee covered by 

paragraph (a) of this section may elect 

to retain some, all, or none of the 

following SES provisions related to 

basic pay (including the aggregate 

limitation on pay established by 5 

U.S.C. 5307), performance awards, 

awarding of ranks, severance pay, leave, 

and retirement. That election will 

remain in effect for no less than 1 year, 

unless the appointee leaves the position 

sooner. 

* * * * * 

PART 353—RESTORATION TO DUTY 

FROM UNIFORMED SERVICE OR 

COMPENSABLE INJURY 

■ 3. The authority citation for part 353 

continues to read as follows: 

Authority: 38 U.S.C. 4301 et. seq., and 5 

U.S.C. 8151 

Subpart B—Uniformed Service 

■ 4. Section 353.208 is revised to read 

as follows: 

§ 353.208 Use of paid leave during 

uniformed service. 

An employee performing service with 

the uniformed services must be 

permitted, upon request, to use any 

accrued annual leave under 5 U.S.C. 

6304, military leave under 5 U.S.C. 

6323, or earned compensatory time off 

for travel under 5 U.S.C. 5550b during 

such service. 

PART 550—PAY ADMINISTRATION 

(GENERAL) 

Subpart A—Premium Pay 

■ 5. The authority citation for subpart A 

continues 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, 3 CFR, 1992 Comp., p. 316. 

§ 550.112 [Amended] 

■ 6. In § 550.112(j)(1), remove the 

citation ‘‘(41 CFR 301–1.3(c)(4))’’ and 

add in its place ‘‘(41 CFR 300–3.1).’’

■ 7. In § 550.114, paragraph (d) is 

revised, paragraph (e) is redesignated as 

paragraph (g), and new paragraphs (e) 

and (f) are added to read as follows: 


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12036 Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 

§ 550.114 Compensatory time off. 

* * * * * 

(d) Except as provided in paragraph 

(f)(2) of this section, an employee must 

use accrued compensatory time off to 

which he or she is entitled under 

paragraph (a) or (b) of this section by the 

end of the 26th pay period after the pay 

period during which it was earned. The 

head of an agency, at his or her sole and 

exclusive discretion, may provide that 

an employee who fails to take 

compensatory time off to which he or 

she is entitled within 26 pay periods 

after the pay period during which it was 

earned must—

(1) Receive payment for such unused 

compensatory time off at the dollar 

value prescribed in paragraph (g) of this 

section; or 

(2) Forfeit the unused compensatory 

time off, unless the failure to take the 

compensatory time off is due to an 

exigency of the service beyond the 

employee’s control, in which case the 

agency head must provide payment for 

the unused compensatory time off at the 

dollar value prescribed in paragraph (g) 

of this section. 

(e) Except as provided in paragraph 

(f)(2) of this section, compensatory time 

off to an employee’s credit as of May 14, 

2007 must be used by the end of the pay 

period ending 3 years after May 14, 

2007. The head of an agency, at his or 

her sole and exclusive discretion, may 

provide that an employee who fails to 

take compensatory time off to which he 

or she is entitled by the end of the pay 

period ending 3 years after May 14, 

2007 must—

(1) Receive payment for such unused 

compensatory time off at the dollar 

value prescribed in paragraph (g) of this 

section; or 

(2) Forfeit the unused compensatory 

time off, unless the failure to take the 

compensatory time off is due to an 

exigency of the service beyond the 

employee’s control, in which case the 

agency head must provide payment for 

the unused compensatory time off at the 

dollar value prescribed in paragraph (g) 

of this section. 

(f)(1) Except as provided in paragraph 

(f)(2) of this section, an employee with 

unused compensatory time off under 

paragraph (a) or (b) of this section who 

transfers to another agency or separates 

from Federal service before the 

expiration of the time limit established 

under paragraphs (d) or (e) of this 

section may receive overtime pay or 

forfeit the unused compensatory time 

off, consistent with the employing 

agency’s policy established under 

paragraphs (d) and (e) of this section. 

(2) If an employee with unused 

compensatory time off under paragraph 

(a) or (b) of this section separates from 

Federal service or is placed in a leave 

without pay status under the following 

circumstances, the employee must be 

paid for unused compensatory time off 

at the dollar value prescribed in 

paragraph (g) of this section: 

(i) The employee separates or is 

placed in a leave without pay status to 

perform service in the uniformed 

services (as defined in 38 U.S.C. 4303 

and § 353.102); or 

(ii) The employee separates or is 

placed in a leave without pay status 

because of an on-the-job injury with 

entitlement to injury compensation 

under 5 U.S.C. chapter 81. 

* * * * * 

■ 8. In § 550.171, paragraph (a) is 

revised to read as follows: 

§ 550.171 Authorization of pay for Sunday 

work. 

(a) A full-time employee is entitled to 

pay at his or her rate of basic pay plus 

premium pay at a rate equal to 25 

percent of his or her rate of basic pay 

for each hour of Sunday work (as 

defined in § 550.103). 

* * * * * 

Subpart L—Lump-Sum Payment for 

Accumulated and Accrued Annual 

Leave 

■ 9. The authority citation for subpart L 

continues to read as follows: 

Authority: 5 U.S.C. 5553, 6306, and 6311. 

■ 10. In § 550.1205, revise paragraph 

(b)(5)(i) and paragraph (g) to read as 

follows: 

§ 550.1205. Calculating a lump-sum 

payment. 

* * * * * 

(b) * * * 

(5) * * * 

(i) Night differential under 5 U.S.C. 

5343(f) at the applicable percentage rate 

received by a prevailing rate employee 

for all regularly scheduled periods of 

night shift duty covered by the unused 

annual leave as if the employee had 

continued to work beyond the effective 

date of separation, death, or transfer. In 

the case of an employee who is assigned 

to a regular rotating schedule involving 

work on both day and night shifts, the 

night differential is payable for that 

portion of the lump-sum period that 

would have occurred when the 

employee was scheduled to work night 

shifts. 

* * * * * 

(g) For a reemployed annuitant who 

becomes eligible for a lump-sum 

payment under § 550.1203, the agency 

must compute the lump-sum payment 

using the annuitant’s pay before any 

reductions required under § 837.303 of 

this chapter. 

* * * * * 

PART 551—PAY ADMINISTRATION 

UNDER THE FAIR LABOR 

STANDARDS ACT 

■ 11. The authority citation for part 551 

continues to read as follows: 

Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the 

Fair Labor Standards Act of 1938, as 

amended by Pub. L. 93–259, 88 Stat. 55 (29 

U.S.C. 204f). 

Subpart D—Hours of Work 

§ 551.422 [Amended] 

■ 12. In § 551.422(d), remove the 

citation ‘‘(41 CFR 301–1.3(c)(4))’’ and 

add in its place ‘‘(41 CFR 300–3.1).’’

Subpart E—Overtime Pay Provisions 

■ 13. In § 551.531, paragraph (d) is 

revised, paragraph (e) is revised and 

redesignated as paragraph (g), and new 

paragraphs (e) and (f) are added to read 

as follows: 

§ 551.531 Compensatory time off. 

* * * * * 

(d) If compensatory time off earned 

under paragraph (a) or (b) of this section 

is not taken within 26 pay periods after 

the pay period during which it was 

earned or if the employee transfers or 

separates from an agency before using 

the compensatory time, the employee 

must be paid for overtime work at the 

dollar value prescribed in paragraph (g) 

of this section. 

(e) Compensatory time off to an 

employee’s credit as of May 14, 2007 

must be used by the end of the pay 

period ending 3 years after May 14, 

2007. If the earned compensatory time 

off is not taken by the end of the pay 

period ending 3 years after May 14, 

2007, the employee must be paid for 

overtime work at the dollar value 

prescribed in paragraph (g) of this 

section. 

(f) If an employee with unused 

compensatory time off under paragraphs 

(a), (b), or (e) of this section separates 

from Federal service or is placed in a 

leave without pay status under the 

following circumstances, the employee 

must be paid for overtime work at the 

overtime rate at the dollar value 

prescribed in paragraph (g) of this 

section: 

(1) The employee is separated or 

placed in a leave without pay status to 

perform service in the uniformed 

services (as defined in 38 U.S.C. 4303 

and § 353.102); or 


rmajette on PROD1PC67 with RULES
Federal Register / Vol. 72, No. 50 / Thursday, March 15, 2007 / Rules and Regulations 12037 

(2) The employee is separated or 

placed in a leave without pay status 

because of an on-the-job injury with 

entitlement to injury compensation 

under 5 U.S.C. chapter 81. 

(g) The dollar value of compensatory 

time off when it is liquidated is the 

amount of overtime pay the employee 

otherwise would have received for 

hours of the pay period during which 

compensatory time off was earned by 

performing overtime work. 

* * * * * 

[FR Doc. E7–4696 Filed 3–14–07; 8:45 am] 

BILLING CODE 6325–39–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 875 

RIN 3206–AK99 

Federal Long Term Care Insurance 

Program: Miscellaneous Changes, 

Corrections, and Clarifications 

AGENCY: Office of Personnel 

Management. 

ACTION: Final regulation. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing a final 

rule to make miscellaneous changes, 

corrections, and clarifications to the 

Federal Long Term Care Insurance 

Program (FLTCIP) regulations. 

DATES: Effective Date: April 16, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Edward M. DeHarde, Center for 

Employee and Family Support Policy, 

Strategic Human Resources Policy 

Division, Office of Personnel 

Management, 1900 E Street, NW., 

Washington, DC 20415; or call him at 

202–606–0004. 

SUPPLEMENTARY INFORMATION: The 

current FLTCIP regulations were 

published in the Federal Register at 70 

FR 30605, May 27, 2005. In those 

regulations OPM replaced references to 

‘‘Federal civilian and Postal employees 

and members of the uniformed services’’

with ‘‘active workforce member’’ in 

several places. We are making a similar 

change in two additional places: 

§ 875.405 and § 875.410. We are also 

correcting a section reference in 

§ 875.209 of the previously published 

regulations. 

In addition, § 875.408 of the FLTCIP 

regulations discusses incontestability, a 

provision that allows coverage based on 

an erroneous application to continue 

under certain circumstances. The 

FLTCIP contractor often doesn’t learn 

that coverage is based on an erroneous 

application until someone files a claim, 

and the contractor becomes aware that 

the information on the individual’s 

application differed from what is shown 

in the individual’s medical records. If 

the erroneous coverage has been in 

effect less than two years, or if the 

application contained knowingly false 

or misleading information, the 

contractor may rescind (void) the 

coverage and refund the individual’s 

premiums. Section 875.104 of the 

FLTCIP regulations contains procedures 

for resolving disputes concerning 

eligibility for benefits and payment of 

claims. These final regulations clarify 

that the claims dispute procedures 

apply only to persons who have valid 

coverage under the Program. They do 

not apply to individuals whose 

erroneous coverage is rescinded. 

A proposed rule was published to 

amend 5 CFR part 875 in the Federal 

Register at 71 FR 19459, April 14, 2006. 

OPM requested comments by June 13, 

2006. We received one comment by that 

date, from an FLTCIP enrollee. The 

issues raised by this commenter are 

discussed below. 

The commenter did not address the 

miscellaneous changes, corrections, and 

clarifications that were contained in the 

proposed regulation. Instead, the 

commenter suggested that OPM should 

specifically list in the regulations which 

injuries qualify for coverage under 

FLTCIP to ensure that enrollees with 

similar injuries receive similar coverage. 

The comment received is beyond the 

scope of the proposed change to FLTCIP 

regulations. In addition, coverage under 

FLTCIP is not based on an enrollee’s 

injury or medical diagnosis; it is based 

on an enrollee’s established inability to 

perform defined activities of daily living 

or an enrollee’s severe cognitive 

impairment. Therefore, for the reasons 

supplied in the proposed rule, the 

proposed rule amending 5 CFR part 875 

which was published in the Federal 

Register at 71 FR 19459, April 14, 2006, 

is adopted as a final rule without 

change. 

Executive Order 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 affect only enrollees in the 

Federal Long Term Care Insurance 

Program. 

List of Subjects in 5 CFR Part 875 

Administrative practices and 

procedures, Employee benefit plans, 

Government contracts, Government 

employees, Health insurance, Military 

personnel, Retirement. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, OPM is amending 5 CFR 

part 875, as follows: 

PART 875—FEDERAL LONG TERM 

CARE INSURANCE PROGRAM 

■ 1. The authority citation for 5 CFR 

part 875 continues to read as follows: 

Authority: Authority: 5 U.S.C. 9008. 

■ 2. In § 875.104 add paragraph (f) to 

read as follows: 

§ 875.104 What are the steps required to 

resolve a dispute involving benefit eligibility 

or payment of a claim? 

* * * * * 

(f) The procedures described in 

paragraphs (a), (b), (c), (d), and (e) of 

this section apply only if you have valid 

coverage under the FLTCIP. If the 

Carrier determines that your coverage 

was based on an erroneous application 

and voids the coverage as described in 

§ 875.408 of this part, these provisions 

do not apply. The Carrier will provide 

you with information on your review 

rights in its rescission letter (letter 

voiding your coverage). 

■ 3. In § 875.209 revise the last sentence 

of paragraph (b) to read as follows: 

§ 875.209 How do I demonstrate that I am 

eligible to apply for coverage? 

* * * * * 

(b) * * * The incontestability 

provisions in § 875.408 do not apply to 

this section. 

■ 4. In § 875.405 revise the first 

sentence of paragraph (a)(1) to read as 

follows: 

§ 875.405 If I marry, may my new spouse 

apply for coverage? 

(a)(1) If you are an active workforce 

member and you have married, your 

spouse is eligible to submit an 

application for coverage under this 

section within 60 days from the date of 

your marriage and will be subject to the 

underwriting requirements in force for 

the spouses of active workforce 

members during the most recent open 

season. * * * 

* * * * * 

■ 5. In § 875.408 revise paragraph (a) to 

read as follows: 


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