[Federal Register: April 2, 2002 (Volume 67, Number 63)]
[Rules and Regulations]               
[Page 15463-15468]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ap02-1]                         


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Rules and Regulations
                                                Federal Register
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to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

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[[Page 15463]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 410, 550, 551, and 630

RIN 3206-AI50

 
Firefighter Pay

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The Office of Personnel Management is issuing final 
regulations on computing pay for Federal firefighters. These 
regulations implement a 1998 law that established a new approach for 
calculating basic pay, overtime pay, and other entitlements for Federal 
employees whose positions are classified in the Fire Protection and 
Prevention Series, GS-0081, and who have regular tours of duty 
averaging at least 53 hours per week.

EFFECTIVE DATE: May 2, 2002.

FOR FURTHER INFORMATION CONTACT: Bryce Baker by telephone at (202) 606-
2858; by fax at (202) 606-0824; or by e-mail to payleave@opm.gov.

SUPPLEMENTARY INFORMATION: On November, 23, 1998, the Office of 
Personnel Management (OPM) issued interim regulations implementing new 
firefighter pay provisions established by the Federal Firefighters 
Overtime Pay Reform Act (section 628 of the Treasury and General 
Government Appropriations Act, 1999, as incorporated in section 101(h) 
of Public Law 105-277, the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act, 1999, October 21, 1998). The law 
provided that these provisions became effective on the first day of the 
first pay period beginning on or after October 1, 1998. The intent of 
this legislation was to address concerns about the complexity of 
firefighter pay computations by establishing a more rational and 
equitable method of compensation.

Review of Comments on Interim Regulations

    OPM received a number of comments from individuals and agencies 
regarding the interim regulations. A summary of the substantive 
comments received and a description of the revisions made in the 
regulations as a result of the comments are presented below.

Section 410.402(b)(6)--Pay During Training

    An agency requested clarification regarding firefighter pay 
entitlements during training when firefighters continue performing work 
during their regular tour of duty but, in addition, participate in 
agency-sanctioned training on what would normally be nonwork days. The 
firefighter pay reform law added a new provision, 5 U.S.C. 4109(d), 
which states that firefighters covered by 5 U.S.C. 5545b are entitled 
to pay for their regular tour of duty during training. This provision 
was intended to establish a guaranteed floor for pay during training. 
It does not block payment of a higher amount of pay if the employee is 
entitled to that higher amount based on actual hours of work (using the 
appropriate pay computation method based on the work schedule actually 
in effect).
    The interim regulation at Sec. 410.402(b)(6) requires that the 
guaranteed pay provision be applied on a weekly basis. Thus, the agency 
must compare the employee's pay for the regular weekly tour of duty to 
the pay to which the employee would be entitled based on actual hours 
of work in that week. (We note that title 5 premium pay during training 
is generally prohibited, subject to specific exceptions, as provided in 
Sec. 410.402. These restrictions do not apply to FLSA overtime pay; 
however, that pay is payable only for qualifying training hours as 
described in Sec. 551.423.)
    Accordingly, we have revised Sec. 410.402(b)(6) to clarify that a 
firefighter remains entitled to pay for actual hours of work if that 
amount is higher than the guaranteed floor. Finally, as an aid to users 
of the regulations, we are also adding a new paragraph (d) to 
Sec. 550.1306 to provide a direct cross reference to the pay protection 
provision in the training regulations in part 410.
    An agency asked for clarification regarding the treatment of newly 
hired firefighters who go through initial basic training with a 40-hour 
basic workweek. The pay-protection-during-training provision applies 
only to employees who are covered by 5 U.S.C. 5545b when the training 
starts. If the agency has not yet established a regular tour of duty of 
53 hours or more per week, the firefighters are not yet covered by 
section 5545b. Furthermore, the pay protection provision applies only 
when hours in the regular tour of duty (as in effect immediately before 
the training) are reduced. (See Sec. 410.402(b)(6).) We conclude, 
therefore, that there is no need for additional changes in this 
paragraph.

Section 550.1302--Definition of Firefighter/Coverage

    Firefighters who are part of the ``China Lake'' permanent personnel 
demonstration project at the Department of Defense inquired about 
whether they are covered by the new firefighter pay provisions. The 
Department of Defense also requested that we expand the definition of 
firefighter to clarify whether coverage applies to General Schedule 
equivalent positions such as those covered by a demonstration project. 
The interim regulations state that subpart M applies to General 
Schedule firefighters (based on the fact that the law makes reference 
to the employees classified under the GS-0081 series). Employees at the 
``China Lake'' permanent demonstration project are not covered by the 
General Schedule pay system, since the project waived application of 
that system under 5 U.S.C. 4703. However, the project does use the Fire 
Protection and Prevention Series, GS-0081.
    The intent of the ``China Lake'' demonstration project plan (45 FR 
26504, April 18, 1980) was to treat employees as General schedule 
employees except where otherwise stated in the plan. Furthermore, the 
``China Lake'' demonstration project did not waive the premium pay 
subchapter of title 5, where the firefighter pay provisions are 
located. We have concluded that firefighters covered by demonstration 
projects established under 5 U.S.C. 4703 and other similar alternative 
personnel systems are

[[Page 15464]]

covered by 5 U.S.C. 5545b if they meet three conditions. First, the 
employees must be classified in the Fire Protection and Prevention 
Series, GS-0081, consistent with OPM standards. Second, but for the 
demonstration project or other similar alternative personnel system, 
the employees otherwise would be covered by the General Schedule. 
Third, application of section 5545b (and related provisions) has not 
been waived. Therefore, we have revised the definition of firefighter 
in Sec. 550.1302 to make clear that such employees are covered by 
subpart M of part 550.
    An agency also raised the question as to whether the firefighter 
pay law and regulations apply to student trainees. OPM requires that 
student trainees under the Student Career Experience Program be 
officially classified in an occupational series ending in ``99'' for 
the appropriate occupational group. (See 5 CFR 213.3202(b)(14).) For 
example, the GS-0099 series would be used for student trainees who 
would otherwise be classified in the Fire Protection and Prevention 
Series, GS-0081. It is OPM's longstanding position that student 
trainees are entitled to any pay entitlements attached to the GS 
occupational series in which they would otherwise be classified. For 
example, since 1988, OPM's policy has been that qualified student 
trainees are entitled to any special rates established for the 
occupational series in which they would be classified but for the use 
of the ``99'' series. Accordingly, we are revising the definition of 
firefighter in Sec. 550.1302 to include student trainees who would 
otherwise be classified in the Fire Protection and Prevention Series, 
GS-0081.

Section 550.1302--Regular Tour of Duty

    An agency suggested that we clarify the definition of regular tour 
of duty. The agency was concerned that the definition might be 
interpreted to mean that a firefighter will not experience a reduction 
in pay in cases where a temporary change in work schedule occurs (e.g., 
because of a temporary detail). The agency pointed out that when 
firefighters were receiving standby duty premium pay, the provisions of 
5 CFR 550.162(c)(1) precluded the payment of the annual premium pay 
beyond a prescribed number of days if the recipient of the annual 
premium pay was on temporary assignment to other duties. The agency was 
concerned that the definition in the interim rule might be interpreted 
to allow an employee to continue firefighter pay indefinitely while the 
employee is detailed to a non-firefighter position.
    The law and regulations provide no authority to continue pay for a 
firefighter's regular tour when he or she is moved to a work schedule 
with lesser hours, except in the case of training assignments as 
provided in Sec. 410.402(b)(6). In all other temporary assignments, pay 
is based on actual hours of work (applying the appropriate pay 
methodology based on the work schedule). If the temporary work schedule 
includes fewer than 53 hours per week, section 5545b would no longer be 
applicable and pay would be computed using the normal GS rules. If the 
temporary work schedule includes at least 53 hours per week, the 
employee would continue to be compensated under the section 5545b 
firefighter pay rules. In that case, the temporary tour of duty would 
be treated as a regular tour of duty for pay and benefit computation 
purposes. The definition of regular tour of duty clearly states that 
the term encompasses a tour of duty established on a temporary basis 
when that temporary tour results in a reduction in regular work hours. 
We conclude, therefore, that there is no need for a change in this 
definition.

Section 550.1303(d)--Substitution of Irregular Hours for Leave Without 
Pay

    An agency requested clarification regarding the treatment of a 
firefighter who takes leave without pay for which irregular hours are 
substituted and receives a promotion during the same pay period. If a 
firefighter takes leave without pay during his or her regular tour of 
duty, the agency must substitute any irregular hours worked in the same 
week or biweekly pay period (as applicable) for those hours of leave 
without pay. Section 550.1303(d) provides that each substituted hour 
will be paid at the rate applicable to the hour in the regular tour for 
which substitution is made--i.e., the basic or overtime rate based on 
the 2756 divisor or, for firefighters paid under under 
Sec. 550.1303(b), the basic rate based on the 2087 divisor.
    Section 550.1303(d) does not currently address the possibility of a 
pay change in the middle of a pay period (e.g., a promotion). We are 
amending Sec. 550.1303(d) to provide that, if a pay change occurs 
during the pay period, the substituted hour must be paid at the 
appropriate hourly rate based on the annual rate in effect at the time 
the hours were actually worked. In other words, two considerations must 
be made when substituting irregular hours for hours within the regular 
schedule. Each substituted hour will be paid using the type of rate 
applicable to the hour in the regular tour for which substitution is 
made--i.e., the rate based on the 2087 divisor or the rate based on the 
2756 divisor (using the basic or the overtime rate, as applicable). If 
a change in the amount of the annual rate of pay occurs during the pay 
period, the substituted hour must be paid at an applicable hourly rate 
based on the annual rate in effect when the hours were actually worked.

Section 550.1305--Treatment as Basic Pay

    An agency asked that OPM clarify that the basic pay identified in 
Sec. 550.1305 is not basic pay for all purposes. The agency was 
specifically concerned that we clarify that the pay in question is not 
basic pay for pay retention purposes and asked that we also consider 
amending the pay retention regulations.
    Section 550.1305(a) provides that the sum of pay for regular 
nonovertime hours and the straight-time portion of regular overtime pay 
is considered basic pay for specific listed purposes. Pay retention is 
not one of the listed purposes. Thus, any firefighter pay for overtime 
hours is not considered in applying pay retention rules. Similarly, for 
firefighters whose regular tour of duty includes a basic 40-hour 
workweek, pay for nonovertime hours beyond 40 in a week (or 80 in a 
biweekly pay period) is not basic pay for pay retention purposes. (See 
Sec. 550.1305(d).) For GS employees, the pay retention provisions are 
applied using the employee's annual rate of pay, which is not affected 
by the type of work schedule in effect.
    We have made a minor change in Sec. 550.1305(a) by adding the word 
``only'' to emphasize that this definition of basic pay is to be used 
solely for the listed purposes. We do not believe it is necessary to 
amend the pay retention regulations.

Section 550.1306(a)--Holiday Pay

    Several individuals inquired about the holiday pay entitlements for 
firefighters compensated under 5 U.S.C. 5545b. Section 5545b 
firefighters are not covered by the normal holiday pay rules. By law, 
they are expressly barred from receiving holiday premium pay for 
working on a holiday; instead, they are paid at their normal rate. (See 
5 U.S.C. 5545b(d)(1) and 5 CFR 550.1306(a).) The law reflects a 
determination by Congress that pay under the special firefighter rules 
is considered to be full compensation for all hours of work, taking 
into account the fact that firefighters may work at night and on 
Sundays and holidays due to the nature of their work. Thus, a 
firefighter covered by section 5545b is not entitled to paid

[[Page 15465]]

holiday time off when not working on a holiday. To receive pay for 
hours during a regular tour of duty that fall on a holiday, the 
firefighter must (1) perform work, (2) use accrued annual or sick leave 
(as appropriate), or (3) be granted paid excused absence (without 
charge to leave) at the agency's discretion.
    The 1998 firefighter pay law did not change the status quo with 
respect to pay for holidays. Under the pre-1998 law, firefighters with 
extended work schedules received a special type of premium pay called 
standby duty pay and, as now, were barred from receiving holiday 
premium pay for working on a holiday. (See 5 U.S.C. 5545(c)(1) and 5 
CFR 550.163(a).) They were also barred from receiving pay for holiday 
hours not worked unless they used annual or sick leave or were granted 
excused absence at the agency's discretion. (See 56 Comp. Gen. 551 and 
former Federal Personnel Manual Supplement 990-2, section S1-8b(2)(a) 
of book 550 and section S2-6b(1) of book 630.)
    We are adding a sentence to Sec. 550.1306(a) to clarify that 
firefighters compensated under subpart M are not entitled to pay for 
not working on a holiday unless the agency approves appropriate paid 
leave or grants excused absence.

Section 550.1306(e)--Compensatory Time Off

    An agency asked how to apply the compensatory time off provisions 
to firefighters compensated under 5 U.S.C. 5545b. Under 5 U.S.C. 
5543(a)(2) and 5 CFR 550.114(c), an agency may require that an FLSA-
exempt employee be compensated for irregular overtime work by 
compensatory time off, instead of overtime pay, if the employee's rate 
of basic pay exceeds the maximum (step 10) rate for grade GS-10. The 
agency asked what types of rates--hourly or annual--should be used in 
applying the GS-10, step 10, rule.
    We are adding a new Sec. 550.1306(e) to provide that a 
firefighter's annual rate of basic pay must be compared to the annual 
rate of basic pay for GS-10, step 10. This will ensure that section 
5545b firefighters are treated in a manner consistent with the 
treatment of other employees at the same grade and step. Since the 
issue here deals with when an agency may require an FLSA-exempt 
employee to receive compensatory time off as compensation for irregular 
overtime work, consistent treatment based on grade and step would seem 
appropriate. (In contrast, OPM regulations provide that an FLSA-exempt 
firefighter's hourly overtime rate, derived using the 2756-hour factor, 
is compared to the GS-10, step 1, hourly overtime rate, derived using 
the 2087-hour factor. In this case, the law required the use of hourly 
rates. OPM used the 2087-hour factor to compute the GS-10, step 1, 
rate, since the intent of the law was to subject FLSA-exempt 
firefighters to the same dollar rate cap as other FLSA-exempt 
employees.)

Other Regulatory Changes

    In addition to the above regulatory changes made based on comments, 
some additional changes are being made to address technical issues 
identified by OPM staff. Those changes are described below.

Section 550.1305--Basic Pay Treatment

    We are revising Sec. 550.1305(d) to clarify that additional 
nonovertime pay earned by ``40+ firefighters'' (i.e., those compensated 
under Sec. 550.1303(b) because they have a regular tour of duty that 
includes a basic 40-hour workweek) is basic pay for purposes of 
Sec. 410.402(b)(6). These ``40+ firefighters'' receive the regular GS 
hourly rate for their basic 40-hour workweek and then are paid the 
firefighter hourly rate of basic pay for additional nonovertime hours 
below the 53-hour weekly (or 106-hour biweekly) overtime standard. 
Section 410.402(b)(6) protects a firefighter's regular basic pay and 
premium pay during periods of agency-sanctioned training.
    We are also revising Sec. 550.1305(d) to provide that additional 
nonovertime pay earned by ``40+ firefighters'' is basic pay for 
purposes of Secs. 550.105 and 550.106. Those sections deal with the 
biweekly and annual caps on premium pay established by 5 U.S.C. 5547. 
These caps limit the amount of premium pay an employee may receive when 
the employee's ``aggregate rate of pay'' reaches the applicable GS-15, 
step 10 rate. OPM regulations translate ``aggregate rate of pay'' into 
``basic pay and premium pay.'' Clearly, the additional nonovertime pay 
received by ``40+ firefighters'' (for the nonovertime hours beyond the 
basic 40-hour workweek) should be included in the aggregate rate of pay 
for purposes of applying these premium pay caps. Therefore, we are 
deeming this pay to be ``basic pay'' as that term is used in 
Secs. 550.105 and 550.106. As basic pay, it would not be subject to 
reduction, but would be included in the aggregate pay used to determine 
whether a firefighter's overtime pay is capped.
    In addition, there are cases where 24-hour shift firefighters have 
variable workweeks (e.g., a cycle of 48-48-72 hours) and may have 
nonovertime hours outside their regular tour of duty. Pay for such 
nonovertime hours should also be treated as basic pay for the purpose 
of applying the premium pay caps in Secs. 550.105 and 550.106. We have 
revised Sec. 550.1305(c) accordingly.

Section 550.1306(c)--Regulatory Citation

    We are revising Sec. 550.1306(c) to correct an erroneous regulatory 
citation. The correct citation is to Sec. 630.210 instead of 
Sec. 631.210.

Section 550.1308--Transitional Provisions

    We are removing Sec. 550.1308 because it dealt with transitional 
provisions that have no current application.

Section 551.411(c)--Meal Periods

    We are amending Sec. 551.411(c) to clarify that all on-duty meal 
periods are compensable hours of work for firefighters paid under 5 
U.S.C. 5545b. Current regulations dealing with sleep time for employees 
covered by the FLSA already state this policy. (See Sec. 551.432(f), 
which was promulgated in a final rule published at 64 FR 69165 on 
December 10, 1999. Also, a parallel change was made in 
Sec. 550.112(m)(4).) This change makes Sec. 551.411 consistent with 
Sec. 551.432.

Section 630.210(c)--Uncommon Tour of Duty for Leave Purposes

    We are revising Sec. 630.210(c) to require that an uncommon tour of 
duty for purposes of leave accrual and usage be established for ``40+ 
firefighters'' (i.e., those whose regular tour of duty includes a basic 
40-hour workweek). The interim regulations already required that 
uncommon tours be established for 24-hour shift firefighters 
compensated under Sec. 550.1303(a). This revision would extend the 
requirement to all firefighters compensated under 5 U.S.C. 5545b. This 
is consistent with agency practices. It will ensure that ``40+ 
firefighters'' are paid during periods of paid leave on the basis of 
their regular tour of duty.

Final Regulations Published Previously

    Certain regulatory changes related to firefighter pay were included 
in a final rule published on December 10, 1999 (64 FR 69165). Two of 
these changes revised provisions in the interim firefighter pay 
regulations published on November 23, 1998 (63 FR 64589). (See 64 FR 
69171.) Since those changes have already been made final and are part 
of the current Code of Federal Regulations, this final rule does not 
include those changes. For the benefit of the reader, we provide below 
a summary description of the two previously

[[Page 15466]]

published changes made in the interim regulations:
    1. We revised Sec. 550.707 by adding a new paragraph (b)(5). This 
provided a rule for determining the weekly pay used in computing 
severance pay for firefighters with variable workweeks. (The interim 
firefighter pay regulations had made a similar change in 
Sec. 550.707(b), which was revised as part of the December 10, 1999, 
final rule.)
    2. We revised Sec. 551.501(a)(5) to include a specific reference to 
firefighters compensated under 5 U.S.C. 5545b. This provision deals 
with the fact that section 5545b firefighters are not subject to a 40-
hour weekly overtime standard. (The interim firefighter regulations had 
made a similar change in Sec. 551.501(a)(5), but the December 10, 1999, 
final rule included some additional changes in this paragraph.)

Changes in Law

    Since publication of the interim regulations on November 23, 1998, 
there have been two changes in law related to firefighter pay. These 
statutory changes do not require changes in the regulations; however, a 
brief description of each change is provided below for the reader's 
benefit.

Transitional Provisions

    On May 21, 1999, the President signed legislation that included a 
technical amendment providing a special one-time pay adjustment for 
certain firefighters who were involuntarily changed to a workweek of 60 
hours or less before December 31, 1999. (See section 3032 of Public Law 
106-31.) This law amended the original Federal Firefighters Overtime 
Pay Reform Act enacted on October 21, 1998.
    The 1998 firefighter pay law included a special transitional 
provision (section 628(f)) under which certain 24-hour shift 
firefighters with regular tours of duty averaging 60 hours or less per 
week would receive a one-time increase in basic pay equal to two GS 
step increases. As required by the law, this transitional provision was 
applied on the law's effective date to firefighters who had qualifying 
work schedules on that date. (See implementing regulation at 
Sec. 550.1308(a) in the interim firefighter pay regulations.) The law 
became effective on the first day of the first pay period beginning on 
or after October 1, 1998.
    The 1999 technical amendment provided that certain other 
firefighters could receive a two-step increase during an extended 
transition period ending on December 31, 1999. To qualify, a 
firefighter had to (1) be subject to 5 U.S.C. 5545b on its effective 
date; (2) have a regular tour of duty averaging more than 60 hours per 
week on that effective date; and (3) be involuntarily moved without a 
break in service before December 31, 1999, to a regular tour of duty 
averaging 60 hours or less per week (and not containing a basic 40-hour 
workweek).
    We are not issuing any regulations to implement the technical 
amendment. The technical amendment applied only during a transitional 
period that ended on December 31, 1999. Agencies were able to process 
affected cases under the clear terms of the amendment. As discussed 
earlier in this notice, we are also removing the section 
(Sec. 550.1308) containing the original regulatory transitional 
provisions, since those provisions have no current application.

Workers' Compensation Benefits

    On December 21, 2000, the President signed legislation that 
included an amendment to 5 U.S.C. 5545b dealing with the computation of 
workers' compensation benefits for firefighters covered by the section. 
The amendment added a paragraph (4) to section 5545b(d). That paragraph 
reads as follows: ``(d) Notwithstanding section 8114(e)(1), overtime 
pay for a firefighter subject to this section for hours in a regular 
tour of duty shall be included in any computation of pay under section 
8114.'' The legislation further provided that this amendment was 
effective as if it had been enacted as part of the original Federal 
Firefighters Overtime Pay Reform Act, which was effective on the first 
day of the first pay period beginning on or after October 1, 1998.
    This amendment means that section 5545b firefighters' overtime pay 
for hours in their regular tour of duty must be used in determining pay 
rates for purposes of workers' compensation benefits. The Department of 
Labor is responsible for regulating and administering the workers 
compensation program for Federal employees. Therefore, OPM is not 
issuing any regulations on this subject. (See FECA Bulletin No. 01-08, 
April 23, 2001. On the Internet, go to http://www.dol.gov/dol/esa/
public/regs/compliance/owcp/fecacont.htm.)

E.O. 12866, Regulatory Review

    The Office of Management and Budget has reviewed this rule 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 410, 550, 551, and 630

    Administrative practice and procedure, Claims, Education, 
Government employees, Wages.

Office of Personnel Management.
Kay Coles James,
Director.

    Accordingly, the Office of Personnel Management adopts the interim 
rule amending parts 410, 550, 551, 591, 630, and 870 of title 5 of the 
Code of Federal Regulations, which was published November 23, 1998, at 
63 FR 64589, as a final rule with the following changes:

PART 410--TRAINING

    1. The authority citation for part 410 continues to read as 
follows:

    Authority: 5 U.S.C. 4101, et seq.; E.O. 11348, 3 CFR, 1967 
Comp., p. 275.

Subpart D--Paying for Training

    2. In Sec. 410.402, revise paragraph (b)(6) to read as follows:


Sec. 410.402  Paying premium pay.

* * * * *
    (b) * * *
    (6) Firefighter overtime pay. (i) A firefighter compensated under 
part 550, subpart M, of this chapter shall receive basic pay and 
overtime pay for the firefighter's regular tour of duty (as defined in 
Sec. 550.1302 of this chapter) in any week in which attendance at 
agency-sanctioned training reduces the hours in the firefighter's 
regular tour of duty.
    (ii) The special pay protection provided by paragraph (b)(6)(i) of 
this section does not apply to firefighters who voluntarily participate 
in training during non-duty hours, leave hours, or periods of excused 
absence. It also does not apply if the firefighter is entitled to a 
greater amount of pay based on actual work hours during the week in 
which training occurs.
* * * * *

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart M--Firefighter Pay

    3. Revise the authority citation for subpart M of part 550 to read 
as follows:

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


    4. In Sec. 550.1302, revise the definition of firefighter to read 
as follows:


Sec. 550.1302  Definitions.

* * * * *

[[Page 15467]]

    Firefighter means an employee--
    (1) Whose regular tour of duty, as in effect throughout the year, 
averages at least 106 hours per biweekly pay period; and
    (2) Who is in a position--
    (i) Covered by the General Schedule and classified in the Fire 
Protection and Prevention Series, GS-0081, consistent with standards 
published by the Office of Personnel Management;
    (ii) In a demonstration project established under chapter 47 of 
title 5, United States Code, or an alternative personnel system under a 
similar authority, which otherwise would be covered by the General 
Schedule, and which is classified in the Fire Protection and Prevention 
Series, GS-0081, consistent with standards published by the Office of 
Personnel Management, but only if application of 5 U.S.C. 5545b has not 
been waived; or
    (iii) Covered by the General Schedule and classified in the GS-
0099, General Student Trainee Series (as required by Sec. 213.3202(b) 
of this chapter), if the position otherwise would be classified in the 
GS-0081 series.
* * * * *

    5. In Sec. 550.1303, revise paragraph (d) to read as follows:


Sec. 550.1303  Hourly rates of basic pay.

* * * * *
    (d) If a firefighter takes leave without pay during his or her 
regular tour of duty, the agency shall substitute any irregular hours 
worked in the same biweekly pay period for those hours of leave without 
pay. (If a firefighter's overtime pay is computed on a weekly basis, 
the irregular hours must be worked in the same administrative 
workweek.) For firefighters whose regular tour of duty includes a basic 
40-hour workweek, the agency shall first substitute irregular hours for 
hours of leave without pay in the basic 40-hour workweek, which are 
paid at an hourly rate based on the 2087 divisor. All other substituted 
hours are paid at an hourly rate based on the 2756 divisor, using the 
applicable overtime rate for overtime hours. The annual rate used to 
compute any such hourly rate is the annual rate in effect at the time 
the hour was actually worked.

    6. In Sec. 550.1305, revise the paragraph (a) introductory text and 
paragraphs (c) and (d) to read as follows:


Sec. 550.1305  Treatment as basic pay.

    (a) The sum of pay for nonovertime hours that are part of a 
firefighter's regular tour of duty (as computed under Sec. 550.1303) 
and the straight-time portion of overtime pay for hours in a 
firefighter's regular tour of duty is treated as basic pay only for the 
following purposes:
* * * * *
    (c) Pay for any nonovertime hours outside a firefighter's regular 
tour of duty is computed using the firefighter hourly rate of basic pay 
as provided in Sec. 550.1303(a) and (b)(2), but that pay is not 
considered basic pay for any purpose, except in applying Secs. 550.105 
and 550.106.
    (d) For firefighters compensated under Sec. 550.1303(b), pay for 
nonovertime hours within the regular tour of duty, but outside the 
basic 40-hour workweek, is basic pay only for the purposes listed in 
paragraph (a) of this section and for the purpose of applying 
Sec. 410.402(b)(6) of this chapter and Secs. 550.105 and 550.106.
* * * * *

    7. In Sec. 550.1306, amend paragraph (c) by removing ``631.210'' 
and adding in its place ``630.210''; and revise paragraph (a) and add 
paragraphs (d) and (e) to read as follows:


Sec. 550.1306  Relationship to other entitlements.

    (a) A firefighter who is compensated under this subpart is entitled 
to overtime pay as provided under this subpart, but may not receive 
additional premium pay under any other provision of subchapter V of 
chapter 55 of title 5, United States Code, including night pay, Sunday 
pay, holiday pay, and hazardous duty pay. A firefighter is not entitled 
to receive paid holiday time off when not working on a holiday, but may 
be allowed to use annual or sick leave, as appropriate, or may be 
granted excused absence at the agency's discretion.
* * * * *
    (d) A firefighter compensated under this subpart shall receive 
basic pay and overtime pay for his or her regular tour of duty in any 
week in which attendance at agency-sanctioned training reduces the 
hours in the firefighter's regular tour of duty, as provided in 
Sec. 410.402(b)(6) of this chapter.
    (e) In applying the compensatory time off provision in 
Sec. 550.114(c), compare the firefighter's annual rate of basic pay to 
the annual rate of basic pay for GS-10, step 10.


Sec. 550.1308  [Removed]

    8. Remove Sec. 550.1308.

PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT

    9. 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. 240f).

Subpart D--Hours of Work

    10. In Sec. 551.411, revise paragraph (c) to read as follows:


Sec. 551.411  Workday.

* * * * *
    (c) Bona fide meal periods are not considered hours of work, except 
for on-duty meal periods for employees engaged in fire protection or 
law enforcement activities who receive compensation for overtime hours 
of work under 5 U.S.C. 5545(c)(1) or (2) or 5545b. However, for 
employees engaged in fire protection or law enforcement activities who 
have periods of duty of more than 24 hours, on-duty meal periods may be 
excluded from hours of work by agreement between the employer and the 
employee, except as provided in Sec. 551.432(e) and (f).

PART 630--ABSENCE AND LEAVE

    11. The authority citation for part 630 continues to read as 
follows:

    Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C. 
6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C. 
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337, 
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108 
Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228, 
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I 
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, 
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5 
U.S.C. 6362, Pub. L 100-566, and Pub. L. 103-103; subpart K also 
issued under Pub. L. 105-18, 111 Stat. 158; subpart L also issued 
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M 
also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.

Subpart B--Definitions and General Provisions for Annual and Sick 
Leave

    12. In Sec. 630.210, revise paragraph (c) to read as follows:


Sec. 630.210  Uncommon tours of duty.

* * * * *
    (c) An agency shall establish an uncommon tour of duty for each 
firefighter compensated under part 550, subpart M, of this chapter. The

[[Page 15468]]

uncommon tour of duty shall correspond directly to the firefighter's 
regular tour of duty, as defined in Sec. 550.1302 of this chapter, so 
that each firefighter accrues and uses leave on the basis of that tour.

[FR Doc. 02-7762 Filed 4-1-02; 8:45 am]
BILLING CODE 6325-39-P