B-211697, SEP 26, 1983, OFFICE OF GENERAL COUNSEL

B-211697: Sep 26, 1983

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IS INTERPRETING CERTAIN REGULATIONS CONTAINED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. THE OLD METHOD OF ESTABLISHING AN EMPLOYEE'S AVERAGE NUMBER OF WEEKLY OVERTIME HOURS PERFORMED IN THE PAST WAS TO DIVIDE HIS TOTAL OVERTIME HOURS DURING THE PRECEDING YEAR BY 52 WORKWEEKS. THEY HAVE DECIDED TO SUBTRACT ALL FULL DAYS OF ANNUAL LEAVE. PERIODS THE EMPLOYEE IS IN A NONPAY STATUS. WILL INCREASE THE RATE AUO TIME WILL BE COMPENSATED FOR IN THE FUTURE. YOU CONTEND THAT THERE IS NO REGULATORY BASIS FOR ELIMINATING THESE PERIODS FROM THE COMPUTATION. AN OFFICIAL DECISION IS NOT BEING RENDERED AT YOUR REQUEST IN VIEW OF THE STATUTES GOVERNING OUR DECISIONMAKING AUTHORITY. THE FOLLOWING INFORMATION MAY BETTER HELP YOU UNDERSTAND THE INTERPLAY OF THE VARIOUS REGULATIONS WHICH YOU HAVE CITED.

B-211697, SEP 26, 1983, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. BRUCE M. SAGALOW:

WE REFER TO YOUR LETTERS DATED APRIL 6 AND MAY 27, 1983, SEEKING OUR VIEWS REGARDING THE MANNER IN WHICH THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR, IS INTERPRETING CERTAIN REGULATIONS CONTAINED IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, CONCERNING ADMINISTRATIVELY UNCONTROLLABLE OVERTIME (AUO).

YOU SAY THAT THE BUREAU OF LAND MANAGEMENT HAS ISSUED AN INSTRUCTIONAL MEMORANDUM (NO. 83-325, FEBRUARY 18, 1983), CHANGING THE METHOD OF COMPUTING AUO HOURS FOR ITS CRIMINAL INVESTIGATORS. ACCORDING TO THAT MEMORANDUM, THE OLD METHOD OF ESTABLISHING AN EMPLOYEE'S AVERAGE NUMBER OF WEEKLY OVERTIME HOURS PERFORMED IN THE PAST WAS TO DIVIDE HIS TOTAL OVERTIME HOURS DURING THE PRECEDING YEAR BY 52 WORKWEEKS. UNDER THE NEW METHOD OF DETERMINING THIS AVERAGE, THEY HAVE DECIDED TO SUBTRACT ALL FULL DAYS OF ANNUAL LEAVE, TRAINING PERIODS, HOLIDAYS, AND PERIODS THE EMPLOYEE IS IN A NONPAY STATUS, I.E., LEAVE WITHOUT PAY, FROM THE 52 WORKWEEKS, THEREBY REDUCING THE NUMBER OF WORKWEEKS TO BE USED IN THE DIVISOR. THIS, IN TURN, INCREASES THE AVERAGE NUMBER OF AUO HOURS PERFORMED PER WEEK AND, THUS, WILL INCREASE THE RATE AUO TIME WILL BE COMPENSATED FOR IN THE FUTURE.

YOU CONTEND THAT THERE IS NO REGULATORY BASIS FOR ELIMINATING THESE PERIODS FROM THE COMPUTATION. AS A RESULT, YOU SUGGEST THAT THIS NEW STATED POLICY VIOLATES A NUMBER OF REGULATIONS IN THE CODE OF FEDERAL REGULATIONS, SPECIFICALLY 5 C.F.R. SECS. 550.161(D), 550.154(A); AND 550.152. YOU REQUEST THAT WE REVIEW THE MATTER FROM A LEGAL VIEWPOINT AND ADVISE YOU OF OUR CONCLUSION.

AN OFFICIAL DECISION IS NOT BEING RENDERED AT YOUR REQUEST IN VIEW OF THE STATUTES GOVERNING OUR DECISIONMAKING AUTHORITY. SEE 31 U.S.C. SECS. 3529 AND 3702 (1982). HOWEVER, THE FOLLOWING INFORMATION MAY BETTER HELP YOU UNDERSTAND THE INTERPLAY OF THE VARIOUS REGULATIONS WHICH YOU HAVE CITED.

THE AUTHORITY TO PAY AUO IS CONTAINED IN 5 U.S.C. SEC. 5545(C)(2). PAYMENTS ARE MADE BY THE HEAD OF AN AGENCY WITH THE APPROVAL OF THE OFFICE OF PERSONNEL MANAGEMENT (OPM). UNDER THE AUTHORITY OF 5 U.S.C. SEC. 5548, OPM HAS PROMULGATED THE REGULATIONS CONTAINED IN 5 C.F.R. SECS. 550.151- 550.164, WHICH RELATE SPECIFICALLY TO ADMINISTRATIVELY UNCONTROLLABLE OVERTIME.

UNDER THE AUTHORITY OF 5 C.F.R. SEC. 550.161, OPM DELEGATED TO EACH AGENCY CERTAIN RESPONSIBILITIES INVOLVING THE PAYMENT OF AUO. PARTICULAR, SUBSECTION 550.161(D), AUTHORIZES THE AGENCY TO DETERMINE THE NUMBER OF HOURS OF IRREGULAR OR OCCASIONAL OVERTIME CUSTOMARILY REQUIRED OF EMPLOYEES IN POSITIONS WHICH REQUIRE SUBSTANTIAL AMOUNTS OF IRREGULAR OR OCCASIONAL OVERTIME WORK. THIS DETERMINATION IS TO BE BASED ON HOURS OF IRREGULAR OR OCCASIONAL OVERTIME WORKED IN THE PAST AND IS TO TAKE INTO CONSIDERATION THE LIKELIHOOD THAT A SIMILAR NUMBER OF AUO HOURS WILL BE PERFORMED IN THE FUTURE. WHILE YOU HAVE EXPRESSED THE VIEW THAT NO BASIS EXISTS FOR ELIMINATING CERTAIN PERIODS OF TIME FROM THE COMPUTATION, THERE IS NOTHING IN SUBSECTION 550.161(D) WHICH REQUIRES OR LIMITS THE ELEMENTS OF OR THE MANNER IN WHICH THAT DETERMINATION SHALL BE MADE.

BASED ON THAT BROAD AUTHORITY, THE BUREAU OF LAND MANAGEMENT ISSUED INSTRUCTION MEMORANDUM NO. 83-325, WHICH ESTABLISHED THE METHOD BLM WOULD USE TO OBTAIN THE AVERAGE OF THE NUMBER OF AUO HOURS PER WEEK PERFORMED IN INDIVIDUAL CASES. THIS FIGURE IS USED TO DETERMINE WHICH OF THE RATES AUTHORIZED BY 5 C.F.R. SEC. 550.154 WOULD BE USED FOR THAT PARTICULAR INDIVIDUAL WHEN HE PERFORMS AUO HOURS FOR THE UPCOMING YEAR.

AS WE UNDERSTAND IT, THE FORMULATION OF A STATISTICAL MODEL BY SIMPLY DIVIDING THE TOTAL NUMBER OF AUO HOURS ACTUALLY PERFORMED DURING THE PRECEDING YEAR BY 52 WORKWEEKS IN ALL CASES, APPARENTLY DID NOT REFLECT WITH SUFFICIENT ACCURACY THE AVERAGE PER WEEK AUO TIME SPENT IN INDIVIDUAL CASES, SINCE IT INCLUDED ALL DAYS, EVEN THOSE DAYS WHEN IT WAS IMPOSSIBLE FOR THE INDIVIDUAL TO HAVE WORKED AUO TIME IN THE PAST. BECAUSE THE EXISTENCE OF SUCH NONWORK DAYS COULD VARY SIGNIFICANTLY FROM INDIVIDUAL TO INDIVIDUAL, THE AGENCY APPARENTLY DECIDED TO RESTRUCTURE ITS FORMULA BY ELIMINATING FROM THE DIVISOR ALL FULL DAYS DURING WHICH IT WAS IMPOSSIBLE FOR AN EMPLOYEE TO PERFORM OVERTIME. IT SEEMS TO US THAT BY DOING SO, AN AGENCY COULD OBTAIN A SIGNIFICANTLY MORE ACCURATE PICTURE OF THE EMPLOYEE'S AVERAGE WEEKLY AUO HOURS. IF, ONCE THAT AVERAGE IS ESTABLISHED, IT IS DETERMINED THAT THE PARTICULAR INDIVIDUAL IS LIKELY TO PERFORM AUO AT THAT WEEKLY AVERAGE DURING THE UPCOMING YEAR, EACH AUO HOUR DURING THE UPCOMING YEAR WOULD BE COMPENSATED AT THE RATES ESTABLISHED IN 5 C.F.R. SEC. 550.154(A)(1) (4), SUBJECT, OF COURSE, TO SUCH OTHER LIMITATIONS IMPOSED BY LAW AND ELSEWHERE IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. SEE FOR EXAMPLE, 5 C.F.R. SEC. 550.162 AND 5 U.S.C. SEC. 5547 (1982).

AS NOTED, THE OFFICE OF PERSONNEL MANAGEMENT, THROUGH TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, SPECIFICALLY DELEGATED THE RESPONSIBILITY FOR DETERMINING THESE MATTERS TO EACH AGENCY. WE ALSO NOTE YOUR CORRESPONDENCE WITH THE ASSISTANT DIRECTOR FOR PAY AND BENEFITS, OPM, WHO SPECIFICALLY APPROVED THE BUREAU OF LAND MANAGEMENT'S METHOD OF DETERMINING AN EMPLOYEE'S AVERAGE WEEKLY HOURS OF OVERTIME FOR AUO PURPOSES, IN WHICH HE STATED, "WE FIND NO VIOLATION OF OPM'S REGULATIONS IN THIS AREA."

IN VIEW OF THE FACT THAT OPM HAS CONSIDERED THE BUREAU OF LAND MANAGEMENT'S COMPUTATIONAL METHOD TO BE IN HARMONY WITH 5 C.F.R. SEC. 550.161(D), THERE APPEARS TO BE NO BASIS FOR THIS OFFICE TO CONSIDER THEM IN VIOLATION OF OPM REGULATIONS.

WE TRUST THIS IS RESPONSIVE TO YOUR INQUIRY.