U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Attachment 1

Summary of Necessary Key Elements in Agency Policies Implementing Section 1101 of Public Law 110-417 for Calendar Year 2009

• The premium pay cap waiver authority under section 1101(a) may be applied in calendar year 2009 to an employee who meets all of the following conditions for coverage eligibility:

  1. The employee is covered by 5 U.S.C. 5547 (dealing with limitations on premium pay).

  2. The employee is assigned to work in an overseas location that (1) is in the area of responsibility of the Commander of the U.S. Central Command (CENTCOM) or (2) was formerly in the CENTCOM area of responsibility but has been moved to the area of responsibility of the Commander of the United States Africa Command (AFRICOM) and remains in that location for at least 42 consecutive calendar days (unless an authorized agency official grants a waiver of the 42-day requirement in very limited circumstances). (If the employee meets the 42-day requirement, the section 1101 limitation may be applied to days before that requirement was satisfied, as long as the employee was performing work in a covered and approved category on those days. Although section 1101 applies only to payments payable in calendar year 2009, the 42-day period may overlap a calendar year-i.e., begin in 2008 and end in 2009, or begin in 2009 and end in 2010.)

  3. The employee performs work in direct support of, or directly related to, (1) a military operation (including a contingency operation, as defined in 10 U.S.C. 101(a)(13)) or (2) an operation in response to an emergency declared by the President. ("Military operation" is a Department of Defense (DOD) term of art, defined in the DOD Dictionary of Military and Associated Terms.) Prior to authorizing any premium pay cap waiver under section 1101 on the basis of a military operation, an agency must confirm any DOD operation in countries in which such a waiver is being considered meets the DOD definition. (Note: The State Department and DOD have determined all their employees serving in Iraq and Afghanistan are performing work in direct support of, or directly related to, a military operation. In other locations, they will make determinations on a case-by-case basis.)

  4. The employee is in a category of employees for whom coverage under section 1101 has been approved by an authorized agency official. (Note: Section 1101 establishes a discretionary authority that agencies may exercise, not an entitlement.)

• Employees who are granted a waiver under section 1101(a) in calendar year 2009 will be covered by a higher annual premium pay cap in lieu of the normal biweekly and annual premium pay caps under 5 U.S.C. 5547. The employee will be entitled to premium payments identified in 5 U.S.C. 5547(a) to the extent it does not cause the employee's combined payable amount of basic pay and premium pay for calendar year 2009 to exceed the annual rate of salary payable to the Vice President under 3 U.S.C. 104 (expected to be $227,300 in 2009). (Like the section 5547 limitation, the section 1101 limitation is applied to premium payments that are "payable" during the calendar year-i.e., earned in a pay period for which the pay date falls in the calendar year.)

• The higher annual limitation on premium pay established under section 1101(a) will continue to apply during calendar year 2009 to an employee's annual aggregate basic pay plus premium pay even after the employee has stopped performing work covered by section 1101(a). After an employee stops performing covered work, the employee's earnings will again be subject to the biweekly premium pay limitation under 5 U.S.C. 5547, and the employee could receive payments up to the section 5547 biweekly premium pay limitation each pay period until the section 1101(a) annual limitation is reached.

• Under section 1101(b), the aggregate limitation on pay under 5 U.S.C. 5307 will not apply in calendar year 2009 to any employee who is granted a waiver under section 1101(a) (i.e., premium pay cap waiver) in calendar year 2009. When the aggregate limitation on pay under 5 U.S.C. 5307 is applied, payments (other than basic pay) in excess of the aggregate limitation must be deferred and are generally paid as a lump-sum payment at the beginning of the following calendar year. However, if section 1101(b) applies to an employee in calendar year 2009, the employee is entitled to receive applicable payments immediately without deferral.

• Under section 1101(c), any additional pay that results from application of the higher premium pay cap under section 1101(a) may not be considered basic pay for retirement or any other purpose, nor may it be used in computing a lump-sum payment for accumulated and accrued annual leave under 5 U.S.C. 5551. Under 5 U.S.C. 5547 and 5 CFR 550.107, various types of premium pay creditable for retirement and other purposes are always subject to a biweekly cap, even in emergencies that would normally trigger the annual premium pay limit. Thus, in applying section 1101(a), an agency should consider any premium pay that is basic pay for retirement or other purposes as being paid before any other premium payment and apply the biweekly cap to determine the amount of basic pay for retirement and other purposes. In other words, section 1101(a) would allow these types of premium payments to exceed the normally applicable biweekly limit, but any excess beyond the biweekly limit would be attributable to section 1101(a) and therefore would not be treated as basic pay for retirement or other purposes.

COUNTRIES IN CENTCOM OVERSEAS AREA OF RESPONSIBILITY

1. Egypt
2. Jordan
3. Saudi Arabia
4. Yemen
5. Oman
6. United Arab Emirates
7. Qatar
8. Bahrain
9. Kuwait
10. Pakistan
11. Iran
12. Iraq
13. Afghanistan
14. Tajikistan
15. Kyrgyzstan
16. Kazakhstan
17. Uzbekistan
18. Turkmenistan
19. Seychelles
20. Syria
21. Lebanon

COUNTRIES IN AFRICOM OVERSEAS AREA OF RESPONSIBILITY
(formerly in CENTCOM overseas area of responsibility)

1. Djibouti
2. Eritrea
3. Sudan
4. Kenya
5. Ethiopia
6. Somalia

Section 1101 of Public Law 110-417

SEC. 1101. AUTHORITY TO WAIVE ANNUAL LIMITATION ON PREMIUM PAY AND AGGREGATE LIMITATION ON PAY FOR FEDERAL CIVILIAN EMPLOYEES WORKING OVERSEAS.

1. WAIVER AUTHORITY.- During calendar year 2009, and notwithstanding section 5547 of title 5, United States Code, the head of an executive agency may waive, the premium pay limitations established in that section up to the annual rate of the salary payable to the Vice President under section 104 of title 3, United States Code, for an employee who performs work while in an overseas location that is in the area of responsibility of the Commander of the United States Central Command, or an overseas location that was formerly in the area of responsibility of the Commander of the United States Central Command but has been moved to the area of responsibility of the Commander of the United States Africa Command, in direct support of or directly related to—
   1. a military operation, including a contingency operation; or
   2. an operation in response to an emergency declared by the President.
2. APPLICABILITY OF AGGREGATE LIMITATION ON PAY.— Section 5307 of title 5, United States Code, shall not apply to any employee in any calendar year in which that employee is granted a waiver under subsection (a).
3. ADDITIONAL PAY NOT CONSIDERED BASIC PAY.— To the extent that a waiver under subsection (a) results in payment of additional premium pay of a type that is normally creditable as basic pay for retirement or any other purpose, such additional pay shall not be considered to be basic pay for any purpose, nor shall it be used in computing a lump-sum payment for accumulated and accrued annual leave under section 5551 of title 5, United States Code.
4. REGULATIONS. — The Director of the Office of Personnel Management may issue regulations to ensure appropriate consistency among heads of executive agencies in the exercise of the authority granted by this section.

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