[Federal Register Volume 59, Number 234 (Wednesday, December 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30010]
Federal Register / Vol. 59, No. 234 / Wednesday, December 7, 1994 /
[[Page Unknown]]
[Federal Register: December 7, 1994]
VOL. 59, NO. 234
Wednesday, December 7, 1994
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AG45
Absence and Leave; Use of Restored Annual Leave
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: The Office of Personnel Management is issuing interim
regulations to provide employees with additional time in which to use
restored annual leave that was forfeited as a result of employment at a
Department of Defense installation undergoing closure or realignment.
DATES: The interim regulations are effective on December 7, 1994.
Comments must be received on or before February 6, 1995.
ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,
Acting Assistant Director for Compensation Policy, Office of Personnel
Management, Room 6H31, 1900 E Street NW., Washington, DC 20415.
FOR FURTHER INFORMATION CONTACT:
Jo Ann Perrini, (202) 606-2858.
SUPPLEMENTARY INFORMATION: Section 4434 of Public Law 102-484, the
National Defense Authorization Act for fiscal year 1993, amended
section 6304(d) of title 5, United States Code, to consider the closure
of an installation of the Department of Defense (DOD), during the
period from October 1, 1992, through December 31, 1997, as ``an
exigency of the public business'' for the purpose of restoring annual
leave accumulated in excess of the maximum permitted by law. This
amendment also provides that any annual leave in excess of the annual
maximum limitation under 5 U.S.C. 6304(a) accrued by an employee at a
closing DOD installation must be restored and credited to the employee
in a separate leave account. This provision enables installations to
keep their already reduced staffs at work while permitting employees to
avoid forfeiture of leave. In addition, it reduces the administrative
time that would have been spent by employees and managers in
scheduling, canceling, and restoring ``use or lose'' annual leave each
leave year.
Sections 341 and 2816 of Public Law 103-337, October 5, 1994, the
National Defense Authorization Act for fiscal year 1995, expanded 5
U.S.C. 6304(d)(3) to cover employees of DOD installations identified as
``realigning locations'' under the Defense Base Closure and Realignment
Act of 1990 (BRAC) and eliminated the time period for application of 5
U.S.C. 6304(d)(3) if the closure or realignment action is under BRAC.
The October 1, 1992, through December 31, 1997, time frame in 5 U.S.C.
6304(d)(3) continues to apply to the closure of DOD installations not
covered by BRAC.
Time Limit for Using Restored Annual Leave
Under the current 5 CFR 630.306, all restored leave must be
scheduled and used not later than the end of the leave year ending 2
years after the termination date of the exigency of the public
business--i.e., the closure or completion of the realignment of the DOD
installation and/or transfer of the employee to another installation or
agency. Employees remaining at closing DOD installations or BRAC
designated realignment installations over several leave years may
accumulate large amounts of restored leave in their separate accounts.
When the exigency of the public business terminates, the employee must
schedule and use all of the restored leave by the end of the leave year
ending 2 years after the termination date of the exigency of the public
business. As a result, the employer must deal with the consequence of
the employee using sizeable amounts of leave within 2 to 3 years after
the transfer or completion of the realignment. At the same time, annual
leave that accrues during that 2- to 3-year period routinely creates a
``use or lose'' situation.
To help alleviate this situation, the Office of Personnel
Management (OPM) is revising 5 CFR 630.306 to establish a longer period
of time for using annual leave restored under 5 U.S.C. 6304(d)(3) based
on the amount of restored leave in the employee's separate leave
account. The time limit would be calculated using a formula similar to
the formula used for determining the time limit for using annual leave
restored in back pay situations. (See 5 CFR 550.805(g).)
Under the interim regulations, a full-time employee would be
required to schedule and use excess annual leave of 416 hours or less
by the end of the leave year in progress 2 years after the date the
employee is no longer subject to 5 U.S.C. 6304(d)(3). The agency would
extend that period by 1 leave year for each additional 208 hours of
excess annual leave or any portion thereof. A part-time employee would
be required to schedule and use excess annual leave in an amount equal
to or less than 20 percent of the number of hours in the employee's
scheduled annual tour of duty by the end of the leave year in progress
2 years after the date the employee is no longer subject to 5 U.S.C.
6304(d)(3). The agency would extend this period by 1 leave year for
each additional number of hours of excess annual leave, or any portion
thereof, equal to 10 percent of the number of hours in the employee's
scheduled annual tour of duty.
Movement From One DOD Installation Undergoing Closure or Realignment to
Another Such Installation
Under the current 5 CFR 630.306, the time limit for using annual
leave restored under 5 U.S.C. 6304(d)(3) begins when an employee moves
from a closing DOD installation or a DOD installation undergoing
realignment, even if the employee is transferring to another DOD
installation subject to closure or realignment. This creates a
situation that is directly opposite to the result that 5 U.S.C.
6304(d)(3) was intended to correct. Employees who move from one DOD
installation undergoing closure or realignment to another such
installation without a break in service are under strict time
constraints to use their restored leave. At the same time, they are
needed at work because of reduced staff levels. Supervisors and
managers may be hesitant to deny leave requests because restored leave
that is forfeited cannot be recovered. Further complicating the
situation is the fact that these employees may be entitled to
additional restored leave under 5 U.S.C. 6304(d)(3).
OPM agrees with DOD's conclusion that the exigency of the public
business that allows for the accrual of annual leave above the annual
maximum limitation does not terminate when an employee moves from one
closing or realigning installation to another such installation without
a break in service. Therefore, OPM's regulations will defer starting
the time limit for using restored leave until the employee no longer
works at a closing DOD installation or a DOD installation undergoing
realignment.
Movement to an Installation Undergoing Closure or Realignment
When an employee moves to a closing DOD installation or a DOD
installation undergoing realignment, 5 U.S.C. 6304(d)(3) only permits
the restoration of annual leave that exceeds the annual maximum carry-
over limitation. There is no similar protection for an ``active''
restored annual leave account--i.e., an account of restored annual
leave that was established under other conditions permitting
restoration of annual leave under 5 U.S.C. 6304(d). Although the
employee is needed to work at the installation that is undergoing
closure or realignment, the employee (and the agency) have little
option but to use (or permit the use of) the leave in the ``active''
restored leave account to avoid the forfeiture of annual leave. This
situation is also inconsistent with the overall intent of 5 U.S.C.
6304(d)(3).
OPM's revision of Sec. 630.306, as discussed above, will also
alleviate this problem, since the time limitation for using a restored
leave account will be canceled for the entire period during which an
employee is subject to 5 U.S.C. 6304(d)(3). After the employee's
coverage under 5 U.S.C. 6304(d)(3) ends, a new time limit will be
established for all restored leave available to the employee under 5
U.S.C. 6304(d). The new time limit for using restored leave will begin
on the date the employee is no longer subject to 5 U.S.C. 6304(d)(3).
Advance Scheduling of Annual Leave
Under the current 5 CFR 630.308, before annual leave forfeited
under section 6304 of title 5, United States Code, may be considered
for restoration under that section, use of the annual leave must have
been scheduled in writing before the start of the third biweekly pay
period prior to the end of the leave year. Under 5 U.S.C. 6304(d)(3),
employees at closing DOD installations or DOD installations undergoing
realignment are permitted to have excess annual leave restored without
meeting the requirement for advance scheduling of annual leave.
DOD has identified two problems that are encountered by an employee
whose coverage under 5 U.S.C. 6304(d)(3) ends during the leave year.
Some of these employees face forfeiting ``use or lose'' annual leave at
the end of the leave year at the new installation because they are
unable to show any evidence of advance scheduling of annual leave.
Other employees request that a ``restored'' annual leave account be
established at the time of their transfer or the completion of the
realignment of the DOD installation, even though accrued annual leave
is not subject to forfeiture until the end of the leave year. Under 5
U.S.C. 6304(d), excess annual leave cannot be considered for
restoration until after the end of the leave year in which it is
forfeited.
An employee whose coverage under 5 U.S.C. 6304(d)(3) ends late in
the leave year may find it impossible to schedule all annual leave that
would be subject to forfeiture before the end of the leave year. DOD
has requested that OPM amend Sec. 630.308 to allow agencies to consider
restoration of annual leave forfeited at the end of the leave year to
an employee whose coverage under 5 U.S.C. 6304(d)(3) ends during the
leave year if the employee can demonstrate a correlation between the
lack of advance scheduling and coverage under 5 U.S.C. 6304(d)(3).
OPM agrees that such annual leave may be considered for
restoration. We have revised the regulations to require affected
employees to make a reasonable effort to comply with the advance
scheduling requirement in 5 CFR 630.308(a). However, the head of the
agency may exempt employees from the advance scheduling requirement if
the employee can show that he or she was covered by 5 U.S.C. 6304(d)(3)
during the leave year and that he or she was unable to comply with the
scheduling requirement due to circumstances beyond his or her control.
Although an employee may be exempt from the advance scheduling
requirement, this does not guarantee that the employee's excess annual
leave will be restored, since there may have been sufficient time to
schedule and use his or her annual leave before the end of the leave
year. Annual leave restored to the employee for the current leave year
is subject to the time limitations established in 5 CFR 630.306(a).
Waiver of Notice of Proposed Rule Making and Delay in Effective Date
Sections 341 and 2816 of Public Law 103-337, which broadened
coverage under 5 U.S.C. 6304(d)(3), were effective on October 5, 1994.
In order to give practical effect to this legislation, I find good
cause exists to waive the general notice of proposed rulemaking
pursuant to 5 U.S.C. 553(b)(3)(B). Also, I find that good cause exists
for making this rule effective in less than 30 days. The delay in the
effective date is being waived to give affected employees the benefit
of these new provisions.
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 affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 630
Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending part 630 of title 5 of the Code of
Federal Regulations as follows:
PART 630--ABSENCE AND LEAVE
1. The authority citation for part 630 is revised to read as
follows:
Authority: 5 U.S.C. 6311; 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); Sec. 630.501 and subpart F also issued under E.O.
11228, 30 FR 7739, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart
G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.
6326; subpart I also issued under 5 U.S.C. 6332 and Pub. L. 100-566
(102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also
issued under 5 U.S.C. 6362 and Pub. L. 100-566 and 103-103; subpart
K also issued under Pub. L. 102-25 (105 Stat. 92); and subpart L
also issued under 5 U.S.C. 6387 and Pub. L. 103-3 (107 Stat. 23).
Subpart C--Annual Leave
2. Section Sec. 630.306 is revised to read as follows:
Sec. 630.306 Time limit for use of restored annual leave.
(a) Except as otherwise authorized under paragraphs (b) and (c) of
this section or other regulation, annual leave restored under 5 U.S.C.
6304(d) must be scheduled and used not later than the end of the leave
year ending 2 years after:
(1) The date of restoration of the annual leave forfeited because
of administrative error; or
(2) The date fixed by the agency head, or his or her designee, as
the termination date of the exigency of the public business that
resulted in forfeiture of the annual leave; or,
(3) The date the employee is determined to be recovered and able to
return to duty if the leave was forfeited because of sickness.
(b) Annual leave restored to an employee under 5 U.S.C. 6304(d)(3)
must be scheduled and used within the time limits prescribed in
paragraphs (b)(1) and (b)(2) of this section:
(1) A full-time employee shall schedule and use excess annual leave
of 416 hours or less by the end of the leave year in progress 2 years
after the date the employee is no longer subject to 5 U.S.C.
6304(d)(3). The agency shall extend this period by 1 leave year for
each additional 208 hours of excess annual leave or any portion
thereof.
(2) A part-time employee shall schedule and use excess annual leave
in an amount equal to or less than 20 percent of the number of hours in
the employee's scheduled annual tour of duty by the end of the leave
year in progress 2 years after the date the employee is no longer
subject to 5 U.S.C. 6304(d)(3). The agency shall extend this period by
1 leave year for each additional number of hours of excess annual
leave, or any portion thereof, equal to 10 percent of the number of
hours in the employee's scheduled annual tour of duty.
(c) The time limits established under paragraphs (a) and (b) of
this section for using restored annual leave accounts shall not apply
for the entire period during which an employee is subject to 5 U.S.C.
6304(d)(3). When coverage under 5 U.S.C. 6304(d)(3) ends, a new time
limit shall be established under paragraph (b) of this section for all
annual leave restored to an employee under 5 U.S.C. 6304(d).
3. Section 630.308 is revised to read as follows:
Sec. 630.308 Scheduling of annual leave.
(a) Except as provided in paragraph (b) of this section, before
annual leave forfeited under section 6304 of title 5, United States
Code, may be considered for restoration under that section, use of the
annual leave must have been scheduled in writing before the start of
the third biweekly pay period rather to the end of the leave year.
(b) The requirement for advance scheduling of annual leave in
paragraph (a) of this section shall not apply to an employee who is
covered by 5 U.S.C. 6304(d)(3). When coverage under 5 U.S.C. 6304(d)(3)
terminates during a leave year, the employee shall make a reasonable
effort to comply with the scheduling requirement in paragraph (a) of
this section. The head of the agency or his or her designee may exempt
employees from the advance scheduling requirement in paragraph (a) of
this section if coverage under 6304(d)(3) terminated during the leave
year and the employee was unable to comply with the advance scheduling
requirement due to circumstances beyond his or her control.
[FR Doc. 94-30010 Filed 12-6-94; 8:45 am]
BILLING CODE 6325-01-M
