[Federal Register Volume 66, Number 213 (Friday, November 2, 2001)]
[Rules and Regulations]
[Pages 55557-55559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27518]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 66, No. 213 / Friday, November 2, 2001 /
Rules and Regulations
[[Page 55557]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 630
RIN 3206-AJ51
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 aid agencies and employees responding to the ``National
Emergency by Reason of Certain Terrorist Attacks'' on the World Trade
Center and the Pentagon. The regulations provide that employees who
would forfeit excess annual leave because of their work to support the
nation during the national emergency will be deemed to have scheduled
their excess annual leave in advance. Such employees will be entitled
to restoration of their annual leave under these regulations.
DATES: The interim regulations are effective on December 3, 2001.
Comments must be received on or before January 2, 2002.
ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,
Assistant Director for Compensation Administration, Workforce
Compensation and Performance Service, Office of Personnel Management,
Room 7H31, 1900 E Street NW., Washington, DC 20415, FAX: (202) 606-
0824, or e-mail: [email protected].
FOR FURTHER INFORMATION CONTACT: Sharon A. Herzberg, (202) 606-2858.
SUPPLEMENTARY INFORMATION: On September 14, 2001, President Bush
declared a ``National Emergency by Reason of Certain Terrorist
Attacks'' on the World Trade Center and the Pentagon. The unprecedented
events of September 11, 2001, the efforts toward recovery and response,
and the continuing and immediate threat of further attacks on the
United States have found many Federal agencies involved in activities
vital to our nation. The Office of Personnel Management (OPM) is
issuing these regulations to assist Federal employees who would lose
entitlement to excess annual leave because of their involvement in
national emergency efforts. These interim regulations simplify the
restoration of employees' forfeited annual leave and impose relaxed
time limitations for using restored annual leave. The procedures
established by these interim regulations are similar to those
established at 5 CFR 630.309 for employees who were deemed essential to
the Year 2000 (Y2K) computer conversion.
Section 6304 of title 5, United States Code, establishes
limitations on the amount of annual leave an employee may carry over
from one leave year to the next. Most employees can carry over no more
than 240 hours of annual leave to the next leave year. However, 5
U.S.C. 6304(d)(1)(b) also provides that excess annual leave lost as a
result of ``exigencies of the public business when the annual leave was
scheduled in advance'' may be restored to the affected employee. For
the purpose of Federal leave administration, an exigency of the public
business occurs when there is a pressing need for an employee's service
and his or her pre-approved annual leave must be canceled because there
are no other practical alternatives available to accomplish the work by
a given deadline.
Many employees in Federal agencies are essential to on-going
efforts to cope with the national emergency. As a result, many of these
employees will be faced with the possible forfeiture of ``use or lose''
annual leave because they must remain on the job to guarantee the
fulfillment of the agencies' missions during this critical period and
beyond. Under the normal rules, agencies would be faced with the
administrative burden of scheduling, canceling, and restoring such
leave for these employees at a time when all available attention and
energy should be focused on the national emergency.
The ``National Emergency by Reason of Certain Terrorist Attacks''
constitutes an exigency of the public business under 5 U.S.C.
6304(d)(1)(b), which justifies the restoration of any forfeited annual
leave in excess of the maximum allowable limits. Since it is known in
advance that it is not possible for employees involved in the national
emergency to be absent on leave, the scheduling and canceling of such
leave places an unnecessary administrative burden on the employees and
agencies involved. In support of both agencies' and employees' needs,
we are simplifying the procedures for restoring annual leave forfeited
as a result of the national emergency. Section 630.311(a) of title 5,
Code of Federal Regulations, will deem the ``National Emergency by
Reason of Certain Terrorist Attacks'' an exigency of the public
business. In addition, under Sec. 630.311(b), annual leave forfeited in
a leave year as a result of the national emergency will be deemed to
have been scheduled in advance for the purpose of satisfying the
requirements in 5 U.S.C. 6304(d) and 5 CFR 630.308. Therefore, annual
leave forfeited at the end of a leave year as a result of the national
emergency will be restored under 5 U.S.C. 6304 and placed in a separate
restored leave account.
Time Limit for Use of Restored Leave
Under the current Sec. 630.306, all restored annual 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 end of the national emergency or transfer of the
employee to another position that is not considered essential.
Employees with large restored annual leave accounts or employees
remaining in positions performing work that is essential to the
national emergency for an extended period of time may accrue large
amounts of annual leave in their accounts. Under the current
regulations, the affected employees would have to 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, employing agencies would have to deal with the consequence of
employees using sizeable amounts of leave within 2 to 3 years after the
end of the national emergency. At the same time, annual leave that
accrues during that 2- to 3-year period would routinely create a ``use
or lose'' situation.
[[Page 55558]]
To help alleviate this situation, we are providing that leave which
is restored as a result of the exigency caused by the national
emergency will have the same time limits for restoration as are
currently used for Department of Defense employees in installations
undergoing closure or realignment. (See 5 CFR 630.306(b).) A full-time
employee will 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 the exigency of the
public business created by the national emergency. The agency will
extend that period by 1 leave year for each additional 208 hours of
excess annual leave or any portion thereof. A part-time employee will
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 the
exigency. The agency will 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.
Treatment of Current Restored Leave Accounts
Some employees currently involved in the exigency created by the
national emergency have an ``active'' restored 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). Since there is no authority to restore previously restored
annual leave, employees (and agencies) 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, even though the
employees are needed for critical projects in connection with the
national emergency. The interim regulations at Sec. 630.311(d) will
alleviate this problem because the time limitation for using active
restored annual leave will be canceled for the entire period during
which employees' services are determined to be essential for activities
associated with the national emergency. At the end of the national
emergency, a new time limit will be established under Sec. 630.311(c)
for using all restored leave available to the employee under 5 U.S.C.
6304(d).
Employees Who Transfer to Another Position
As noted earlier, Sec. 630.308 currently requires that before
forfeited leave may be considered for restoration, the leave must have
been scheduled in writing before the start of the third biweekly pay
period prior to the end of the leave year. We are concerned about the
possible consequences of requiring advance scheduling for an employee
who transfers from a position deemed necessary for the national
emergency to another position during the latter portion of a leave
year. It is possible that such employees would have leave in excess of
the maximum limitation, but would still be unable to schedule it.
Therefore, the interim regulations at Sec. 630.310(e) will allow an
agency to consider restoration of annual leave forfeited at the end of
the leave year to an employee whose involvement in the national
emergency ends during the leave year if the agency determines that
there is a correlation between the lack of advance scheduling and the
duties of the employee's former position.
OPM believes such annual leave may be considered for restoration.
Section 630.311(e) requires affected employees to make a reasonable
effort to comply with the advance scheduling requirement in
Sec. 630.308(a). However, the head of an agency may exempt an employee
from the advance scheduling requirement if the employee can show that
he or she was involved in activities necessary to the national
emergency during the leave year and was unable to comply with the
scheduling requirement due to circumstances beyond his or her control.
Since the agency may determine that there was sufficient time for the
employee to schedule and use annual leave before the end of the leave
year, this provision does not guarantee that excess annual leave will
be restored.
Waiver of Notice of Proposed Rule Making and Delay in Effective
Date
In order to give practical effect to these regulations, I find that
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 as quickly as possible.
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.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Kay Coles James,
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 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 C--Annual Leave
2.In Sec. 630.308, paragraph (a) is revised to read as follows:
Sec. 630.308 Scheduling of annual leave.
(a) Except as provided in paragraph (b) of this section and
Secs. 630.310 and 630.311, before annual leave forfeited under 5 U.S.C.
6304 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.
* * * * *
3. A new Sec. 630.311 is added to read as follows:
Sec. 630.311 Scheduling of annual leave by employees determined
necessary to respond to the ``National Emergency by Reason of Certain
Terrorist Attacks.''
(a) The ``National Emergency by Reason of Certain Terrorist
Attacks'' (Presidential Proclamation of September 14, 2001) is deemed
to be an exigency
[[Page 55559]]
of the public business for the purpose of restoring annual leave
forfeited under 5 U.S.C. 6304.
(b) For any employee who forfeits annual leave under 5 U.S.C. 6304
at the beginning of a leave year because the agency determined the
employee's services were required in response to the national
emergency, the forfeited annual leave is deemed to have been scheduled
in advance for the purpose of 5 U.S.C. 6304(d)(1)(B) and Sec. 630.308.
(c) Annual leave restored under 5 U.S.C. 6304(d) because of the
national emergency must be scheduled and used within the time limits
prescribed in paragraphs (c)(1) and (c)(2) of this section:
(1) A full-time employee must 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's services are no longer required by the
national emergency. The agency must 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 must 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's services are no
longer required by the national emergency. The agency must 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.
(d) The time limits established under paragraphs (c)(1) and (c)(2)
of this section for using restored annual leave accounts do not apply
for the entire period during which an employee's services are required
for the national emergency. When coverage under paragraphs (a) and (b)
of this section ends, a new time limit will be established under
paragraph (c) of this section for all annual leave restored to an
employee under 5 U.S.C. 6304(d).
(e) An employee whose services were determined essential during the
national emergency, but who subsequently moves to a position not
considered essential, must make a reasonable effort to comply with the
scheduling requirement in Sec. 630.308(a). The head of the agency or
his or her designee may exempt such an employee from the advance
scheduling requirement in Sec. 630.308(a) if coverage under paragraphs
(a) and (b) of this section terminated during the leave year and the
employee can demonstrate that he or she was unable to comply with the
advance scheduling requirement due to circumstances beyond his or her
control.
[FR Doc. 01-27518 Filed 11-1-01; 8:45 am]
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