[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 /
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[[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