[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
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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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