[Federal Register Volume 71, Number 202 (Thursday, October 19, 2006)]
[Rules and Regulations]
[Pages 61633-61634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17389]



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  Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / 
Rules and Regulations  

[[Page 61633]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AK72


Absence and Leave; SES Annual Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management is issuing final 
regulations to provide a higher annual leave accrual rate of 1 day (8 
hours) per biweekly pay period for members of the Senior Executive 
Service, employees in senior-level and scientific or professional 
positions, and other employees covered by equivalent pay systems.

DATES: The regulations are effective November 20, 2006.

FOR FURTHER INFORMATION CONTACT: Kevin Kitchelt by telephone at (202) 
606-2858, by fax at (202) 606-0824, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: On March 21, 2005, the Office of Personnel 
Management (OPM) published interim regulations (70 FR 13343) to 
implement Section 202(b) of the Federal Workforce Flexibility Act of 
2004 (Pub. L. 108-411, October 30, 2004) hereafter referred to as ``the 
Act.'' Section 202(b) added paragraph (f) to 5 U.S.C. 6303 to provide 
that members of the Senior Executive Service (SES), employees in 
senior-level (SL) and scientific or professional (ST) positions, and 
employees covered by a pay system equivalent to the SES pay system or 
SL/ST pay system, as determined by OPM, will accrue annual leave at the 
rate of 1 day (8 hours) for each full biweekly pay period, without 
regard to their length of service in the Federal Government.
    The 60-day comment period for the interim regulations ended on May 
20, 2005. During the comment period, OPM received comments from 2 
agencies, 3 professional organizations, 1 union, and 14 individuals. In 
this final rule document, we address the comments received on the 
interim regulations.
    The majority of individuals commented that the interim regulations 
were unfair and created disparate treatment of Federal employees. The 
commenters believe the annual leave accrual rate should be based solely 
on an employee's length of creditable service and not on the employee's 
grade or pay level. OPM's regulations are consistent with the statutory 
language in 5 U.S.C. 6303(f), which provides entitlement to a higher 
annual leave accrual rate to SES members, employees in SL and ST 
positions, and employees in positions covered by a pay system, 
determined by OPM, to be equivalent to the SES or SL/ST pay systems. 
This annual leave benefit is one of two leave enhancements provided in 
the Act. Section 202(a) of the Act added paragraph (e) to 5 U.S.C. 6303 
to provide OPM with the authority to prescribe regulations to permit an 
agency to provide to a newly appointed or reappointed employee service 
credit for prior work experience that otherwise would not be creditable 
for the purpose of determining the employee's annual leave accrual 
rate. An agency may provide service credit to an employee if his or her 
work experience was obtained in a position having duties that directly 
relate to the duties of the position to which the employee is being 
appointed and if it is determined that the use of this authority is 
necessary to recruit an individual with the skills and experience 
necessary to achieve an important agency mission or performance goal. 
(See OPM's interim regulations issued on April 29, 2005, at 70 FR 
22245.) Agencies have discretionary authority to use this enhanced 
authority, regardless of an employee's grade
    Several commenters disagreed with the criteria in Sec.  
630.301(b)(3) of the interim regulations that require an SES or SL/ST 
``equivalent position'' to be subject to a performance appraisal 
system. The commenters believe there is no basis in law to require an 
SES or SL/ST ``equivalent position'' to be covered by a performance 
appraisal system, and this requirement is not consistent with Congress' 
intent in providing this leave benefit. Further, the commenters believe 
the requirement that an equivalent position must be subject to a 
performance appraisal system will have an adverse impact on an agency's 
ability to recruit exceptionally qualified and experienced individuals.
    The law gives OPM sole authority to determine whether a pay system 
is equivalent to the SES pay system or SL/ST pay system for the purpose 
of authorizing the 8-hour annual leave accrual rate for categories of 
employees in positions covered by the pay system. OPM's regulations in 
Sec.  630.301(b) allow the head of an agency to request that OPM 
authorize the 8-hour annual leave accrual rate for additional 
categories of employees in positions in pay systems, determined by OPM, 
to be equivalent to the SES pay system or SL/ST pay system because the 
covered pay systems meet three conditions--
    1. Pay rates are established under an administratively determined 
(AD) pay system that has a single rate of pay (excluding locality pay) 
that is higher than the rate for GS-15, step 10 (excluding locality 
pay) or has a range of rates where the minimum rate (excluding locality 
pay) of the rate range is at least equal to the minimum rate for the 
SES and SL/ST pay systems (120 percent of the rate for GS-15, step 1, 
excluding locality pay) and the maximum rate (excluding locality pay) 
of the rate range is at least equal to the rate for level IV of the 
Executive Schedule;
    2. Covered positions are equivalent to a ``Senior Executive Service 
position'' as defined in 5 U.S.C. 3132(a)(2), a senior-level position 
(i.e., a non-executive position that is classified above GS-15, such as 
a high-level special assistant or a senior attorney in a highly-
specialized field who is not a manager, supervisor, or policy advisor), 
or a scientific or professional position as described in 5 U.S.C. 3104; 
and
    3. Covered positions are subject to a performance appraisal system 
established under 5 U.S.C. chapter 43 and 5 CFR part 430, subparts B 
and C, or other applicable legal authority, for planning, monitoring, 
developing, evaluating, and rewarding employee performance.
    The SES pay system assures a clear and direct linkage between 
performance

[[Page 61634]]

and pay. Paysetting for a member of the SES is based on the 
individual's performance, contribution to the agency's performance, or 
both, as determined under a rigorous performance management system. 
Since the SES and SL/ST pay systems are both subject to a performance 
appraisal system established under 5 U.S.C. chapter 43 and 5 CFR part 
430, subparts B and C, it is essential that, for any position to be 
deemed equivalent, it must be subject to an equivalent performance 
appose of allowing a higher annual leave accrual rate is to provide 
agencies with an additional tool to recruit well-qualified, experienced 
individuals for senior positions. We believe this additional leave 
benefit will assist agencies in recruiting mid-career individuals who 
may be hesitant to enter Federal service if they have to surrender a 
considerable amount of personal or vacation time without an opportunity 
to accrue additional paid time off in a timely manner.
    Finally, we have amended Sec.  630.301(b) to remove the word 
``Executive'' to allow the head of any agency to request that OPM 
authorize the 8-hour annual leave accrual rate for additional 
categories of employees. We are revising this section to be consistent 
with the legislation.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

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 apply only to Federal agencies and employees.

List of Subjects in 5 CFR 630

    Government employees.

Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, the interim rule amending 5 CFR part 630, which was 
published at 70 FR 13343 on March 21, 2005, is adopted as final with 
the following changes:

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 continues to read as follows:

    Authority: 5 U.S.C. 6311; 630.205 also issued under Pub. L. 108-
411, 118 Stat 2312; 630.301 also issued under Pub. L. 103-356, 108 
Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; 630.303 also issued 
under 5 U.S.C. 6133(a); 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; 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

0
2. In Sec.  630.301, paragraph (b) introductory text, is revised to 
read as follows:


Sec.  630.301  Annual leave accrual and accumulation--Senior Executive 
Service.

* * * * *
    (b) The head of an agency may request that OPM authorize an annual 
leave accrual rate of 1 full day (8 hours) for each biweekly pay period 
for additional categories of employees who are covered by 5 U.S.C. 6301 
and who hold positions that are determined by OPM to be equivalent to 
positions subject to the pay systems under 5 U.S.C. 5383 or 5376. Such 
a request must include documentation that the affected pay system is 
equivalent to the SES or SL/ST pay system because it meets all three of 
the following conditions:
* * * * *
[FR Doc. E6-17389 Filed 10-18-06; 8:45 am]
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