[Federal Register Volume 88, Number 49 (Tuesday, March 14, 2023)]
[Rules and Regulations]
[Pages 15597-15600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05204]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Rules 
and Regulations  

[[Page 15597]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AO04


Scheduling of Annual Leave by Employees Determined Necessary To 
Respond to Certain National Emergencies

AGENCY: Office of Personnel Management.

ACTION: Interim rule.

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SUMMARY: The Office of Personnel Management (OPM) is revising the 
interim regulation regarding the restoration of annual leave for 
employees who are essential to respond to certain national emergencies, 
such as the National Emergency Concerning the Novel Coronavirus Disease 
(COVID-19). This rule extends the latest possible termination date for 
the exigency established in connection with the COVID-19 national 
emergency, which would be March 13, 2023, under the current interim 
regulations. Under this new rule, that date would be the date the 
national emergency is ended by the President. This rule also provides 
for special handling of restored annual leave resulting from an agency-
specific ongoing exigency that is directly related to a matter that was 
determined to be a national emergency exigency and that immediately 
follows that national emergency exigency. Finally, this rule expands an 
agency's authority to exempt employees from the advance annual leave 
scheduling requirement in the leave year during which a national 
emergency exigency is terminated.

DATES: The interim regulations are effective on March 13, 2023. 
Comments must be received on or before on May 12, 2023.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by the following method:
    Federal Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    All submissions received must include the agency name and docket 
number or RIN for this document. The general policy for comments and 
other submissions from members of the public is to make these 
submissions available for public viewing at http://www.regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.
    OPM will address previously submitted comments on the August 10, 
2020, interim regulation and any comments submitted regarding this new 
interim regulation when it issues final regulations.

FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 
606-2858 or by email at [email protected].

SUPPLEMENTARY INFORMATION: On August 10, 2020, OPM published an interim 
final rule (85 FR 48096 \1\) to replace the reserved 5 CFR 630.310 with 
a new 5 CFR 630.310 to (1) allow agencies to continue to meet their 
vital missions while streamlining the process for restoration of annual 
leave for employees whose services are determined by the agency head 
(or designee) to be essential for the response to certain national 
emergencies and (2) permit the Director of OPM to deem a specific 
national emergency, as declared by the President under the National 
Emergencies Act, to be an exigency of the public business for the 
purpose of restoring annual leave under this authority. OPM will 
address previously submitted comments on the August 10, 2020, interim 
regulation and any comments submitted regarding this new interim 
regulation when it issues final regulations.
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    \1\ https://www.federalregister.gov/documents/2020/08/10/2020-16823/scheduling-of-annual-leave-by-employees-determined-necessary-to-respond-to-certain-national.
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    On March 13, 2020, the President issued Proclamation 9994 declaring 
a ``National Emergency Concerning the Novel Coronavirus Disease (COVID-
19) Outbreak'' (85 FR 15337 \2\). On August 27, 2020, the Director of 
OPM issued CPM 2020-11 \3\ announcing the publication of an interim 
final rule on the scheduling of annual leave by employees whose work is 
essential to respond to certain national emergencies. The memo also 
announced the Director's determination that the COVID-19 national 
emergency constituted an exigency of the public business for the 
purpose of restoring forfeited annual leave and authorized agencies to 
streamline the process for the restoration of annual leave for the 
COVID-19 national emergency as outlined in the interim regulations. 
Agencies were required to determine the specific employees or groups of 
employees whose services were essential in response to the COVID-19 
national emergency and were qualified for coverage under the 
regulations and inform designated employees in writing of such 
determinations.
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    \2\ https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf.
    \3\ https://www.chcoc.gov/content/interim-regulations-scheduling-annual-leave-employees-performing-services-determined-be.
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Termination of the National Emergency Exigency

    Under the interim regulation of August 10, 2020, an agency head (or 
designee) may not grant more than two 12-month extensions of a national 
emergency exigency. (See 5 CFR 630.310(f)(2)(iv).) As noted above, the 
President declared the COVID-19 outbreak a national emergency on March 
13, 2020. Assuming the exigency has not been terminated for an employee 
or a group of employees for another reason listed in Sec.  
630.310(f)(2), the regulation requires the agency to establish the date 
for termination of the exigency as 12 months after the declaration of 
the exigency--i.e., March 13, 2021. The agency may extend this deadline 
annually by an additional 12 months, but may not grant more than two 
12-month extensions (Sec.  630.310(f)(2)(iv)). Therefore, with respect 
to the COVID-19 national emergency, an agency was authorized to first 
extend the termination date of the exigency until March 13, 2022, and 
then to further extend the termination date until March 13, 2023.
    On February 10, 2023, President Biden extended the COVID-19 
national emergency and announced that he anticipates ending that 
emergency on May 11, 2023. In light of these circumstances, to avoid 
confusion and

[[Page 15598]]

simplify the rules for restored annual leave, this new interim rule 
will automatically deem a second agency extension of the COVID-19 
national emergency exigency that had been set to end on March 13, 2023, 
to continue through the date that the President ends the COVID-19 
national emergency, which is expected to be May 11, 2023. Under the 
August 10, 2020, interim regulation, an agency head (or designee) was 
not permitted to grant more than two 12-month extensions to the 
deadline for establishing the termination date of the exigency of the 
public business. (See 5 CFR 630.310(f)(2)(iv).) The continuation of 
this second extension is outlined in new paragraph (i) being added to 
Sec.  630.310.
    The August 10, 2020, interim regulation already addressed what 
would happen when a national emergency exigency terminates for an 
employee or a group of employees--all restored leave to an employee's 
credit (from any source) is consolidated into one account and a single 
time limit is applied, using the tiered time limits in Sec.  630.310(d) 
that vary based on the balance of hours (Sec.  630.310(e)).
    The August 10, 2020, interim regulation also addressed the 
possibility of not applying normal rules requiring advance scheduling 
of annual leave in Sec.  630.308(a) at the end of the leave year in 
which the national emergency exigency terminated based on an agency 
determination that the employee was unable to comply with the advance 
scheduling requirement because of circumstances beyond the employee's 
control (Sec.  630.310(g)). We are revising paragraph (g) of Sec.  
630.310 to broaden the authority of an agency head (or designee) to 
exempt an employee or group of employees from the advanced scheduling 
requirement under Sec.  630.308(a) during the leave year in which the 
national emergency exigency terminated. Under the revised paragraph 
(g), the agency head (or designee) would simply have to make a 
determination that such an exemption is warranted. This determination 
will no longer be solely tied to whether the employee was unable to 
comply with the advance scheduling requirement because of circumstances 
beyond the employee's control. We are also adding a requirement that 
agencies notify in writing any employee that is exempted from the 
advance scheduling requirement. In applying the revised paragraph (g) 
to the termination of the COVID-19 national emergency exigency, an 
agency will be able to choose to not apply the advance scheduling 
requirement this leave year since the exigency is ending during leave 
year 2023.

Special Treatment of an Ongoing Exigency Related to the National 
Emergency Exigency

    Regardless of the anticipated termination date of the national 
emergency regarding the COVID-19 pandemic, there are also anticipated 
continuing significant workload implications for certain categories of 
employees at certain agencies, such as the Department of Veterans 
Affairs. Such agencies may also be dealing with lingering effects, such 
as the fact that many employees built up large balances of unused 
annual leave, which if used quickly would result in challenges in 
meeting current workload demands. In order to allow agencies to better 
manage workload demands, OPM is adding a new regulation to cover 
employees identified as performing work in connection with an ``ongoing 
exigency'' related to the circumstances concerning COVID-19 and its 
aftermath effects. The new regulation would cover not only those who 
were affected by the COVID-19 national emergency but also future 
national emergencies that may present similar issues. The new paragraph 
(h) being added to Sec.  630.310 would have the following elements:
     Paragraph (h)(1)--When a national emergency exigency 
terminates under paragraph (f)(2)(i), (ii), or (iv), an agency head (or 
designee) may determine that certain agency employees immediately 
continue to be subject to an ``ongoing exigency'' of the public 
business. For example, once the COVID-19 national emergency terminates, 
an agency could determine that certain of its healthcare workers 
continue to be subject to an ongoing exigency such that they cannot yet 
schedule and take annual leave. An ongoing exigency of the public 
business is an exigency that commences immediately after the 
termination of a national emergency exigency and is directly related to 
the matter that was previously determined to be a national emergency 
exigency. In order for an employee to be covered under an ongoing 
exigency, the employee must first be covered by a national emergency 
exigency and then be covered by the ongoing exigency without a break in 
time. For example, if the COVID-19 national emergency ends on May 11, 
2023, due to a declaration by the President, an agency could establish 
effective May 12, 2023, an agency-specific ongoing exigency related to 
the circumstances of COVID-19 and its lingering effects for certain 
employees.
     Paragraph (h)(2)--During the entire period during which an 
employee is covered by the above-described ongoing exigency, the 
employee will not be subject to time limits on usage of any restored 
leave to the employee's credit under 5 U.S.C. 6304(d), including a time 
limit established under Sec.  630.310(d) that was based on the 
termination of the national emergency exigency. When the ongoing 
exigency ends, all restored annual leave under 5 U.S.C. 6304(d) to the 
employee's credit must be consolidated at that time and made subject to 
a single time limit that is determined under the rules in Sec.  
630.310(d), using the termination date of the ongoing exigency in place 
of the termination date of the national emergency exigency. Thus, if an 
agency establishes an ongoing exigency related to COVID-19 that is 
terminated on May 11, 2024, all restored leave to the employee's credit 
at that time (including the restored leave that was part of the 
consolidated total at the end the COVID-19 national emergency exigency) 
will be consolidated into a single restored leave account and subject 
to a time limit established using the tiered time limits in Sec.  
630.310(d) that vary based on the balance of hours, with the May 11, 
2024, termination date being used.
     Paragraph (h)(3)--During the entire period during which an 
employee is covered by the ongoing exigency, the employee will not be 
subject to the advance scheduling requirements in Sec.  630.308(a). 
Also, even after the ongoing exigency terminates, an agency may choose 
to exempt an employee or a group of employees from the advanced 
scheduling requirement in Sec.  630.308(a) for the remainder of the 
leave year in which the termination takes place.
     Paragraph (h)(4)--Coverage of an employee or a group of 
employees under an ongoing exigency may not be continued for more than 
12 months unless the Director of OPM approves the employing agency's 
request for one or more time-limited waivers based on a critical agency 
need for the services of the employees. The OPM Director will prescribe 
the specific requirements and procedures associated with an agency 
request.
     Paragraph (h)(5)--If the agency-authorized ongoing 
exigency covering an employee lasts for 3 full calendar years and meets 
the other requirements under Sec.  630.309 to qualify as an extended 
exigency, the usage time limits in that section would be used in place 
of the time limits in Sec.  630.310(d). We note that the time an 
employee spent covered by the preceding national emergency exigency 
would not be considered in determining if the

[[Page 15599]]

ongoing exigency is an extended exigency.
    For example, if the COVID-19 national emergency terminates on May 
11, 2023, an agency could authorize an ongoing exigency directly 
related to COVID-19 beginning on May 12, 2023. To qualify as an 
extended exigency under Sec.  630.309(b), the agency must first receive 
the Director of OPM's approval of the required time-limited waivers of 
the ongoing exigency, as required under paragraph (h)(4), and the 
ongoing exigency must last at least 3 full calendar years and must meet 
the other requirements at Sec.  630.309(b). Thus, the ongoing exigency 
must last at least until January 1, 2027, to qualify. The time an 
employee is covered under the COVID-19 national emergency (beginning on 
March 13, 2020, and ending on May 11, 2023) would not count towards 
determining whether the exigency is an extended exigency under Sec.  
630.309. If the ongoing exigency begins on May 12, 2023, 3 full 
calendar years--2024, 2025, and 2026--would need to elapse before the 
agency-authorized ongoing exigency would meet the time requirements at 
Sec.  630.309(b)(2) to potentially qualify as an extended exigency 
under Sec.  630.309.

Administrative Procedure Act

    Both the Administrative Procedure Act (APA) and the Civil Service 
Reform Act (CSRA)'s parallel rulemaking provision allow OPM to forego 
standard notice and comment procedures, and the standard 30-day delayed 
effective date, in certain circumstances. Under the APA, notice and 
comment and a 30-day delayed effective date is not required ``when an 
agency for good cause finds . . . that notice and public procedures 
[would be] impracticable, unnecessary, or contrary to the public 
interest.'' 5 U.S.C. 553(b)(B); see id. 553(d)(d). Likewise, the CSRA 
provides that notice and comment is not required if a rule ``is 
temporary in nature and . . . ne[eds] to be implemented 
expeditiously.'' Id. 1103(b)(3). I find that both standards are met 
here and OPM is thus issuing this as an interim final rule.
    President Biden announced in February 2023 that he anticipates 
ending the national emergency associated with COVID-19 on May 11, 2023. 
At present, however, the Director's designation of an exigency of the 
public business will expire on March 13, 2023. OPM has been notified 
that there are continuing significant lingering workload implications 
of the COVID-19 national emergency for certain categories of employees 
at certain agencies, such as the Department of Veterans Affairs, such 
that these employees continue to be unable to schedule and take their 
annual leave. OPM thus needs to issue this rule before the current 
March expiration to protect such employees and ensure agencies can 
operate at the capacity necessary to continue addressing the COVID-19 
national emergency. Given the Administration's recent announcement of 
its intention to end the national emergency, notice and comment 
procedures, as well as a delayed effective date, would be impracticable 
and contrary to the public interest, as they would curtail OPM's 
ability to extend this important protection for federal workers who are 
essential to the Government's COVID-19 response.
    Moreover, prior to the termination of the COVID-19 national 
emergency, agencies will need to implement procedures to determine 
whether they will authorize an ongoing exigency and, if they do so, to 
make determinations as to which employees will be covered by such 
ongoing exigency for purposes of utilizing the restored annual leave 
authorities under this rule. Further, once covered employees are 
identified, agencies will need to communicate to those employees that 
they are subject to the authorities in this rule and that the advance 
scheduling requirement does not apply to them. Notice and comment and a 
delayed effective date would thus be impracticable and contrary to the 
public interest as it would impede the ongoing work of agencies across 
the federal government to address the impacts of COVID-19, as well as 
harming employees who, absent these regulatory changes, could 
permanently lose leave that they may be unable to take as a result of 
such ongoing exigencies.
    Accordingly, 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)(B) and the 30-day 
delay in effective date pursuant to 5 U.S.C. 553(d)(3). For similar 
reasons, I find that the interim final rule is temporary in nature, and 
expeditious timing is required because of the circumstances agencies 
will continue to face even after the COVID-19 national emergency has 
officially ended. See 5 U.S.C. 1103(b)(3). OPM will promulgate a final 
rule as soon as practical after receiving public comments on this 
interim final rule.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because it will apply 
only to Federal agencies and employees.

Paperwork Reduction Act Requirements

    This rule does not impose any new reporting or record-keeping 
requirements subject to the Paperwork Reduction Act.

List of Subjects in 5 CFR Part 630

    Government employees.

Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.

    Accordingly, OPM amends 5 CFR part 630 as follows:

PART 630--ABSENCE AND LEAVE

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

    5 U.S.C. chapter 63 as follows: Subparts A through E issued 
under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and (f), 
6304(d)(2), 6306(b), 6308(a), and 6311; subpart F issued under 5 
U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974 
Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311; 
subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129) 
and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c), 
6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340, 
6363, 6365(d), 6367(e), and 6373(a); subpart K issued under 5 U.S.C. 
6391(g); subpart L issued under 5 U.S.C. 6383(f) and 6387; subpart M 
issued under sec. 2(d), Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329 
note); subpart P issued under 5 U.S.C. 6329c(d); and subpart Q 
issued under 5 U.S.C. 6387.


0
2. Amend Sec.  630.310 by revising paragraph (g) and adding new 
paragraphs (h) and (i) to read as follows:


 Sec.  630.310  Scheduling of annual leave by employees whose work is 
essential to respond to certain national emergencies.

* * * * *
    (g) When the agency head (or designee) fixes a termination date of 
the exigency of the public business under paragraph (f)(2) of this 
section, each affected employee must make a reasonable effort to comply 
with the scheduling requirement in Sec.  630.308(a). The head of the 
agency (or designee), in his or her sole and exclusive discretion, may 
exempt such an employee or group of employees from the advanced 
scheduling requirement in Sec.  630.308(a) for the remainder of the 
leave year if coverage under paragraphs (a) and (b) of this section 
terminates during that leave year and if the agency head (or

[[Page 15600]]

designee) determines such exemption is warranted. The agency head (or 
designee) must notify any employee exempted from the scheduling 
requirement in writing.
    (h)(1) Upon termination of an exigency established under paragraphs 
(a) and (b) of this section based on the ending of the exigency under 
paragraphs (f)(2)(i), (ii), or (iv) of this section, an agency head (or 
designee) may determine that certain agency employees continue to be 
subject to an ongoing exigency of the public business. An ongoing 
exigency of the public business is an exigency that commences 
immediately after the termination of a national emergency exigency and 
is directly related to the matter that was previously determined to be 
a national emergency exigency. In order for an employee to be covered 
under an ongoing exigency, the employee must first be covered by a 
national emergency exigency and then be covered by the ongoing exigency 
without a break in time.
    (2) For the entire period during which an employee is covered by 
such an ongoing exigency, the employee will not be subject to time 
limits on usage of any restored leave to the employee's credit under 5 
U.S.C. 6304(d), including a time limit established under paragraph (d) 
of this section that is determined based on the termination of the 
national emergency exigency. When the ongoing exigency ends, all 
restored annual leave under 5 U.S.C. 6304(d) to the employee's credit 
must be consolidated at that time and made subject to a single time 
limit that is determined under the rules in paragraph (d) of this 
section, using the termination date of the ongoing exigency in place of 
the termination date of the national emergency exigency.
    (3) For the entire period during which an employee is covered by 
such an ongoing exigency, the employee will not be subject to the 
advance scheduling requirements in Sec.  630.308(a). An agency head (or 
designee), in his or her sole and exclusive discretion, may exempt an 
employee or group of employees from the advanced scheduling requirement 
in Sec.  630.308(a) for the remainder of the leave year if coverage 
under the ongoing exigency terminates during that leave year and if the 
agency head (or designee) determines such exemption is warranted. The 
agency head (or designee) must notify any employee exempted from the 
scheduling requirement in writing.
    (4) Employee coverage under such an ongoing exigency may not be 
continued for more than 12 months unless the agency head (or designee) 
requests, and the Director of OPM approves, one or more time-limited 
waivers based on a critical agency need for the services of the 
employee or group of employees.
    (5) Notwithstanding paragraph (h)(2) of this section, if an ongoing 
exigency (which excludes time covered by the preceding national 
emergency exigency) also qualifies as an extended exigency under Sec.  
630.309, the time limit for use of the restored leave under paragraph 
(a) of that section must be applied to the consolidated restored leave.
    (i) Notwithstanding paragraph (f)(2)(iv), an agency extension 
granted through March 13, 2023, under that paragraph for an exigency 
established under this section based on the COVID-19 national emergency 
declared on March 13, 2020, must be deemed to continue through the date 
that the President ends that national emergency.

[FR Doc. 2023-05204 Filed 3-10-23; 11:15 am]
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