[Federal Register Volume 60, Number 88 (Monday, May 8, 1995)]
[Rules and Regulations]
[Pages 22455-22456]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11179]



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



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: Final rule.

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

SUMMARY: The Office of Personnel Management is issuing final 
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.

EFFECTIVE DATE: June 7, 1995.

FOR FURTHER INFORMATION CONTACT:
Sharon Herzberg, (202) 606-2858.

SUPPLEMENTARY INFORMATION: On December 7, 1994, the Office of Personnel 
Management (OPM) published interim regulations (59 FR 62971) that 
provided relief to Federal employees at Department of Defense (DOD) 
installations undergoing closure or realignment who accumulate large 
amounts of restored annual leave under the provisions of section 4434 
of Public Law 102-484, the National Defense Authorization Act for 
fiscal year 1993, and sections 341 and 2816 of Public Law 103-337, 
October 5, 1994, the National Defense Authorization Act for fiscal year 
1995. These provisions of law amended 5 U.S.C. 6304(d) to provide that 
any annual leave in excess of the maximum limitation that is accrued by 
an employee at a DOD installation undergoing closure or realignment 
must be restored and credited to the employee in a separate leave 
account.
    During the 60-day comment period, OPM received two comments, one 
from a labor organization and one from an individual. Following is a 
summary of the comments.

Time Limit for Using Restored Annual Leave

    Employees remaining for several years at closing DOD installations 
or DOD installations undergoing realignment may accumulate large 
amounts of restored annual leave in their separate accounts established 
under 5 U.S.C. 6304(d)(3). After the employee leaves the DOD base 
undergoing closure or realignment, the employee and the employer are 
confronted with the prospect of the employee having to use sizable 
amounts of annual leave at the gaining agency or organization within a 
limited period of time. The interim regulations provided relief to 
affected employees by--
    <bullet> Establishing 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 and using 
formulas similar to the formulas used in back pay computations under 5 
CFR 550.805(g);
    <bullet> Deferring the start of the time period for using restored 
annual leave under 5 U.S.C. 6304(d)(3) until the employee no longer 
works at a closing DOD installation or a DOD installation undergoing 
realignment; and
    <bullet> Permitting the head of an agency to exempt covered 
employees who move during the leave year to an installation not 
undergoing closure or realignment from the requirement to schedule 
excess annual leave in advance in order for such leave to be considered 
for restoration.
    Both the individual and the labor organization objected to OPM's 
formula for calculating the time limit for use of restored annual leave 
and suggested increasing the limit. The individual suggested that all 
employees be given 5 years to use restored annual leave. The labor 
organization also suggested that OPM allow employees 5 years to use the 
restored annual leave or that OPM designate base closures and 
realignments as ``extended exigencies of the public business'' and 
follow the procedures outlined in 5 CFR 630.309. The labor organization 
alternatively proposed that, under the procedures outlined for extended 
exigencies, affected employees be given 2 years to use excess annual 
leave for every year or portion of a year the employee was covered 
under 5 U.S.C. 6304(d)(3)--i.e., an employee covered under 5 U.S.C. 
[[Page 22456]] 6304 for 4 years would be given 8 years to use 
accumulated annual leave.
    Base closings and realignments do not meet the definition of 
``extended exigencies of the public business.'' Under 5 CFR 630.308, an 
extended exigency must be an exigency of such significance as to 
threaten the national security, safety, or welfare; last more than 3 
calendar years; affect a segment of an agency or an occupational class; 
and preclude subsequent use of both restored and accrued annual leave 
within the period specified in 5 CFR 630.306.
    OPM regulations calculate the time limit for using restored annual 
leave based on the amount of leave restored rather than the time served 
at a closing or realigning DOD installation. We believe this provides a 
more equitable approach, since employees who serve the same amount of 
time at a closing installation may leave that installation with vastly 
different amounts of annual leave restored in their accounts due to 
different leave accrual rates. Linking the time limit for using 
restored leave solely to the amount of time served at a closing or 
realigning base would disadvantage employees who are in the 8-hour 
leave accrual category, as compared to employees in the 4-hour leave 
accrual category. Therefore, OPM has not revised the rule in this 
regard.
    The individual suggested that, as an alternative to establishing 
new time limits for the use of restored annual leave, the losing 
installation by the restored excess annual leave from the employee at 
the time of transfer. Under 5 U.S.C. 5551, lump-sum payments for 
accumulated and accrued annual leave are authorized only upon 
separation from the Federal Government or transfer to another leave 
system to which annual leave accrued under chapter 63 of title 5, 
United States Code, cannot be transferred. There is no provision in law 
or regulation for lump-sum payments for accumulated and accrued annual 
leave upon transfer between positions that are covered under chapter 63 
of title 5, United States Code.
    The labor organization recommended that an employee who becomes 
subject to another closure or realignment during the time period in 
which he or she must use restored annual leave should be considered as 
continuing under the exigency of the public business. OPM believes this 
situation is already addressed in the interim rule. Under 5 CFR 
630.306(c), ``time limits for using restored annual leave shall not 
apply for the entire period under which an employee is subject to 5 
U.S.C. 6304(d)(3).'' When an employee with an active restored leave 
account becomes subject to another closure or realignment, the time 
limit for using the 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 annual 
leave available to the employee under 5 U.S.C. 6304(d). The new time 
limit for using restored annual leave will begin on the date the 
employee is no longer subject to 5 U.S.C. 6304(d)(3). Therefore, OPM 
believes no change is necessary in the regulations.
    When an employee moves during the leave year to an agency or DOD 
base not undergoing closure or realignment, OPM's interim regulations 
state that the employee must show that a ``reasonable attempt'' was 
made to schedule leave, in order to have any excess annual leave for 
the leave year considered for restoration. The labor organization 
believes its recommended alternative of shielding excess annual leave 
under the extended exigency language in 5 CFR 630.308 alleviates any 
capricious or arbitrary determination by an agency head as to whether 
the employee made a reasonable attempt to schedule excess annual leave.
    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. Although an employee may have been exempt from 
the advance scheduling requirement for that portion of the year during 
which he or she was employed at a DOD closing or realigning 
installation, 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 after leaving the DOD 
installation and before the end of the leave year. Under 5 CFR 
630.308(b), 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 because of 
circumstances beyond his or her control.
    OPM believes no changes are necessary in the interim regulations. 
Therefore, OPM is adopting as final the interim rule to provide 
employees with additional time in which to use restored annual leave 
that was forfeited as a result of employment at a DOD installation 
undergoing closure or realignment.

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.

Office of Personnel Management.
James B. King,
Director.

    Accordingly, under the authority of 5 U.S.C. 6304(d)(2), the 
interim rule amending subpart C of 5 CFR part 630, published at 59 FR 
62971 on December 7, 1994, is adopted as a final rule without change.

[FR Doc. 95-11179 Filed 5-5-95; 8:45 am]
BILLING CODE 6325-01-M