[Federal Register: May 8, 1995 (Volume 60, Number 88)] [Rules and Regulations] [Page 22455-22456] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr08my95-2] ----------------------------------------------------------------------- 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-- 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); 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 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