[Federal Register: August 25, 1999 (Volume 64, Number 164)]
[Rules and Regulations]
[Page 46257-46259]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au99-1]
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Rules and Regulations
Federal Register
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AI71
Absence and Leave; Use of Restored Annual Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations to aid agencies and employees involved in Year 2000 (Y2K)
computer conversion efforts. The regulations provide that excess annual
leave forfeited by employees who are unable to schedule and use their
leave as a result of Y2K computer conversion efforts will be deemed to
have been scheduled in advance and therefore eligible for restoration.
EFFECTIVE DATE: August 25, 1999.
FOR FURTHER INFORMATION CONTACT: Sharon Herzberg, (202) 606-2858, FAX
(202) 606-0824, or email to payleave@opm.gov.
SUPPLEMENTARY INFORMATION: On June 14, 1999, the Office of Personnel
Management (OPM) published proposed regulations (64 FR 31735) that
would provide relief to Federal employees involved in Year 2000 (Y2K)
computer conversion efforts. Many of these employees would have faced
the possible forfeiture of ``use or lose'' annual leave because they
must remain on the job until the Y2K computer conversions have been
implemented and thoroughly tested. 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 Y2K conversion
efforts. Therefore, OPM issued proposed regulations to simplify the
procedures for restoring annual leave forfeited as a result of the Y2K
exigency. Section 630.310(a) of title 5, Code of Federal Regulations,
as added by these final regulations, deems the Y2K computer conversion
project an exigency of the public business and establishes January 31,
2000, as the Governmentwide termination date for the Y2K exigency. In
addition, under Sec. 630.310(b), annual leave forfeited as a result of
the Y2K exigency is 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.
The 30-day comment period closed on July 14, 1999. During the
comment period, OPM received six comments, five from agencies and one
from an individual. The agency that initially requested this regulatory
action expressed its gratitude to OPM for taking the lead in protecting
employees involved in Y2K conversion efforts and its satisfaction with
the proposed regulations, which they found well-thought out and
comprehensive. The other four agencies that commented also fully
supported OPM's proposed regulations.
The individual strongly objected to OPM's proposed regulations,
believing that our regulations are not consistent with the statute at 5
U.S.C. 6304(d)(1)(B), which requires that annual leave lost as the
result of an exigency of the public business may be restored when it
was scheduled in advance. We believe it is necessary to consider the
intent of Congress and what has happened since the enactment of the
law. In this case, we believe the intent of Congress was to have
employees use their annual leave. However, when the statutes outlining
procedures for restoration of excess annual leave were enacted,
Congress could not have foreseen the consequences of the law in
emergency situations, such as the Y2K computer conversion problem.
Obviously, Congress believes there are situations in which this law
needs to be more flexible. For example, legislation was enacted in 1993
to consider closure of DOD installations as ``an exigency of the public
business'' and to exempt affected employees from the advance scheduling
requirement in 5 U.S.C. 6304(d). Congress has set a precedent for
permitting the restoration of annual leave without advance scheduling.
While we cannot exempt employees who have been determined to be
necessary for Y2K conversion from the statutory requirements, we
believe we can provide that any leave lost as a result of the Y2K
exigency can, by regulation, be deemed to have been scheduled in
advance and therefore eligible for restoration.
The individual questioned the need for the proposed regulations,
stating that the Y2K conversion is not sufficient reason to exempt
employees from the scheduling requirements. We strongly disagree. OPM
recognizes that the Y2K conversion is a major effort that has required
and is continuing to require employees to perform not just their
regularly scheduled work, but overtime work on nights and weekends as
well. Further, we believe forcing employees and agencies to go through
the charade of scheduling and canceling annual leave that both parties
know cannot be taken places an administrative burden on agencies
already dealing with other problems caused by the Y2K conversion.
The commenter feels that employees should have to show they made a
``good faith effort'' by attempting to schedule annual leave, pointing
out that employees who forfeited leave as a result of Government
furloughs in 1996 were required to have scheduled leave in advance to
qualify for restoration. However, during the furlough period in 1996,
employees were prevented from using leave only briefly, at the end of
the leave year. The Y2K exigency has prevented and will continue to
prevent employees from using leave throughout the 1999 leave year. When
there is no possibility that an employee can be away from the
workplace, we believe requiring efforts to schedule and cancel leave
flies in the face of OPM's commitment to provide agencies with the
human resources management tools they need to address Y2K computer
conversion problems.
The commenter also objects to the extension of time limits for
using previously restored leave because of the preference given to
employees in the Y2K situation over those affected by extended
exigencies not related to the Y2K conversion effort. Extended
exigencies are already recognized as unique situations and have special
time limits under 5 CFR 530.309. The Y2K
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conversion effort does not qualify for these special time limits
because it does not meet the definition of ``extended exigency'' in 5
CFR 630.309, i.e., an exigency lasting more that 3 years. OPM has the
authority to set time limits for using restored annual leave (5 U.S.C.
6304(d)(2)), and there is precedent for extending the time for using
previously restored leave. In regulations published on December 7,
1994, OPM provided new time limits for using previously restored leave
for employees at Department of Defense installations undergoing closure
or realignment. Those employees, like employees involved in Y2K
conversion, needed to be at work and also needed to use their
previously restored leave or it would have been forfeited with no
possibility of further restoration. We believe the situation
experienced by employees involved in the Y2K conversion effort is
similar enough to the experiences of DOD employees involved in base
closure and realignment to justify extending the time limits for using
previously restored leave.
Finally, the commenter objects to the budgetary implications of
OPM's regulations, saying that the restoration of forfeited leave has
cost implications for agencies at a time when many are faced with
serious downsizing and budget cuts. Employees earn annual leave as a
part of their total compensation. When a work situation prevents an
employee from scheduling annual leave, an agency is required to make
every effort to help the employee reschedule that leave. If this cannot
be done because of circumstances beyond the control of the employee and
the agency, and the employee forfeits annual leave in excess of the
amount allowable, the employee must be able to have that leave restored
for use at a later date. We do not believe the regulations will
increase costs for agencies because employees would not have forfeited
large amounts of annual leave at the end of leave year 1999. Most, if
not all, affected employees would have gone through the conventions of
scheduling leave in order to qualify for restoration of forfeited
leave. OPM's regulations merely simplify the procedures for restoring
forfeited annual leave and reduce the administrative burden on
agencies. In addition, denial of restoration of forfeited annual leave
should never be based on projected budgetary savings, but rather on
failure to meet the requirements of 5 U.S.C. 6304(d)(1).
An agency requested clarification of Sec. 630.310(e), which deals
with employees who transfer from positions deemed necessary for Y2K
conversion efforts to other positions during the latter portion of
leave year 1999. The agency asked whether this section applies to
reassignments within an agency, transfers to positions at other
agencies, or both. The regulation applies to any employee who moves
from a position deemed essential to Y2K conversion efforts to a
position not deemed essential for those purposes. The agency also asked
which agency would then be responsible for exempting the employee from
the scheduling requirement. If a transfer involves two agencies, the
gaining agency will be responsible for determining whether the employee
``was unable to comply with the advance scheduling requirement due to
circumstances beyond his or her control'' and therefore should be
exempt from the scheduling requirements and able to have the forfeited
leave restored.
One agency requested that the proposed date of the exigency be
changed from January 31, 2000, to March 31, 2000, the end of the first
quarter in Y2K. OPM considered several ending dates in drafting the
proposed regulations. Lengthening the period of the exigency would have
no bearing on the employee's inability to use sufficient annual leave
during the 1999 leave year to avoid forfeiture. We realize that there
may continue to be computer problems associated with Y2K after January
31, 2000. However, we are confident that employees will have sufficient
time in the year 2000 to schedule and use their annual leave to avoid
forfeiture. In addition, a change in the ending date of the exigency
would have no effect on the time limits for using any restored leave.
For these reasons, the termination date of the exigency remains January
31, 2000.
Another agency requested that OPM consider extending the policy
established by these final regulations to other situations, as well.
Such as extension would require the issuance of further proposed
regulations for comment. Since we do not wish to delay the publication
of the final Y2K leave restoration regulations, we will consider this
suggestion as we continue to review the Federal leave program.
We believe no changes are necessary in the proposed regulations.
Therefore, we are adopting as final the proposed rule to provide that
excess annual leave forfeited by employees who are unable to schedule
and use their leave as a result of Y2K computer conversion efforts will
be deemed to have been scheduled in advance and therefore eligible for
restoration.
Waiver of Delay in Effective Date
Pursuant to 5 U.S.C. 553(d)(3), we find that good cause exists to
make this rule effective in less than 30 days in order to give agencies
ample time to plan and implement procedures prior to the end of the
leave year. An immediate effective date is necessary to provide
agencies with an additional human resources management tool to address
Y2K computer conversion problems.
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.
Janice R. Lachance,
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. 102-25, 105 Stat. 92; and subpart L also issued
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23.
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
Sec. 630.310, before annual leave forfeited under section 6304 of title
5, United States Code, may be considered for restoration under that
section, use of the annual leave must have been scheduled in writing
before
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the start of the third biweekly pay period prior to the end of the
leave year.
* * * * *
3. A new Sec. 630.310 is added to read as follows:
Sec. 630.310 Scheduling of annual leave by employees determined
necessary for Year 2000 computer conversion efforts.
(a) Year 2000 computer conversion efforts are deemed to be an
exigency of the public business for the purpose of restoring annual
leave forfeited under 5 U.S.C. 6304. This exigency terminates on
January 31, 2000.
(b) For any employee who forfeits annual leave under 5 U.S.C. 6304
at the beginning of leave year 2000 because the agency determined the
employee's services were required during the Year 2000 computer
conversion exigency, 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. 630.208.
(c) Annual leave restored under 5 U.S.C. 6304(d) because of the
Year 2000 computer conversion exigency must be scheduled and used not
later than the end of leave year 2002.
(d) The time limits established under paragraphs (a) and (b) of
Sec. 630.308 for using previously restored annual leave do not apply
for the period during which an employee's services were determined
necessary for the completion of Year 2000 computer conversion efforts.
On January 31, 2000, a new time limit will be established under
paragraph (c) of this section for all annual leave restored to such an
employee.
(e) An employee whose services were determined necessary during the
Year 2000 computer conversion exigency for a portion of leave year
1999, but who subsequently moves to a position not involving Year 2000
computer conversion efforts, 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 leave year
1999 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. 99-22081 Filed 8-24-99; 8:45 am]
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