[Federal Register: September 18, 2006 (Volume 71, Number 180)]
[Rules and Regulations]
[Page 54567-54570]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se06-2]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 630
RIN 3206-AK80
Absence and Leave; Creditable Service
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations to provide Federal agencies with the authority to grant a
newly appointed or reappointed employee 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 use
this authority to recruit an individual with the skills and experience
necessary to achieve an important agency mission or performance goal.
DATES: The regulations are effective on October 18, 2006.
FOR FURTHER INFORMATION CONTACT: Carey Johnston by telephone at (202)
606-2858, by fax at (202) 606-0824, or by e-mail at
pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: On April 29, 2005, the Office of Personnel
Management (OPM) published interim regulations (70 FR 22245) to
implement section 202(a) of the Federal Workforce Flexibility Act of
2004 (Pub. L. 108-411, October 30, 2004), hereafter referred to as
``the Act.'' Section 202(a) added subsection (e) to 5 U.S.C. 6303,
which provides OPM with the authority to prescribe regulations to
permit an agency to grant a newly appointed or reappointed employee
service credit for prior work experience that otherwise would not be
creditable for the purpose of determining his or her annual leave
accrual rate. An employee may receive credit if (1) The experience was
obtained in a position having duties that directly relate to the duties
of the position to which he or she is being appointed, and (2) it is
determined by the head of the agency that crediting service to provide
a higher annual leave accrual rate is necessary to recruit an
individual with the skills and experience necessary to achieve an
important agency mission or performance goal.
The 60-day public comment period on the interim regulations ended
on June 28, 2005. During the comment period, OPM received comments from
1 Federal labor organization, 5 Federal agencies, and 20 individuals.
Three commenters expressed the view that the effective date of an
agency's authority to provide credit for non-Federal work experience
should be the date the Act was signed (October 30, 2004). Section
6303(e)(1) of title 5, United States Code, provides that, not later
than 180 days after enactment of the Act, OPM must prescribe
regulations to permit an agency to provide service credit to a newly
appointed or reappointed employee for prior work experience that
otherwise would not be creditable for the purpose of determining his or
her annual leave accrual rate. The earliest date this new authority
could become effective was the effective date of OPM's regulations--
i.e., April 28, 2005.
Several commenters objected to the interim regulations because
current Federal employees may not receive credit for non-Federal work
experience for the purpose of redetermining their annual leave accrual
rate. The commenters believe the new authority provides an unfair
advantage to newly appointed employees, since current employees must
have 3 years or more of creditable service before accruing 6 hours of
annual leave each pay period and 15 years or more of creditable service
before accruing 8 hours of annual leave each pay period. One commenter
thought it was unfair that this provision applies only to future
employees, while section 202(b) of the Act provides an 8-hour annual
leave accrual rate each pay period to current and future members of the
Senior Executive Service (SES) and employees in senior-level and
scientific or professional positions. Creditable service for non-
Federal work experience may not be granted to current Federal employees
because section 202(c) of the Act prohibits employees who were employed
before the effective date of OPM's regulations (i.e., April 28, 2005)
from receiving such credit.
Two agencies asked whether there are any exceptions to the
prohibition on crediting non-Federal work experience to reappointed
employees who held civil service positions within 90 days before their
reappointment. OPM may not grant any exceptions because 5 U.S.C.
6303(e)(3) prohibits a reappointed employee who held an appointment in
the civil service within the previous 90-day period from receiving
service credit for non-Federal work experience.
Senate Report 108-223 (January 27, 2004) on the Act stated that the
law would ``reform the annual leave accrual policy for new mid-career
federal employees'' so that agencies have an enhanced capability to
recruit these individuals (pages 9). The Senate Report explained that
``individuals with substantial private sector experience may be
hesitant to enter government service if they have to surrender a
considerable amount of vacation time'' (page 9). OPM's regulations are
consistent with this expression of congressional intent that this tool
be available to agencies to recruit individuals with the skills and
experience necessary to achieve an important agency mission or
performance goal. The fact that current employees accepted Federal
employment without receiving this new leave benefit clearly
demonstrates that a higher annual leave accrual rate was not necessary
to recruit them.
An agency recommended revising 5 CFR 630.205(a) by replacing ``a
newly appointed employee'' with ``an employee receiving his or her
first appointment (regardless of tenure) as a civilian employee of the
Federal Government.'' The agency explained that the recommended
revision would align the language in Sec. 630.205(a) with
[[Page 54568]]
the language in 5 CFR 531.211(a) covering pay setting for new
appointees. We agree and have revised Sec. 630.205(a) accordingly.
Another agency recommended that OPM define a newly appointed
employee to mean an employee who is newly appointed to a permanent
position in the Federal service. We have not adopted this
recommendation. Any employee who has an established regular tour of
duty, including an employee appointed to a temporary position, may earn
annual leave, with one limited exception. Under 5 U.S.C. 6303(b), a
newly appointed employee whose appointment is limited to fewer than 90
days is not entitled to accrue annual leave. However, if the
appointment is extended or the employee receives one or more successive
appointments without a break in service, the employee becomes eligible
to accrue annual leave on the 90th day of employment, and in addition,
the employee is entitled to the annual leave that would have accrued
during the initial 90-day period. A decision to provide creditable
service for prior work experience must be made when an employee is
newly appointed to a Federal position.
Under Sec. 630.205(a)(1), an agency may provide credit for service
that otherwise would not be creditable under 5 U.S.C. 6303(a) for the
purpose of determining the annual leave accrual rate of an employee if
the head of the agency or his or her designee determines that the
skills and experience the employee possesses are essential to the new
position and were acquired through performance in a non-Federal
position having duties that directly relate to the duties of the
position to which the employee is being appointed. An agency
recommended that OPM remove the term non-Federal in Sec. 630.205(a)(1)
and throughout the regulations, since the law does not require a prior
position to be a non-Federal position. Although the law does not
require a position to be a non-Federal position, we believe most work
experience that will now be considered for credit will be work
performed in a non-Federal position. For administrative convenience, we
refer to this prior work experience in this Supplementary Information
as non-Federal work experience. However, we have revised the
regulations at Sec. 630.205 to remove the term non-Federal.
An agency asked whether the head of the agency or designee may
redelegate the authority to grant service credit for non-Federal work
experience. The head of an agency may authorize a designee to
redelegate this authority to a lower level. The same agency asked
whether an agency may change its initial determination to provide
service credit if, for example, the agency learns after the employee
enters on duty that the employee was fired from the position upon which
the creditable service was based. Section 6303(e)(2) of title 5, United
States Code, provides that credit for prior work experience is granted
to the employee upon the effective date of his or her initial
appointment or reappointment to the agency and remains creditable for
annual leave accrual purposes thereafter unless the employee fails to
complete 1 full year of continuous service with the appointing agency.
Therefore, an agency may not reduce the amount of creditable service
under the circumstances described. However, an agency may require, as
part of the written documentation required by Sec. 630.205(d), that an
employee provide written self-certification that he or she was not
fired from the position upon which the creditable service is based.
Another agency asked whether an employee may appeal an agency's
decision not to provide creditable service to OPM. Under Sec.
630.205(a), the authority to provide service credit for non-Federal
work experience rests solely with the head of the agency or his or her
designee. An agency's determination not to provide creditable service
under Sec. 630.205(a) is not appealable to OPM. However, a claim that
such decision constitutes a prohibited personnel practice under 5
U.S.C. 2302 could be filed with the Office of Special Counsel.
An agency recommended that a definition of agency be added to the
regulations. We agree and have added a definition of agency in Sec.
630.201.
Several agencies requested more specific guidance on (1)
Determining whether an individual possesses the skills and experience
essential to the new position, (2) determining whether the duties
performed in the prior position directly relate to the position to
which the employee is being appointed, (3) determining whether
providing service credit to an employee is necessary to achieve an
important agency mission or performance goal, and (4) determining what
kind and how much directly related experience should be credited. An
agency recommended that the term important agency mission be defined to
mean a mission or function that is central or core to the purpose of
the agency and that the term performance goal be defined to mean a goal
or objective assigned to a Department or agency by Presidential
directive, Executive order or other official issuance or through laws
passed by Congress. Two commenters expressed concern that the lack of
specific guidance in the regulations may result in widely divergent
implementation and recruitment strategies among Federal agencies. A
Federal labor organization stated that it anticipates this new leave
benefit will be applied equally to all eligible candidates and that the
conditions prescribed for eligibility appear to be fair to newly
appointed and reappointed employees.
OPM has delegated to the head of each agency or his or her designee
the sole discretion to make these determinations consistent with the
law and OPM's regulations. Because it is likely that each agency will
tailor its plan for using this authority to meet its individual
workforce and mission needs, we do not believe it would be constructive
to require a uniform, Governmentwide approach, since doing so may
inappropriately limit the use of an agency's authority. The amount of
service credit that may be granted may not exceed the actual amount of
service during which an employee performed duties directly related to
the position to which he or she is being appointed. (See Sec.
630.205(c).)
By enhancing the annual leave accrual policy, Congress has provided
an additional tool to assist agencies in strategically aligning their
human resources management policies with their goals and missions.
Agencies are cautioned to use this new leave benefit for the sole
purpose for which it was established--i.e., to recruit an individual
with the skills and experience necessary to achieve an important agency
mission or performance goal. Agencies should not provide creditable
service for non-Federal work experience or experience in a uniformed
service across-the-board for all new hires.
Three commenters asked whether service credit may be provided for
non-paid volunteer work experience. Another commenter questioned
whether service may be credited for previously noncreditable work
experience in quasi-Federal organizations. Another commenter asked
whether service may be credited for a combination of prior work
experience and experience in a uniformed service. Under 5 U.S.C.
6303(e)(1), an agency may provide service credit for prior work
experience if the agency determines that the 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. Therefore,
agencies may consider non-paid volunteer work, formerly noncreditable
[[Page 54569]]
work experience in a quasi-Federal organization, or a combination of
prior work experience and experience in a uniformed service as
creditable for this purpose.
Section 630.205(d) requires an employee to provide written
documentation, acceptable to the agency, of his or her non-Federal work
experience. An agency recommended that OPM require agencies to make the
determination to approve an employee's qualifying work experience
before the employee enters on duty. We agree and have revised Sec.
630.205(d) to include this requirement. The same agency asked whether a
resum[eacute] or employment application is sufficient. Each agency is
responsible for determining what constitutes acceptable written
documentation of an employee's qualifying prior work experience.
However, the written documentation must be sufficient to allow an
agency to make the determination that the employee's 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. A
resum[eacute] or employment application may be acceptable if it
provides sufficient information for an agency to make this
determination.
An agency recommended that OPM revise Sec. 630.205(d) to require
an employee to provide written documentation from the military before
crediting uniformed service. This would be consistent with OPM's
requirement that an employee or applicant submit documentation from the
military to credit uniformed service for other purposes, such as
creditable service for annual leave accrual under 5 U.S.C. 6303(a) and
veteran's preference in hiring. We agree and have revised Sec.
630.205(d) to include this requirement. An individual recommended that
OPM require Standard Form (SF) 813, Verification of A Military
Retiree's Service in Nonwartime Campaigns or Expeditions, to be used to
verify military service. We disagree. Agencies use SF 813 to request
verification of a retiree's military service performed in a nonwartime
campaign or expedition for which a badge or medal was authorized in
order to credit such service for determining an annual leave accrual
rate under 5 U.S.C. 6303(a) and applying reduction-in-force procedures.
However, SF 813 does not provide sufficient information on the duties
performed by the retiree.
An agency asked whether it must document the reasons for not giving
service credit to an employee. There is no statutory or regulatory
requirement to document the reasons for not crediting prior work
experience under Sec. 630.205(a). However, if such a decision is
appealed as a prohibited personnel action, the agency may be well-
served by contemporaneous documentation that the decision was made
consistent with an established agency policy and criteria.
Section 630.205(e) of the interim regulations requires each agency
to establish documentation and recordkeeping procedures sufficient to
allow reconstruction of each action. An agency asked whether the Guide
to Personnel Recordkeeping will be updated to include various documents
provided by the employee for right-side retention to allow
reconstruction of the service computation date when additional service
credit has been granted. The Guide to Personnel Recordkeeping already
requires documentation that supports an employee's creditable service
to be retained on the permanent (right) side of the official personnel
folder.
Section 630.205(f) provides that credit for prior work experience
or experience in a uniformed service is granted to the employee and
remains creditable for annual leave accrual purposes thereafter unless
the employee fails to complete 1 full year of continuous service with
the appointing agency. An agency recommended that an employee who
transfers to a position in the same line of work for which he or she
received creditable service should retain that service even though the
position is in a different agency. We have not adopted this
recommendation. Section 6303(e)(2)(B) of title 5, United States Code,
allows service to remain creditable unless the employee fails to
complete a full year of continuous service with the agency. In
addition, House Report 108-733 (October 5, 2004) states that ``[o]nce
credited upon the effective date of the employee's appointment, the
past experience remains creditable for this purpose unless the employee
does not complete one continuous year of service with the same agency''
[page 16, emphasis added].
Section 630.205(g) provides that if an employee separates from
Federal service or transfers to another agency before completing 1 full
year of continuous service with the appointing agency, the agency must
subtract the creditable service and redetermine the employee's annual
leave accrual rate under 5 U.S.C. 6303(a). All unused annual leave
accrued and accumulated by an employee as a result of receiving service
credit for non-Federal work experience or experience in a uniformed
service remains to the credit of the employee and must be transferred
to the new agency under Sec. 630.501 or liquidated by a lump-sum
payment under Sec. 550.1205, as appropriate. A commenter asked whether
employees should be required to sign a service agreement. Employees are
not required to sign a service agreement for this purpose. When an
agency provides service credit, the agency will use remark code B73 or
B74 on the SF-50 (Notification of Personnel Action) that effects the
appointment. The text of these remark codes notifies the employee that
the service will remain creditable unless the employee fails to
complete 1 full year of continuous service with the appointing agency.
Another commenter expressed concern about the increased cost of
paying a lump-sum payment for accrued and accumulated annual leave
under 5 CFR part 550, subpart L, for employees who separate from
Federal service prior to completing 1 year of continuous service. The
commenter recommended that employees who do not complete 1 full year of
service be required to repay the Government for the hours of annual
leave they accrued during their service. Section 6303(e)(2)(B) allows
an agency to reduce the amount of creditable service granted the
employee if he or she does not fulfill the 1-year service requirement.
The law does not allow an agency to reduce the amount of annual leave
accrued by the employee as a result of the creditable service or
require the employee to repay the Government for any annual leave
accrued during this period.
A commenter asked whether a gaining agency may correct an
employee's annual leave accrual rate if the agency discovers an error
made by the losing agency in providing the employee credit for prior
work experience. The gaining agency must coordinate any proposed
corrections with the losing agency. However, the losing agency makes
the final determination on whether a correction is appropriate.
An agency asked whether an employee's service credit for prior work
experience would be reduced for periods during which the employee is in
a nonpay status--e.g., leave without pay. The amount of creditable
service is not affected by extended periods of leave without pay.
However, since an employee must remain with the appointing agency for 1
full continuous year for the service to remain creditable, the
completion date of the 1-year period must be extended by any period of
leave without pay. If an employee's absence is due to active duty
uniformed service or a compensable injury, the period of leave without
pay must be credited as
[[Page 54570]]
though the employee had remained in a pay and duty status.
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 22245 on April 29, 2005, is adopted as final with
the following changes:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 is revised to read as follows:
Authority: 5 U.S.C. 6311; Sec. 630.205 also issued under Pub.
L. 108-411, 118 Stat 2312; Sec. 630.301 also issued under Pub. L.
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec. 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 B--Definitions and General Provisions for Annual and Sick
Leave
0
2. In Sec. 630.201, a definition of agency is added in alphabetical
order to read as follows:
Sec. 630.201 Definitions.
* * * * *
Agency means an Executive agency, as defined in 5 U.S.C. 105, and
any other entity of the Federal Government that employs officers and
employees to whom subchapter I of chapter 63 of title 5, United States
Code, applies.
* * * * *
0
3. In Sec. 630.205, the section heading and paragraphs (a),
introductory text; (a)(1); (c); (d); and (f) are revised to read as
follows:
Sec. 630.205 Credit for Prior Work Experience and Experience in a
Uniformed Service for Determining Annual Leave Accrual Rate.
(a) The head of an agency or his or her designee may, at his or her
sole discretion, provide credit for service that otherwise would not be
creditable under 5 U.S.C. 6303(a) for the purpose of determining the
annual leave accrual rate of an individual receiving his or her first
appointment (regardless of tenure) as a civilian employee of the
Federal Government or an employee who is reappointed following a break
in service of at least 90 calendar days after his or her last period of
civilian Federal employment. The head of the agency or his or her
designee must determine that the skills and experience the employee
possesses are--
(1) Essential to the new position and were acquired through
performance in a prior position having duties that directly relate to
the duties of the position to which he or she is being appointed; and
* * * * *
(c) When the head of an agency or his or her designee makes a
determination to provide service credit for prior work experience or
active duty in the uniformed services under paragraph (a) or (b) of
this section, he or she must determine the amount of service that will
be credited. The amount of service credited may not exceed the actual
amount of service during which the employee performed duties directly
related to the position to which the employee is being appointed.
(d) An employee must provide written documentation, acceptable to
the agency, of his or her prior work experience. An employee must
provide written documentation from the military, acceptable to the
agency, of his or her uniformed service. The head of an agency or his
or her designee must make the determination to approve an employee's
qualifying prior work experience before the employee enters on duty.
* * * * *
(f)(1) Credit for prior work experience or experience in a
uniformed service under paragraphs (a) and (b) of this section is
granted to the employee upon the effective date of his or her initial
appointment to the agency or reappointment after a 90-day break in
service and remains creditable for annual leave accrual purposes
thereafter unless the employee fails to complete 1 full year of
continuous service with the appointing agency.
(2) If an employee is placed in a leave without pay status during
the 1-year period of continuous service required by paragraph (f)(1) of
this section, the 1-year period of continuous service must be extended
by the amount of time in a leave without pay unless--
(i) The employee separates or is placed in a leave without pay
status to perform service in the uniformed services (as defined in 38
U.S.C. 4303 and 5 CFR 353.102) and later returns to civilian service
through the exercise of a reemployment right provided by law, Executive
order, or regulation; or
(ii) The employee separates or is placed in a leave without pay
status because of an on-the-job injury with entitlement to injury
compensation under 5 U.S.C. chapter 81 and later recovers sufficiently
to return to work.
* * * * *
[FR Doc. E6-15423 Filed 9-15-06; 8:45 am]
BILLING CODE 6325-39-P