Absence and Leave; SES Annual Leave Accumulation

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN: 3206-AG48

Absence and Leave; SES Annual Leave Accumulation

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing interim

regulations governing annual leave accumulation for members of the

Senior Executive Service (SES). Under recent legislation, there is now

a 90-day (720-hour) maximum limitation on the amount of annual leave an

SES member may carry over from one leave year to the next. Previously,

SES members could accumulate annual leave on an unlimited basis.

DATES: Effective Date: October 14, 1994. Comment Date: Written comments

must be received on or before February 21, 1995.

ADDRESSES: Send or deliver written comments to Donald J. Winstead,

Acting Assistant Director for Compensation Policy, Personnel Systems

and Oversight Group, Room 6H31, Office of Personnel Management, 1900 E

Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Jo Ann Perrini, (202) 606-2858.

SUPPLEMENTARY INFORMATION: Under Public Law 94-454, the Civil Service

Reform Act of 1978, members of the Senior Executive Service (SES) were

able to accumulate annual leave on an unlimited basis. Section 201 of

the Government Management Reform Act of 1994 (Pub. L. 103-356, enacted

October 13, 1994) amended 5 U.S.C. 6304(f) to provide a 90-day (720-

hour) limit on the amount of annual leave an SES member may carry over

from one leave year to the next.

Section 201 also contains a grandfather clause to allow individuals

who were SES members on the effective date of the law and who had

accumulated more than 90 days (720 hours) of annual leave to retain as

their personal leave ceiling the annual leave they had accrued as of

the effective date of the law. The personal leave ceiling is the

maximum amount of accrued annual leave an affected member can carry

over from one leave year to the next. The personal leave ceiling is

subject to the existing reduction provisions contained in law and

regulations.

We are amending paragraphs (a), (b), and (c) of 5 CFR 630.301 to

implement the new 90-day (720-hour) limitation. Paragraph (a) specifies

the maximum limitation on annual leave accumulation for members of the

SES. Paragraph (b) specifies how leave is prorated when an employee

serves part of a pay period in an SES position and part in a position

outside the SES. Paragraph (c) provides that SES members may retain

their leave balances when they take a non-SES position, but that the

balance is subject to reduction under 5 U.S.C. 6304(c) until the

balance reaches 30 days (240 hours) or 45 days (360 hours) depending on

the leave ceiling for the new position.

We are adding paragraph (d) to explain how the grandfather clause

is to be applied to establish a personal leave ceiling for SES members.

The grandfather clause also applies to former career SES members who

elected to retain SES leave benefits under 5 U.S.C. 3392(c) following

appointment to an Executive Schedule or equivalent position. The

personal leave ceiling does not include advanced annual leave or

restored annual leave. Annual leave restored to an SES member under 5

U.S.C. 6304(d) will continue to be placed in a separate leave account

and must be scheduled and used within the time period specified in 5

CFR 630.306 or 630.309.

Public Law 103-356 provides for the reduction of the personal leave

ceiling under the existing provisions of 5 U.S.C. 6304(c). Thus, if an

SES member has a personal leave ceiling and uses more annual leave than

he or she earns in a leave year (or between the start of the first pay

period beginning after October 13, 1994, and the end of the 1994 leave

year), the personal leave ceiling is reduced by the difference at the

start of the next leave year. If the personal leave ceiling falls to or

below 90 days (720 hours) at the end of a leave year, the member

becomes subject to the 90-day (720-hour) limit.

If an SES member with a personal leave ceiling earns more annual

leave than used in a leave year (or between the start of the first pay

period beginning after October 13, 1994, and the end of the 1994 leave

year), the excess hours are forfeited at the start of the next leave

year. SES members are subject to the same provisions in the law and

regulations for the restoration of unused annual leave as apply to

other employees (5 U.S.C. 6304(d) and 5 CFR 630.305 through 630.309).

If an SES member separates from the Government before the end of a

leave year, the member is paid a lump-sum payment for all accumulated

annual leave (including any unused restored leave), even if the amount

of leave exceeds the member's personal leave ceiling. (See 5 U.S.C.

5551.)

Example: An SES member had 1,000 hours of annual leave at the

beginning of the first pay period after October 13, 1994. The SES

member's personal leave ceiling would be 1,000 hours. If during the

remainder of the 1994 leave year the member uses 100 hours more

leave than earned, the member's personal leave ceiling for the 1995

leave year will be 900 hours (1,000 minus 100 hours). If during

leave year 1995 the member earns 100 hours more leave than used, the

member's personal leave ceiling for the 1996 leave year will remain

at 900 hours, and the excess 100 hours will be forfeited. Finally,

if the member separates from the Government on September 30, 1996,

with 1,040 hours of accumulated annual leave, the member will

receive a lump-sum payment for 1,040 hours of annual leave at the

member's then current rate of pay.

If an SES member who had received a lump-sum payment for annual

leave upon separation or retirement is reemployed in the Federal

Government before the expiration of the period covered by the lump-sum

payment, he or she must refund to the employing agency an amount equal

to the pay covering the period between the date of reemployment and the

expiration of the lump-sum payment. The individual's annual leave

account will be credited with an amount of leave equal to the leave

represented by the refund. (See 5 U.S.C. 6311.) If the individual is

reemployed in a non-SES position, he or she will be subject to the

maximum annual leave ceiling for the new position--i.e., the 30-day or

45-day maximum annual leave ceiling under 5 U.S.C. 6304 (a) or (b).

Example: An SES member separated and received a lump-sum annual

leave payment for 1,040 hours (130 days). Three months (i.e., 60

workdays) later, the individual is reemployed in a GS-15 position.

The employee must refund an amount of pay equal to 560 hours (70

days). The employee's annual leave account is credited with 560

hours of annual leave. (Note: Since 560 hours is more than maximum

annual leave ceiling of 240 hours for the GS-15 position, the

employee acquires a leave ceiling of 560 hours (70 days). The leave

ceiling will be reduced under the provisions of 5 U.S.C. 6304(c), if

more annual leave is used than earned in any leave year, until it

reaches 240 hours. In addition, annual leave earned in a leave year

must be used or be subject to forfeiture at the end of the leave

year.)

Finally, we are adding paragraph (e) to require agencies to

maintain records of the amount of annual leave credited and reduced

when an SES member has a personal leave ceiling and to inform affected

members of their initial ceiling and any subsequent reduction.

Waiver of Notice of Proposed Rule Making and Delay in Effective

Date

Section 201 of Public Law 103-356 became effective at the beginning

of the first applicable pay period after October 13, 1994, the date of

enactment. In order to give practical effect to this legislation, I

find that good cause exists to waive the general notice of proposed

rulemaking pursuant to 5 U.S.C. 553(b)(3)(B). Also, I find that good

cause exists for making this rule effective on October 14, 1994. The

delay in the effective date of this rule is being waived to cover

employees as of the date required by the statute.

E.O. 12866, Regulatory Planning and 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 this regulation will not have a significant economic

impact on a substantial number of small entities because it will affect

only Federal agencies and employees.

List of Subjects in 5 CFR Part 630

Absence and leave.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM is amending 5 CFR part 630 as follows:

PART 630--ABSENCE AND LEAVE

1. The authority citation for part 630 is revised to read as

follows:

Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Public

Law 103-356 (108 Stat. 3410); Sec. 630.303 also issued under 5

U.S.C. 6133(a); Sec. 630.501 and subpart F also issued under E.O.

11228, 30 FR 7739, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart

G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.

6326; subpart I also issued under 5 U.S.C. 6332 and Public Laws 100-

566 (102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also

issued under 5 U.S.C. 6362 and Public Laws 100-566 and 103-103;

subpart K also issued under Public Law 102-25 (105 Stat. 92); and

subpart L also issued under 5 U.S.C. 6387 and Public Law 103-3 (107

Stat. 23).

Subpart C--Annual Leave

2. In subpart C, Sec. 630.301 is revised to read as follows:

Sec. 630.301 Annual leave accumulation--Senior Executive Service.

(a) Unused annual leave accrued by an employee while serving under

an appointment in the Senior Executive Service under 5 U.S.C. chapter

33, subchapter VIII, shall accumulate for use in succeeding years until

it totals not more than 90 days (720 hours) at the beginning of the

first full biweekly pay period (or corresponding period for an employee

who is not paid on the basis of biweekly pay periods) occurring in a

calendar year.

(b) Annual leave accrued for any pay period during only a portion

of which the employee served under an appointment to the Senior

Executive Service shall be prorated. Only that portion of the leave

that is attributable to service in the Senior Executive Service shall

be subject to the 90-day (720-hour) limitation on accumulation of

annual leave provided in paragraph (a) of this section. Other annual

leave accrued during the pay period shall be subject to the limitations

imposed by subsections (a), (b), and (c) of 5 U.S.C. 6304, as

appropriate.

(c) When an employee in the Senior Executive Service moves to a

position outside the Senior Executive Service, any annual leave

accumulated while serving in the Senior Executive Service that is in

excess of the amount allowed for the position by subsection (a), (b),

or (c) of 5 U.S.C. 6304 shall remain to the employee's credit and shall

be subject to reduction under procedures identical to those described

in 5 U.S.C. 6304(c).

(1) If the employee has more than 720 hours of annual leave at the

time of the move and has a personal leave ceiling under paragraph (d)

of this section, the employee may not carry over to the next leave year

an amount greater than the employee's personal leave ceiling.

(2) If the employee has more than 720 hours of annual leave at the

time of the move and does not have a personal leave ceiling under

paragraph (d) of this section, the employee may not carry over to the

next leave year more than 720 hours.

(d) An employee in the Senior Executive Service who, as of the

first day of the first pay period beginning after October 13, 1994, has

accumulated annual leave in excess of 90 days (720 hours) is entitled

to retain that leave as a personal leave ceiling. The leave shall be

credited to the employee and shall be subject to reduction in the

following manner:

(1) Annual leave credited to an employee shall be based on the

amount of annual leave accumulated by the employee as of the end of the

pay period preceding the first pay period beginning after October 13,

1994. The credited leave shall exclude--

(i) Any annual leave restored to the employee under 5 U.S.C.

6304(d); and

(ii) Any annual leave advanced to the employee under 5 U.S.C.

6302(d) that had not yet been earned.

(2) Annual leave credited to an employee that is in excess of 90

days (720 hours) shall be subject to reduction in the same manner as

provided in 5 U.S.C. 6304(c) until the employee's accumulated annual

leave is equal to or less than 90 days (720 hours). For the 1994 leave

year, 5 U.S.C. 6304(c) shall be applied only for leave earned and used

between the start of the first pay period beginning after October 13,

1994, and the end of the 1994 leave year.

(e) Agencies shall notify affected employees and maintain records

on the accumulated annual leave credited to each employee under

paragraph (d) of this section and on any reductions in the credited

annual leave made under 5 U.S.C. 6304(c). If the employee transfers to

another agency, such records shall be provided to the gaining agency.

[FR Doc. 94-31245 Filed 12-20-94; 8:45 am]

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