Restoration to Duty From Uniformed Service or Compensable Injury; Payrates and Systems (General); Pay Under the General Schedule; Pay Administration (General); Pay Administration Under the Fair Labor Standards Act; Recruitment and Relocation Bonuses; Retention Allowances; Supervisory Differentials; Hours of Duty; and Absence and Leave, 1068-1110 [04-28544]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Proposed Rules]
[Pages 1068-1110]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-28544]



[[Page 1067]]

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Part IV





Office of Personnel Management





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5 CFR Parts 353, 530, et al.



Restoration to Duty From Uniformed Service or Compensable Injury; 
Payrates and Systems (General); Pay Under the General Schedule; Pay 
Administration (General); Pay Administration Under the Fair Labor 
Standards Act; Recruitment and Relocation Bonuses; Retention 
Allowances; Supervisory Differentials; Hours of Duty; and Absence and 
Leave; Proposed Rule

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / 
Proposed Rules

[[Page 1068]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 353, 530, 531, 550, 575, 610, and 630

RIN 3206-AK61


Restoration to Duty From Uniformed Service or Compensable Injury; 
Payrates and Systems (General); Pay Under the General Schedule; Pay 
Administration (General); Pay Administration Under the Fair Labor 
Standards Act; Recruitment and Relocation Bonuses; Retention 
Allowances; Supervisory Differentials; Hours of Duty; and Absence and 
Leave

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management is issuing proposed 
regulations to amend the rules concerning the determination of official 
duty station for location-based pay entitlements, compensatory time off 
for religious observance, hours of work and alternative work schedules, 
and absence and leave. In addition, the proposed regulations are being 
issued to aid and support the standardization of pay policies under the 
e-Payroll initiative. The regulations have been rewritten and, in some 
instances, reordered to enhance reader understanding.

DATES: Comments must be received on or before March 7, 2005.

ADDRESSES: Send or deliver comments to Donald J. Winstead, Deputy 
Associate Director for Pay and Performance Policy, Strategic Human 
Resources Policy Division, Office of Personnel Management, Room 7H31, 
1900 E Street NW., Washington, DC 20415, FAX: (202) 606-0824, or e-mail 
them to pay-performance-policy@opm.gov.

FOR FURTHER INFORMATION CONTACT: Sharon Herzberg by telephone at (202) 
606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-
policy@opm.gov.

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing proposed regulations to revise the rules concerning the 
determination of official duty station for location-based pay 
entitlements, compensatory time off for religious observances, hours of 
work and alternative work schedules, and absence and leave. Except as 
otherwise stated in this supplementary information, the purpose of 
these revisions is to standardize and simplify pay, leave, and hours of 
work rules to simplify payroll processing under the e-Payroll 
initiative and in general to aid agencies in the administration of 
these programs. We are also taking this opportunity to make these parts 
more readable. As part of this rewriting effort, the proposed 
regulations have been reorganized and renumbered to aid in 
accessibility. In addition, we have replaced the verb ``shall'' with 
``must'' for added clarity and readability. We intend that any 
provision using the verb ``must'' has the same meaning and effect as 
previous provisions using ``shall.''

Military Leave

    Section 353.208 of title 5, Code of Federal Regulations, states 
that an employee on military leave is permitted, upon request, to use 
any accrued annual leave (or sick leave, if appropriate), or military 
leave during such service. However, the Uniformed Services Employment 
and Reemployment Rights Act of 1994, Public Law 103-353, December 12, 
1994, which was implemented by this regulation, states that an employee 
must be permitted during a period of military service to use any 
vacation, annual, or similar leave with pay accrued by the person 
before the commencement of such service. We do not believe that sick 
leave is similar to annual leave in this context. Sick leave is 
intended to provide income to an employee who must be excused from work 
on account of sickness. Long-standing Comptroller General opinions have 
held an employee who is already on extended leave without pay cannot be 
said to be prevented from working by a period of sickness and therefore 
is not entitled to use sick leave. Likewise, an employee on extended 
leave without pay for military service cannot be said to be prevented 
from working at his civilian job by a period of illness. Therefore, we 
are proposing to delete the reference to sick leave from Sec.  353.208.
    In addition, the last sentence of Sec.  353.208 states that an 
employee may not use military leave for inactive duty training. 
However, authority to use military leave for inactive duty training was 
added by section 1106 of the National Defense Authorization Act for 
Fiscal Year 2000 (Public Law 106-65, October 5, 1999). Section 1106 
amended 5 U.S.C. 6323(a)(1) to permit an employee to use his or her 
entitlement to 15 days of military leave for ``inactive-duty training'' 
(as defined in section 101 of title 37, United States Code) in addition 
to active duty and active duty training. Therefore, we are proposing 
the deletion of the last sentence of Sec.  353.208 consistent with this 
change in law.

Official Duty Station

    We are proposing to add a new 5 CFR 531.605 to specifically define 
the requirements for determining an employee's official duty station 
for location-based pay entitlements, including special salary rates 
under 5 CFR part 530, subpart C, special pay for law enforcement 
officers under 5 CFR part 531, subpart C, and locality based 
comparability payments under 5 CFR part 531, subpart F. New Sec.  
531.605 also addresses the official duty station determination for 
employees temporarily working at another location or teleworking from 
an alternative worksite. Under Sec.  531.605, the official duty station 
is the location where the employee regularly performs his or her 
duties. For employees who telework, the official duty station is the 
employee's telework site. However, if an agency schedules an employee 
to report at least once a week to the regular work site (i.e., the 
location of his or her assigned organization), the official duty 
station is the regular worksite. Agencies may make temporary exceptions 
to this requirement in appropriate circumstances.
    We are proposing to revise the definition of official duty station 
at Sec. Sec.  531.301 and 531.602 to refer to the new requirements 
found at revised Sec.  531.605. In addition, we propose to add the 
definition of position of record to Sec. Sec.  531.301 and 531.602. The 
definition of position of record builds on the language found in 
current regulations in Sec.  530.303(i) and clarifies that the term 
incorporates employing agency, grade, occupational series, and position 
duties--all of which may be relevant in determining an employee's 
coverage under a special rate schedule. In addition, we propose to 
revise Sec.  530.303(i), which concerns conditions for coverage under 
special salary rates, to incorporate these new definitions. Finally, we 
are adding the definitions of telework and telework arrangement to 
Sec.  531.602.

Time Limits for Use of Compensatory Time Off

    The consolidation of payroll systems has revealed varying policies 
among agencies concerning time limits for the use of compensatory time 
off. As part of our effort to support consolidation through 
standardization of payroll processes, we are proposing to amend the 
regulations at 5 CFR 550.114 and 551.531 to provide a consistent 26-pay 
period time limitation on the period during which an employee may use 
compensatory time off. Under current regulations at Sec.  550.114(d), 
the head of

[[Page 1069]]

an agency may require that an employee who is not covered by the Fair 
Labor Standards Act must use earned compensatory time off within a 
certain time period or risk forfeiture of unused compensatory time off, 
unless failure to use the compensatory time off is due to an exigency 
of the service beyond the employee's control. Under this discretionary 
authority, many agencies have established policies to provide payment 
for unused compensatory time off upon expiration of the agency's 
established time limit. The proposed regulations would establish a 
Governmentwide time limit of 26 pay periods for using earned 
compensatory time off, but agencies would retain their discretionary 
authority to provide payment for, or require forfeiture of, 
compensatory time off that is not used within the 26-pay period time 
limit. The proposed regulations also would require that if an employee 
who is not covered by the Fair Labor Standards Act separates or goes on 
extended leave without pay to perform service in one of the uniformed 
services or because of an on-the-job injury with entitlement to injury 
compensation under 5 U.S.C. chapter 81, he or she would be entitled to 
receive pay for the overtime work at the overtime rate in effect for 
the period during which compensatory time off was earned.
    Under the proposed regulations at Sec.  551.531, if an employee who 
is covered by the Fair Labor Standards Act fails to use compensatory 
time off earned under paragraph (a) or (b) of that section within 26 
pay periods, or if the employee separates before the earned 
compensatory time off is used, he or she must be paid for the overtime 
work at the overtime rate in effect for the period during which the 
compensatory time off was earned. In addition, the proposed regulations 
require that if an employee who is covered by the Fair Labor Standards 
Act goes on extended leave without pay to perform service in one of the 
uniformed services or because of an on-the-job injury with entitlement 
to injury compensation under 5 U.S.C. chapter 81, he or she is entitled 
to receive pay for the overtime work at the overtime rate in effect for 
the period during which compensatory time off was earned. To aid 
payroll providers in transitioning to the new time limitations, the 
proposed regulations provide that employees with unused compensatory 
time off to their credit under Sec.  550.114 or Sec.  551.531 as of the 
effective date of the final regulations would have 26 pay periods after 
the effective date of the final regulations to use such compensatory 
time off. Time limitations for paying earned compensatory time off to 
employees covered by the Federal Wage System will be discussed by the 
Federal Prevailing Rate Advisory Committee before OPM issues final 
regulations.

Compensatory Time Off for Religious Observances

    We are proposing to add definitions of three terms in 5 CFR 
550.1002. The term employee is used in defining coverage. The term rate 
of basic pay is used in proposed Sec.  550.1008 in the context of 
determining the monetary value of compensatory time off for religious 
observances. The term scheduled tour of duty for leave purposes is used 
in proposed Sec.  550.1001 to make clear that religious compensatory 
time off is used in place of hours within the employee's tour of duty 
as established for leave purposes.
    Proposed Sec.  550.1003 provides that an agency may require 
documentation to ensure that an employee's request for compensatory 
time off for religious observances is legitimate. Also, this section 
empowers agencies to require employees who are submitting requests for 
this time off to make the requests sufficiently in advance to allow for 
work schedule adjustments that may be required to accommodate the time 
off. These provisions are consistent with the past guidance we have 
given agencies concerning the administration of this program.
    Proposed Sec.  550.1004 includes a new requirement that, if an 
employee fails to perform compensatory overtime work within 3 pay 
periods after using advanced compensatory time off, the agency should 
charge the employee annual leave to eliminate the negative balance. 
This is consistent with longstanding OPM policy. In addition, proposed 
Sec.  550.1005 provides that agencies may allow employees to accumulate 
only the number of hours of earned compensatory time off needed to 
cover past absences and anticipated absences for specifically 
identified religious observances. While agencies have always been able 
to require employees to identify specific future religious observances 
as a condition for allowing them to earn religious compensatory time 
off, this new section now makes it mandatory that agencies require 
employees to identify the specific future religious observances for 
which the compensatory time off will be used. This requirement is 
intended to prohibit the practice of ``stockpiling'' religious 
compensatory time off and ensures that this benefit will be used as 
intended by law.
    Proposed Sec.  550.1007 includes a new sentence documenting the 
fact that earned compensatory time off for religious observances under 
5 U.S.C. 5550a is not considered in applying the premium pay 
limitations in 5 U.S.C. 5547 and 5 CFR 550.105-550.107. (See 62 CG 590, 
July 26, 1983.) In contrast, the dollar value of overtime work 
resulting in earned compensatory time off under 5 U.S.C. 5543 is 
considered to be premium pay in applying those limitations.
    Proposed Sec.  550.1008 provides rules regarding how an agency must 
deal with employees who have a negative or positive balance of earned 
compensatory time off for religious observances when they separate from 
an agency. Consistent with previous OPM policy, in converting earned 
but unused compensatory time off to a monetary value, agencies must use 
the rates of basic pay in effect at the time the religious compensatory 
overtime work was performed.
    If an employee has a negative balance of religious compensatory 
time off hours upon separation from the agency, the employee's annual 
leave balance would be reduced by the amount of the negative balance of 
hours to the extent possible. If it is necessary for the agency to 
determine the monetary value of the employee's negative balance, that 
value would be computed using the employee's rate of basic pay in 
effect at the time the religious compensatory time was taken.

Federal Wage System

    OPM is proposing to revise its regulations in 5 CFR part 550, 
subpart L, on lump-sum payments for accumulated and accrued annual 
leave for employees who separate from Federal service (64 FR 36763, 
July 8, 1999) to ensure consistency with the guidance provided in the 
OPM Operating Manual on the Federal Wage System. This change ensures 
that a lump-sum payment for employees who work a regular rotating 
schedule involving work on both day and night shifts is calculated as 
if the employee had continued to work beyond the effective date of 
separation. To further ensure that the regulations are consistent with 
the guidance provided in the Operating Manual, we are proposing to 
amend the definition of rate of basic pay in the regulations at 5 CFR 
575.103, 575.203, and 575.303 for purposes of recruitment and 
relocation bonuses and retention allowances. The revised definition 
will clarify that night pay and environmental differential pay under 
the Federal Wage System are not

[[Page 1070]]

included in the definition of rate of basic pay for those purposes.

Weekly and Daily Scheduling of Work

    In 5 CFR 610.102, we are proposing to add the definitions of 
authorized agency official and unpaid meal period. In addition, we 
propose to change the reference in Sec.  610.111 from ``overtime pay'' 
in paragraph (a)(1)(ii) to ``premium pay'' to be consistent with other 
references within the section. We are also proposing to add paragraph 
(e) to Sec.  610.121 to clarify that the regulations on work schedules 
do not apply to employees on flexible and compressed work schedules in 
those areas where the law and regulation on flexible and compressed 
work schedules conflict with the requirements of this section.
    In Sec.  610.123, we are proposing to change the word ``shall'' to 
``should'' to indicate that while an agency official may require an 
employee to travel outside duty hours, every effort should be made to 
avoid doing so. In addition, we are clarifying that an agency may not 
adjust the regular working hours of an employee solely for the purpose 
of including time spent traveling as hours of work. We are also 
proposing the addition of Sec.  610.124 to clarify that agencies have 
authority to establish a mandatory unpaid break for meal periods under 
5 U.S.C. 6101(a)(3)(F) and that there is no explicit entitlement to a 
meal period. An agency may require or permit unpaid meal periods during 
overtime hours, and the policy may be different from that for the basic 
workweek. An unpaid meal period may not be counted as hours of work.

Holidays

    In 5 CFR 610.201, we are proposing the addition of the definitions 
of administrative workweek, agency, authorized agency official, basic 
workday, basic workweek, employee, rate of basic pay, and the United 
States. In addition, we are revising Sec.  610.202 to clarify when an 
employee is entitled to a paid holiday. This section reflects the 
requirements of Executive Order 11582 and previous OPM guidance. We are 
also proposing the revision of Sec.  610.203(b) to clarify how to 
determine holidays for employees, as provided by 5 U.S.C. 6103(b) and 
(d) and Executive Order 11582. In addition, we are proposing to add a 
note to new Sec.  610.203(c), to clarify that an employee on a 
compressed work schedule is not entitled to an additional ``in-lieu-
of'' holiday if his or her duty station is closed by an administrative 
action (if for example, the installation is closed due to inclement 
weather) on a day that has been designated as his or her alternate 
legal holiday. We are also proposing to move parts of former Sec. Sec.  
610.405 and 610.406 to Sec.  610.203(d) for ease of administration. New 
Sec.  610.203(d) clarifies that part-time employees on flexible or 
compressed work schedules are not entitled to an ``in-lieu-of'' holiday 
when the holiday falls on their regularly scheduled nonworkday.
    We are also proposing to add new Sec.  610.204 in response to 
numerous inquiries OPM receives from agencies and employees as to an 
employee's entitlement to pay for a holiday when the employee has been 
in a nonpay status before and/or after the holiday. Employees normally 
are paid on a holiday on which they do not work under the assumption 
that, but for the holiday, they would have worked and received pay. It 
is logical to assume that employees who are in a nonpay status on the 
workdays before and after a holiday would not have worked on the 
holiday itself. However, it may also be assumed that employees who are 
in a pay status for a portion of the day before or after the holiday 
would have been in a pay status on the holiday. Therefore, we are 
proposing to clarify that if an employee is in a pay status for at 
least 4 hours on the day before or after the holiday, he or she is 
entitled to be paid for the holiday.

Administrative Dismissals of Daily, Hourly, and Piecework Employees

    We are proposing to revise the definition of regular employees in 5 
CFR 610.302 to clarify that 5 CFR part 610, subpart C, does not apply 
to employees who have a scheduled annual rate of pay--for example, 
employees paid from the General Schedule. We are also proposing to 
revise Sec.  610.303 to make clear that Federal Wage System employees 
are not covered by subpart C, consistent with Public Law 92-392.

Flexible and Compressed Work Schedules

    Unless otherwise stated, the additions to 5 CFR 610.401 through 
610.411 codify current OPM policy and interpretation of law (5 U.S.C. 
chapter 61, subchapter II) as published in the ``Handbook on 
Alternative Work Schedules.'' In Sec.  610.402 we are proposing the 
addition of alternative work schedule, basic work requirement, 
compressed work schedule, core hours, flexible hours, flexible work 
schedule, rate of basic pay, and tour of duty. We are also proposing to 
add language to Sec.  610.403 to make it clear that there is no 
authority that would allow an agency to combine elements from flexible 
and compressed work schedules to create a ``hybrid'' schedule. In 
addition, we propose to add Sec.  610.411 to stipulate that overtime 
hours under a flexible work schedule must be officially ordered in 
advance.
    By law (5 U.S.C. 6124 and 6128) employees on a flexible work 
schedule are entitled to 8 hours of paid absence on a holiday, while 
employees on a compressed schedule are entitled to the number of hours 
of paid absence equal to the number of hours they are scheduled to 
work. We are proposing to revise current Sec.  610.405, which will be 
renumbered as Sec.  610.412, to add language to stipulate that full-
time employees under a flexible work schedule are entitled to 8 hours 
of holiday pay and that part-time employees are entitled to holiday pay 
for the number of hours regularly scheduled for that day, not to exceed 
8 hours. In addition, we are proposing to add Sec.  610.413 to clarify 
that full-time employees on a flexible work schedule who perform work 
on a holiday are entitled to up to 8 hours of holiday premium pay, 
their rate of basic pay for nonovertime hours within the basic work 
requirement, and, if applicable, overtime pay for hours in excess of 
the basic work requirement that are officially ordered and approved. In 
addition, this section also explains that part-time employees who 
perform work on a holiday are entitled to holiday premium pay for hours 
of work performed during their basic work requirement on a holiday, not 
to exceed 8 hours. Finally, this section clarifies that part-time 
employees scheduled to work on a day designated as an ``in lieu of'' 
holiday for full-time employees are not entitled to holiday premium 
pay.
    We are proposing the addition of Sec.  610.414 to clarify the 
treatment of credit hours earned under a flexible work schedule. We 
propose to make clear that full-time employees may carry forward up to 
24 credit hours from one pay period to the next and part-time employees 
may carry forward a proportional amount. Paragraph (a) incorporates 
language currently found in Sec.  610.408, which prohibits members of 
the Senior Executive Service from earning credit hours.
    We are proposing to add Sec.  610.421 to clarify that, for full-
time employees who are not covered by the Fair Labor Standards Act 
(FLSA) (FLSA-exempt employees) and have compressed work schedules, 
overtime hours are those officially ordered and approved in excess of 
the compressed schedule for the day. For part-time FLSA-exempt 
employees, overtime hours are those officially ordered and approved but 
must be in excess of 8 hours in a day or 40 hours in a week. For full-
time

[[Page 1071]]

employees who are covered by the FLSA (FLSA-non-exempt employees), 
overtime hours are those in excess of the compressed work schedule that 
are officially ordered and approved or ``suffered or permitted.'' For 
part-time FLSA-nonexempt employees, overtime hours are those in excess 
of the compressed schedule for the day that are officially ordered and 
approved but must be in excess of 8 hours in a day or 40 hours in a 
week. Full-time and part-time employees may not be credited with FLSA 
overtime hours on the basis of periods of duty in excess of 8 hours in 
a day when the hours are not hours of work for purposes of computing 
overtime pay under 5 CFR 410.402, 5 CFR Parts 550 or 532 and 5 U.S.C. 
5544 (e.g., suffered or permitted overtime work). Suffered or permitted 
overtime work is always credited towards an employee's weekly FLSA 
overtime standard. The daily overtime standard applies only to hours of 
work that would be considered overtime hours under title 5, United 
States Code, for General Schedule or prevailing rate (wage) employees.

Leave and Overtime Hours

    We have been asked whether an employee whose tour of duty includes 
regularly scheduled overtime work may earn or be charged leave during 
those overtime hours. Leave cannot be earned or charged during overtime 
hours, except as provided in 5 CFR 630.204 for employees on uncommon 
tours of duty. We propose to revise Sec. Sec.  630.202 and 630.205 to 
clarify that both full-time and part-time employees earn and use leave 
based on their regularly scheduled administrative workweek, exclusive 
of overtime hours. In addition, for clarity and consistency, the term 
``regularly scheduled administrative workweek'' and ``intermittent work 
schedule'' are defined in Sec.  630.201.

Charging Leave for Part-Time Employees

    We have been asked whether part-time employees should be charged 
leave for additional hours outside their ``normal'' work schedule if 
they are unable to work the additional hours. We propose to revise 
Sec.  630.205 to make clear that a part-time employee earns leave based 
on the number of nonovertime hours (i.e., hours less than 8 hours in a 
day and 40 hours in a week) in a pay status, without regard to the 
number of hours in his or her regularly scheduled workweek. Thus, a 
part-time employee would be charged leave for any nonovertime hours the 
employee is unable to work during the regularly scheduled workweek, as 
long as the employee's work schedule is established in advance of the 
pay period. However, a part-time employee would not be charged leave 
for hours not worked that were scheduled in addition to the employee's 
regularly scheduled administrative workweek after the beginning of the 
pay period. For example, if a part-time employee who is scheduled to 
work 62 hours in a pay period is required to work a total of 70 hours, 
he or she would earn leave based on the 70-hour total. However, if the 
employee is not able to work more than 62 hours, he or she could not be 
charged leave for the excess 8 hours because it was not scheduled in 
advance of the pay period.
    A part-time employee who has hours in a pay status that are fewer 
than the number of hours necessary to accrue 1 hour of leave is 
entitled to have those hours in a pay status carried forward into the 
next pay period and credited toward leave accrual. For example, an 
employee who is entitled to accrue 1 hour of leave for every 13 hours 
in a pay status and who works 56 hours is credited with 4 hours of 
leave, and the remaining 4 hours in a pay status must be carried 
forward. Therefore, we are proposing to add Sec.  630.205(d) to clarify 
that, for part-time employees, hours in a pay status that are 
insufficient to accrue 1 hour of leave must be carried forward into the 
next pay period and credited toward leave accrual.
    In addition, we are adding a new Sec.  630.301 to clarify that, for 
both part-time and full-time employees whose duty station is the United 
States, the maximum amount of annual leave that may be carried over 
from one leave year into the next is 240 hours (30 days). This 
limitation is found in law at 5 U.S.C. 6304(a) and is being restated in 
regulation for clarification. The maximum amount of annual leave that 
may be carried over by an employee who transfers from an overseas 
assignment is prescribed in 630.302(c).

Leave for Employees on Uncommon Tours of Duty

    New 5 CFR 630.204 would give agencies the authority to require that 
employees with uncommon tours of duty accrue and use leave based on 
that uncommon tour. We propose to revise paragraphs (a) and (b) of 
Sec.  630.204 to clarify that for employees who accrue and use leave on 
the basis of an uncommon tour of duty, the ceiling on the amount of 
annual leave that may be carried over into the next leave year under 5 
U.S.C. 6304(a), (b), or (c), or the amount of annual or sick leave that 
may be advanced under 5 U.S.C. 6302(d) or 6307(d), must be adjusted 
along with accrual rates and leave balances to reflect the uncommon 
tour of duty. For example, when an uncommon tour of duty is established 
for a firefighter with a 144-hour biweekly tour of duty, the annual 
leave ceiling for that firefighter must be adjusted to 432 hours (144/
80 x 240 hours).
    In addition, consistent with the ``directly proportional rule'' 
applied in Sec.  630.204, the amount of sick leave that may be advanced 
to an employee with an uncommon tour of duty must be calculated using 
the ratio of the employee's biweekly hours to an 80-hour pay period. 
For example, for a firefighter with a biweekly tour of duty of 144 
hours, the maximum amount of sick leave that may be advanced is 432 
hours (144/80 x 240). The amount of annual leave that may be advanced 
is equal to the amount of annual leave such firefighters would earn 
during the remainder of the current leave year.
    The proposed revision of Sec.  630.204 also provides that when an 
employee is converted to a different tour of duty, the employee's leave 
accrual rates, leave balances, advanced leave, and leave ceiling must 
be converted simultaneously. Lastly, we propose to revise Sec.  630.905 
(currently found at Sec.  630.906(c)) to permit an agency that has 
employees who earn and use annual leave on the basis of an uncommon 
tour of duty to establish procedures for administering the transfer of 
annual leave to or from such employee under both the leave transfer and 
leave bank programs established under 5 U.S.C. chapter 63, subchapters 
III and IV.

90-Day Appointment

    Agencies have requested clarification from OPM on the annual leave 
accrual status of an employee who has been appointed for a term limited 
to less than 90 days. Section 6303(b) of title 5, United States Code, 
limits the annual leave accrual of employees whose current appointment 
is limited to less than 90 calendar days. However, employees may accrue 
annual leave if they receive consecutive appointments, all less than 90 
days, that cumulatively total more than 90 calendar days of employment 
without a break in service. We are proposing to add a new 5 CFR 630.206 
to clarify that an employee who receives an initial appointment limited 
to less than 90 days is not eligible 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

[[Page 1072]]

annual leave that would have accrued during the initial 90-day period. 
Employees whose appointments are not limited to less than 90 days are 
not subject to this provision, nor are employees who are serving in a 
less-than-90-day appointment to which they transferred, without a break 
in service, from a leave-earning position. Also, the limits on leave 
accrual for an employee who has been appointed to a less-than-90-day 
appointment applies only to annual leave. Such employees earn 4 hours 
of sick leave in each biweekly pay period of the appointment.

Fractional Pay Periods and Reduction in Leave Credits

    We are proposing to revise 5 CFR 630.207 to provide that when an 
employee's service is interrupted by a non-leave-earning period, such 
as a period of intermittent employment or a period during which an 
employee receives benefits from the Department of Labor's Office of 
Workers' Compensation Programs (OWCP), he or she earns leave on a 
prorated basis for that portion of each pay period during which he or 
she is eligible to earn leave as long as there is no break in Federal 
service. An employee who moves back and forth between part-time and 
intermittent employment has periods when he or she is eligible to earn 
leave and periods when he or she is not. This change in eligibility to 
earn leave also occurs when an employee is carried in a leave without 
pay status while receiving disability compensation (i.e., workers' 
compensation) and is not eligible to earn leave under the rules 
governing dual compensation. Agencies must credit a prorated amount of 
annual and sick leave to employees who become ineligible to accrue 
leave in the middle of a pay period.
    However, employees who begin an extended period of leave without 
pay in the middle of a pay period (e.g., extended leave for military 
service or under the Family and Medical Leave Act) are entitled to 
accrue leave in that pay period. By law, employees accrue leave when 
they are employed for a full biweekly pay period. Proposed Sec.  
630.202 states that a full-time employee earns leave during each full 
biweekly pay period while in a pay status or in a combination of a pay 
status and a nonpay status. The effect of leave without pay on the 
accrual of annual and sick leave is addressed in new Sec.  630.208, 
which requires reduction in leave credits for excess hours in a nonpay 
status. A full-time employee who is eligible to earn leave under Sec.  
630.202 may, through the intermittent or extended use of leave without 
pay, accumulate a number of hours in a nonpay status. When this number 
equals the number of hours in the pay period, the employee forfeits the 
leave that would have been earned in that pay period. For example, 
employee A earns 8 hours of annual leave in each full biweekly pay 
period. He or she is intermittently on leave without pay during the 
months of February through the last pay period in September, but has 
continued during this period to earn 8 hours of annual leave and 4 
hours of sick leave each pay period. In the last pay period in 
September, the employee's leave without pay balance reaches 80 hours 
(the number of hours in the pay period), and he or she must forfeit the 
hours of annual and sick leave he or she would have accrued. In effect, 
the employee earns no leave in the last pay period in September. (Any 
hours in a nonpay status that are not offset by the forfeiture of 
annual and sick leave will be carried forward to the next pay period.) 
The employee continues to earn annual and sick leave at his or her 
regular rate until the leave without pay total again reaches 80 hours 
(the number of hours in the pay period). If an employee who earns 6 
hours of annual leave in a pay period reaches 80 hours of leave without 
pay during the last full biweekly pay period of the year (the pay 
period during which he or she would receive an additional 4 hours), the 
employee forfeits the full 10 hours.
    Employee B is carried on the rolls in a leave without pay status 
while receiving disability compensation. The rules governing dual 
compensation state that an employee who is receiving disability 
compensation is not entitled to earn leave. Since employee B is in a 
``non-leave earning period,'' no reduction in leave credits is 
required. Employee B may earn leave on that portion of a pay period 
during which he or she is eligible to earn leave under Sec.  630.207.
    Employee C is on continuous leave without pay and is actually still 
earning leave at his or her normal rate. However, the employee is 
simultaneously forfeiting the leave he or she would have earned each 
time he or she reaches a number of hours of leave without pay that is 
equal to twice the number of hours in the regularly scheduled workweek. 
Since the employee's leave without pay reaches 80 hours of leave 
without pay each pay period, he or she earns no annual or sick leave.
    If, at the end of the leave year, an employee has an accumulation 
of hours of leave without pay that is less than the number of hours in 
the pay period, the agency must drop those hours. An employee may have 
one or more breaks in service in a year, during which he or she is 
ineligible to accrue leave (e.g., as a result of the employee's 
intermittent status or receipt of workers' compensation). However, when 
counting hours of leave without pay, an agency may count only those 
hours in a nonpay status that occurred during those periods in which 
the employee was eligible to accrue leave, including fractional pay 
periods under Sec.  630.207.

Minimum Charge for Leave

    Section 630.205 of title 5, Code of Federal Regulations, currently 
states that the minimum charge to an employee's leave account is 1 
hour, unless an agency establishes a minimum charge of less than 1 
hour, or establishes a different minimum charge through negotiations. 
As a result, agencies have established policies that have resulted in 
leave being charged in a variety of increments ranging from 1 minute to 
1 hour. OPM, as the managing partner of e-Payroll consolidation and 
standardization is proposing to establish a uniform, Governmentwide 
policy on the minimum charge to leave. In Sec.  630.209, we are 
proposing to provide two alternatives for charging leave. Agencies may 
charge leave in increments of one-tenth of an hour (6 minutes) or one-
quarter of an hour (15 minutes). Limiting the charge to leave to just 
two methods will simplify time and attendance recording and further our 
goal to standardize payroll processing. In addition, this change will 
further the work scheduling flexibilities available to agencies and 
employees. The final issuance of the new rules for charging leave will 
not invalidate the provisions of any existing collective bargaining 
agreement (CBA). If the leave provisions of a CBA were proper under the 
regulations existing at the time they were negotiated, but conflict 
with the proposed changes, the existing provisions will stand for the 
duration of the agreement. Upon expiration of the CBA, no provision 
that conflicts with the new regulations may be renewed.
    We are also proposing to modify the regulation concerning the 
transfer of leave from one agency to another at Sec.  630.501, to 
standardize and simplify that procedure. New Sec.  630.501 states that 
when an employee transfers to a position covered by a different leave 
accounting system, his or her leave must be converted by the gaining 
agency into the minimum increment that can be accommodated.

Advancing Leave

    In response to requests for clarification on the amount of annual 
leave that may be advanced to an

[[Page 1073]]

employee, we are proposing to add 5 CFR 630.210 to provide that an 
employee (full-time or part-time) may be advanced, at the beginning of 
the leave year or at any time thereafter, only the amount of annual 
leave that he or she is expected to accrue during the remainder of the 
leave year.
    A full-time employee may be advanced up to 30 days (240 hours) of 
sick leave for serious disability or ailment or for purposes related to 
the adoption of a child. Section 6302(c) of title 5, United States 
Code, establishes that a part-time employee is entitled to leave 
benefits under section 6307 (sick leave) on a pro rata basis. 
Therefore, Sec.  630.210(b) would also provide that the maximum amount 
of sick leave that may be advanced to a part-time employee or an 
employee on an uncommon tour of duty is prorated according to the 
number of hours in the employee's regularly scheduled administrative 
workweek. For example, since a full-time employee is limited to a 
maximum of 240 hours (6 weeks x 40 hours = 240) of advanced sick leave, 
an employee who has a regularly scheduled administrative workweek of 24 
hours may be advanced up to 144 hours (6 weeks x 24 hours = 144) of 
sick leave for serious disability or ailment (including childbirth and 
its recuperation) or for purposes relating to the adoption of a child.
    We have been asked to clarify how an employee may repay advanced 
leave. We propose to add paragraph (d) to Sec.  630.210 to clarify that 
an employee may liquidate a debt for advanced leave through the 
retroactive substitution of paid leave or through a cash payment that 
equals the amount paid to the employee for the period of advanced 
leave. In addition, we are proposing to add a definition of advanced 
leave to Sec.  630.201 to clarify that advance of annual or sick leave 
is left to the discretion of the employing agency.

Leave for Bone-Marrow and Organ Donation

    Section 629 of Public Law 103-329, the Treasury, Postal Service and 
General Government Appropriations Act for fiscal year 1995, added 
section 6327 to title 5, United States Code, to provide employees with 
an entitlement of up to 7 days of paid leave each calendar year (in 
addition to annual and sick leave) to serve as a bone-marrow or organ 
donor. The law provides that an employee is entitled to use this leave 
without loss of or reduction in pay, leave to which otherwise entitled, 
credit for time or service, or performance or efficiency rating. Public 
Law 106-56, the ``Organ Donor Leave Act,'' amended section 6327 to 
increase the amount of paid time off available for Federal employees to 
serve as organ donors from 7 days to 30 days each calendar year. The 
amount of leave available for bone-marrow donation remains at 7 days 
each calendar year under 5 U.S.C. 6327.
    We have been asked how these ``days'' of leave should be charged 
for a full-time employee who works other than 8-hour days (e.g., an 
employee on a flexible or compressed work schedule) or for a part-time 
employee or an employee who has an uncommon tour of duty. We are 
proposing the addition of 5 CFR 630.215 to make clear that a full-time 
(80-hour per pay period) employee is entitled to 56 hours (7 days) of 
leave each calendar year for bone-marrow donation purposes and 240 
hours (30 days) of leave each calendar year to serve as an organ donor. 
These amounts are prorated for part-time employees and employees on 
uncommon tours of duty. In addition, we have been asked whether bone-
marrow or organ donation leave is appropriate for absences related to 
compatibility testing that does not ultimately result in the employee's 
actual donation. The legislative history of Public Law 103-329 makes 
clear that this legislation was enacted in an effort to encourage 
Federal employees to be tested for and participate in bone-marrow and 
organ donation programs. It was hoped that giving time off for testing 
would increase the pool of possible donors and the chances of finding a 
match for someone in need of a transplant. Therefore, proposed Sec.  
630.215 states that the employee is entitled to this leave for 
compatibility testing purposes even if he or she ultimately does not 
become a bone-marrow or organ donor.
    We are also proposing to add a final paragraph establishing OPM's 
authority to make future determinations that other medical procedures 
are sufficiently similar to bone-marrow or organ donation to permit the 
use of bone-marrow or organ donor leave for those purposes. For 
example, we believe that peripheral blood stem cell donation is 
sufficiently similar to bone-marrow donation in the commitment required 
from an individual in the time needed for testing and actual donation 
to warrant granting of bone-marrow donor leave. We believe that similar 
medical procedures may be developed that will allow more Federal 
employees to become part of the donation process and that it is within 
the spirit of the legislation creating this program to grant OPM the 
flexibility to approve the future use of bone-marrow or organ donor 
leave for such donations.

Restoration of Annual Leave

    Section 6304(d), of title 5, United States Code, provides that 
annual leave in excess of the maximum limitations that is forfeited as 
a result of exigencies of the public business or sickness of the 
employee must have been scheduled in advance to be eligible for 
restoration. Current 5 CFR 630.308(a) provides that such annual leave 
must have been scheduled in writing before the start of the third 
biweekly pay period prior to the end of the leave year. In the interest 
of clarity and simplicity, OPM is proposing to provide that such annual 
leave may be considered for restoration if the leave is scheduled in 
writing before November 15 of each leave year. (See new Sec.  
630.304(a).) Specifying a single, uniform date greatly simplifies the 
process for both employees and agencies.

Accrual and Use of Sick Leave

    We are proposing to add 5 CFR 630.205 to clarify the accrual rates 
of sick leave for part-time employees. In addition, we are proposing to 
modify Sec.  630.401 to remove the requirement that an employee must 
maintain 80 hours of sick leave in his or her sick leave account in 
order to use more than 40 hours of his or her sick leave for family 
care or bereavement purposes. Removing the 80-hour sick leave balance 
requirement greatly simplifies the administration of this policy and 
eliminates the need for manual recordkeeping of employee sick leave 
balances. Employees are responsible for managing their use of sick 
leave to ensure that they retain enough sick leave for personal needs. 
An employee would continue to be limited to 13 days of sick leave each 
leave year for general family care and bereavement purposes and a 
maximum of 12 weeks of sick leave each leave year to care for a family 
member with a serious health condition. In addition, removing the 80-
hour sick leave balance requirement would permit agencies to advance up 
to 30 days of sick leave to an employee so that he or she may care for 
a family member with a ``serious disability or ailment.''
    We are also proposing to modify Sec.  630.403(b) to establish a 
Governmentwide policy on the time limit for the receipt of medical 
documentation for an employee's use of sick leave. The proposed 
regulation states that an employee must provide the written medical 
certification required by the agency for use of sick leave under Sec.  
630.401, signed by the health care provider, no later than 15 calendar 
days after the date his or her agency requests such medical

[[Page 1074]]

certification. This will ensure that all employees are treated 
equitably and aid in establishing standardized Governmentwide pay and 
leave policies. We have also defined ``healthcare provider'' at Sec.  
630.201 as well as 630.903 (Voluntary Leave Transfer Program) and 
630.1003 (Voluntary Leave Ban Program), using the definition currently 
used in the Family and Medical Leave regulations at Sec.  630.1204, so 
that the term is used consistently throughout part 630.

Recredit of Leave

    OPM has received inquiries from agencies and employees concerning 
the transfer of annual and sick leave balances when an employee 
transfers from a position in the U.S. Postal Service to a position 
covered by chapter 63 of title 5, United States Code. We propose to add 
5 CFR 630.502(b) and 630.503(d) to state that an individual who 
transfers from the U.S. Postal Service to a position covered by chapter 
63 is entitled to have his or her annual and sick leave transferred to 
the new agency. This is consistent with section 1005(f) of Public Law 
91-375, August 12, 1970, which permits the continuation of leave 
benefits provided in chapter 63 to Postal Service employees unless 
specifically changed by the U.S. Postal Service.
    The maximum amount of annual leave that may be transferred from the 
U.S. Postal Service to the new agency may not exceed the maximum annual 
leave limitation allowed for the employee's former position in the U.S. 
Postal Service. If the amount of annual leave transferred exceeds the 
maximum annual leave accumulation limitations in 5 U.S.C. 6304(a), (b), 
or (f), as applicable, the agency must establish a personal leave 
ceiling for the employee, subject to reduction in the same manner as 
provided in 5 U.S.C. 6304(c) until the employee's accumulated annual 
leave is equivalent to or less than the maximum limitation for the new 
position.
    Under 5 U.S.C. 6301, employees of the Congress are not covered by 
the Federal leave system established under 5 U.S.C. chapter 63. 
Therefore, leave earned as an employee of the Congress cannot be 
transferred to a position in an executive agency. We are proposing to 
add paragraph (c) to Sec.  630.502 and paragraph (e) to Sec.  630.503 
to clarify that employees of the House or Senate, or both, may not have 
annual leave or sick leave transferred to an executive branch agency.

Application To Become a Leave Recipient Under the Leave Transfer/Leave 
Bank Programs

    Agencies have asked whether they may establish a time limit for 
accepting an application to become a leave recipient from an employee 
who was affected by a medical emergency that has since terminated 
(e.g., for the birth of a child that occurred in a previous year). We 
are proposing to revise 5 CFR 630.906(a) and 630.1010(b) to clarify 
that agencies may designate a time period during which employees must 
submit an application to become a leave recipient under the voluntary 
leave transfer or leave bank programs if the employee was unable to 
submit the application before the medical emergency terminated. 
(Agencies and employees may download forms for donating or requesting 
annual leave from OPM's Web site at https://www.opm.gov/FORMS/html/
opm.asp.)
    Agencies have also questioned whether they must allow an employee 
to use transferred annual leave indefinitely when there is a need to 
fill the employee's position and there is little or no likelihood that 
the employee will return to work. Agencies have discretion to approve 
or disapprove an employee's requests to use donated annual leave and 
the use of donated leave should be treated in the same manner as the 
use of accrued annual leave. Participation in the leave transfer 
program was not meant to be a substitute for disability retirement. If 
there is little likelihood that an employee will be able to return to 
work, either because of his or her own medical emergency or that of a 
family member, we do not believe the agency should be obligated to 
carry the employee in a transferred leave status indefinitely. In 
addition, a decision by the United States Court of Appeals, Federal 
Circuit, affirmed an agency's authority to deny the use of donated 
leave when there is little likelihood that the employee will return to 
Federal service. (See F. Paul Jones v. Department of Transportation, 
295 F. 3d 1298 (Fed.Cir. 2002).) Therefore, we are proposing to add new 
Sec. Sec.  630.914(f) and 630.1012(f) to provide that an agency may 
choose to establish a maximum period of time, not less than 6 months, 
during which an employee may remain a qualified leave recipient for any 
particular medical emergency. When the applicant is approved for leave 
transfer, the agency is required to notify him or her in writing of the 
maximum period of time during which he or she may continue to be an 
approved leave recipient, if the agency has chosen to establish such a 
time limit.

Definition of a Medical Emergency Under the Leave Transfer/Leave Bank 
Programs

    In response to agency requests for assistance in recognizing what 
constitutes a medical emergency under the voluntary leave transfer and 
leave bank programs, we are proposing to clarify the definition of 
medical emergency in 5 CFR 630.903. We are proposing to define a 
medical emergency as a serious health condition as that term is defined 
in Sec.  630.1204 (Family and Medical Leave) that affects an employee 
or a family member of such employee and is likely to require the 
employee's absence from duty for a prolonged period of time and to 
result in a substantial loss of income to the employee because of the 
unavailability of paid leave. We are also adding the definition of 
transferred leave to Sec.  630.903.

Annual Leave That May Be Donated

    We have received questions from agencies on whether employees may 
donate restored annual leave or annual leave that has been advanced 
under the voluntary leave transfer and leave bank programs. We are 
proposing to clarify in new 5 CFR 630.910(a) and 630.1008(a) that an 
employee may donate his or her accrued annual leave, including annual 
leave restored under 5 U.S.C. 6304(d) and 5595(b)(1)(B)(i) (back pay), 
but excluding annual leave advanced to an employee under 5 U.S.C. 
6302(d).
    An agency also asked whether a Presidential appointee whose annual 
leave is being held in abeyance under 5 U.S.C. 5551(b) may donate that 
leave to another employee. We are proposing to add Sec.  630.910(b) to 
permit an employee to donate the leave held in abeyance as long as the 
leave was earned under 5 U.S.C. chapter 63. In addition, we are 
proposing to limit in new Sec.  630.912(c) the amount of annual leave a 
leave donor who is no longer covered by chapter 63 may donate to no 
more than one-half the amount of annual leave he or she was entitled to 
accrue in the last leave year the donor was covered by chapter 63. An 
agency may waive this limitation in the same manner that current 
limitations on donated leave may be waived under the voluntary leave 
transfer and leave bank programs.

Use of Donated Annual Leave

    Agencies have questioned whether a leave recipient may use donated 
annual leave for a purpose other than that for which the leave was 
donated--e.g., to care for a different family member. We

[[Page 1075]]

have also received questions about whether an employee on leave 
restriction continues to be subject to the conditions of the 
restriction notice when using donated annual leave.
    We have added language to proposed Sec. Sec.  630.914 and 630.1012 
to clarify that donated leave may be used only for the particular 
medical emergency for which it is donated. In addition, these sections 
would make it clear that an employee on an official notice of leave 
restriction continues to be subject to the terms and conditions of the 
leave restriction notice when requesting and using donated leave.

Accrual of Annual and Sick Leave While Using Donated Leave

    Some agency officials have expressed confusion regarding the 
statutory requirement in 5 U.S.C. 6337 to establish separate ``set-
aside'' accounts for leave recipients using donated leave under the 
voluntary leave transfer and leave bank programs. Section 6337(b)(1)(A) 
and (B) provide that the maximum amount of annual or sick leave which 
may be accrued by an employee while using donated leave ``in connection 
with any particular emergency'' may not exceed 5 days (i.e., 40 hours 
of annual leave and 40 hours of sick leave). Therefore, we propose to 
revise 5 CFR 630.916 to clarify that ``set-aside'' leave accrual is 
limited to 40 hours of annual leave and 40 hours of sick leave for each 
medical emergency. If a leave recipient gains the use of leave in his 
or her set-aside accounts, as provided in Sec.  630.917, before he or 
she reaches the 40-hour limit, the recipient, in the event of receiving 
more donated leave, continues to accrue leave in the set-aside account 
until the total amount accrued during the particular medical emergency 
has reached 40 hours of annual leave and 40 hours of sick leave. Once 
the employee uses all of the 40 hours of annual leave and 40 hours of 
sick leave allowable in the set-aside account, the set-aside account is 
terminated and no more leave may be accrued by the employee while using 
donated leave for that particular emergency.
    In addition, we propose to revise Sec.  630.918 to clarify that 
when a leave recipient's employing agency advances leave at the 
beginning of the leave year and 40 hours of that advanced leave are 
placed in a set-aside account, the employee may accrue leave while 
using donated leave only to the extent necessary to liquidate the debt 
incurred by placing that advanced leave in the set-aside account.
    The rules concerning set-aside accounts under the leave bank 
program are identical to those for the leave transfer program, and the 
maximum accruals allowed under 5 U.S.C. 6337 apply to the total leave 
accrued under both the leave transfer and leave bank programs. 
Therefore, we propose to remove the instructions for set-aside accounts 
under the leave bank program at current Sec.  630.1008. Instead, new 
Sec.  630.1013 refers the reader to the applicable sections of the 
leave transfer regulations at Sec. Sec.  630.915 through 630.919.

Inclusion of ``Excepted Agencies'' in the Leave Transfer Program

    New section 322 of Public Law 107-307 (November 27, 2002) revised 
5. U.S.C. 6339 to add a new paragraph (c)(1) which provides that the 
head of an excepted agency may establish a program under which an 
individual employed in or under an excepted agency may participate in a 
leave transfer program. Under the provisions of section 322, a 
previously excluded agency may now establish a voluntary leave transfer 
program. The new provisions also provide previously excluded agencies 
with the authority to establish procedures for administering a leave 
transfer program, consistent with OPM's regulations governing the 
administration of the Voluntary Leave Transfer Program.
    We have added Sec.  630.922(a) to make it clear that the head of an 
excepted agency may establish a program under which an individual 
employed in or under such excepted agency may participate in the leave 
transfer program under subpart I, including provisions permitting the 
transfer of annual leave accrued or accumulated by such employee to, or 
permitting such employee to receive transferred leave from, an employee 
of any other agency (including another excepted agency). In addition, 
we have added Sec.  630.922(b) to clarify that an excepted agency's 
policy may include provisions that protect the anonymity of its 
employees. Other agencies (including other excepted agencies that 
choose to participate in the leave transfer program) must accept leave 
from such an excepted agency, regardless of whether the donating 
employee is identified.

Records and Reports

    We are proposing to delete the reporting requirement at 5 CFR 
610.122(c) concerning variations in work schedules for educational 
purposes. In addition, we are proposing to delete the reporting 
requirement currently in Sec.  630.211(d). The responsibility to make 
decisions on excluding certain Presidential appointees from entitlement 
to annual and sick leave consistent with requirements and criteria in 
Sec.  630.211 has been delegated to the heads of agencies, and we no 
longer require reports on these exclusions. The agency must continue to 
maintain records of exclusions or revocations of exclusions.
    We are proposing to remove the reporting requirements in current 
Sec.  630.408 and to reduce the amount of information that agencies 
must maintain on the use of sick leave for family care purposes. 
Agencies would be required to maintain records sufficient to ensure 
that employees do not exceed their entitlement to sick leave for family 
care purposes.
    We are proposing to delete the reporting requirements currently in 
Sec. Sec.  630.913 and 630.1012 on the voluntary leave transfer and 
leave bank programs. Agencies would be required to maintain sufficient 
records to permit the transfer of donated leave when a leave recipient 
transfers to a new agency.
    We are also proposing to remove the reporting requirements for 
family and medical leave currently in Sec.  630.1211. Agencies would be 
required to maintain sufficient records to ensure that employees do not 
exceed their entitlement to family and medical leave.

Miscellaneous

    We are proposing to revise Sec.  630.101 to affirm OPM's authority 
to administer Governmentwide leave policies and procedures. We are also 
proposing to delete Sec.  630.407(b) concerning the holiday premium pay 
entitlement of an employee on a compressed work schedule. This section 
was numbered in error and the information is properly found in current 
Sec.  610.407(b).
    We are also proposing to delete Sec.  630.203 which gives 
instructions for earning leave in other than biweekly pay periods, 
since we have been assured by the Government's payroll providers that 
there are no longer any employees to which such procedures would apply. 
We are proposing to delete the procedures currently in Sec.  630.409 
for the retroactive substitution of sick leave for annual leave used 
for adoption related purposes between September 1991 and September 
1994. The time limit for retroactive substitution under this section 
expired on September 30, 1996, making this information obsolete.
    We are also proposing to delete current Sec. Sec.  630.301(d)(1), 
(d)(2), and (e) concerning the treatment of members of the Senior 
Executive Service (SES) in 1994 when SES leave ceilings were first 
established. Similarly, we are proposing to delete Sec.  630.309, which 
dealt with the

[[Page 1076]]

treatment of Y2K essential personnel during the leave years 1999 and 
2000.
    We are also proposing to delete subpart M of part 630, the 
Reservist Leave Bank, since these regulations now are obsolete. These 
regulations implemented section 331 of Public Law 102-25, the 
Department of Defense Desert Storm Supplemental Authorization and 
Military Personnel Benefits Act for Fiscal Year 1991, April 6, 1991. 
The regulations established a leave bank to provide time off for 
Federal civilian employees returning from active military duty in 
Operation Desert Storm and Operation Desert Shield in 1991. OPM 
collected annual leave donations and divided the total amount 
contributed among all eligible returnees in 1991.
    In addition, we are proposing to delete the prohibitions against 
coercion in the voluntary leave transfer and leave bank programs 
currently in Sec. Sec.  630.912 and 630.1011, since these sections are 
restatements of the law at 5 U.S.C. 6338 and 6370. Similarly, we 
propose to delete paragraphs (c) and (d) currently in Sec.  630.1208 
concerning employee protections under the Family and Medical Leave Act, 
since these also are restatements of the law at 5 U.S.C. 6384(c). 
Finally, we propose to revise the procedures in current Sec.  630.1108 
for recrediting unused annual leave donated to the donors under the 
emergency leave transfer program. New Sec.  630.1120 would eliminate 
the requirement to return unused leave to the donors if the number of 
hours of unused leave is less than the number of eligible donors. This 
provision would simplify the administration of the emergency leave 
transfer program and make its administration consistent with the 
procedures for the voluntary leave transfer program at Sec.  630.921.

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 would not have a significant 
economic impact on a substantial number of small entities because they 
would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Parts 353, 530, 531, 550, 551, 575, 610, 
and 630

    Administrative practice and procedure, Claims, Government 
employees, Holidays, Law enforcement officers, Reporting and 
recordkeeping requirements, Wages.

U.S. Office of Personnel Management.
Kay Coles James,
Director.
    Accordingly, OPM is proposing to amend 5 CFR parts 353, 530, 531, 
550, 575, 610, and 630 to read as follows:

PART 353--RESTORATION TO DUTY FROM UNIFORMED SERVICE OR COMPENSABLE 
INJURY

    1. The authority citation for part 353 continues to read as 
follows:

    Authority: 38 U.S.C. 4301 et seq., and 5 U.S.C. 8151.

Subpart B--Uniformed Service

    2. Section 353.208 is revised to read as follows:


Sec.  353.208  Use of paid leave during uniformed service.

    An employee performing service with the uniformed services must be 
permitted, upon request, to use any accrued annual leave or military 
leave during such service.

PART 530--PAY RATES AND SYSTEMS (GENERAL)

    3. The authority citation for part 530 continues to read as 
follows:

    Authority: 5 U.S.C. 5305 and 5307; E.O. 12748, 56 FR 4521, 3 
CFR, 1991 Comp., p. 316; Subpart B also issued under secs. 302(c) 
and 404(c) of the Federal Employees Pay Comparability Act of 1990 
(Pub. L. 101-509), 104 Stat. 1462 and 1466, respectively; Subpart C 
also issued under sec. 4 of the Performance Management and 
Recognition System Termination Act of 1993 (Pub. L. 103-89), 107 
Stat. 981.

Subpart C--Special Salary Rate Schedules for Recruitment and 
Retention

    4. In Sec.  530.303, paragraph (i) is revised to read as follows:


Sec.  530.303  Establishing and adjusting special salary rate 
schedules.

* * * * *
    (i) The determination as to whether an employee is covered by a 
special salary rate schedule must be based on the employee's position 
of record and the official duty station for that position as those