Scheduling of Annual Leave by Employees Determined Necessary To Respond to Certain National Emergencies, 15597-15600 [2023-05204]
Download as PDF
15597
Rules and Regulations
Federal Register
Vol. 88, No. 49
Tuesday, March 14, 2023
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 630
RIN 3206–AO04
Scheduling of Annual Leave by
Employees Determined Necessary To
Respond to Certain National
Emergencies
Office of Personnel
Management.
ACTION: Interim rule.
AGENCY:
FOR FURTHER INFORMATION CONTACT:
The Office of Personnel
Management (OPM) is revising the
interim regulation regarding the
restoration of annual leave for
employees who are essential to respond
to certain national emergencies, such as
the National Emergency Concerning the
Novel Coronavirus Disease (COVID–19).
This rule extends the latest possible
termination date for the exigency
established in connection with the
COVID–19 national emergency, which
would be March 13, 2023, under the
current interim regulations. Under this
new rule, that date would be the date
the national emergency is ended by the
President. This rule also provides for
special handling of restored annual
leave resulting from an agency-specific
ongoing exigency that is directly related
to a matter that was determined to be a
national emergency exigency and that
immediately follows that national
emergency exigency. Finally, this rule
expands an agency’s authority to
exempt employees from the advance
annual leave scheduling requirement in
the leave year during which a national
emergency exigency is terminated.
DATES: The interim regulations are
effective on March 13, 2023. Comments
must be received on or before on May
12, 2023.
ADDRESSES: You may submit comments,
identified by docket number and/or
Regulatory Information Number (RIN)
and title, by the following method:
ddrumheller on DSK120RN23PROD with RULES1
SUMMARY:
VerDate Sep<11>2014
16:01 Mar 13, 2023
Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
All submissions received must
include the agency name and docket
number or RIN for this document. The
general policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
OPM will address previously
submitted comments on the August 10,
2020, interim regulation and any
comments submitted regarding this new
interim regulation when it issues final
regulations.
Jkt 259001
Doris Rippey by telephone at (202) 606–
2858 or by email at pay-leave-policy@
opm.gov.
On August
10, 2020, OPM published an interim
final rule (85 FR 48096 1) to replace the
reserved 5 CFR 630.310 with a new 5
CFR 630.310 to (1) allow agencies to
continue to meet their vital missions
while streamlining the process for
restoration of annual leave for
employees whose services are
determined by the agency head (or
designee) to be essential for the
response to certain national emergencies
and (2) permit the Director of OPM to
deem a specific national emergency, as
declared by the President under the
National Emergencies Act, to be an
exigency of the public business for the
purpose of restoring annual leave under
this authority. OPM will address
previously submitted comments on the
August 10, 2020, interim regulation and
any comments submitted regarding this
new interim regulation when it issues
final regulations.
On March 13, 2020, the President
issued Proclamation 9994 declaring a
‘‘National Emergency Concerning the
Novel Coronavirus Disease (COVID–19)
Outbreak’’ (85 FR 15337 2). On August
27, 2020, the Director of OPM issued
SUPPLEMENTARY INFORMATION:
1 https://www.federalregister.gov/documents/
2020/08/10/2020-16823/scheduling-of-annualleave-by-employees-determined-necessary-torespond-to-certain-national.
2 https://www.govinfo.gov/content/pkg/FR-202003-18/pdf/2020-05794.pdf.
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
CPM 2020–11 3 announcing the
publication of an interim final rule on
the scheduling of annual leave by
employees whose work is essential to
respond to certain national emergencies.
The memo also announced the
Director’s determination that the
COVID–19 national emergency
constituted an exigency of the public
business for the purpose of restoring
forfeited annual leave and authorized
agencies to streamline the process for
the restoration of annual leave for the
COVID–19 national emergency as
outlined in the interim regulations.
Agencies were required to determine the
specific employees or groups of
employees whose services were
essential in response to the COVID–19
national emergency and were qualified
for coverage under the regulations and
inform designated employees in writing
of such determinations.
Termination of the National Emergency
Exigency
Under the interim regulation of
August 10, 2020, an agency head (or
designee) may not grant more than two
12-month extensions of a national
emergency exigency. (See 5 CFR
630.310(f)(2)(iv).) As noted above, the
President declared the COVID–19
outbreak a national emergency on
March 13, 2020. Assuming the exigency
has not been terminated for an
employee or a group of employees for
another reason listed in § 630.310(f)(2),
the regulation requires the agency to
establish the date for termination of the
exigency as 12 months after the
declaration of the exigency—i.e., March
13, 2021. The agency may extend this
deadline annually by an additional 12
months, but may not grant more than
two 12-month extensions
(§ 630.310(f)(2)(iv)). Therefore, with
respect to the COVID–19 national
emergency, an agency was authorized to
first extend the termination date of the
exigency until March 13, 2022, and then
to further extend the termination date
until March 13, 2023.
On February 10, 2023, President
Biden extended the COVID–19 national
emergency and announced that he
anticipates ending that emergency on
May 11, 2023. In light of these
circumstances, to avoid confusion and
3 https://www.chcoc.gov/content/interimregulations-scheduling-annual-leave-employeesperforming-services-determined-be.
E:\FR\FM\14MRR1.SGM
14MRR1
ddrumheller on DSK120RN23PROD with RULES1
15598
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Rules and Regulations
simplify the rules for restored annual
leave, this new interim rule will
automatically deem a second agency
extension of the COVID–19 national
emergency exigency that had been set to
end on March 13, 2023, to continue
through the date that the President ends
the COVID–19 national emergency,
which is expected to be May 11, 2023.
Under the August 10, 2020, interim
regulation, an agency head (or designee)
was not permitted to grant more than
two 12-month extensions to the
deadline for establishing the
termination date of the exigency of the
public business. (See 5 CFR
630.310(f)(2)(iv).) The continuation of
this second extension is outlined in new
paragraph (i) being added to § 630.310.
The August 10, 2020, interim
regulation already addressed what
would happen when a national
emergency exigency terminates for an
employee or a group of employees—all
restored leave to an employee’s credit
(from any source) is consolidated into
one account and a single time limit is
applied, using the tiered time limits in
§ 630.310(d) that vary based on the
balance of hours (§ 630.310(e)).
The August 10, 2020, interim
regulation also addressed the possibility
of not applying normal rules requiring
advance scheduling of annual leave in
§ 630.308(a) at the end of the leave year
in which the national emergency
exigency terminated based on an agency
determination that the employee was
unable to comply with the advance
scheduling requirement because of
circumstances beyond the employee’s
control (§ 630.310(g)). We are revising
paragraph (g) of § 630.310 to broaden
the authority of an agency head (or
designee) to exempt an employee or
group of employees from the advanced
scheduling requirement under
§ 630.308(a) during the leave year in
which the national emergency exigency
terminated. Under the revised paragraph
(g), the agency head (or designee) would
simply have to make a determination
that such an exemption is warranted.
This determination will no longer be
solely tied to whether the employee was
unable to comply with the advance
scheduling requirement because of
circumstances beyond the employee’s
control. We are also adding a
requirement that agencies notify in
writing any employee that is exempted
from the advance scheduling
requirement. In applying the revised
paragraph (g) to the termination of the
COVID–19 national emergency
exigency, an agency will be able to
choose to not apply the advance
scheduling requirement this leave year
VerDate Sep<11>2014
16:01 Mar 13, 2023
Jkt 259001
since the exigency is ending during
leave year 2023.
Special Treatment of an Ongoing
Exigency Related to the National
Emergency Exigency
Regardless of the anticipated
termination date of the national
emergency regarding the COVID–19
pandemic, there are also anticipated
continuing significant workload
implications for certain categories of
employees at certain agencies, such as
the Department of Veterans Affairs.
Such agencies may also be dealing with
lingering effects, such as the fact that
many employees built up large balances
of unused annual leave, which if used
quickly would result in challenges in
meeting current workload demands. In
order to allow agencies to better manage
workload demands, OPM is adding a
new regulation to cover employees
identified as performing work in
connection with an ‘‘ongoing exigency’’
related to the circumstances concerning
COVID–19 and its aftermath effects. The
new regulation would cover not only
those who were affected by the COVID–
19 national emergency but also future
national emergencies that may present
similar issues. The new paragraph (h)
being added to § 630.310 would have
the following elements:
• Paragraph (h)(1)—When a national
emergency exigency terminates under
paragraph (f)(2)(i), (ii), or (iv), an agency
head (or designee) may determine that
certain agency employees immediately
continue to be subject to an ‘‘ongoing
exigency’’ of the public business. For
example, once the COVID–19 national
emergency terminates, an agency could
determine that certain of its healthcare
workers continue to be subject to an
ongoing exigency such that they cannot
yet schedule and take annual leave. An
ongoing exigency of the public business
is an exigency that commences
immediately after the termination of a
national emergency exigency and is
directly related to the matter that was
previously determined to be a national
emergency exigency. In order for an
employee to be covered under an
ongoing exigency, the employee must
first be covered by a national emergency
exigency and then be covered by the
ongoing exigency without a break in
time. For example, if the COVID–19
national emergency ends on May 11,
2023, due to a declaration by the
President, an agency could establish
effective May 12, 2023, an agencyspecific ongoing exigency related to the
circumstances of COVID–19 and its
lingering effects for certain employees.
• Paragraph (h)(2)—During the entire
period during which an employee is
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
covered by the above-described ongoing
exigency, the employee will not be
subject to time limits on usage of any
restored leave to the employee’s credit
under 5 U.S.C. 6304(d), including a time
limit established under § 630.310(d) that
was based on the termination of the
national emergency exigency. When the
ongoing exigency ends, all restored
annual leave under 5 U.S.C. 6304(d) to
the employee’s credit must be
consolidated at that time and made
subject to a single time limit that is
determined under the rules in
§ 630.310(d), using the termination date
of the ongoing exigency in place of the
termination date of the national
emergency exigency. Thus, if an agency
establishes an ongoing exigency related
to COVID–19 that is terminated on May
11, 2024, all restored leave to the
employee’s credit at that time (including
the restored leave that was part of the
consolidated total at the end the
COVID–19 national emergency
exigency) will be consolidated into a
single restored leave account and
subject to a time limit established using
the tiered time limits in § 630.310(d)
that vary based on the balance of hours,
with the May 11, 2024, termination date
being used.
• Paragraph (h)(3)—During the entire
period during which an employee is
covered by the ongoing exigency, the
employee will not be subject to the
advance scheduling requirements in
§ 630.308(a). Also, even after the
ongoing exigency terminates, an agency
may choose to exempt an employee or
a group of employees from the advanced
scheduling requirement in § 630.308(a)
for the remainder of the leave year in
which the termination takes place.
• Paragraph (h)(4)—Coverage of an
employee or a group of employees
under an ongoing exigency may not be
continued for more than 12 months
unless the Director of OPM approves the
employing agency’s request for one or
more time-limited waivers based on a
critical agency need for the services of
the employees. The OPM Director will
prescribe the specific requirements and
procedures associated with an agency
request.
• Paragraph (h)(5)—If the agencyauthorized ongoing exigency covering
an employee lasts for 3 full calendar
years and meets the other requirements
under § 630.309 to qualify as an
extended exigency, the usage time limits
in that section would be used in place
of the time limits in § 630.310(d). We
note that the time an employee spent
covered by the preceding national
emergency exigency would not be
considered in determining if the
E:\FR\FM\14MRR1.SGM
14MRR1
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Rules and Regulations
ddrumheller on DSK120RN23PROD with RULES1
ongoing exigency is an extended
exigency.
For example, if the COVID–19
national emergency terminates on May
11, 2023, an agency could authorize an
ongoing exigency directly related to
COVID–19 beginning on May 12, 2023.
To qualify as an extended exigency
under § 630.309(b), the agency must first
receive the Director of OPM’s approval
of the required time-limited waivers of
the ongoing exigency, as required under
paragraph (h)(4), and the ongoing
exigency must last at least 3 full
calendar years and must meet the other
requirements at § 630.309(b). Thus, the
ongoing exigency must last at least until
January 1, 2027, to qualify. The time an
employee is covered under the COVID–
19 national emergency (beginning on
March 13, 2020, and ending on May 11,
2023) would not count towards
determining whether the exigency is an
extended exigency under § 630.309. If
the ongoing exigency begins on May 12,
2023, 3 full calendar years—2024, 2025,
and 2026—would need to elapse before
the agency-authorized ongoing exigency
would meet the time requirements at
§ 630.309(b)(2) to potentially qualify as
an extended exigency under § 630.309.
Administrative Procedure Act
Both the Administrative Procedure
Act (APA) and the Civil Service Reform
Act (CSRA)’s parallel rulemaking
provision allow OPM to forego standard
notice and comment procedures, and
the standard 30-day delayed effective
date, in certain circumstances. Under
the APA, notice and comment and a 30day delayed effective date is not
required ‘‘when an agency for good
cause finds . . . that notice and public
procedures [would be] impracticable,
unnecessary, or contrary to the public
interest.’’ 5 U.S.C. 553(b)(B); see id.
553(d)(d). Likewise, the CSRA provides
that notice and comment is not required
if a rule ‘‘is temporary in nature and
. . . ne[eds] to be implemented
expeditiously.’’ Id. 1103(b)(3). I find that
both standards are met here and OPM is
thus issuing this as an interim final rule.
President Biden announced in
February 2023 that he anticipates
ending the national emergency
associated with COVID–19 on May 11,
2023. At present, however, the
Director’s designation of an exigency of
the public business will expire on
March 13, 2023. OPM has been notified
that there are continuing significant
lingering workload implications of the
COVID–19 national emergency for
certain categories of employees at
certain agencies, such as the Department
of Veterans Affairs, such that these
employees continue to be unable to
VerDate Sep<11>2014
16:01 Mar 13, 2023
Jkt 259001
schedule and take their annual leave.
OPM thus needs to issue this rule before
the current March expiration to protect
such employees and ensure agencies
can operate at the capacity necessary to
continue addressing the COVID–19
national emergency. Given the
Administration’s recent announcement
of its intention to end the national
emergency, notice and comment
procedures, as well as a delayed
effective date, would be impracticable
and contrary to the public interest, as
they would curtail OPM’s ability to
extend this important protection for
federal workers who are essential to the
Government’s COVID–19 response.
Moreover, prior to the termination of
the COVID–19 national emergency,
agencies will need to implement
procedures to determine whether they
will authorize an ongoing exigency and,
if they do so, to make determinations as
to which employees will be covered by
such ongoing exigency for purposes of
utilizing the restored annual leave
authorities under this rule. Further,
once covered employees are identified,
agencies will need to communicate to
those employees that they are subject to
the authorities in this rule and that the
advance scheduling requirement does
not apply to them. Notice and comment
and a delayed effective date would thus
be impracticable and contrary to the
public interest as it would impede the
ongoing work of agencies across the
federal government to address the
impacts of COVID–19, as well as
harming employees who, absent these
regulatory changes, could permanently
lose leave that they may be unable to
take as a result of such ongoing
exigencies.
Accordingly, in order to give practical
effect to these regulations, I find that
good cause exists to waive the general
notice of proposed rulemaking pursuant
to 5 U.S.C. 553(b)(B) and the 30-day
delay in effective date pursuant to
5 U.S.C. 553(d)(3). For similar reasons,
I find that the interim final rule is
temporary in nature, and expeditious
timing is required because of the
circumstances agencies will continue to
face even after the COVID–19 national
emergency has officially ended. See 5
U.S.C. 1103(b)(3). OPM will promulgate
a final rule as soon as practical after
receiving public comments on this
interim final rule.
Executive Order 13563 and Executive
Order 12866
The Office of Management and Budget
has reviewed this rule in accordance
with E.O. 13563 and 12866.
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
15599
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 apply only to Federal
agencies and employees.
Paperwork Reduction Act
Requirements
This rule does not impose any new
reporting or record-keeping
requirements subject to the Paperwork
Reduction Act.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, OPM amends 5 CFR part
630 as follows:
PART 630—ABSENCE AND LEAVE
1. The authority citation for part 630
continues to read as follows:
■
5 U.S.C. chapter 63 as follows: Subparts A
through E issued under 5 U.S.C. 6133(a) (read
with 5 U.S.C. 6129), 6303(e) and (f),
6304(d)(2), 6306(b), 6308(a), and 6311;
subpart F issued under 5 U.S.C. 6305(a) and
6311 and E.O. 11228, 30 FR 7739, 3 CFR,
1974 Comp., p. 163; subpart G issued under
5 U.S.C. 6305(c) and 6311; subpart H issued
under 5 U.S.C. 6133(a) (read with 5 U.S.C.
6129) and 6326(b); subpart I issued under 5
U.S.C. 6332, 6334(c), 6336(a)(1) and (d), and
6340; subpart J issued under 5 U.S.C. 6340,
6363, 6365(d), 6367(e), and 6373(a); subpart
K issued under 5 U.S.C. 6391(g); subpart L
issued under 5 U.S.C. 6383(f) and 6387;
subpart M issued under sec. 2(d), Pub. L.
114–75, 129 Stat. 641 (5 U.S.C. 6329 note);
subpart P issued under 5 U.S.C. 6329c(d);
and subpart Q issued under 5 U.S.C. 6387.
2. Amend § 630.310 by revising
paragraph (g) and adding new
paragraphs (h) and (i) to read as follows:
■
§ 630.310 Scheduling of annual leave by
employees whose work is essential to
respond to certain national emergencies.
*
*
*
*
*
(g) When the agency head (or
designee) fixes a termination date of the
exigency of the public business under
paragraph (f)(2) of this section, each
affected employee must make a
reasonable effort to comply with the
scheduling requirement in § 630.308(a).
The head of the agency (or designee), in
his or her sole and exclusive discretion,
may exempt such an employee or group
of employees from the advanced
scheduling requirement in § 630.308(a)
for the remainder of the leave year if
coverage under paragraphs (a) and (b) of
this section terminates during that leave
year and if the agency head (or
E:\FR\FM\14MRR1.SGM
14MRR1
ddrumheller on DSK120RN23PROD with RULES1
15600
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Rules and Regulations
designee) determines such exemption is
warranted. The agency head (or
designee) must notify any employee
exempted from the scheduling
requirement in writing.
(h)(1) Upon termination of an
exigency established under paragraphs
(a) and (b) of this section based on the
ending of the exigency under
paragraphs (f)(2)(i), (ii), or (iv) of this
section, an agency head (or designee)
may determine that certain agency
employees continue to be subject to an
ongoing exigency of the public business.
An ongoing exigency of the public
business is an exigency that commences
immediately after the termination of a
national emergency exigency and is
directly related to the matter that was
previously determined to be a national
emergency exigency. In order for an
employee to be covered under an
ongoing exigency, the employee must
first be covered by a national emergency
exigency and then be covered by the
ongoing exigency without a break in
time.
(2) For the entire period during which
an employee is covered by such an
ongoing exigency, the employee will not
be subject to time limits on usage of any
restored leave to the employee’s credit
under 5 U.S.C. 6304(d), including a time
limit established under paragraph (d) of
this section that is determined based on
the termination of the national
emergency exigency. When the ongoing
exigency ends, all restored annual leave
under 5 U.S.C. 6304(d) to the
employee’s credit must be consolidated
at that time and made subject to a single
time limit that is determined under the
rules in paragraph (d) of this section,
using the termination date of the
ongoing exigency in place of the
termination date of the national
emergency exigency.
(3) For the entire period during which
an employee is covered by such an
ongoing exigency, the employee will not
be subject to the advance scheduling
requirements in § 630.308(a). An agency
head (or designee), in his or her sole and
exclusive discretion, may exempt an
employee or group of employees from
the advanced scheduling requirement in
§ 630.308(a) for the remainder of the
leave year if coverage under the ongoing
exigency terminates during that leave
year and if the agency head (or
designee) determines such exemption is
warranted. The agency head (or
designee) must notify any employee
exempted from the scheduling
requirement in writing.
(4) Employee coverage under such an
ongoing exigency may not be continued
for more than 12 months unless the
agency head (or designee) requests, and
VerDate Sep<11>2014
16:01 Mar 13, 2023
Jkt 259001
the Director of OPM approves, one or
more time-limited waivers based on a
critical agency need for the services of
the employee or group of employees.
(5) Notwithstanding paragraph (h)(2)
of this section, if an ongoing exigency
(which excludes time covered by the
preceding national emergency exigency)
also qualifies as an extended exigency
under § 630.309, the time limit for use
of the restored leave under paragraph (a)
of that section must be applied to the
consolidated restored leave.
(i) Notwithstanding paragraph
(f)(2)(iv), an agency extension granted
through March 13, 2023, under that
paragraph for an exigency established
under this section based on the COVID–
19 national emergency declared on
March 13, 2020, must be deemed to
continue through the date that the
President ends that national emergency.
[FR Doc. 2023–05204 Filed 3–10–23; 11:15 am]
BILLING CODE 6325–39–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2022–1645; Project
Identifier MCAI–2022–00734–T; Amendment
39–22371; AD 2023–05–02]
RIN 2120–AA64
Airworthiness Directives; Airbus SAS
Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
The FAA is superseding
Airworthiness Directive (AD) 2020–21–
10, which applied to certain Airbus SAS
Model A318, A320, and A321 series
airplanes; and Model A319–111, –112,
–113, –114, –115, –131, –132, –133,
–151N, and –153N airplanes; and AD
2022–07–08, which applied to all
Airbus SAS Model A318, A319, A320
and A321 series airplanes. AD 2020–21–
10 and AD 2022–07–08 required
revising the existing maintenance or
inspection program, as applicable, to
incorporate new or more restrictive
airworthiness limitations. This AD was
prompted by a determination that new
or more restrictive airworthiness
limitations are necessary. This AD
continues to require the actions in AD
2020–21–10 and AD 2022–07–08 and
requires revising the existing
maintenance or inspection program, as
applicable, to incorporate additional
new or more restrictive airworthiness
limitations, as specified in a European
SUMMARY:
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
Union Aviation Safety Agency (EASA)
AD, which is incorporated by reference.
The FAA is issuing this AD to address
the unsafe condition on these products.
DATES: This AD is effective April 18,
2023.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in this AD
as of April 18, 2023.
The Director of the Federal Register
approved the incorporation by reference
of a certain other publication listed in
this AD as of May 19, 2022 (87 FR
22117, April 14, 2022).
The Director of the Federal Register
approved the incorporation by reference
of a certain other publication listed in
this AD as of November 19, 2020 (85 FR
65190, October 15, 2020).
ADDRESSES:
AD Docket: You may examine the AD
docket at regulations.gov under Docket
No. FAA–2022–1645; or in person at
Docket Operations between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this final rule, the mandatory
continuing airworthiness information
(MCAI), any comments received, and
other information. The address for
Docket Operations is U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
Material Incorporated by Reference:
• For EASA material incorporated by
reference in this AD, contact EASA,
Konrad-Adenauer-Ufer 3, 50668
Cologne, Germany; telephone +49 221
8999 000; email ADs@easa.europa.eu;
website easa.europa.eu. You may find
this material on the EASA website at
ad.easa.europa.eu.
• You may view this service
information at the FAA, Airworthiness
Products Section, Operational Safety
Branch, 2200 South 216th St., Des
Moines, WA. For information on the
availability of this material at the FAA,
call 206–231–3195. It is also available in
the AD docket at regulations.gov under
Docket No. FAA–2022–1645.
FOR FURTHER INFORMATION CONTACT: Dan
Rodina, Aerospace Engineer, Large
Aircraft Section, FAA, International
Validation Branch, 2200 South 216th
St., Des Moines, WA 98198; telephone
206–231–3225; email dan.rodina@
faa.gov.
SUPPLEMENTARY INFORMATION:
Background
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 to supersede AD 2020–21–10,
Amendment 39–21283 (85 FR 65190,
E:\FR\FM\14MRR1.SGM
14MRR1
Agencies
[Federal Register Volume 88, Number 49 (Tuesday, March 14, 2023)]
[Rules and Regulations]
[Pages 15597-15600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05204]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 88, No. 49 / Tuesday, March 14, 2023 / Rules
and Regulations
[[Page 15597]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AO04
Scheduling of Annual Leave by Employees Determined Necessary To
Respond to Certain National Emergencies
AGENCY: Office of Personnel Management.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is revising the
interim regulation regarding the restoration of annual leave for
employees who are essential to respond to certain national emergencies,
such as the National Emergency Concerning the Novel Coronavirus Disease
(COVID-19). This rule extends the latest possible termination date for
the exigency established in connection with the COVID-19 national
emergency, which would be March 13, 2023, under the current interim
regulations. Under this new rule, that date would be the date the
national emergency is ended by the President. This rule also provides
for special handling of restored annual leave resulting from an agency-
specific ongoing exigency that is directly related to a matter that was
determined to be a national emergency exigency and that immediately
follows that national emergency exigency. Finally, this rule expands an
agency's authority to exempt employees from the advance annual leave
scheduling requirement in the leave year during which a national
emergency exigency is terminated.
DATES: The interim regulations are effective on March 13, 2023.
Comments must be received on or before on May 12, 2023.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) and title, by the following method:
Federal Rulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
All submissions received must include the agency name and docket
number or RIN for this document. The general policy for comments and
other submissions from members of the public is to make these
submissions available for public viewing at https://www.regulations.gov
as they are received without change, including any personal identifiers
or contact information.
OPM will address previously submitted comments on the August 10,
2020, interim regulation and any comments submitted regarding this new
interim regulation when it issues final regulations.
FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202)
606-2858 or by email at [email protected].
SUPPLEMENTARY INFORMATION: On August 10, 2020, OPM published an interim
final rule (85 FR 48096 \1\) to replace the reserved 5 CFR 630.310 with
a new 5 CFR 630.310 to (1) allow agencies to continue to meet their
vital missions while streamlining the process for restoration of annual
leave for employees whose services are determined by the agency head
(or designee) to be essential for the response to certain national
emergencies and (2) permit the Director of OPM to deem a specific
national emergency, as declared by the President under the National
Emergencies Act, to be an exigency of the public business for the
purpose of restoring annual leave under this authority. OPM will
address previously submitted comments on the August 10, 2020, interim
regulation and any comments submitted regarding this new interim
regulation when it issues final regulations.
---------------------------------------------------------------------------
\1\ https://www.federalregister.gov/documents/2020/08/10/2020-16823/scheduling-of-annual-leave-by-employees-determined-necessary-to-respond-to-certain-national.
---------------------------------------------------------------------------
On March 13, 2020, the President issued Proclamation 9994 declaring
a ``National Emergency Concerning the Novel Coronavirus Disease (COVID-
19) Outbreak'' (85 FR 15337 \2\). On August 27, 2020, the Director of
OPM issued CPM 2020-11 \3\ announcing the publication of an interim
final rule on the scheduling of annual leave by employees whose work is
essential to respond to certain national emergencies. The memo also
announced the Director's determination that the COVID-19 national
emergency constituted an exigency of the public business for the
purpose of restoring forfeited annual leave and authorized agencies to
streamline the process for the restoration of annual leave for the
COVID-19 national emergency as outlined in the interim regulations.
Agencies were required to determine the specific employees or groups of
employees whose services were essential in response to the COVID-19
national emergency and were qualified for coverage under the
regulations and inform designated employees in writing of such
determinations.
---------------------------------------------------------------------------
\2\ https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf.
\3\ https://www.chcoc.gov/content/interim-regulations-scheduling-annual-leave-employees-performing-services-determined-be.
---------------------------------------------------------------------------
Termination of the National Emergency Exigency
Under the interim regulation of August 10, 2020, an agency head (or
designee) may not grant more than two 12-month extensions of a national
emergency exigency. (See 5 CFR 630.310(f)(2)(iv).) As noted above, the
President declared the COVID-19 outbreak a national emergency on March
13, 2020. Assuming the exigency has not been terminated for an employee
or a group of employees for another reason listed in Sec.
630.310(f)(2), the regulation requires the agency to establish the date
for termination of the exigency as 12 months after the declaration of
the exigency--i.e., March 13, 2021. The agency may extend this deadline
annually by an additional 12 months, but may not grant more than two
12-month extensions (Sec. 630.310(f)(2)(iv)). Therefore, with respect
to the COVID-19 national emergency, an agency was authorized to first
extend the termination date of the exigency until March 13, 2022, and
then to further extend the termination date until March 13, 2023.
On February 10, 2023, President Biden extended the COVID-19
national emergency and announced that he anticipates ending that
emergency on May 11, 2023. In light of these circumstances, to avoid
confusion and
[[Page 15598]]
simplify the rules for restored annual leave, this new interim rule
will automatically deem a second agency extension of the COVID-19
national emergency exigency that had been set to end on March 13, 2023,
to continue through the date that the President ends the COVID-19
national emergency, which is expected to be May 11, 2023. Under the
August 10, 2020, interim regulation, an agency head (or designee) was
not permitted to grant more than two 12-month extensions to the
deadline for establishing the termination date of the exigency of the
public business. (See 5 CFR 630.310(f)(2)(iv).) The continuation of
this second extension is outlined in new paragraph (i) being added to
Sec. 630.310.
The August 10, 2020, interim regulation already addressed what
would happen when a national emergency exigency terminates for an
employee or a group of employees--all restored leave to an employee's
credit (from any source) is consolidated into one account and a single
time limit is applied, using the tiered time limits in Sec. 630.310(d)
that vary based on the balance of hours (Sec. 630.310(e)).
The August 10, 2020, interim regulation also addressed the
possibility of not applying normal rules requiring advance scheduling
of annual leave in Sec. 630.308(a) at the end of the leave year in
which the national emergency exigency terminated based on an agency
determination that the employee was unable to comply with the advance
scheduling requirement because of circumstances beyond the employee's
control (Sec. 630.310(g)). We are revising paragraph (g) of Sec.
630.310 to broaden the authority of an agency head (or designee) to
exempt an employee or group of employees from the advanced scheduling
requirement under Sec. 630.308(a) during the leave year in which the
national emergency exigency terminated. Under the revised paragraph
(g), the agency head (or designee) would simply have to make a
determination that such an exemption is warranted. This determination
will no longer be solely tied to whether the employee was unable to
comply with the advance scheduling requirement because of circumstances
beyond the employee's control. We are also adding a requirement that
agencies notify in writing any employee that is exempted from the
advance scheduling requirement. In applying the revised paragraph (g)
to the termination of the COVID-19 national emergency exigency, an
agency will be able to choose to not apply the advance scheduling
requirement this leave year since the exigency is ending during leave
year 2023.
Special Treatment of an Ongoing Exigency Related to the National
Emergency Exigency
Regardless of the anticipated termination date of the national
emergency regarding the COVID-19 pandemic, there are also anticipated
continuing significant workload implications for certain categories of
employees at certain agencies, such as the Department of Veterans
Affairs. Such agencies may also be dealing with lingering effects, such
as the fact that many employees built up large balances of unused
annual leave, which if used quickly would result in challenges in
meeting current workload demands. In order to allow agencies to better
manage workload demands, OPM is adding a new regulation to cover
employees identified as performing work in connection with an ``ongoing
exigency'' related to the circumstances concerning COVID-19 and its
aftermath effects. The new regulation would cover not only those who
were affected by the COVID-19 national emergency but also future
national emergencies that may present similar issues. The new paragraph
(h) being added to Sec. 630.310 would have the following elements:
Paragraph (h)(1)--When a national emergency exigency
terminates under paragraph (f)(2)(i), (ii), or (iv), an agency head (or
designee) may determine that certain agency employees immediately
continue to be subject to an ``ongoing exigency'' of the public
business. For example, once the COVID-19 national emergency terminates,
an agency could determine that certain of its healthcare workers
continue to be subject to an ongoing exigency such that they cannot yet
schedule and take annual leave. An ongoing exigency of the public
business is an exigency that commences immediately after the
termination of a national emergency exigency and is directly related to
the matter that was previously determined to be a national emergency
exigency. In order for an employee to be covered under an ongoing
exigency, the employee must first be covered by a national emergency
exigency and then be covered by the ongoing exigency without a break in
time. For example, if the COVID-19 national emergency ends on May 11,
2023, due to a declaration by the President, an agency could establish
effective May 12, 2023, an agency-specific ongoing exigency related to
the circumstances of COVID-19 and its lingering effects for certain
employees.
Paragraph (h)(2)--During the entire period during which an
employee is covered by the above-described ongoing exigency, the
employee will not be subject to time limits on usage of any restored
leave to the employee's credit under 5 U.S.C. 6304(d), including a time
limit established under Sec. 630.310(d) that was based on the
termination of the national emergency exigency. When the ongoing
exigency ends, all restored annual leave under 5 U.S.C. 6304(d) to the
employee's credit must be consolidated at that time and made subject to
a single time limit that is determined under the rules in Sec.
630.310(d), using the termination date of the ongoing exigency in place
of the termination date of the national emergency exigency. Thus, if an
agency establishes an ongoing exigency related to COVID-19 that is
terminated on May 11, 2024, all restored leave to the employee's credit
at that time (including the restored leave that was part of the
consolidated total at the end the COVID-19 national emergency exigency)
will be consolidated into a single restored leave account and subject
to a time limit established using the tiered time limits in Sec.
630.310(d) that vary based on the balance of hours, with the May 11,
2024, termination date being used.
Paragraph (h)(3)--During the entire period during which an
employee is covered by the ongoing exigency, the employee will not be
subject to the advance scheduling requirements in Sec. 630.308(a).
Also, even after the ongoing exigency terminates, an agency may choose
to exempt an employee or a group of employees from the advanced
scheduling requirement in Sec. 630.308(a) for the remainder of the
leave year in which the termination takes place.
Paragraph (h)(4)--Coverage of an employee or a group of
employees under an ongoing exigency may not be continued for more than
12 months unless the Director of OPM approves the employing agency's
request for one or more time-limited waivers based on a critical agency
need for the services of the employees. The OPM Director will prescribe
the specific requirements and procedures associated with an agency
request.
Paragraph (h)(5)--If the agency-authorized ongoing
exigency covering an employee lasts for 3 full calendar years and meets
the other requirements under Sec. 630.309 to qualify as an extended
exigency, the usage time limits in that section would be used in place
of the time limits in Sec. 630.310(d). We note that the time an
employee spent covered by the preceding national emergency exigency
would not be considered in determining if the
[[Page 15599]]
ongoing exigency is an extended exigency.
For example, if the COVID-19 national emergency terminates on May
11, 2023, an agency could authorize an ongoing exigency directly
related to COVID-19 beginning on May 12, 2023. To qualify as an
extended exigency under Sec. 630.309(b), the agency must first receive
the Director of OPM's approval of the required time-limited waivers of
the ongoing exigency, as required under paragraph (h)(4), and the
ongoing exigency must last at least 3 full calendar years and must meet
the other requirements at Sec. 630.309(b). Thus, the ongoing exigency
must last at least until January 1, 2027, to qualify. The time an
employee is covered under the COVID-19 national emergency (beginning on
March 13, 2020, and ending on May 11, 2023) would not count towards
determining whether the exigency is an extended exigency under Sec.
630.309. If the ongoing exigency begins on May 12, 2023, 3 full
calendar years--2024, 2025, and 2026--would need to elapse before the
agency-authorized ongoing exigency would meet the time requirements at
Sec. 630.309(b)(2) to potentially qualify as an extended exigency
under Sec. 630.309.
Administrative Procedure Act
Both the Administrative Procedure Act (APA) and the Civil Service
Reform Act (CSRA)'s parallel rulemaking provision allow OPM to forego
standard notice and comment procedures, and the standard 30-day delayed
effective date, in certain circumstances. Under the APA, notice and
comment and a 30-day delayed effective date is not required ``when an
agency for good cause finds . . . that notice and public procedures
[would be] impracticable, unnecessary, or contrary to the public
interest.'' 5 U.S.C. 553(b)(B); see id. 553(d)(d). Likewise, the CSRA
provides that notice and comment is not required if a rule ``is
temporary in nature and . . . ne[eds] to be implemented
expeditiously.'' Id. 1103(b)(3). I find that both standards are met
here and OPM is thus issuing this as an interim final rule.
President Biden announced in February 2023 that he anticipates
ending the national emergency associated with COVID-19 on May 11, 2023.
At present, however, the Director's designation of an exigency of the
public business will expire on March 13, 2023. OPM has been notified
that there are continuing significant lingering workload implications
of the COVID-19 national emergency for certain categories of employees
at certain agencies, such as the Department of Veterans Affairs, such
that these employees continue to be unable to schedule and take their
annual leave. OPM thus needs to issue this rule before the current
March expiration to protect such employees and ensure agencies can
operate at the capacity necessary to continue addressing the COVID-19
national emergency. Given the Administration's recent announcement of
its intention to end the national emergency, notice and comment
procedures, as well as a delayed effective date, would be impracticable
and contrary to the public interest, as they would curtail OPM's
ability to extend this important protection for federal workers who are
essential to the Government's COVID-19 response.
Moreover, prior to the termination of the COVID-19 national
emergency, agencies will need to implement procedures to determine
whether they will authorize an ongoing exigency and, if they do so, to
make determinations as to which employees will be covered by such
ongoing exigency for purposes of utilizing the restored annual leave
authorities under this rule. Further, once covered employees are
identified, agencies will need to communicate to those employees that
they are subject to the authorities in this rule and that the advance
scheduling requirement does not apply to them. Notice and comment and a
delayed effective date would thus be impracticable and contrary to the
public interest as it would impede the ongoing work of agencies across
the federal government to address the impacts of COVID-19, as well as
harming employees who, absent these regulatory changes, could
permanently lose leave that they may be unable to take as a result of
such ongoing exigencies.
Accordingly, in order to give practical effect to these
regulations, I find that good cause exists to waive the general notice
of proposed rulemaking pursuant to 5 U.S.C. 553(b)(B) and the 30-day
delay in effective date pursuant to 5 U.S.C. 553(d)(3). For similar
reasons, I find that the interim final rule is temporary in nature, and
expeditious timing is required because of the circumstances agencies
will continue to face even after the COVID-19 national emergency has
officially ended. See 5 U.S.C. 1103(b)(3). OPM will promulgate a final
rule as soon as practical after receiving public comments on this
interim final rule.
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and 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 apply
only to Federal agencies and employees.
Paperwork Reduction Act Requirements
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, OPM amends 5 CFR part 630 as follows:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 continues to read as follows:
5 U.S.C. chapter 63 as follows: Subparts A through E issued
under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and (f),
6304(d)(2), 6306(b), 6308(a), and 6311; subpart F issued under 5
U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974
Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311;
subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129)
and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c),
6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340,
6363, 6365(d), 6367(e), and 6373(a); subpart K issued under 5 U.S.C.
6391(g); subpart L issued under 5 U.S.C. 6383(f) and 6387; subpart M
issued under sec. 2(d), Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329
note); subpart P issued under 5 U.S.C. 6329c(d); and subpart Q
issued under 5 U.S.C. 6387.
0
2. Amend Sec. 630.310 by revising paragraph (g) and adding new
paragraphs (h) and (i) to read as follows:
Sec. 630.310 Scheduling of annual leave by employees whose work is
essential to respond to certain national emergencies.
* * * * *
(g) When the agency head (or designee) fixes a termination date of
the exigency of the public business under paragraph (f)(2) of this
section, each affected employee must make a reasonable effort to comply
with the scheduling requirement in Sec. 630.308(a). The head of the
agency (or designee), in his or her sole and exclusive discretion, may
exempt such an employee or group of employees from the advanced
scheduling requirement in Sec. 630.308(a) for the remainder of the
leave year if coverage under paragraphs (a) and (b) of this section
terminates during that leave year and if the agency head (or
[[Page 15600]]
designee) determines such exemption is warranted. The agency head (or
designee) must notify any employee exempted from the scheduling
requirement in writing.
(h)(1) Upon termination of an exigency established under paragraphs
(a) and (b) of this section based on the ending of the exigency under
paragraphs (f)(2)(i), (ii), or (iv) of this section, an agency head (or
designee) may determine that certain agency employees continue to be
subject to an ongoing exigency of the public business. An ongoing
exigency of the public business is an exigency that commences
immediately after the termination of a national emergency exigency and
is directly related to the matter that was previously determined to be
a national emergency exigency. In order for an employee to be covered
under an ongoing exigency, the employee must first be covered by a
national emergency exigency and then be covered by the ongoing exigency
without a break in time.
(2) For the entire period during which an employee is covered by
such an ongoing exigency, the employee will not be subject to time
limits on usage of any restored leave to the employee's credit under 5
U.S.C. 6304(d), including a time limit established under paragraph (d)
of this section that is determined based on the termination of the
national emergency exigency. When the ongoing exigency ends, all
restored annual leave under 5 U.S.C. 6304(d) to the employee's credit
must be consolidated at that time and made subject to a single time
limit that is determined under the rules in paragraph (d) of this
section, using the termination date of the ongoing exigency in place of
the termination date of the national emergency exigency.
(3) For the entire period during which an employee is covered by
such an ongoing exigency, the employee will not be subject to the
advance scheduling requirements in Sec. 630.308(a). An agency head (or
designee), in his or her sole and exclusive discretion, may exempt an
employee or group of employees from the advanced scheduling requirement
in Sec. 630.308(a) for the remainder of the leave year if coverage
under the ongoing exigency terminates during that leave year and if the
agency head (or designee) determines such exemption is warranted. The
agency head (or designee) must notify any employee exempted from the
scheduling requirement in writing.
(4) Employee coverage under such an ongoing exigency may not be
continued for more than 12 months unless the agency head (or designee)
requests, and the Director of OPM approves, one or more time-limited
waivers based on a critical agency need for the services of the
employee or group of employees.
(5) Notwithstanding paragraph (h)(2) of this section, if an ongoing
exigency (which excludes time covered by the preceding national
emergency exigency) also qualifies as an extended exigency under Sec.
630.309, the time limit for use of the restored leave under paragraph
(a) of that section must be applied to the consolidated restored leave.
(i) Notwithstanding paragraph (f)(2)(iv), an agency extension
granted through March 13, 2023, under that paragraph for an exigency
established under this section based on the COVID-19 national emergency
declared on March 13, 2020, must be deemed to continue through the date
that the President ends that national emergency.
[FR Doc. 2023-05204 Filed 3-10-23; 11:15 am]
BILLING CODE 6325-39-P