[Federal Register: October 19, 2006 (Volume 71, Number 202)]
[Rules and Regulations]
[Page 61633-61634]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc06-1]
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Rules and Regulations
Federal Register
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[[Page 61633]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AK72
Absence and Leave; SES Annual Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations to provide a higher annual leave accrual rate of 1 day (8
hours) per biweekly pay period for members of the Senior Executive
Service, employees in senior-level and scientific or professional
positions, and other employees covered by equivalent pay systems.
DATES: The regulations are effective November 20, 2006.
FOR FURTHER INFORMATION CONTACT: Kevin Kitchelt by telephone at (202)
606-2858, by fax at (202) 606-0824, or by e-mail at
pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: On March 21, 2005, the Office of Personnel
Management (OPM) published interim regulations (70 FR 13343) to
implement Section 202(b) of the Federal Workforce Flexibility Act of
2004 (Pub. L. 108-411, October 30, 2004) hereafter referred to as ``the
Act.'' Section 202(b) added paragraph (f) to 5 U.S.C. 6303 to provide
that members of the Senior Executive Service (SES), employees in
senior-level (SL) and scientific or professional (ST) positions, and
employees covered by a pay system equivalent to the SES pay system or
SL/ST pay system, as determined by OPM, will accrue annual leave at the
rate of 1 day (8 hours) for each full biweekly pay period, without
regard to their length of service in the Federal Government.
The 60-day comment period for the interim regulations ended on May
20, 2005. During the comment period, OPM received comments from 2
agencies, 3 professional organizations, 1 union, and 14 individuals. In
this final rule document, we address the comments received on the
interim regulations.
The majority of individuals commented that the interim regulations
were unfair and created disparate treatment of Federal employees. The
commenters believe the annual leave accrual rate should be based solely
on an employee's length of creditable service and not on the employee's
grade or pay level. OPM's regulations are consistent with the statutory
language in 5 U.S.C. 6303(f), which provides entitlement to a higher
annual leave accrual rate to SES members, employees in SL and ST
positions, and employees in positions covered by a pay system,
determined by OPM, to be equivalent to the SES or SL/ST pay systems.
This annual leave benefit is one of two leave enhancements provided in
the Act. Section 202(a) of the Act added paragraph (e) to 5 U.S.C. 6303
to provide OPM with the authority to prescribe regulations to permit an
agency to provide to a newly appointed or reappointed employee service
credit for prior work experience that otherwise would not be creditable
for the purpose of determining the employee's annual leave accrual
rate. An agency may provide service credit to an employee if his or her
work experience was obtained in a position having duties that directly
relate to the duties of the position to which the employee is being
appointed and if it is determined that the use of this authority is
necessary to recruit an individual with the skills and experience
necessary to achieve an important agency mission or performance goal.
(See OPM's interim regulations issued on April 29, 2005, at 70 FR
22245.) Agencies have discretionary authority to use this enhanced
authority, regardless of an employee's grade
Several commenters disagreed with the criteria in Sec.
630.301(b)(3) of the interim regulations that require an SES or SL/ST
``equivalent position'' to be subject to a performance appraisal
system. The commenters believe there is no basis in law to require an
SES or SL/ST ``equivalent position'' to be covered by a performance
appraisal system, and this requirement is not consistent with Congress'
intent in providing this leave benefit. Further, the commenters believe
the requirement that an equivalent position must be subject to a
performance appraisal system will have an adverse impact on an agency's
ability to recruit exceptionally qualified and experienced individuals.
The law gives OPM sole authority to determine whether a pay system
is equivalent to the SES pay system or SL/ST pay system for the purpose
of authorizing the 8-hour annual leave accrual rate for categories of
employees in positions covered by the pay system. OPM's regulations in
Sec. 630.301(b) allow the head of an agency to request that OPM
authorize the 8-hour annual leave accrual rate for additional
categories of employees in positions in pay systems, determined by OPM,
to be equivalent to the SES pay system or SL/ST pay system because the
covered pay systems meet three conditions--
1. Pay rates are established under an administratively determined
(AD) pay system that has a single rate of pay (excluding locality pay)
that is higher than the rate for GS-15, step 10 (excluding locality
pay) or has a range of rates where the minimum rate (excluding locality
pay) of the rate range is at least equal to the minimum rate for the
SES and SL/ST pay systems (120 percent of the rate for GS-15, step 1,
excluding locality pay) and the maximum rate (excluding locality pay)
of the rate range is at least equal to the rate for level IV of the
Executive Schedule;
2. Covered positions are equivalent to a ``Senior Executive Service
position'' as defined in 5 U.S.C. 3132(a)(2), a senior-level position
(i.e., a non-executive position that is classified above GS-15, such as
a high-level special assistant or a senior attorney in a highly-
specialized field who is not a manager, supervisor, or policy advisor),
or a scientific or professional position as described in 5 U.S.C. 3104;
and
3. Covered positions are subject to a performance appraisal system
established under 5 U.S.C. chapter 43 and 5 CFR part 430, subparts B
and C, or other applicable legal authority, for planning, monitoring,
developing, evaluating, and rewarding employee performance.
The SES pay system assures a clear and direct linkage between
performance
[[Page 61634]]
and pay. Paysetting for a member of the SES is based on the
individual's performance, contribution to the agency's performance, or
both, as determined under a rigorous performance management system.
Since the SES and SL/ST pay systems are both subject to a performance
appraisal system established under 5 U.S.C. chapter 43 and 5 CFR part
430, subparts B and C, it is essential that, for any position to be
deemed equivalent, it must be subject to an equivalent performance
appose of allowing a higher annual leave accrual rate is to provide
agencies with an additional tool to recruit well-qualified, experienced
individuals for senior positions. We believe this additional leave
benefit will assist agencies in recruiting mid-career individuals who
may be hesitant to enter Federal service if they have to surrender a
considerable amount of personal or vacation time without an opportunity
to accrue additional paid time off in a timely manner.
Finally, we have amended Sec. 630.301(b) to remove the word
``Executive'' to allow the head of any agency to request that OPM
authorize the 8-hour annual leave accrual rate for additional
categories of employees. We are revising this section to be consistent
with the legislation.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR 630
Government employees.
Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly, the interim rule amending 5 CFR part 630, which was
published at 70 FR 13343 on March 21, 2005, is adopted as final with
the following changes:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 continues to read as follows:
Authority: 5 U.S.C. 6311; 630.205 also issued under Pub. L. 108-
411, 118 Stat 2312; 630.301 also issued under Pub. L. 103-356, 108
Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; 630.303 also issued
under 5 U.S.C. 6133(a); 630.306 and 630.308 also issued under 5
U.S.C. 6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-
337, 108 Stat. 2663; subpart D also issued under Pub. L. 103-329,
108 Stat. 2423; 630.501 and subpart F also issued under E.O. 11228,
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also
issued under Pub. L. 105-18, 111 Stat. 158; subpart L also issued
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M
also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.
Subpart C--Annual Leave
0
2. In Sec. 630.301, paragraph (b) introductory text, is revised to
read as follows:
Sec. 630.301 Annual leave accrual and accumulation--Senior Executive
Service.
* * * * *
(b) The head of an agency may request that OPM authorize an annual
leave accrual rate of 1 full day (8 hours) for each biweekly pay period
for additional categories of employees who are covered by 5 U.S.C. 6301
and who hold positions that are determined by OPM to be equivalent to
positions subject to the pay systems under 5 U.S.C. 5383 or 5376. Such
a request must include documentation that the affected pay system is
equivalent to the SES or SL/ST pay system because it meets all three of
the following conditions:
* * * * *
[FR Doc. E6-17389 Filed 10-18-06; 8:45 am]
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