NDAA Carryover Leave Provision Update/Conclusion

Clint Bain and Neil Burnette
January 14, 2021

The 2021 higher annual leave carryover limit established under section 1111 of the National Defense Authorization Act for Fiscal Year 2021 (H.R. 6395), was enacted on January 1, 2021.  Since the enactment, OPM has issued their determination of how this new rule will affect Federal employees. 

As you may recall, NASCOE consulted with legal counsel, our legislative consultant and contacted various Executive and Legislative branch officials regarding the legislation and the potential adverse effect it could have on county office employees.  We believed then and it is now confirmed that this provision will not negatively impact county office employees.  FSA employees who were deemed essential due to an exigency of public business will be able to have all their excess leave restored as previously granted by the FSA administrator. 

According to OPM, Section 1111 of the NDAA does not eliminate the annual leave restoration rules in 5 U.S.C. 6304(d), which are applied after annual leave hours in excess of the normally applicable annual leave carryover limit are forfeited. The following table issued by OPM, shows key differences between excess leave under section 1111 and restored leave under 5 U.S.C. 6304(d):

Section 1111 (NDAA)Section 6304 (d)
Approach to allowing carryover above normal limitsHigher carryover limit prevents forfeiture (conditions for applying higher limit are determined by OPM Director)Leave in excess of the carryover limit is forfeited and then restored if certain statutory conditions are met
Time limits on usageMust be used during leave year 2021Varies, but at least 2 years. (See 5 CFR 630.306- 630.310.)
Inclusion in lump-sum annual leave payment upon separationMay not be included.Is included.
Limitation on amountLeave carryover ceiling is 125% of normal ceiling (for most employees, 300 hours instead of 240 hours)No limitation (but cannot be more than a given employee can accrue in a full leave year)

In conclusion, county office employees who were previously concerned about having their leave restored or receiving lump sum payments for restored leave at retirement can now be assured that OPM has made a clear interpretation of Section 1111 of the NDAA bill. Restoration of forfeited carryover leave should be processed as scheduled with no adverse effects to county office employees.

NDAA Carryover Leave Provision Update

Clint Bain and Neil Burnette
December 30, 2020

As part of the National Defense Authorization Act (NDAA), Congress passed legislation that will allow Federal Employees to carryover an additional 25% of their annual leave into year 2021.  President Trump recently vetoed the Legislation; however, the House and Senate are expected to override the veto making this year’s NDAA bill public law.

NASCOE is hearing that some State Offices are indicating the NDAA may have an unintended negative effect on employees who have accumulated “restored” annual leave, particularly those who plan to retire in 2021.  

NASCOE has consulted legal counsel and contacted various Executive and Legislative branch officials about the legislation’s effect on FSA employees.  We believe Congress did not intend that this provision would negatively impact our County Office employees carrying over “restored leave” and should not lead our members toward early retirement.  We believe the intent of the Legislative branch is to allow “non-essential” employees, who did not have restored leave, the ability to carryover an additional 25 percent of annual leave for use during 2021. 

Even though we believe the language will not affect county office employees with restored leave who were deemed essential, the Office of Personnel Management (OPM) will have the sole responsibility of interpreting the intent of this new law and how it is applied to Federal employees.  At this point we do not anticipate any scenario where OPM will nullify any earned leave that was “restored” due to an exigency of public business.

We will update membership with any subsequent Department or OPM guidance.

Annual Appropriations and COVID Relief Signed by the President

Clint Bain and Neil Burnette
December 28, 2020

Last night, President Trump signed the annual appropriations and COVID relief stimulus package.  The signing of this measure provides a full year spending allocation for government agencies and averts any further shutdown concerns. We highlighted key aspects of the USDA budget in our December 22nd News Flash.

The COVID Relief Bill also makes available significant additional funding for farmers as referenced in our December 21st News Flash.  Farm Bureau has recently released their assessment of forthcoming programs.  If you wish to read their analysis please click here.  Note:  while some groups are offering their interpretation of provisions, FSA will release final rules and regulations for the programs in the near future.

NDAA Carryover Leave Provision

Clint Bain and Neil Burnette, NASCOE Legislative Co-Chairs
December 23, 2020

As part of the National Defense Authorization Act (NDAA), Congress passed legislation that will allow Federal Employees to carryover an additional 25% of their annual leave into year 2021.  While this sounds like a great benefit for Federal Employees, NASCOE is hearing that it may have an unintended negative effect on County Office employees who plan of retiring in 2021 and have accumulated “restored” annual leave.  The language in the bill states the extra leave (60 hours) will not be included in lump sum payments that federal employees receive when they leave federal service.

NASCOE has been working over the past week to research the following concerns on behalf of the membership:

  • Does this language exclude prior leave restored in previous years from being paid out?  For example, in August of 2020, OPM allowed employees in Federal agencies to carry over leave due to carrying out COVID-19 relief in their respective agencies.  The FSA Administrator subsequently restored excess leave for all County Office employees who assisted with COVID-19 relief.
  • NASCOE reads the language provided in the NDAA to be separate from any other provisions which allowed prior leave to be carried over into the new year due to COVID-19 relief efforts.  Is this interpretation accurate?

Currently, USDA states that the Office of Personnel Management (OPM) will have the sole responsibility of interpreting the intent of this new law and how it is applied to Federal employees.  We realize that immediate retirement decisions may hinge on how this legislation will ultimately be implemented.  We also know that some State Offices are notifying employees this new provision may make any previously restored annual leave ineligible for a lump-sum payment upon retirement.    It is our hope to find out more information regarding the intent of the legislation, and pass this along to you as soon as possible. 

Legislative News Flash – Federal Appropriations and COVID-19

Clint Bain and Neil Burnette
December 21, 2020

The House of Representatives and US Senate announced agreement to provide additional COVID-19 assistance and the fiscal year 2021 appropriations measures.  We expect one additional continuing resolution providing the time needed to send these bills to the President’s desk.  We do not expect a government shutdown.

The COVID-19 assistance details are posted below for your review.  We will send a second update outlining the annual funding levels provided through the appropriations bill.

Covid-19 Agriculture Assistance – $13 billion total

  • $11.1875 billion for agriculture producers, growers, and processors
  • Coronavirus Food Assistance Program (CFAP) payments for the 2020 crop year – option for 2018 and 2019 sales – (cattle included)
  • Up to $1 billion for livestock and poultry contract growers
  • $20 million to improve and maintain animal disease prevention and response capacity
  • May extend the term of a marketing assistance loan
  • No less than $1.5 billion to purchase food and agricultural products, including seafood
  • Up to $200 million to support timber harvesting and hauling businesses
  • May make payments to producers of advanced biofuel, biomass-based diesel, cellulosic biofuel, conventional biofuel, or renewable fuels with market losses due to COVID-19
  • May make recourse loans available to dairy product processors, packagers, or merchandisers
  • $100 million to support the Farm Bill’s Specialty Crop Block Grant Program
  • $100 million for the Farm Bill’s Local Agriculture Market Program
  • $75 million for the Farm Bill’s Farming Opportunities Training and Outreach Program
  • $400 million to pay for milk to be processed into dairy products and donated to non-profit entities (food banks, feeding programs, etc.)
  • Establishes a Federal livestock dealer trust to ensure that livestock producers are paid for their animals
  • $60 million to make facility upgrade and planning grants to existing meat and poultry processors to help them move to Federal inspection
  • $28 million to be distributed as block grants to state departments of agriculture for use to support existing farm stress programs

*Additional funds were provided to domestic nutrition programs.

Continuing Resolution

Clint Bain and Neil Burnette, Legislative Co-Chairs
December 11, 2020

The House of Representatives and the U.S. Senate have both passed a stopgap spending bill which the President is expected to sign late Friday.  This CR will fund the government for one week, setting a new deadline of December 18.  Congressional Leaders are optimistic that they can complete work on an omnibus appropriations bill that will fund all sectors of the government prior to the proposed new deadline of December 18.

Your Legislative team will continue to monitor the situation over the next several days and inform membership if there are any major unexpected developments.

NASCOE Legislative Update – November 25, 2020

This legislative update provides our NASCOE family with information about hot topics as we enter the holiday season.

Federal Appropriations

Currently, the government is funded through December 11, 2020.  It is likely that Congress will extend the continuing resolution again before enactment of any new law.  We do not expect any government shutdown as Congress approaches the December deadline.

The House of Representatives has approved their Fiscal Year 2021 Agriculture Appropriations bill.  Following election day, the Senate released draft bills and reports allowing the two bodies to begin negotiating any final product. 

The House provides significant increases for FSA Salaries and Expenses and continues previous law provisions related to both employees and county office closures. The below information highlights important funding levels for both the House and Senate proposals.

Fiscal Year 2021 Proposed Funding Levels

FSA Business Center:

FY 2020 EnactedProposalsProposed FY 2021 vs
FY 2020 Enacted
$280,186,000House – $292,852,000House – + $12,666,000
 Senate – $293,057,000Senate – + $12,871,000

FSA Salaries and Expenses:

FY 2020 EnactedProposalsProposed FY 2021 vs
FY 2020 Enacted
$1,414,214,000House – $1,446,437,000House + $32,223,000
 Senate – $1,434,279,000Senate+ $20,065,000

2020 Election

While not yet official, we believe President-elect Biden will be sworn in next January as the 46th President of the United States. 

The election results have set off a scramble for cabinet level posts and numerous political appointments.  According to our contacts, the Secretary of Agriculture position is a race between former Senator Heidi Heitkamp (D-ND) and Congresswoman Marcia Fudge (D-OH).  These individuals know the importance of our organization and the role we play in delivering farm programs. We were pleased this summer when Congresswoman Fudge invited NASCOE’s President to lead a roundtable discussion regarding the need for additional County Office workers. We will keep you all updated as the transition team announces USDA political appointments.

In the House of Representatives, Democrats continue to watch their majority shrink.  At this point, the Democratic Party will control the body by about 13 seats.  This is a decrease from the 33-seat majority during the 116th Congress.  An important decision will come soon when Democrats choose who will lead the House Committee on Agriculture.  The race for chairmanship is between Congressman David Scott (D-GA) and Congressman Jim Costa (D-CA).  Today, Congressman Scott is considered the favorite and will likely be chosen the first week of December.

In the Senate, Republicans are defending two Georgia seats that most believe will remain in the Republican column.  If the two senators are re-elected on January 5th, Republicans will control the 52 – 48 Senate.  With Senate Pat Roberts (R-KS) retiring, we expect Senator John Boozman (R-AR) will be chosen as Chairman for the Senate Agriculture Committee.

Protecting Employees from Surprise Taxes Act of 2020, S. 4810

NASCOE sent a letter to Senator Chris Van Hollen (D-MD) supporting legislation allowing federal employees to opt out of the payroll tax deferral. The legislation would simply allow employees to determine how the collection of taxes impacts their individual financial status. We have heard from employees preferring to not delay the tax bill until next year. This legislation provides the flexibility that would allow employees the opportunity to make the best decision based on their need for additional take home pay.

Conclusion

Please do not hesitate to reach out to our legislative team should you need additional information.

Our entire NASCOE Legislative Team would like to wish you all a HAPPY THANKSGIVING!

Continuing Resolution Vote

Clint Bain and Neil Burnette
NASCOE Legislative Co-Chairs
September 23, 2020

By a vote of 359 to 57, last night the House of Representatives passed a bipartisan stopgap continuing resolution to keep the government open through December 11, 2020.

The bill provides 30 billion in funding for the Commodity Credit Corporation to replenish depleted funds. Also included in the measure was nearly 8 billion for a variety of food nutrition assistance including funding to feed children affected by the pandemic that normally receive school lunches.

The deal was worked out between House Speaker Pelosi and Treasury Secretary Mnuchin. The Senate is expected to schedule a vote on the bill prior to funding expiring on September 30th. The White House has indicated that President Trump will sign the bill.

USDA announces details of the Coronavirus Food Assistance Program (CFAP)

By Hunter Moorhead, Legislative Consultant

On April 17, 2020, Agriculture Secretary Sonny Perdue announced that USDA will use the funding and authorities provided in the Coronavirus Aid, Relief, and Economic Security Act (CARES), the Families First Coronavirus Response Act (FFCRA), and other USDA existing authorities to fund the Coronavirus Food Assistance Program (CFAP). The program includes two major elements.  Secretary Perdue provided the following details about the program aimed at assisting farmers and ranchers as they struggle from the effects of the pandemic:

$16 billion in direct payments for farmers and ranchers: funded using the $9.5 billion emergency program in the CARES Act and $6.5 billion in Credit Commodity Corporation (CCC) funding. The program will provide direct support based on actual losses for agricultural producers where prices and market supply chains have been impacted and will assist producers with additional adjustment and marketing costs resulting from lost demand and short-term oversupply for the 2020 marketing year caused by COVID-19.

  • $9.6 billion for the livestock industry
    • $5.1 billion for cattle
    • $2.9 billion for dairy
    • $1.6 billion for hogs
    • $3.9 billion for row crop producers
    • $2.1 billion for specialty crops producers
    • $500 million for other crops

Producers will receive a single direct payment determined using two calculations:

  • Price losses that occurred January 1-April 15, 2020. Producers will be compensated for 85% of price loss during that period.

  • Second part of the payment will be expected losses from April 15 through the next two quarters and will cover 30% of expected losses.

  • The payment limit is $125,000 per commodity with an overall limit of $250,000 per individual or entity. Qualified commodities must have experienced a 5% price decrease between January and April.

  • USDA is expediting the rule making process for the direct payment program and expects to begin sign-up for the new program in early May and to get payments out to producers by the end of May or early June.

$3 billion in purchases of agriculture products: including meat, dairy and produce to support producers and provide food to those in need. USDA will partner with local food and regional distributors to deliver food to food banks, as well as community and faith-based organizations to provide food to those in need.  USDA will begin with the procurement of an estimated $100 million per month in fresh fruits and vegetables, $100 million per month in a variety of dairy products, and $100 million per month in meat products. The distributors and wholesalers will then provide a pre-approved box of fresh produce, dairy, and meat products to be distributed by these partner organizations to those in need.

USDA will also utilize other available funding sources to purchase and distribute food to those in need:

  • USDA has up to an additional $873.3 million available in Section 32 funding to purchase a variety of agricultural products for distribution to food banks. The use of these funds will be determined by industry requests, USDA agricultural market analysis, and food bank needs.

  • The FFCRA and CARES Act provided an at least $850 million for food bank administrative costs and USDA food purchases, of which a minimum of $600 million will be designated for food purchases. The use of these funds will be determined by food bank need and product availability.