[Federal Register Volume 72, Number 198 (Monday, October 15, 2007)]
[Proposed Rules]
[Pages 58263-58266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20205]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 72, No. 198 / Monday, October 15, 2007 / 
Proposed Rules  

[[Page 58263]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AL26


Emergency Leave Transfer Program

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing proposed 
regulations to allow donated annual leave in an agency's voluntary 
leave bank program to be transferred to an emergency leave transfer 
program administered by another agency, revise the rules for returning 
unused donated annual leave to emergency leave donors, and allow 
Judicial branch employees to donate and receive annual leave under an 
emergency leave transfer program.

DATES: Comments must be received on or before December 14, 2007.

ADDRESSES: Send or deliver written comments to Jerome D. Mikowicz, 
Deputy Associate Director for Pay and Leave Administration, Rm. 7H31, 
1900 E Street, NW., Washington, DC 20415-8200; by fax at (202) 606-
0824; or by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Brenda Roberts, by telephone at (202) 
606-2858; by fax at (202) 606-0824; or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing proposed regulations to allow donated annual leave in an 
agency's voluntary leave bank program to be transferred to an emergency 
leave transfer program administered by another agency, revise the rules 
for returning unused donated annual leave to emergency leave donors, 
and allow Judicial branch employees to donate and receive annual leave 
under an emergency leave transfer program, as provided by Public Law 
109-229. These proposed regulations help standardize and simplify leave 
programs and policies to support consolidating agency human resources 
and payroll systems. They are also part of OPM's continuing efforts to 
provide alternative methods for agencies to assist their employees in 
the event of a pandemic health crisis or other major disasters or 
emergencies as declared by the President. Finally, the emergency leave 
transfer regulations have been reorganized and renumbered to aid in 
accessibility and enhance reader understanding.

Transfer of Leave From Agency Leave Bank to Emergency Leave Transfer 
Program

    Section 6391(d) of title 5, United States Code, permits a leave 
bank established under 5 U.S.C. 6362 to donate annual leave to an 
emergency leave transfer program. OPM's regulations currently permit an 
agency's leave bank to donate annual leave, with the concurrence of the 
agency's leave bank board, to an emergency leave transfer program 
administered by the leave bank's employing agency. In the aftermath of 
Hurricane Katrina, several agencies requested that we broaden this 
authority to allow an agency's leave bank to donate annual leave to an 
emergency leave transfer program administered by another agency. We 
believe a broader authority would have provided an immediate benefit to 
employees adversely affected by Hurricane Katrina and could benefit 
employees adversely affected by future major disasters or emergencies. 
Therefore, we propose adding a new section 5 CFR 630.1104 to permit an 
agency's leave bank to donate, with the concurrence of the agency's 
leave bank board, donated annual leave to an emergency leave transfer 
program administered by another agency during a Governmentwide transfer 
of emergency leave coordinated by OPM.

Procedures for Recrediting Unused Donated Annual Leave to Emergency 
Leave Donors

    On January 5, 2005, to support the standardization of pay and leave 
policies under the e-Payroll initiative, OPM issued a comprehensive 
package of 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 (70 FR 
1068). The proposed regulations are available at http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2005_register&position=all&page=1068. The 60-day comment period ended on 
March 7, 2005. We received two comments from an agency and a labor 
union on the proposed rules for recrediting unused donated annual leave 
to donors under the emergency leave transfer program.
    Currently, when a disaster or emergency affecting an emergency 
leave recipient is terminated, any annual leave donated to an emergency 
leave transfer program must be returned to the emergency leave donors. 
The proposed regulations would eliminate the requirement to return 
unused leave to the donors if the number of hours of unused leave were 
less than the number of eligible donors. In effect, this would 
eliminate the requirement to return a fraction of an hour of leave. The 
labor union felt that employees who donate leave for the specific 
purpose of helping another employee should have that leave returned to 
them if unused. The agency recommended returning leave on a prorated 
basis to employees who donated more hours of leave instead of not 
returning any of the unused donated annual leave when there are more 
donors than hours remaining.
    We believe the proposed amendment to 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 numbers is consistent with 
OPM's current regulations at 5 CFR 630.911 for restoring transferred 
annual leave under the voluntary leave transfer program. The amount of 
unused donated annual leave returned to an employee would always be 
proportional to the amount of annual leave donated to the emergency 
leave transfer program by the employer for the emergency. Further, 
standardizing the administrative procedures of the emergency leave 
transfer program to be consistent with the procedures for the voluntary 
leave transfer program would greatly simplify the administration of 
this program. However, we are inviting further comments on this 
proposed policy change so we can fully consider all the

[[Page 58264]]

relevant issues before adopting any changes in the final regulations.

Participation of Judicial Branch Employees in an Emergency Leave 
Transfer Program

    Public Law 109-229, effective May 31, 2006, amends 5 U.S.C. 6391 to 
authorize OPM to provide for the participation of Judicial branch 
employees in any emergency leave transfer program after consultation 
with the Administrative Office of the United States Courts. In the 
event of a major disaster or emergency, as declared by the President, 
that results in severe adverse effects for a substantial number of 
employees, the President may direct OPM to establish an emergency leave 
transfer program under which an employee may donate unused annual leave 
for transfer to employees of his or her agency or to employees in other 
agencies who are adversely affected by such disaster or emergency. 
After consultation with the Administrative Office of the U.S. Courts, 
OPM is amending 5 CFR part 630, subpart K, to allow for a Judicial 
branch entity to participate in any emergency leave transfer program 
established by OPM under 5 U.S.C. 6391.

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 Part 630

    Government employees.

Office of Personnel Management.
Linda M. Springer,
Director.
    Accordingly, OPM is proposing to amend part 630 of title 5 of the 
Code of Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

Subpart K--Emergency Leave Transfer Program

    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.

    2. Part 630, subpart K is revised to read as follows:
Subpart K--Emergency Leave Transfer Program
Sec.
630.1101 Purpose, applicability, and administration.
630.1102 Definitions.
630.1103 Establishment of an emergency leave transfer program.
630.1104 Donations from a leave bank to an emergency leave transfer 
program.
630.1105 Application to become an emergency leave recipient.
630.1106 Approval of an application to become an emergency leave 
recipient.
630.1107 Notification of approval of an application.
630.1108 Disapproval of an application to become an emergency leave 
recipient.
630.1109 Use of available paid leave.
630.1110 Donating annual leave.
630.1111 Limitation on the amount of annual leave donated by an 
emergency leave donor.
630.1112 Limitation on the amount of donated annual leave received 
by an emergency leave recipient.
630.1113 Transferring donated annual leave between agencies.
630.1114 Using donated annual leave.
630.1115 Accrual of leave while using donated annual leave.
630.1116 Limitations on the use of donated annual leave.
630.1117 Termination of a disaster or emergency.
630.1118 Procedures for returning unused donated annual leave to 
emergency leave donors.
630.1119 Protection against coercion.


Sec.  630.1101  Purpose, applicability, and administration.

    (a) Purpose. This subpart provides regulations to implement section 
6391 of title 5, United States Code, and must be read together with 
section 6391. Section 6391 of title 5, United States Code, provides 
that in the event of a major disaster or emergency, as declared by the 
President, that results in severe adverse effects for a substantial 
number of employees, the President may direct the Office of Personnel 
Management to establish an emergency leave transfer program under which 
an employee may donate unused annual leave for transfer to employees of 
his or her agency or to employees in other agencies who are adversely 
affected by such disaster or emergency.
    (b) Applicability. This subpart applies to any individual who is 
defined as an ``employee'' in 5 U.S.C. 6331(1) and who is employed in--
    (1) An Executive agency; or
    (2) The Judicial branch.
    (c) Administration. The head of each agency having employees 
subject to this subpart is responsible for the proper administration of 
this subpart. Each Federal agency must establish and administer 
procedures to permit the voluntary transfer of annual leave consistent 
with this subpart.


Sec.  630.1102  Definitions.

    In this subpart:
    Agency means--
    (1) An ``Executive agency,'' as defined in 5 U.S.C. 105; or
    (2) A Judicial branch entity.
    Disaster or emergency means a major disaster or emergency, as 
declared by the President, that results in severe adverse effects for a 
substantial number of employees (e.g., loss of life or property, 
serious injury, or mental illness as a result of a direct threat to 
life or health).
    Emergency leave donor means a current employee whose voluntary 
written request for transfer of annual leave to an emergency leave 
transfer program is approved by his or her employing agency.
    Emergency leave recipient means a current employee for whom the 
employing agency has approved an application to receive annual leave 
under an emergency leave transfer program.
    Emergency leave transfer program means a program established by OPM 
that permits Federal employees to transfer their unused annual leave to 
other Federal employees adversely affected by a disaster or emergency, 
as declared by the President.
    Employee has the meaning given that term in 5 U.S.C. 6331(1).
    Family member has the meaning given that term in Sec.  630.902.
    Leave year has the meaning given that term in Sec.  630.201.
    Paid leave status has the meaning given that term in Sec.  630.902.
    Transferred leave means donated leave credited to an approved 
emergency leave recipient's annual leave account.


Sec.  630.1103  Establishment of an emergency leave transfer program.

    (a) When directed by the President, OPM will establish an emergency 
leave transfer program that permits an

[[Page 58265]]

employee to donate his or her accrued annual leave to employees of the 
same or other agencies who are adversely affected by a disaster or 
emergency as defined in Sec.  630.1102. In certain situations, OPM may 
delegate to an agency the authority to establish an emergency leave 
transfer program.
    (b) OPM will notify agencies of the establishment of an emergency 
leave transfer program for a specific disaster or emergency, as 
declared by the President. Once notified, each agency affected by the 
disaster or emergency is authorized to do the following:
    (1) Determine whether, and how much, donated annual leave is needed 
by affected employees;
    (2) Approve emergency leave donors and/or emergency leave 
recipients within the agency, as appropriate;
    (3) Facilitate the distribution of donated annual leave from 
approved emergency leave donors to approved emergency leave recipients 
within the agency; and
    (4) Determine the period of time for which donated annual leave may 
be accepted for distribution to approved emergency leave recipients.


Sec.  630.1104  Donations from a leave bank to an emergency leave 
transfer program.

    A leave bank established under subchapter IV of chapter 63 of title 
5, United States Code, and subpart J of part 630 may, with the 
concurrence of the leave bank board established under Sec.  630.1003, 
donate annual leave to an emergency leave transfer program administered 
by the employing agency or another Executive branch agency or Judicial 
branch entity during a Governmentwide transfer of emergency leave 
coordinated by OPM.


Sec.  630.1105  Application to become an emergency leave recipient.

    (a) An employee who has been adversely affected by a disaster or 
emergency may make written application to his or her employing agency 
to become an emergency leave recipient. If an employee is not capable 
of making written application, a personal representative may make 
written application on behalf of the employee.
    (b) An employee who has a family member who has been adversely 
affected by a disaster or emergency also may make written application 
to his or her employing agency to become an emergency leave recipient. 
An emergency leave recipient may use donated annual leave to assist an 
affected family member, provided such family member has no reasonable 
access to other forms of assistance.
    (c) For the purpose of this subpart, an employee is considered to 
be adversely affected by a major disaster or emergency if the disaster 
or emergency has caused the employee or a family member of the employee 
severe hardship to such a degree that his or her absence from work is 
required.
    (d) The employee's application must be accompanied by the following 
information:
    (1) The name, position title, and grade or pay level of the 
potential emergency leave recipient;
    (2) A statement describing his or her need for leave from the 
emergency leave transfer program; and
    (3) Any additional information that may be required by the 
potential leave recipient's employing agency.
    (e) An agency may determine a time period by which employees must 
apply to become an emergency leave recipient after the occurrence of a 
disaster or emergency, as defined in 5 CFR 630.1102.


Sec.  630.1106  Approval of an application to become an emergency leave 
recipient.

    An agency must review an application to become an emergency leave 
recipient under procedures the agency has established for the purpose 
of determining that a potential leave recipient is or has been affected 
by a disaster or emergency, as defined in 5 CFR 630.1102.


Sec.  630.1107  Notification of approval of an application.

    If an employee's application to become an emergency leave recipient 
is approved, the agency must notify the employee (or his or her 
personal representative) within 10 calendar days (excluding Saturdays, 
Sundays, and legal public holidays) after the date the application was 
received (or the date established by the agency, if that date is 
later).


Sec.  630.1108  Disapproval of an application to become an emergency 
leave recipient.

    If an employee's application to become an emergency leave recipient 
is not approved, the employing agency must notify the employee (or his 
or her personal representative who made application on the employee's 
behalf) within 10 calendar days (excluding Saturdays, Sundays, and 
legal public holidays) after the date the application was received (or 
the date established by the agency, if that date is later). The agency 
must give the reasons for its disapproval.


Sec.  630.1109  Use of available paid leave.

    An approved emergency leave recipient is not required to exhaust 
his or her accrued annual and sick leave before receiving donated leave 
under the emergency leave transfer program.


Sec.  630.1110  Donating annual leave.

    An employee may voluntarily submit a written request to his or her 
agency that a specified number of hours of his or her accrued annual 
leave, consistent with the limitations in Sec.  630.1111, be 
transferred from his or her annual leave account to an emergency leave 
transfer program established under Sec.  630.1103. An emergency leave 
donor may not donate annual leave for transfer to a specific emergency 
leave recipient under this subpart. Donated leave not used by an 
emergency leave recipient may be returned to the emergency leave 
donor(s) only as provided in Sec.  630.1118.


Sec.  630.1111  Limitation on the amount of annual leave donated by an 
emergency leave donor.

    (a) An emergency leave donor may not contribute less than 1 hour 
nor more than 104 hours of annual leave in a leave year to an emergency 
leave transfer program. Each agency may establish written criteria for 
waiving the 104-hour limitation on donating annual leave in a leave 
year.
    (b) Annual leave donated to an emergency leave transfer program may 
not be applied against the limitations on the donation of annual leave 
under the voluntary leave transfer or leave bank programs established 
under 5 U.S.C. 6332 and 6362, respectively.


Sec.  630.1112  Limitation on the amount of donated annual leave 
received by an emergency leave recipient.

    An emergency leave recipient may receive a maximum of 240 hours of 
donated annual leave at any one time from an emergency leave transfer 
program for each disaster or emergency.


Sec.  630.1113  Transferring donated annual leave between agencies.

    (a) If an agency does not receive sufficient amounts of donated 
annual leave to meet the needs of approved emergency leave recipients 
within the agency, the agency may contact OPM to obtain assistance in 
receiving donated leave from other agencies. The agency must notify OPM 
of the total amount of donated annual leave needed for transfer to the 
agency's approved emergency leave recipients. OPM will solicit and 
coordinate the transfer of donated annual leave from other Federal 
agencies to affected agencies who may have a shortfall of donated 
annual leave. OPM will determine the period of time for which donations 
of accrued annual leave may be accepted for transfer to affected 
agencies.

[[Page 58266]]

    (b) Each Federal agency OPM contacts for the purpose of providing 
donated annual leave to an agency in need must--
    (1) Approve emergency leave donors under the conditions specified 
in Sec. Sec.  630.1110 and 630.1111 and determine how much donated 
annual leave is available for transfer to an affected agency;
    (2) Report the total amount of annual leave donated to the 
emergency leave transfer program to OPM; and
    (3) When OPM has accepted the donated annual leave, debit the 
amount of annual leave donated to the emergency leave transfer program 
from each emergency leave donor's annual leave account.
    (c) OPM will notify each affected agency of the aggregate amount of 
donated annual leave that will be credited to it for transfer to its 
approved emergency leave recipient(s). The affected agency will 
determine the amount of donated annual leave to be transferred to each 
emergency leave recipient (an amount that may vary according to 
individual needs).
    (d) The affected agency must credit the annual leave account of 
each approved emergency leave recipient as soon as possible after the 
date OPM notifies the agency of the amount of donated annual leave that 
will be credited to the agency under paragraph (c) of this section.


Sec.  630.1114  Using donated annual leave.

    (a) Any donated leave an emergency leave recipient receives from an 
emergency leave transfer program may be used only for purposes related 
to the disaster or emergency for which the emergency leave recipient 
was approved. Each agency is responsible for ensuring that leave 
donated under the emergency leave transfer program is used 
appropriately.
    (b) Annual leave transferred under this subpart may be--
    (1) Substituted retroactively for any period of leave without pay 
used because of the adverse effects of the disaster or emergency; or
    (2) Used to liquidate an indebtedness incurred by the emergency 
leave recipient for advanced annual or sick leave used because of the 
adverse effects of the disaster or emergency. The agency may advance 
annual or sick leave, as appropriate (even if the employee has 
available annual and sick leave), so that the emergency leave recipient 
is not forced to use his or her accrued leave before donated annual 
leave becomes available.


Sec.  630.1115  Accrual of leave while using donated annual leave.

    While an emergency leave recipient is using donated annual leave 
from an emergency leave transfer program, annual and sick leave 
continue to accrue to the credit of the employee at the same rate as if 
he or she were in a paid leave status under 5 U.S.C. chapter 63, 
subchapter I, and will be subject to the limitations imposed by 5 
U.S.C. 6304(a), (b), (c), and (f) at the end of the leave year in which 
the transferred annual leave is received.


Sec.  630.1116  Limitations on the use of donated annual leave.

    Donated annual leave transferred to a leave recipient under this 
subpart may not be--
    (a) Included in a lump-sum payment under 5 U.S.C. 5551 or 5552;
    (b) Recredited to an employee who is reemployed by a Federal 
agency; or
    (c) Used to establish initial eligibility for immediate retirement 
or acquire eligibility to continue health benefits into retirement 
under 5 U.S.C. 6302(g).


Sec.  630.1117  Termination of a disaster or emergency.

    The disaster or emergency affecting the employee as an emergency 
leave recipient terminates--
    (a) When the employing agency determines that the disaster or 
emergency has terminated;
    (b) When the employee's Federal service terminates;
    (c) At the end of the biweekly pay period in which the employee, or 
his or her personal representative, notifies the emergency leave 
recipient's agency that he or she is no longer affected by such 
disaster or emergency;
    (d) At the end of the biweekly pay period in which the employee's 
agency determines, after giving the employee or his or her personal 
representative written notice and an opportunity to answer orally or in 
writing, that the employee is no longer affected by such disaster or 
emergency; or
    (e) At the end of the biweekly pay period in which the employee's 
agency receives notice that OPM has approved an application for 
disability retirement for the emergency leave recipient under the Civil 
Service Retirement System or the Federal Employees' Retirement System, 
as appropriate.


Sec.  630.1118  Procedures for returning unused donated annual leave to 
emergency leave donors.

    (a) When a disaster or emergency is terminated, any unused annual 
leave donated to an emergency leave transfer program must be returned 
to the emergency leave donors as provided in paragraph (b) of this 
section. The amount of remaining annual leave to be returned to each 
emergency leave donor must be proportional to the amount of annual 
leave donated by the employee to the emergency leave transfer program 
for such disaster or emergency. Annual leave donated to an emergency 
leave transfer program for a specific disaster or emergency may not be 
transferred to another emergency leave transfer program established for 
a different disaster or emergency.
    (b) Each agency must establish procedures to return unused donated 
annual leave to emergency leave donors. Each agency must determine the 
amount of annual leave to be restored to each of the emergency leave 
donors who, on the date leave restoration is made, is employed by a 
Federal agency. If the total number of eligible leave donors exceeds 
the total number of hours of annual leave to be restored, no unused 
transferred annual leave will be restored.
    (c) At the election of the emergency leave donor, he or she may 
choose to have the agency restore unused donated annual leave by 
crediting the restored annual leave to the emergency leave donor's 
annual leave account in either the current leave year or the first pay 
period of the following leave year.


Sec.  630.1119  Protection against coercion.

    (a) An employee may not directly or indirectly intimidate, 
threaten, or coerce, or attempt to intimidate, threaten, or coerce, any 
emergency leave donor or emergency leave recipient for the purpose of 
interfering with any right such employee may have with respect to 
donating, receiving, or using annual leave under this subpart.
    (b) For the purpose of paragraph (a) of this section, the term 
``intimidate, threaten, or coerce'' includes promising to confer or 
conferring any benefit (such as appointment or promotion or 
compensation) or effecting or threatening to effect any reprisal (such 
as deprivation of appointment, promotion, or compensation).

[FR Doc. E7-20205 Filed 10-12-07; 8:45 am]
BILLING CODE 6325-39-P