[Federal Register Volume 73, Number 214 (Tuesday, November 4, 2008)]
[Rules and Regulations]
[Pages 65496-65503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26220]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AL26


Emergency Leave Transfer Program

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management is issuing final 
regulations on the Emergency Leave Transfer Program to provide 
alternative methods for agencies to assist their employees in the event 
of a pandemic health crisis or other major disaster or emergency as 
declared by the President. The final regulations allow donated annual 
leave in a voluntary leave bank administered by one agency 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 (including leave banks), and 
incorporate the inclusion of Judicial branch employees as eligible 
participants in the emergency leave transfer program. In addition, the 
final regulations have been reorganized and renumbered to aid in 
accessibility and enhance reader understanding.

DATES: Effective Date: December 4, 2008.

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

SUPPLEMENTARY INFORMATION: On October 15, 2007, the U.S. Office of 
Personnel Management (OPM) published proposed regulations (72 FR 58263) 
to amend 5 CFR 630, subpart K, to allow donated annual leave in a 
voluntary leave bank administered by one agency 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 (including leave banks), and incorporate the inclusion of 
Judicial branch employees as eligible participants in the emergency 
leave transfer program, as provided by Public Law 109-229, now codified 
at 5 U.S.C. 6391(f).
    The amendments made to OPM's regulations are intended to support 
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 disaster or emergency as declared by the President. In 
addition, the final regulations have been reorganized and renumbered to 
aid in accessibility and enhance reader understanding.
    The 60-day comment period for the proposed regulations ended on 
December 14, 2007. During the comment period, we received comments from 
five agencies, three unions, one payroll provider, and two individuals. 
A summary of the comments received and the changes made in the 
regulations are presented below.

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

    The proposed regulations added Sec.  630.1104 to permit a leave 
bank at an agency to donate, with the concurrence of the leave bank 
board, donated annual leave to an emergency leave transfer program 
administered by another

[[Page 65497]]

agency during a Governmentwide transfer of emergency leave coordinated 
by OPM.
    Most commenters expressed support for this change and believed that 
being able to transfer leave from a leave bank to an emergency leave 
transfer program at another agency would be helpful because the donated 
annual leave would already be available for quick distribution to 
approved emergency leave recipients. One agency expressed concern that 
donations from a leave bank to an emergency leave transfer program at 
another Federal agency might mean leave bank members would not have 
enough available donated annual leave for their own use, which could 
have a negative impact on future leave bank membership.
    In the current regulations at Sec.  630.1103(c), a leave bank, with 
the concurrence of its leave bank board, already has authority to 
donate annual leave to an emergency leave transfer program administered 
by the leave bank's agency. The change in the proposed regulation would 
extend that authority to make it possible for a leave bank to donate 
annual leave to an emergency leave transfer program administered by 
another agency. Under the current and proposed rules, the use of this 
authority is discretionary.
    During the Governmentwide transfer of donated annual leave 
coordinated by OPM in the aftermath of Hurricane Katrina, we found that 
many leave banks had large annual leave balances available for 
immediate use. At that time, several agencies requested that we broaden 
our regulations to permit the transfer of donated annual leave from the 
leave banks to the emergency leave transfer programs of other agencies 
to expedite the transfer of annual leave to those in need. When leave 
bank boards are considering the possibility of donating annual leave 
from their leave bank to an emergency leave transfer program--whether 
the emergency leave transfer program is at the same or another agency--
we believe that the leave bank boards will act in the best interests of 
their leave bank's members and make prudent decisions that will benefit 
both the emergency leave transfer recipients and their leave bank 
members who are faced with a medical emergency. We agree that 
establishing a broader authority would provide an immediate benefit to 
employees adversely affected by future major disasters or emergencies, 
and we are adopting this provision in the final regulations.
    Since the proposed regulations would allow a leave bank board to 
transfer annual leave to an emergency leave transfer program 
administered by another agency, a union asked if OPM would consider 
requiring that any such leave bank board include representatives of the 
unions and that these union representatives be consulted before 
transferring annual leave from the leave bank to another agency. We 
believe such a requirement is not necessary because Sec.  630.1003(c) 
already requires that each leave bank board consist of three members, 
one of whom must represent a labor organization or employee group.

Procedures for Returning Unused Donated Annual Leave to Emergency Leave 
Donors

    In the proposed regulations at Sec.  630.1118(b), the following new 
procedure for returning unused donated annual leave was added: ``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.'' This proposal was written to be consistent with OPM's 
voluntary leave transfer program regulations at Sec.  630.911, and the 
intent was to promote standardization and eliminate the requirement to 
return a minimal amount of leave to the leave donor (i.e., an amount of 
leave that would be less than the smallest increment of leave that may 
be processed under the payroll system covering the donor).

Returning Unused Donated Annual Leave to Donors

    One agency supported the proposal, but a number of agencies and 
three unions expressed concerns with loss of unused annual leave. One 
agency and a union requested withdrawing this proposal. Several 
agencies requested clarification and questioned where the value of the 
unused donated annual leave would go if it were not restored. Some 
commenters asked whether donated annual leave not restored could be 
held over for the next emergency. Three unions disagreed with the 
proposal to not return unused annual leave if the total number of 
eligible donors exceeds the total number of hours of annual leave to be 
restored. To illustrate this concern, one union provided a hypothetical 
example of an emergency leave transfer program that had received annual 
leave donations from 50,000 leave donors. Upon termination of the 
emergency, 49,000 hours of donated annual leave remained unused, so 
under the proposed rule it would seem that all 49,000 hours of donated 
leave would be lost. Finally, one commenter suggested adding language 
to permit returning leave on a proportional basis, similar to the 
language in the voluntary leave transfer program in Sec.  630.911(b).
    We appreciate the comments and concerns raised by the agencies and 
unions and understand the need for clarification. The requirement to 
forfeit unused donated annual leave when the total number of eligible 
leave donors exceeds the total number of hours of annual leave to be 
restored was intended to be applied only after the return of unused 
donated annual leave for each donor had been calculated on a 
proportional basis. In other words, unused donated annual leave must 
first be restored proportionally to each leave donor in the appropriate 
increments (i.e., the nearest increment of time the agency uses to 
account for annual leave, such as 15 minutes) before any leave is 
subject to forfeiture. Using the example from the union, the 49,000 
hours of unused donated annual leave would be restored proportionally 
to the 50,000 donors based on the number of hours of annual leave 
donated by each donor to the emergency leave transfer program. Some 
donors might receive several hours of returned leave, while some others 
might receive only a fraction of an hour. However, even after the 
agency applies the formula on a proportional basis, as a result of 
rounding, there will still be a small amount of unused annual leave 
subject to forfeiture, as it would be too small to credit to each leave 
donor.
    As a result of the comments, we are adding a reference to the 
formula for restoring unused donated annual leave on a proportional 
basis in the voluntary leave transfer program regulations at Sec.  
630.911 to make the leave restoration process more transparent. We are 
also revising Sec.  630.1117(b) to better explain the process of 
restoring the unused donated leave. The revised language is as 
follows--``Each agency must determine the amount of annual leave to be 
restored to any leave bank and/or to each of the emergency leave donors 
who, on the date leave restoration is made, is employed in the Federal 
service. The amount of unused annual leave to be returned to each 
emergency leave donor and/or leave bank must be proportional to the 
amount of annual leave donated by the employee or the leave bank to the 
emergency leave transfer program for such disaster or emergency, and 
must be returned according to the procedures outlined in Sec.  
630.911(b). Any unused annual leave remaining after the distribution 
will be subject to forfeiture.''

[[Page 65498]]

Restoring Unused Donated Annual Leave to an Emergency Leave Bank or 
Voluntary Leave Bank

    A number of agencies and unions recommended restoring unused 
donated annual leave to either an emergency leave bank or voluntary 
leave bank. The primary concern was the loss of the unused annual leave 
after the application of the procedures for restoring unused donated 
annual leave. One suggestion was to establish a special, permanent 
emergency leave bank that would retain any unused donated annual leave 
for future emergencies as declared by the President. While we agree 
that the establishment of a permanent emergency leave bank could 
potentially expedite the distribution of annual leave for future major 
disasters or emergencies, there is no legal authority to establish such 
a program. Other commenters recommended that unused donated annual 
leave be transferred to a leave bank at the employing agency. A similar 
suggestion was previously addressed in the supplemental portion of the 
final regulations that established the voluntary leave transfer program 
(see 50 FR 67125) in response to a recommendation that unused donated 
annual leave that could not be returned to voluntary leave transfer 
program donors after applying the leave restoration formula be 
transferred to a leave bank at the employing agency. OPM's response to 
this suggestion was that ``unused annual leave donated under subchapter 
III (voluntary leave transfer program) may not be credited to or 
appropriated by a leave bank * * *. Only unused leave drawn from a 
leave bank is to be restored to that leave bank.'' We restate our 
previous response: it is OPM's policy that unused leave drawn from a 
leave bank can be restored only to that same leave bank, i.e., leave 
can only be restored to its point of origin. Therefore, any unused 
donated annual leave remaining after the emergency leave program 
restoration procedures are applied will be forfeited. We believe that 
this approach is consistent with that used for the voluntary leave 
transfer program and is an equitable method for returning the unused 
leave within the confines of law.

Timing of the Restoration of Annual Leave

    One agency felt that the requirement at proposed Sec.  630.1118(c) 
that unused donated annual leave that a leave donor elects to have 
restored in the next leave year be returned to the leave donor's 
account in the first pay period of the following leave year is 
impractical and suggested that Sec.  630.1118(c) be reworded to allow 
the annual leave to be returned either in the current or the following 
leave year.
    Both Sec.  630.1108 of the current regulations and Sec.  
630.1118(c) of the proposed regulations provide the employee the choice 
of having unused donated annual leave restored in either the current 
leave year or the first pay period of the following year. Restoring the 
unused annual leave in the first pay period provides a greater benefit 
to the leave donor by providing use of the restored annual leave for 
the entire subsequent leave year. Therefore, the proposed language is 
being adopted as final and can be found at Sec.  630.1117(d).

Participation of Judicial Branch Employees in an Emergency Leave 
Transfer Program

    Section 6391(f) of title 5, United States Code, authorizes 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. After such 
consultation, OPM amended part 630, subpart K, in the proposed 
regulations to clarify that a court or other Judicial branch agency can 
participate in any emergency leave transfer program established by OPM 
under 5 U.S.C. 6391. No comments were received regarding the inclusion 
of the new legislative provisions allowing Judicial branch agencies to 
participate in any emergency leave transfer program established by OPM 
under 5 U.S.C. 6391. OPM is using this opportunity to revise the 
definition of employee at Sec.  630.1102 to make it clear that Judicial 
branch employees are covered by the definition of employee.

Miscellaneous Comments

    We received several comments and requests for clarification which 
were general in nature or which related to our reorganization and 
rewriting of the regulations to enhance reader understanding.

Definition of Emergency Leave Donor

    An agency suggested that, under proposed Sec.  630.1102, the 
definition of emergency leave donor be revised to specify that only 
accrued annual leave may be transferred because a donor cannot offer 
advanced annual leave or annual leave that is not already available to 
the donor. While we agree that only accrued annual leave may be 
transferred, we don't believe this change is necessary because the 
proposed language in Sec.  630.1110 (Sec.  630.1109 in the final 
regulations) already states that an employee may request to transfer a 
certain number of hours of his or her accrued annual leave.

Definition of Paid Leave Status

    OPM removed the definition of paid leave status from Sec.  630.1102 
in the final regulations. The definition is not applicable and does not 
contribute to the enhancement of the reader's understanding. We added 
language in Sec.  630.1108 to clarify that 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 and that the recipient is eligible to be placed in a paid leave 
status using transferred annual leave.

Allow Leave Recipient To Keep an Extra 40 Hours of Donated Annual Leave

    One agency suggested that OPM allow a leave recipient to keep up to 
40 hours of unused donated annual leave after the disaster or medical 
emergency has terminated. The agency believes that, although the 
initial disaster or medical emergency may be over, the employee would 
still need the donated annual leave until he or she can build up his or 
her annual and sick leave balances again. We do not agree. An employee 
may qualify to be a leave recipient under the emergency leave transfer 
program until the employee is no longer affected by the disaster or 
emergency. Since the employee does not have to exhaust his or her 
available paid leave (annual or sick leave) before becoming a leave 
recipient under the emergency leave transfer program and the leave 
recipient accrues both sick and annual leave while receiving donated 
annual leave, the leave recipient would most likely have an available 
leave balance for use once the disaster or emergency is terminated.

OPM Delegation of Authority

    An agency noted that the language at proposed Sec.  630.1103(a) 
states that under certain situations, OPM may delegate to an agency the 
authority to establish an emergency leave transfer program. The agency 
noted that the language is new and wanted to know how this enhances the 
emergency leave transfer program. We have made this change as 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 disaster or emergency as declared by the President. This 
new language allows OPM to exercise its delegation authority to 
expedite the distribution of annual leave under the emergency leave 
transfer program when circumstances

[[Page 65499]]

warrant this type of action. For example, an emergency may occur in a 
remote location and affect only one agency, which may have sufficient 
annual leave donations to cover all affected employees.

Renumbering the Regulations

    An agency recommended changing the order of the items in proposed 
Sec.  630.1103(b) to show the close of the donation period before the 
distribution of annual leave to approved recipients. However, we note 
that an agency may not know how long its employees will be affected by 
a particular disaster or emergency, and it may begin to transfer annual 
leave to emergency leave recipients long before it can determine the 
period of time for which donated annual leave may be accepted for 
distribution to emergency leave recipients. Based upon our program 
experience, we believe our language more accurately reflects the actual 
process. Therefore, we have not adopted this suggestion.

Maintaining Records on the Amount of Annual Leave Donated by Employees

    An agency noted that the requirement under current regulations at 
Sec.  630.1107(b)(2), that agencies must maintain records on the amount 
of annual leave donated by each emergency leave donor for the purpose 
of restoring unused transferred annual leave, is missing from the 
proposed rule. The agency recommended that the language in the current 
Sec.  630.1107(b)(2) be retained, since under Sec.  630.1118(a) of the 
proposed rule (Sec.  630.1117(b) of the final regulations), when unused 
annual leave is returned to the donors, agencies must still return the 
amount of annual leave that is proportional to that donated by each 
employee. Although we believe that each agency will maintain records of 
its employees' annual leave donations based upon the requirements 
listed in final Sec.  630.1117(b) to restore leave proportionally to 
its leave donors and leave banks, we agree to add the language back 
into the regulations in order to make the process more transparent. 
Therefore, OPM is revising Sec.  630.1112 to add a new (b)(2) to 
require an agency to ``maintain records on the amount of annual leave 
donated by each emergency leave donor to the emergency leave transfer 
program (for the purpose of restoring unused transferred annual leave 
under 630.1117(b).'' Current (b)(2) and (b)(3) are renumbered as (b)(3) 
and (b)(4), respectively.

Time Period for Employee Notification

    Two agencies commented on the language in proposed Sec. Sec.  
630.1107 and 630.1108 regarding the time period during which the 
employing agency must notify an employee of the approval or disapproval 
of his or her application to be an emergency leave recipient. The first 
agency commented that both sections specify a 10 calendar-day period 
for notifying employees, but Saturdays, Sundays, and legal public 
holidays are excluded. The agency suggested it would be simpler to 
change the notification period to either 14 calendar days or 10 work 
days, with no exclusions. We disagree. We believe the language in the 
proposed regulation provides consistency with Sec.  630.905(d) under 
the voluntary leave transfer program, and we are therefore not adopting 
this suggestion. The second agency believed the parenthetical language 
in these two sections is unclear and pointed out that the parenthetical 
language at current Sec.  630.1105(b) and (c) ``(or the date the 
employing agency established its administrative procedures, if that 
date is later)'' refers to a situation where the agency does not yet 
have emergency leave transfer procedures in place. The agency suggested 
that, if the proposed rule intends to continue to take that situation 
into account, the language in current Sec.  630.1105(b) and (c) should 
be retained. However, if the proposed rule assumes that all agencies 
already have established emergency leave transfer procedures in place, 
the time period should be clarified by revising the language to read, 
``* * * within 10 calendar days (excluding Saturdays, Sundays, and 
legal public holidays) after the date the application was received, 
unless the agency establishes an extended time period.'' We disagree. 
The new language reorganized and renumbered Sec. Sec.  630.1106 and 
630.1107 to enhance the reader's understanding of the program. The 
language was broadened not only to permit time to establish 
administrative procedures, but to provide the greatest flexibility 
possible for unpredictable situations that would require additional 
time to make the necessary determinations. For example, if an agency 
has many employees affected by a major disaster or emergency, it may 
not be possible to make determinations for all affected employees 
within the 10 calendar-day period. Therefore, the language in our 
proposed regulations at Sec. Sec.  630.1106 and 630.1107 is being 
adopted, but with one technical change. Section 630.1106 now solely 
addresses the agency review of an application to become an emergency 
leave recipient, and the language about the notification of the 
approval or disapproval of an emergency leave recipient's application 
has been combined into Sec.  630.1107.

OPM's Contacts With Agencies

    In the section on transferring donated annual leave between 
agencies at proposed Sec.  630.1113(b) (Sec.  630.1112(b) in the final 
regulations), an agency suggested modifying the language to read, 
``Each Federal agency OPM contacts to solicit annual leave donations 
for transfer to another agency in need must * * *,'' saying that this 
modification would clarify the reason OPM is contacting the agency. We 
believe the context makes it clear why OPM is contacting agencies and 
do not feel it is necessary to revise this section.

240-Hour Limitation on Donated Annual Leave

    Two agencies shared comments on the limitation on the amount of 
donated annual leave received by an emergency leave recipient at 
proposed Sec.  630.1112 (Sec.  630.1111 in the final regulations). One 
agency mentioned that the language in the proposed regulations (which 
is identical to current Sec.  630.1106(d)), regarding the 240-hour 
limitation on the amount of donated annual leave an emergency leave 
recipient may receive, was unclear. The agency said that during 
Hurricane Katrina, OPM had advised them that this section meant that an 
emergency leave transfer program recipient could receive more than one 
disbursement of 240 hours of annual leave for each disaster. Since this 
had not been clear to them previously, they recommended this be set out 
more clearly in the final regulations. We agree and have added the 
following language at the end of Sec.  630.1111: ``After taking into 
consideration the amount of donated annual leave available to all 
approved emergency leave recipients and the needs of individual 
emergency leave recipients, an employing agency may allow an employee 
to receive additional disbursements of donated annual leave based on 
the employee's continuing need. Each disbursement of transferred annual 
leave may not exceed 240 hours.''
    The second agency suggested that agencies be given more flexibility 
to set higher limits than the 240 hours on a case-by-case basis and 
suggested that this section be rewritten to include the following 
statement: ``Agencies may consider any request beyond 240 hours on a 
case-by-case basis. The decision should be based on documented need, 
the amount of donated leave left in the

[[Page 65500]]

bank, and the total number of requests.'' The agency provided the 
example of an employee injured at home during a disaster who would not 
be eligible for worker's compensation payments and whose serious injury 
could require the employee to be away from work for a period 
substantially longer than 240 hours (6 weeks). The agency argued that 
the employee might not have enough leave to cover an extended period of 
absence beyond 6 weeks, and there would be no other forms of assistance 
available to the employee at that point. The agency would prefer the 
flexibility of higher donation limits to deal with such situations. We 
believe the regulations already provide sufficient flexibility, and we 
have not adopted this suggestion. Although we agree that an employee 
may well have a need for more leave than 240 hours of donated annual 
leave, the regulations as currently written allow an employee to 
receive multiple disbursements of up to 240 hours of donated annual 
leave each time.

Emergency Leave Recipients Subject to Annual Leave Forfeiture

    An agency asked for clarification as to why, under the proposed 
regulations at Sec.  630.1115 (Sec.  630.1114 in the final 
regulations), emergency leave recipients are subject to the annual 
leave carryover caps in 5 U.S.C. 6304(a), (b), (c), and (f). The agency 
said it realizes this is not new language, but it would like to 
understand the rationale behind this requirement. Since emergency leave 
recipients are not required to exhaust their available paid leave 
before receiving donated annual leave, it is possible that emergency 
leave recipients may have annual leave balances at the end of the leave 
year that would exceed the applicable annual leave carryover caps. 
Since nothing in 5 U.S.C. 6391 exempts emergency leave recipients from 
the requirements of 5 U.S.C. 6304(a), (b), (c), and (f), the 
regulations mention these requirements as a point of clarification.

Decision To Terminate the Disaster or Emergency

    An agency pointed out that proposed Sec.  630.1117(a) (Sec.  
630.1116(a) in the final regulations) allows the employing agency to 
determine when a disaster or emergency has terminated, whereas in the 
current regulations at Sec.  630.1108(a)(1), the employing agency or 
OPM may determine when the disaster or emergency has terminated. The 
agency asked why the decision to terminate the emergency is delegated 
to the agency. Our answer is that OPM would determine when a disaster 
or emergency affecting an agency's employees has terminated only after 
consulting with the affected agency. We believe that the agency is in 
the best position to determine when the disaster or emergency has 
ended.
    We have also added language to Sec.  630.1116 to clarify that the 
disaster or emergency affecting the employee terminates at the earliest 
occurrence of one of the conditions listed in Sec.  630.1116(a)-(e) so 
that the clause introducing paragraphs (a) through (e) now reads, ``The 
disaster or emergency affecting the employee as an emergency leave 
recipient terminates under the following conditions, whichever occurs 
earliest''.

Comments Outside the Scope of the Regulations

    There were a number of comments and recommendations from agencies 
and individuals that we are not able to address in our final regulation 
because they are outside the scope of the changes outlined in the 
proposed regulations. Many of the recommendations would require 
statutory changes in the program area. For example, one agency 
recommended that employees be permitted to donate sick leave to an 
emergency leave transfer program, and two agencies recommended that we 
require employees to exhaust available paid leave before they can apply 
to be an emergency leave recipient. In order to take action on the 
other comments we received, OPM would have to develop and issue a new 
proposed rule and allow for a public comment period. Finally, we 
received a number of questions from an individual regarding the 
administration of the emergency leave transfer program at the agency 
level. These questions are best answered by the employee's servicing 
human resources office.

Technical Amendment--Returning Unused Donated Annual Leave to Leave 
Banks

    In addition to the changes made to the proposed regulations based 
on the comments we received, we are clarifying that unused donated 
annual leave must be restored to both the emergency leave donors and 
the agency leave banks that donated to the emergency. Therefore, we are 
adding language in Sec. Sec.  630.1104, 630.1109, and 630.1117 to make 
clear that unused donated annual leave must be returned to the 
applicable emergency leave donors and voluntary leave banks.

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.
Michael W. Hager,
Acting Director.

0
Accordingly, OPM is amending part 630 of title 5 of the Code of Federal 
Regulations as follows:

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 continues to read as follows:

    Authority: 5 U.S.C. 6311; Sec.  630.205 also issued under Pub. 
L. 108-411, 118 Stat. 2312; Sec.  630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat. 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  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; Sec.  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.


0
2. 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 Agency review of an application to become an emergency 
leave recipient.
630.1107 Notification of approval or disapproval of an application 
to become an emergency leave recipient.
630.1108 Use of available paid leave.
630.1109 Donating annual leave.

[[Page 65501]]

630.1110 Limitation on the amount of annual leave donated by an 
emergency leave donor.
630.1111 Limitation on the amount of donated annual leave received 
by an emergency leave recipient.
630.1112 Transferring donated annual leave between agencies.
630.1113 Using donated annual leave.
630.1114 Accrual of leave while using donated annual leave.
630.1115 Limitations on the use of donated annual leave.
630.1116 Termination of a disaster or emergency.
630.1117 Procedures for returning unused donated annual leave to 
emergency leave donors and leave banks.
630.1118 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 (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.
    (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 means--
    (1) An employee as defined in 5 U.S.C. 6331(1); or
    (2) An employee of a Judicial branch entity.
    Family member has the meaning given that term in Sec.  630.902.
    Leave year has the meaning given that term in Sec.  630.201.
    Transferred annual leave means donated annual 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 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 during a Governmentwide transfer of emergency 
leave coordinated by OPM. Donated annual leave not used by an emergency 
leave recipient must be returned to the leave bank as provided in Sec.  
630.1117.


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 an employee must 
apply to become an emergency leave recipient after the occurrence of a 
disaster or emergency, as defined in Sec.  630.1102.

[[Page 65502]]

Sec.  630.1106  Agency review 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 Sec.  630.1102.


Sec.  630.1107  Notification of approval or disapproval of an 
application to become an emergency leave recipient.

    Once the employee's application to become an emergency leave 
recipient is either approved or disapproved, the 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). If disapproved, the agency must give the reason for its 
disapproval.


Sec.  630.1108  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 and the recipient is 
eligible to be placed in a paid leave status using transferred annual 
leave.


Sec.  630.1109  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.  630.1110, 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 annual leave not used by an 
emergency leave recipient must be returned to the emergency leave 
donor(s) and/or leave banks as provided in Sec.  630.1117.


Sec.  630.1110  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 or 
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.  630.1111  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. After taking into consideration 
the amount of donated annual leave available to all approved emergency 
leave recipients and the needs of individual emergency leave 
recipients, an employing agency may allow an employee to receive 
additional disbursements of donated annual leave based on the 
employee's continuing need. Each disbursement of transferred annual 
leave may not exceed 240 hours.


Sec.  630.1112  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 annual 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.
    (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.  630.1109 and 630.1110 and determine how much donated 
annual leave is available for transfer to an affected agency;
    (2) Maintain records on the amount of annual leave donated by each 
emergency leave donor to the emergency leave transfer program (for the 
purpose of restoring unused transferred annual leave under Sec.  
630.1117(b)).
    (3) Report the total amount of annual leave donated to the 
emergency leave transfer program to OPM; and
    (4) 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.  630.1113  Using donated annual leave.

    (a) Any donated annual 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 
annual 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.  630.1114  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.

[[Page 65503]]

Sec.  630.1115  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 a former 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.  630.1116  Termination of a disaster or emergency.

    The disaster or emergency affecting the employee as an emergency 
leave recipient terminates at the earliest occurrence of the following 
conditions.
    (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.  630.1117  Procedures for returning unused donated annual leave to 
emergency leave donors and leave banks.

    (a) When a disaster or emergency is terminated, any unused annual 
leave donated to the emergency leave transfer program must be returned 
by the employing agency to the emergency leave donors, and if annual 
leave was donated by any leave bank(s) it must be returned to the leave 
bank(s).
    (b) Each agency must determine the amount of annual leave to be 
restored to any leave bank and/or to each of the emergency leave donors 
who, on the date leave restoration is made, is employed in the Federal 
service. The amount of unused annual leave to be returned to each 
emergency leave donor and/or leave bank must be proportional to the 
amount of annual leave donated by the employee or the leave bank to the 
emergency leave transfer program for such disaster or emergency, and 
must be returned according to the procedures outlined in Sec.  
630.911(b). Any unused annual leave remaining after the distribution 
will be subject to forfeiture.
    (c) 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.
    (d) At the election of the emergency leave donor, the employee 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.  630.1118  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. E8-26220 Filed 11-3-08; 8:45 am]
BILLING CODE 6325-39-P