[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Proposed Rules]
[Pages 200-209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28205]
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Proposed Rules
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 /
Proposed Rules
[[Page 200]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 315, 432, and 752
RIN 3206-AO23
Probation on Initial Appointment to a Competitive Position,
Performance-Based Reduction in Grade and Removal Actions and Adverse
Actions
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed
regulations governing probation on initial appointment to a competitive
position, performance-based reduction in grade and removal actions, and
adverse actions. The proposed rule would rescind certain regulatory
changes made effective on November 16, 2020 and implements new
statutory requirements for procedural and appeal rights for dual status
National Guard technicians for certain adverse actions. OPM believes
the proposed revisions would support implementation of an Executive
Order to empower agencies to rebuild the career Federal workforce and
protect the civil service rights of their employees, while preserving
appropriate mechanisms for pursuing personnel actions where warranted.
DATES: Comments must be received on or before February 3, 2022.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, via
the Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for sending comments.
Instructions: All submissions must include the agency name and
docket number or RIN for this rulemaking. Please arrange and identify
your comments on the regulatory text by subpart and section number; if
your comments relate to the supplementary information, please refer to
the heading and page number. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Comments received after the close of comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. Before acting on this proposal, OPM will
consider and respond to all comments within the scope of the
regulations that we receive on or before the closing date for comments.
Changes to this proposal may be made in light of the comments we
receive.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
[email protected] or by telephone at (202) 606-2930.
SUPPLEMENTARY INFORMATION: On October 16, 2020, the Office of Personnel
Management (OPM) published a final rule governing probation on initial
appointment to a competitive position, performance-based reduction in
grade and removal actions, and adverse actions. 85 FR 65940 (Oct. 16,
2020). The final rule implemented a provision of Public Law 115-91
concerning the inclusion of appeals rights information in proposal
notices for personnel actions, and amended the regulations in parts
315, 432, and 752 of title 5, Code of Federal Regulations to
incorporate certain requirements of Executive Order (E.O.) 13839, other
statutory changes, and technical revisions.
On January 22, 2021, President Biden issued E.O. 14003 on
``Protecting the Federal Workforce'' which, among other things, revoked
E.O. 13839 and directed agencies to ``as soon as practicable, suspend,
revise, or rescind, or publish for notice and comment proposed rules
suspending, revising, or rescinding, the actions'' implementing various
E.O.s, including E.O. 13839, ``as appropriate and consistent with
applicable law.'' E.O. 14003 states that ``[c]areer civil servants are
the backbone of the Federal workforce, providing the expertise and
experience necessary for the critical functioning of the Federal
Government. It is the policy of the United States to protect, empower,
and rebuild the career Federal workforce. It is also the policy of the
United States to encourage employee organizing and collective
bargaining. The Federal Government should serve as a model employer.''
After consideration and review, OPM has concluded that portions of
the final rule which became effective on November 16, 2020, and which
implemented certain requirements of E.O. 13839, are inconsistent with
the current policy of the United States to protect, empower and rebuild
the career Federal workforce as well as its current policy to encourage
employee organizing and collective bargaining. Therefore, in accordance
with E.O. 14003, OPM proposes to rescind portions of the final rule
published at 85 FR 65940 (October 16, 2020). The elements of the final
rule that OPM proposes to rescind are described in detail below,
together with the policy explanation in each instance. OPM is proposing
these regulations under its congressionally granted authority to
regulate the parts that it proposes to revise in accordance with 5
U.S.C. 3321, 4305, 4315, 7504, 7514, and 7543, and subject to the
notice-and-comment process set forth in the Administrative Procedure
Act, and mindful of the President's expressed policy direction.
Furthermore, pursuant to Public Law 114-328 (Dec. 23, 2016), OPM
proposes to revise its regulations on coverage for performance-based
actions and appealable adverse actions in accordance with statutory
changes that extend title 5 rights to dual status National Guard
technicians under certain conditions. Elements of the November 16,
2020, regulatory amendments that were due to statutory changes will
remain in effect, such as procedures for disciplinary action against
supervisors who retaliate against whistleblowers (5 U.S.C. 7515) and
the inclusion of appeals rights information in proposal notices for
adverse actions (Pub. L. 115-91, section 1097(b)(2)(A)).
OPM invites the public to comment on any aspect of the proposed
changes, including whether members of the public believe that any
matters proposed for rescission instead should be retained in OPM's
regulations, consistent with OPM's statutory and regulatory
authorities. Ultimately, the purpose of the revisions is to implement
applicable statutory mandates and provide agencies the necessary tools
and flexibility to address matters related to unacceptable performance
and misconduct or other behavior contrary to the efficiency of the
service by Federal employees when they arise,
[[Page 201]]
consistent with the policies of E.O. 14003.
5 CFR Part 315, Subpart H--Probation on Initial Appointment to a
Competitive Position
The regulations at subpart H of 5 CFR part 315 provide information
regarding agency action during a probationary period. Under its
authority at 5 U.S.C. 3321, OPM proposes to rescind its November 16,
2020, amendment to regulations at Sec. 315.803(a) for two reasons.
First, E.O. 14003 directs OPM to rescind any regulations effectuated by
E.O. 13839, as appropriate and consistent with applicable law. Second,
OPM has concluded that the amendment to the regulations at Sec.
315.803(a) placed unnecessary requirements on agencies regarding how
agencies addressed probationary period matters. OPM believes these
requirements prevented agencies from implementing policies most
suitable for each respective agency based on their unique
circumstances. The November 2020 amendment requires agencies to notify
supervisors at least three months prior to expiration of the
probationary period that an employee's probationary period is ending,
and then again one month prior to expiration of the probationary
period, and to advise a supervisor to make an affirmative decision
regarding the employee's fitness for continued employment or otherwise
take appropriate action. While agencies are encouraged to notify
supervisors that an employee's probationary period is ending, OPM
believes the frequency and timing of notifications should be left up to
the discretion of each agency.
OPM guidance has stated previously that the probationary period is
the last and crucial step in the examination process. The probationary
period is intended to give the agency an opportunity to assess, on the
job, an employee's overall fitness and qualifications for continued
employment and permit the termination, without chapter 75 procedures,
of an employee whose performance or conduct does not meet acceptable
standards to deliver on the mission. Thus, it provides an opportunity
for supervisors to address problems expeditiously, with minimum burden
to the agency, and avoid long-term problems inhibiting effective
service to the American people. Employees may be terminated from
employment during the probationary period for reasons including
demonstrated inability to perform the duties of the position, lack of
cooperativeness, or other unacceptable conduct or poor performance. As
a matter of good administration, agencies should ensure that their
practices make effective use of the probationary period. While OPM is
proposing to rescind a government-wide requirement to notify
supervisors when an employee's probationary period is ending, agencies
would not be precluded from providing such notifications under their
own authorities and are strongly encouraged to do so.
5 CFR Part 432--Performance-Based Reduction in Grade and Removal
Actions
Part 432 applies to reduction in grade and removal of covered
employees based on performance at the unacceptable level. Chapter 43
provides a straightforward, though not exclusive, process for agencies
to use in taking action based on unacceptable performance.
Section 432.102 Coverage
Section 432.102 identifies actions and employees covered by this
part. The proposed rule at Sec. 432.102 updates coverage to align with
the National Defense Authorization Act (NDAA) for Fiscal Year 2017,
Public Law 114-328 (Dec. 23, 2016). Specifically, section 512(a)(1)(C)
of the 2017 NDAA provides appeal rights under 5 U.S.C. 7511, 7512, and
7513 to dual status National Guard technicians for certain adverse
actions. Section 512(c) repealed 5 U.S.C. 7511(b)(5), which excluded
National Guard technicians from the definition of ``employee.''
The repeal of 5 U.S.C. 7511(b)(5) and the coverage of National
Guard technicians under 5 U.S.C. 7511, 7512, and 7513 required that OPM
review 5 U.S.C. 4303. Section 4303(e) provides that any employee who is
a preference eligible, in the competitive service, or in the excepted
service and covered by subchapter II of chapter 75, and who has been
reduced in grade or removed under this section is entitled to appeal
the action to the MSPB under section 7701.
Accordingly, MSPB appeal rights must be extended to National Guard
technicians who are defined in section 4303(e). OPM proposes to revise
paragraphs (b) and (f) of Sec. 432.102 to reflect that certain
performance-based actions against dual status National Guard
technicians are no longer excluded. Specifically, OPM proposes to add
as an exclusion an action against a technician in the National Guard
concerning any activity under section 709(f)(4) of title 32, United
States Code, except as provided by section 709(f)(5) of title 32,
United States Code. In addition, the proposed rule removes the
exclusion at Sec. 432.102(f)(12): ``A technician in the National Guard
described in 5 U.S.C. 8337(h)(1), employed under section 709(b) of
title 32.'' The impact of the repeal of 5 U.S.C. 7511(b)(5) on adverse
actions taken under chapter 75 will be further discussed below in the
supplemental information for Sec. 752.401.
Section 432.104 Addressing Unacceptable Performance
This section provides requirements in chapter 43 of title 5 of the
United States Code for addressing unacceptable performance. While the
regulatory amendments to part 432 made effective November 16, 2020, are
within OPM's existing authority under 5 U.S.C. 4303 and 4305, E.O.
13839 was the catalyst for the changes. OPM proposes to amend the
regulation at Sec. 432.104 to remove the following language: ``The
requirement described in 5 U.S.C. 4302(c)(5) refers only to that formal
assistance provided during the period wherein an employee is provided
with an opportunity to demonstrate acceptable performance, as
referenced in 5 U.S.C. 4302(c)(6). The nature of assistance provided is
in the sole and exclusive discretion of the agency. No additional
performance assistance period or similar informal period shall be
provided prior to or in addition to the opportunity period provided
under this section.'' OPM will re-insert at Sec. 432.104 a statement
that was in the regulation prior to the November 2020 amendment: ``As
part of the employee's opportunity to demonstrate acceptable
performance, the agency shall offer assistance to the employee in
improving unacceptable performance.''
OPM believes that the amendment to the regulations at Sec. 432.104
placed unnecessary restrictions and limitations on agencies regarding
decisions on when performance assistance is provided to employees.
These restrictions and limitations removed previous flexibilities
enjoyed by agencies in how to address performance issues with their
employees under chapter 43. By placing these restrictions on agencies,
OPM believes it was not supporting agencies and supervisors in
determining the most effective assistance for struggling employees.
OPM proposes to revert to the language in Sec. 432.104 prior to
the November 2020 amendments regarding the agency's obligation to
provide assistance to an employee who has demonstrated unacceptable
performance. The proposed language restates the statutory requirement
described in 5 U.S.C. 4302(c)(5) that agencies are obligated to provide
[[Page 202]]
performance assistance during the opportunity period. OPM would
emphasize that the employee has a right to a reasonable opportunity to
improve, which includes assistance from the agency in improving
unacceptable performance.
OPM encourages efficient use of chapter 43 procedures and effective
delivery of agency mission while providing employees sufficient
opportunity to demonstrate acceptable performance as required by law.
Additionally, OPM advises agencies to act promptly and effectively to
address and resolve poor performance. Supervisors should draw upon
their skills and expertise to determine the most effective assistance
for a struggling employee and work in concert with the technical advice
received from their agency's human resources staff.
Section 432.105 Proposing and Taking Action Based on Unacceptable
Performance
This section specifies the procedures for proposing and taking
action based on unacceptable performance once an employee has been
afforded an opportunity to demonstrate acceptable performance. The
regulatory amendments to Sec. 432.105(a)(1) that became effective
November 16, 2020, were made for consistency with and promotion of the
principles of E.O. 13839. For consistency with and promotion of the
principles of E.O. 14003 and in accordance with its authority under 5
U.S.C. 4302, OPM proposes to revise the regulation at Sec.
432.105(a)(1).
The proposed regulatory change to Sec. 432.105(a)(1) removes the
language: ``For the purposes of this section, the agency's obligation
to provide assistance, under 5 U.S.C. 4302(c)(5), may be discharged
through measures, such as supervisory assistance, taken prior to the
beginning of the opportunity period in addition to measures taken
during the opportunity period. The agency must take at least some
measures to provide assistance during the opportunity period in order
to both comply with section 4302(c)(5) and provide an opportunity to
demonstrate acceptable performance under 4302(c)(6).''
OPM believes that the amendment to the regulations at Sec.
432.105(a)(1) placed too much emphasis on supervisory assistance taken
prior to the beginning of the opportunity period and placed too little
emphasis on supervisory assistance taken during the opportunity period
and could result in some agencies relying too much on supervisory
assistance outside of the opportunity period to support any
performance-based action taken against an employee.
Agencies are reminded that they must provide assistance during the
opportunity period in accordance with section 5 U.S.C. 4302(c)(5). OPM
has long encouraged agencies to act promptly to address performance
concerns as soon as they arise. Supervisors should continually monitor
performance, provide ongoing feedback, and assist employees who exhibit
performance issues. Agencies should also remain mindful that third
parties (for example, arbitrators and judges) place a strong emphasis
on a supervisor's effort to assist the employee in improving his or her
performance. Evidence that the supervisor engaged an employee in
discussion, counseling, training, or the like prior to the opportunity
period may assist the agency in developing a stronger case before a
third party that the employee was given a reasonable opportunity to
demonstrate acceptable performance before a performance-based action is
taken.
The supplemental information supporting the regulatory changes
issued pursuant to E.O. 13839, Probation on Initial Appointment to a
Competitive Position, Performance-Based Reduction in Grade and Removal
Action and Adverse Actions, 85 FR 65940 (October 16, 2020), and the
subsequent revocation of E.O. 13839 and consequent rescission of some
those regulations in this proposed rule, require clarification and
reaffirmation of an agency's obligations with regard to actions based
on unacceptable performance. Section 4302(c) states, in pertinent part,
that, ``Under regulations which the Office of Personnel Management
shall prescribe, each performance appraisal system shall provide for .
. . (5) assisting employees in improving unacceptable performance; and
(6) reassigning, reducing in grade, or removing employees who continue
to have unacceptable performance but only after an opportunity to
demonstrate acceptable performance.'' Section 4303(a) and (b)(1)(A)
provides that ``an agency may reduce in grade or remove an employee for
unacceptable performance'' subject to ``30 days advance written notice
of the proposed action which identifies--(i) specific instances of
unacceptable performance by the employee on which the proposed action
is based; and (ii) the critical elements of the employee's position
involved in each instance of unacceptable performance.'' Although the
statute is silent regarding an agency's determination in the first
instance that an employee's performance is unacceptable, OPM's
regulation is pellucid. Pursuant to its authority to promulgate
regulations, OPM issued 5 CFR 432.104, which it now proposes to
restore. That regulation states in pertinent part: ``At any time during
the performance appraisal cycle that an employee's performance is
determined to be unacceptable in one or more critical elements, the
agency shall notify the employee of the critical element(s) for which
performance is unacceptable and inform the employee of the performance
requirement(s) or standard(s) that must be attained in order to
demonstrate acceptable performance in his or her position. The agency
should also inform the employee that unless his or her performance in
the critical element(s) improves to and is sustained at an acceptable
level, the employee may be reduced in grade or removed. For each
critical element in which the employee's performance is unacceptable,
the agency shall afford the employee a reasonable opportunity to
demonstrate acceptable performance, commensurate with the duties and
responsibilities of the employee's position.'' (Emphasis added). This
language in 5 CFR 432.104 was unchanged in the final rule issued on
October 16, 2020.
The comments summarized in the October 16, 2020, final rule,
included concern that the amendment to 5 CFR 432.104 (which we are
proposing to remove) might give some managers the ability to remove
employees without factual evidence or deny them the ability to either
counter the agency's assessment or correct it through a mandated
improvement process. OPM responded to those concerns by saying, inter
alia, that ``The amended rule does not relieve agencies of the
responsibility to demonstrate that an employee was performing
unacceptably--which per statute covers the period both prior to and
during a formal opportunity period--before initiating an adverse action
under chapter 43.'' 85 FR 65957 (Oct. 16, 2020). OPM's response was
subsequently cited in Santos v. Nat'l. Aeronautics and Space Admin.,
990 F.3d 1355 (Fed. Cir. 2021), to support the court's implicit
decision that an agency must prove by substantial evidence in a
proceeding to challenge a performance-based removal that the employee
was performing unacceptably prior to the opportunity period (i.e.,
prior to being placed on a performance improvement plan) as a
prerequisite to removing the employee for failing to demonstrate
acceptable performance during the opportunity period. This is a
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misreading of OPM's position. Accordingly, OPM takes this opportunity
to make clear what OPM's position is so that OPM's failure to clarify
its prior comments and address Santos when making changes to the same
set of regulations will not be interpreted as OPM's endorsement of the
Santos standard. OPM's reference to determining whether an employee is
performing unacceptably concerns the requirement that an agency provide
notice to an employee of unacceptable performance--before placing him
on a PIP. OPM's comment in the supplemental information that the
requirement to demonstrate that an employee was performing unacceptably
``covers'' the period prior to the opportunity period should not be
read to mean that an agency must justify the decision to place an
employee on a PIP. Rather, the comment refers to the statutory
provision that allows, but does not require, an agency to rely on
unacceptable performance within 1 year prior to the date of the
proposal notice to justify the removal itself. See 5 U.S.C. 4303(c)(2).
Therefore, OPM wishes to clarify that the conclusion in Santos is
contrary to OPM's comment in supplemental information on which Santos
relies and OPM's interpretation of 5 U.S.C. 4302(c)(6). OPM does not
agree that 5 U.S.C. 4302(c)(6) means that the agency must prove as part
of its substantive case or as a required procedure that an employee
performed unacceptably before he or she was placed on a PIP. Rather,
the statute as interpreted by OPM's regulation at 5 CFR 432.104
provides that an agency may not take a performance-based adverse action
against an employee whom the agency determined was performing
unacceptably unless the agency first provides the employee with notice
and an opportunity to improve, and the employee continues to perform
unacceptably. The determination to be reviewed on appeal to the Board
and its reviewing courts is the final determination of unacceptable
performance following the PIP, not any interim determination leading to
the PIP. This interpretation enables agencies to address performance
issues early through the mechanism of a PIP without concern that the
employees who ultimately are unable to demonstrate acceptable
performance despite early and sustained assistance cannot be removed
because the MSPB or a court might find that they were not performing
unacceptably when the PIP began.
Section 432.105 addresses notice requirements when an agency
proposes to take action based on an employee's unacceptable performance
during or after the opportunity period once the employee has been
afforded an opportunity to demonstrate acceptable performance. An
agency must afford the employee a 30-day advance notice of the proposed
action that identifies both the specific instances of unacceptable
performance by the employee on which the proposed action is based and
the critical element(s) of the employee's position involved in each
instance of unacceptable performance. An agency may extend this advance
notice period for a period not to exceed 30 days under regulations
prescribed by the head of the agency. For the reasons listed in Sec.
432.105(a)(4)(i)(B), an agency may further extend this advance notice
period without OPM approval.
OPM proposes to revise the reason at Sec. 432.105(a)(4)(i)(B)(6),
which was derived from 5 U.S.C. 1208(b) because the statutory provision
was repealed by section 3(a)(8) of Public Law 101-12, the Whistleblower
Protection Act (WPA) of 1989. Section 1208(b) granted agencies the
authority to extend the advance notice period for a performance-based
action in order to comply with a stay ordered by a member of the Merit
Systems Protection Board. Concurrent with the repeal of 5 U.S.C.
1208(b), the WPA established 5 U.S.C. 1214(b)(1)(A)(i), wherein the
Office of Special Counsel is granted the authority to request any
member of the Board to order a stay of any personnel action for 45 days
if the Special Counsel determines that there are reasonable grounds to
believe that the personnel action was taken, or is to be taken, as a
result of a prohibited personnel practice. Further, under 5 U.S.C.
1214(b)(1)(B), the Board may extend the period of any stay granted
under subparagraph (A) for any period which the Board considers
appropriate. If the Board lacks a quorum, any remaining member of the
Board may, upon request by the Special Counsel, extend the period of
any stay granted under subparagraph (A). Therefore, OPM proposes to
change the reason at subparagraph (B)(6) to read as follows: ``[t]o
comply with a stay ordered by a member of the Merit Systems Protection
Board under 5 U.S.C. 1214(b)(1)(A) or (B).''
Section 432.108 Settlement Agreements
Section 5 of E.O. 13839, established a requirement that an agency
shall not agree to erase, remove, alter or withhold from another agency
any information about a civilian employee's performance or conduct in
that employee's official personnel records, including an employee's
Official Personnel Folder and Employee Performance File, as part of, or
as a condition to, resolving a formal or informal complaint by the
employee or settling an administrative challenge to an adverse
personnel action. Such agreements have traditionally been referred to
as ``clean record'' agreements. Consistent with the rescission of E.O.
13839 and pursuant to its authorities under 5 U.S.C. 2951 to maintain
personnel records and under 5 U.S.C. 1103(a)(5) to execute, administer,
and enforce the law governing the civil service, OPM proposes to
rescind Sec. 432.108, Settlement Agreements.
Due to continued objections raised since the publication of the
November 16, 2020, final rule, OPM believes that the prohibition of
clean record agreements hampers agencies' ability to resolve informal
and formal complaints at an early stage and with minimal costs to the
agency. Notably, stakeholders have stressed that the prohibition of
clean record agreements limits resolution options; reduces the
likelihood of parties reaching a mutually agreeable resolution of
informal or formal complaints; potentially increases costly litigation
and arbitration; and crowds the dockets of third-party investigators,
mediators, and adjudicators such as the Merit Systems Protection Board
(MSPB), Office of Special Counsel (OSC), and Equal Employment
Opportunity Commission. While agencies may derive some value from
having access to unaltered personnel records when making hiring
decisions, OPM believes it should place greater weight on granting
agencies a degree of flexibility to resolve individual workplace
disputes. Therefore, OPM proposes to delete Sec. 432.108. The clean
record prohibition applied to actions taken under parts 432 and 752.
Accordingly, the proposed rule would also rescind Sec. Sec. 752.104,
752.203(h), 752.407 and 752.607. The removal of the prohibition on
clean record agreements will allow agencies discretion to resolve
informal and formal complaints and settle administrative challenges in
a manner that balances the needs of the agency and fairness to the
employee. In doing so, agencies should still adhere to the principles
of promoting high standards of integrity and accountability within the
Federal workforce. In addition, agencies are advised that, in any such
agreement, they have an obligation to speak truthfully to Federal
investigators performing future background investigations with respect
to the employee and may not agree to
[[Page 204]]
withhold information about the circumstances of an individual's
departure from the agency.
5 CFR Part 752--Adverse Actions
Subpart A--Discipline of Supervisors Based on Retaliation Against
Whistleblowers
This subpart addresses mandatory procedures for addressing
retaliation by supervisors for whistleblowing.
Section 752.101 Coverage
This section describes the adverse actions covered and defines key
terms used throughout the subchapter. Section 752.101 includes a
definition for the term ``business day.'' The requirement for taking an
action within a proscribed number of business days was derived solely
from Section 2(f) of E.O. 13839. With the rescission of E.O. 13839 and
given that there is no other use for the definition of ``business day''
in subpart A, OPM proposes to revise the regulation at Sec. 752.101(b)
to remove the definition of ``Business day''.
Section 752.103 Procedures
This section establishes the procedures to be utilized for actions
taken under this subpart. With the rescission of E.O. 13839 and
pursuant to its congressionally granted authority to regulate chapter
75 adverse actions, OPM proposes to rescind the requirement at Sec.
752.103(d)(3) that an agency should issue the decision on a proposed
removal under this subpart within 15 business days of the conclusion of
the employee's opportunity to respond under paragraph (d)(1) of this
section. The 15-day requirement was derived solely from Section 2(f) of
E.O. 13839. Although it is good practice for agency deciding officials
to resolve proposed removals promptly, some actions present multiple
issues, conflicting evidence, or other complications that warrant full
and fair consideration over a longer period of time, and careful
crafting of the final decision. Accordingly, it is not in the
Government's best interests to force decisions to be completed on an
arbitrary timetable that may not allow for the deciding official to
prepare a thoughtful, well-reasoned decision document.
Section 752.104 Settlement Agreements
The language in this section establishes the same requirements that
are detailed in Sec. 432.108, Settlement agreements. OPM proposes to
remove this requirement. Please see the discussion at Sec. 432.108
regarding the proposed rescission of OPM requirements related to
settlement agreements.
Subpart B--Regulatory Requirements for Suspensions for 14 Days or Less
This subpart addresses the procedural requirements for suspensions
of 14 days or less for covered employees.
Section 752.202 Standard for Action and Penalty Determination
This section sets forth the standard for action applicable under
this subpart and the penalty determination provisions that must be
adhered to when taking suspensions for 14 days or less. Consistent with
the rescission of E.O. 13839, under its congressionally granted
authority to regulate part 752, OPM proposes to amend the regulation at
Sec. 752.202 to revise the section heading to ``Standard for Action''
and rescind paragraphs (c) through (f). These paragraphs address the
use of progressive discipline; appropriate comparators as the agency
evaluates a potential disciplinary action; consideration of, among
other factors, an employee's disciplinary record and past work record;
and the requirement that a suspension should not be a substitute for
removal in circumstances in which removal would be appropriate.
Specifically, paragraphs (c) through (f) state:
``(c) An agency is not required to use progressive discipline under
this subpart. The penalty for an instance of misconduct should be
tailored to the facts and circumstances. In making a determination
regarding the appropriate penalty for an instance of misconduct, an
agency shall adhere to the standard of proposing and imposing a penalty
that is within the bounds of tolerable reasonableness. Within the
agency, a proposed penalty is in the sole and exclusive discretion of a
proposing official, and a penalty decision is in the sole and exclusive
discretion of the deciding official. Penalty decisions are subject to
appellate or other review procedures prescribed in law.
(d) Employees should be treated equitably. Conduct that justifies
discipline of one employee at one time does not necessarily justify
similar discipline of a different employee at a different time. An
agency should consider appropriate comparators as the agency evaluates
a potential disciplinary action. Appropriate comparators to be
considered are primarily individuals in the same work unit, with the
same supervisor, who engaged in the same or similar misconduct.
Proposing and deciding officials are not bound by previous decisions in
earlier similar cases, but should, as they deem appropriate, consider
such decisions consonant with their own managerial authority and
responsibilities and independent judgment. For example, a supervisor is
not bound by his or her predecessor whenever there is similar conduct.
A minor indiscretion for one supervisor based on a particular set of
facts can amount to a more serious offense under a different
supervisor. Nevertheless, they should be able to articulate why a more
or less severe penalty is appropriate.
(e) Among other relevant factors, agencies should consider an
employee's disciplinary record and past work record, including all
applicable prior misconduct, when taking an action under this subpart.
(f) A suspension should not be a substitute for removal in
circumstances in which removal would be appropriate. Agencies should
not require that an employee have previously been suspended or demoted
before a proposing official may propose removal, except as may be
appropriate under applicable facts.''
Given the revocation of E.O. 13839, and under its congressionally
granted authority to regulate part 752, OPM proposes to rescind
Sec. Sec. 752.202(c), 752.202(d), 752.202(e) and 752.202(f). Though
the penalty determination guidelines of these subsections, as discussed
below, reflect established principles, OPM believes that it is
unnecessary to enshrine the guidelines in regulation, thus providing
agencies maximum flexibility.
In Sec. 752.202(c), OPM made clear that an agency is not required
to use progressive discipline under this subpart. As we have previously
said regarding progressive discipline and tables of penalties, each
action stands on its own footing and demands careful consideration of
facts, circumstances, context, and nuance. OPM reminds agencies to
calibrate discipline to the unique facts and circumstances of each
case, which is consistent with the flexibility afforded agencies under
the ``efficiency of the service'' standard for imposing discipline
contained in the Civil Service Reform Act. Proposing and deciding
officials should consult with the agency counsel and the agency's human
resources office to determine the most appropriate penalty.
Further, in Sec. 752.202(d), OPM adopted the test articulated by
the Court of Appeals for the Federal Circuit in Miskill v. Social
Security Administration, 863 F.3d 1379 (Fed. Cir. 2017). We clarified
that appropriate comparators are primarily individuals in the same work
unit, with the same
[[Page 205]]
supervisor, who engaged in the same or similar misconduct. The adoption
of the Miskill test reinforced the key principle that each case stands
on its own factual and contextual footing. However, OPM believes that
agencies can be sufficiently guided by Miskill and other applicable
case law without a regulatory amendment.
In Sec. 752.202(e), OPM adopted formally by regulation the
standard applied by MSPB in Douglas v. Veterans Administration, 5
M.S.P.R. 280 (1981) to removals, suspensions, and demotions, including
suspensions of fewer than 15 days. Specifically, OPM adopted the
requirement that agencies should propose and impose a penalty that is
within the bounds of tolerable reasonableness. However, OPM believes
that it is unnecessary to regulate a principle that is already embedded
deeply in Federal civil-service law, thereby allowing greater
flexibility for agencies. Douglas provides an adequate and useful
template for arriving at reasonable penalty determinations. Douglas
requires that, among other relevant factors, an agency should consider
an employee's disciplinary record and past work record, including all
prior misconduct, when taking an action under this subpart. Many
agencies apply this standard not only to those actions taken under 5
U.S.C. 7513 but also to those taken under 5 U.S.C. 7503 as well.
In Sec. 752.202(f), OPM stated that suspension should not be a
substitute for removal in circumstances in which removal would be
appropriate. This is a straightforward principle that OPM believes
agencies can apply without regulation. It is vital that supervisors use
independent judgment, take appropriate steps in gathering facts, and
conduct a thorough analysis to decide the appropriate penalty. If a
penalty is disproportionate to the alleged violation or is
unreasonable, it is subject to being reduced or reversed even when the
charges are sustained. While OPM proposes to remove Sec. 752.202(f)
and defer to agency management in selecting an appropriate penalty, OPM
reminds agencies that imposing a suspension when removal is appropriate
may adversely impact employee morale and productivity and hamper the
agency's ability to achieve its mission and promote effective
stewardship.
Because of the revocation of E.O. 13839, and in light of OPM's
independent regulatory authority under chapter 75, we propose to remove
the penalty selection guidelines at Sec. Sec. 752.202(c) through (f).
OPM reminds agencies that supervisors are responsible for ensuring that
a disciplinary penalty is fair, reasonable, and appropriate to the
facts and circumstances. In doing so, supervisors will address
misconduct in a manner that has the greatest potential to avert harm to
the efficiency of the service.
Section 752.203 Procedures
The language in this section discusses the requirements for a
proposal notice issued under this subpart. The language in this section
also establishes the same requirements that are detailed in Sec.
432.108, Settlement agreements. OPM proposes to remove the requirement
set forth in Sec. 752.203(h). Please see the discussion at Sec.
432.108 regarding the proposed rescission of OPM requirements related
to settlement agreements.
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
This subpart addresses the procedural requirements for removals,
suspensions for more than 14 days, including indefinite suspensions,
reductions in grade, reductions in pay, and furloughs of 30 days or
less for covered employees.
Section 752.401 Coverage
This section discusses adverse actions and employees covered under
this subpart. The National Defense Authorization Act (NDAA) for Fiscal
Year 2017 added MSPB appeal rights for National Guard military
technicians for certain adverse actions taken against them when they
are not in a military pay status or when the issue does not involve
fitness for duty in the reserve component. In Sec. 752.401(b), OPM
proposes to add an exclusion for an action taken against a technician
in the National Guard as provided in section 709(f)(4) of title 32,
United States Code.
In Sec. 752.401(d), OPM proposes to remove from the list of
employees excluded from coverage of this subpart ``a technician in the
National Guard described in section 8337(h)(1) of title 5, United
States Code, who is employed under section 709(a) of title 32, United
States Code.'' OPM proposes to remove this because the NDAA of 2017
removed the exclusion from 5 U.S.C. 7511(b)(1) and this language was
derived from section 7511(b)(1).
Section 752.402 Definitions
This section defines key terms used throughout the subchapter.
Section 752.402 includes a definition for the term ``business day.''
The requirement for taking an action within a proscribed number of
business days for this section was derived solely from Section 2(f) of
E.O. 13839. With the rescission of E.O. 13839 and given that there is
no other use for the definition of ``business day'' in subpart D, OPM
proposes to revise the regulation at Sec. 752.402 to remove the
definition of ``Business day''.
Section 752.403 Standard for Action and Penalty Determination
As with the proposed rule changes for the regulatory amendments to
Sec. 752.202, the proposed regulatory change to Sec. 752.403 revises
the heading to ``Standard for Action'' and rescinds paragraphs (c)
through (f).
Given the rescission of E.O. 13839 and under its congressionally
granted authority to regulate part 752, as with Sec. Sec. 752.202(c),
752.202(d), 752.202(e) and 752.202(f), OPM proposes to rescind
Sec. Sec. 752.403(c), 752.403(d),752.403(e), and 752.403(f). Please
see the discussion at Sec. 752.202.
Section 752.404 Procedures
Section 752.404(b) discusses the requirements for a notice of
proposed action issued under this subpart. Specifically, the
requirements in Sec. 752.404(b)(1) include that, to the extent an
agency, in its sole and exclusive discretion deems practicable,
agencies should limit written notice of adverse actions taken under
this subpart to the 30 days prescribed in 5 U.S.C. 7513(b)(1), as well
as the requirement that any notice period greater than 30 days must be
reported to OPM. The requirement was derived solely from Section 2(g)
of E.O. 13839. In addition, we have come to the conclusion
independently that there may be appropriate circumstances that warrant
a notice period, and we no longer see a reason to burden agencies with
a requirement to report to OPM every time they grant longer notice.
OPM proposes to remove the following language in Sec.
752.404(b)(1): ``However, to the extent an agency in its sole and
exclusive discretion deems practicable, agencies should limit a written
notice of an adverse action to the 30 days prescribed in section
7513(b)(1) of title 5, United States Code. Advance notices of greater
than 30 days must be reported to the Office of Personnel Management.''
Additionally, Sec. 752.404(g) discusses the requirements for an
agency decision issued under this subpart. Under its authority to
regulate 5 CFR part 752, OPM proposes to rescind Sec. 752.404(g)(3).
The requirement of Sec. 752.404(g)(3) was derived solely from Section
2(f) of E.O. 13839. Specifically, Sec. 752.404(g)(3) includes language
that, to the extent practicable, an agency
[[Page 206]]
should issue the decision on a proposed removal under this subpart
within 15 business days of the conclusion of the employee's opportunity
to respond. As discussed above with respect to section 752.103(d)(3)
and the rescinding of the 15-day requirement to issue a decision on a
proposal, although it is good practice for agency deciding officials to
resolve proposed removals promptly, some actions present complications
that warrant a longer period of time to achieve careful crafting of the
final decision.
Notwithstanding these proposed changes to the notice and decision
requirements, agencies are reminded that misconduct should be addressed
as soon as possible in each case. Prompt action helps promote changed
behavior whereas failure to act promptly can damage morale and
productivity, and failure to remove employees who should be removed can
do the same.
Section 752.407 Settlement Agreements
The language in this section establishes the same requirements that
are detailed in 432.108, Settlement agreements. OPM proposes to remove
this requirement. Please see the discussion at Sec. 432.108 regarding
the proposed rescission of OPM requirements related to settlement
agreements.
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
This subpart addresses the procedural requirements for suspensions
for more than 14 days and removals from the civil service as set for in
5 U.S.C. 7542.
Section 752.602 Definitions
This section defines key terms used throughout the subchapter.
Section 752.602 includes a definition for the term ``business day.''
The requirement for taking an action within a proscribed number of
business days for this section was derived solely from Section 2(f) of
E.O. 13839. With the rescission of E.O. 13839 and given that there is
no other use for ``business day'' in subpart F, OPM proposes to revise
the regulation at Sec. 752.402 to remove the definition of ``Business
day''.
Section 752.603 Standard for Action and Penalty Determination
As with the proposed rule changes for the regulatory amendments to
Sec. 752.202 and Sec. 752.403, the proposed regulatory change to
Sec. 752.603 revises the heading to ``Standard for Action'' and
rescinds paragraphs (c) through (f). Please see the discussion at Sec.
752.202.
Given the rescission of E.O. 13839 and under its congressionally
granted authority to regulate part 752, as with Sec. Sec. 752.202(c),
752.202(d), 752.202(e), and 752.202(f) and Sec. Sec. 752.403(c),
752.403(d), 752.403(e), and 752.403(f), OPM proposes to rescind
Sec. Sec. 752.603(c), 752.603(d),752.603(e), and 752.603(f). See
discussion above with respect to section 752.202.
Section 752.604 Procedures
This section discussed requirements for a notice of proposed
action. Due to the revocation of E.O. 13839 and under its
congressionally granted authority to regulate 5 CFR part 752, as with
the rule changes proposed for Sec. 752.103(d)(3) and Sec.
752.404(b)(1), and for the same reasons, OPM proposes to rescind the
language at Sec. 752.604(b)(1) that requires to the extent an agency
in its sole and exclusive discretion deems practicable, agencies should
limit a written notice of an adverse action to the 30 days prescribed
in section 7543(b)(1) of title 5, United States Code. As well, OPM
proposes to remove the language in Sec. 752.604(b)(1) that requires
that advance notices of greater than 30 days must be reported to OPM.
These requirements were derived solely from Section 2(g) of E.O. 13839.
OPM proposes to rescind Sec. 752.604(g)(3), which requires
agencies to issue decisions, to the extent practicable, within 15
business days of the conclusion of the employee's opportunity to
respond under paragraph of this section. This requirement was derived
solely from Section 2(f) of E.O. 13839. Thus, as with the discussion
concerning the 15-day requirement for issuance of decisions in section
752.103(d)(3) and section 752.404(g), while recognizing it is good
practice for agency deciding officials to resolve proposed removals
promptly, some actions present complexities that necessitate a longer
period of time to prepare the final decision.
Section 752.607 Settlement Agreements
The language in this section establishes the same requirements that
are detailed in Sec. 432.108, Settlement agreements. OPM proposes to
remove this requirement. Please see the discussion at Sec. 432.108
regarding the proposed rescission of OPM requirements related to
settlement agreements.
Expected Impact of This Proposed Rule
OPM is issuing this proposed rule to implement requirements of E.O.
14003 and new statutory requirements for procedural and appeal rights
for dual status National Guard technicians for certain adverse actions.
E.O. 14003 requires OPM to rescind portions of the OPM final rule
published at 85 FR 65940 which implemented certain requirements of E.O.
13839. In addition, section 512(a)(1)(C) of the 2017 NDAA provides
appeal rights under 5 U.S.C. 7511, 7512, and 7513 to dual status
National Guard technicians for certain adverse actions.
OPM believes that portions of the final rule which became effective
on November 16, 2020, and which implemented certain requirements of
E.O. 13839, are inconsistent with the current policy of the United
States to protect, empower and rebuild the career Federal workforce as
well as its current policy to encourage employee organizing and
collective bargaining. The proposed revisions implement applicable
statutory mandates and provide agencies the necessary tools and
flexibility to address matters related to unacceptable performance and
misconduct or other behavior contrary to the efficiency of the service
by Federal employees when they arise, consistent with the policies of
E.O. 14003.
Given that the November 16, 2020, regulations OPM proposes to
rescind were in effect only for a brief period before E.O. 14003 was
issued on January 22, 2021, agencies had limited opportunity to
implement changes under the regulations. With the issuance of E.O.
14003, OPM discontinued collecting agency data on performance-based
actions, adverse actions, and settlement agreements as was required by
Section 5 of E.O. 13839. OPM does not otherwise collect agency data
about the matters covered by the November 2020 regulatory amendments
that OPM proposes to rescind (namely, the timing and frequency of
probationary period expiration notifications; the timing and nature of
performance assistance for employees who have demonstrated unacceptable
performance; penalty determination guidelines; advance notice and
decision notice timeframes for adverse action; and settlement
agreements). For these reasons, OPM has virtually no data on the extent
to which adverse actions were pursued under the regulations proposed
for rescission here. This proposed rule will relieve agencies of the
administrative burden of implementing the November 2020 regulatory
amendments to the extent that agencies did not already have such
policies and practices in place. Out of an abundance of caution, we
clarify that OPM still is requiring that agencies submit to it
arbitration awards taken under 5 U.S.C. 4303 or 5
[[Page 207]]
U.S.C. 7512 of title 5 so that OPM can efficiently carry out its
authority under 5 U.S.C. 7703(d) to seek judicial review of any
arbitration award that the Director of OPM determines is erroneous and
would have a substantial impact on civil service law, rule, or
regulation affecting personnel management that will have a substantial
impact on a civil service law, rule, regulation, or policy directive.
Costs
This proposed rule will affect the operations of over 80 Federal
agencies--ranging from cabinet-level departments to small independent
agencies. Regarding implementation of E.O. 14003 requirements, we
estimate that this proposed rule will require individuals employed by
these agencies to revise and rescind policies and procedures to
implement certain portions the OPM final rule published at 85 FR 65940
to the extent agencies have not already done so. Section 3(e) of E.O.
14003 directs heads of agencies whose practices were covered by E.O.
13839 to review and identify existing agency actions related to or
arising from E.O. 13839 and ``as soon as practicable, suspend, revise,
or publish for notice and comment proposed rules suspending, revising,
or rescinding, the actions identified in the review'' described in
Section 3(e). On March 5, 2021, OPM issued ``Guidance for
Implementation of Executive Order 14003--Protecting the Federal
Workforce'' to heads of agencies. In this guidance, OPM advised that
``agencies should not delay in implementing the requirements of Section
3(e) of E.O. 14003 as it relates to any changes to agency policies made
as a result of OPM's regulations.'' Therefore, some agencies may not
need to make any updates to agency policies as a result of this revised
OPM rule. For the purpose of this cost analysis, the assumed average
salary rate of Federal employees performing this work will be the rate
in 2021 for GS-14, step 5, from the Washington, DC, locality pay table
($138,66 annual locality rate and $66.54 hourly locality rate). We
assume that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $133.08 per hour.
In order to comply with the regulatory changes in this proposed
rule, affected agencies will need to review the rule and update their
policies and procedures. We estimate that, in the first year following
publication of the final rule, this will require an average of 200
hours of work by employees with an average hourly cost of $133.08. This
would result in estimated costs in that first year of implementation of
about $26,616 per agency, and about $2,129,280 in total Governmentwide.
We do not believe this proposed rule will substantially increase the
ongoing administrative costs to agencies.
Regarding the portion of the proposed rule regarding appeal rights
under 5 U.S.C. 7511, 7512, and 7513 for dual status National Guard
technicians for certain adverse actions, this only impacts the Army
National Guard and Air National Guard for dual status National Guard
technicians that are covered by policies of the National Guard Bureau.
Since this portion of the proposed rule reflects statutory changes in
the 2017 NDAA which have been effective for several years, these
statutory requirements should already be applied by the National Guard
notwithstanding any regulatory changes by OPM. However, for the purpose
of this cost analysis, the assumed average salary rate of Federal
employees performing this work at the National Guard Bureau will be the
rate in 2021 for GS-14, step 5, from the Washington, DC, locality pay
table ($138,66 annual locality rate and $66.54 hourly locality rate).
We assume that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $133.08 per hour. In order to
comply with the regulatory changes in this proposed rule, the affected
agency will need to review the rule and update its policies and
procedures. We estimate that, in the first year following publication
of the final rule, this will require an average of 40 hours of work by
employees with an average hourly cost of $133.08. This would result in
estimated costs in that first year of implementation of about $5,323
for the impacted agency. We do not believe this proposed rule will
substantially increase the ongoing administrative costs to the National
Guard.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). In accordance with the
provisions of Executive Order 12866, this proposed rule was reviewed by
the Office of Management and Budget as a significant, but not
economically significant rule.
Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities.
Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this proposed rule does not have
sufficient federalism implications to warrant preparation of a
Federalism Assessment.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any year and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires rules to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this proposed rule
before its effective date, as required by 5 U.S.C. 801. The Office of
Information and Regulatory Affairs in the Office of Management and
Budget has determined that this proposed rule is not a major rule as
defined by the CRA (5 U.S.C. 804). The Office of Information and
Regulatory Affairs in the Office of Management and Budget has
determined that this proposed rule is not a major rule as defined by
the CRA (5 U.S.C. 804).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
This regulatory action is not expected to impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
[[Page 208]]
List of Subjects in 5 CFR Parts 315, 432 and 752
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR parts 315, 432 and 752 as follows:
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
1. Revise the authority citation for part 315 to read as follows:
Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O.
10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and
E.O. 13162. Secs. 315.601 and 315.609 also issued under 22 U.S.C.
3651 and 365. Secs. 315.602 and 315.604 also issued under 5 U.S.C.
1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605
also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606
also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec.
315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued
under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued
under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C.
3304(f). Sec. 315.612 also issued under E.O. 13473. Sec. 315.708
also issued under E.O. 13318, 3 CFR, 2004 Comp. p. 265. Sec. 315.710
also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I
also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p.
264.
Subpart H--Probation on Initial Appointment to a Competitive
Position
0
2. Revise Sec. 315.803(a) to read as follows:
Sec. 315.803 Agency action during probationary period (general).
(a) The agency shall utilize the probationary period as fully as
possible to determine the fitness of the employee and shall terminate
his or her services during this period if the employee fails to
demonstrate fully his or her qualifications for continued employment.
* * * * *
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
0
3. The authority for part 432 continues to read as follows:
Authority: 5 U.S.C. 4303, 4305.
0
4. Amend Sec. 432.102 by:
0
a. Revising paragraphs (b)(14) and (15);
0
b. Adding paragraph (b)(16);
0
c. Removing paragraph (f)(12); and
0
d. Redesignating (f)(13) and (14) as (f)(12) and (13).
The revisions and additions read as follows:
Sec. 432.102 Coverage.
* * * * *
(b) * * *
(14) A termination in accordance with terms specified as conditions
of employment at the time the appointment was made;
(15) An involuntary retirement because of disability under part 831
of this chapter; and
(16) An action against a technician in the National Guard
concerning any activity under section 709(f)(4) of title 32, United
States Code, except as provided by section 709(f)(5) of title 32,
United States Code.
* * * * *
0
4. Revise Sec. 432.104 to read as follows:
Sec. 432.104 Addressing unacceptable performance.
At any time during the performance appraisal cycle that an
employee's performance is determined to be unacceptable in one or more
critical elements, the agency shall notify the employee of the critical
element(s) for which performance is unacceptable and inform the
employee of the performance requirement(s) or standard(s) that must be
attained in order to demonstrate acceptable performance in his or her
position. The agency should also inform the employee that unless his or
her performance in the critical element(s) improves to and is sustained
at an acceptable level, the employee may be reduced in grade or
removed. For each critical element in which the employee's performance
is unacceptable, the agency shall afford the employee a reasonable
opportunity to demonstrate acceptable performance, commensurate with
the duties and responsibilities of the employee's position. As part of
the employee's opportunity to demonstrate acceptable performance, the
agency shall offer assistance to the employee in improving unacceptable
performance.
0
5. Amend Sec. 432.105 by revising paragraphs (a)(1) and
(a)(4)(i)(B)(6) to read as follows:
Sec. 432.105 Proposing and taking action based on unacceptable
performance.
(a) * * *
(1) Once an employee has been afforded a reasonable opportunity to
demonstrate acceptable performance pursuant to Sec. 432.104, an agency
may propose a reduction-in-grade or removal action if the employee's
performance during or following the opportunity to demonstrate
acceptable performance is unacceptable in one or more of the critical
elements for which the employee was afforded an opportunity to
demonstrate acceptable performance.
(4) * * *
(i) * * *
(B) * * *
(6) To comply with a stay ordered by a member of the Merit Systems
Protection Board under 5 U.S.C. 1214(b)(1)(A) or (B).
* * * * *
Sec. 432.108 [Removed]
0
6. Remove Sec. 432.108.
PART 752--ADVERSE ACTIONS
0
7. Revise the authority citation for part 752 to read as follows:
Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91, and
Pub. L. 114-328.
Subpart A--Discipline of Supervisors Based on Retaliation Against
Whistleblowers
Sec. 752.101 [Amended]
0
8. Amend Sec. 752.101(b) by removing the definition for ``Business
day''.
Sec. 752.103 [Amended]
0
9. Amend Sec. 752.103 by removing paragraph (d)(3).
Sec. 752.104 [Removed]
0
10. Remove Sec. 752.104.
Subpart B--Regulatory Requirements for Suspensions for 14 Days or
Less
0
11. Amend Sec. 752.202 by revising the section heading and removing
paragraphs (c) through (f) to read as follows:
Sec. 752.202 Standard for action.
* * * * *
Sec. 752.203 [Amended]
0
12. Amend Sec. 752.203 by removing paragraph (h).
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
0
13. Amend Sec. 752.401 by:
0
a. Revising paragraphs (b)(15) and (16);
0
b. Adding paragraph (b)(17);
0
c. Removing paragraph (d)(5); and
0
d. Redesignating paragraphs (d)(6) through (13) as paragraphs (d)(5)
through (12).
The revisions and additions read as follows:
Sec. 752.401 Coverage.
* * * * *
(b) * * *
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary
[[Page 209]]
to law or regulation, including a reduction necessary to comply with
the amendments made by Public Law 108-411, regarding pay-setting under
the General Schedule and Federal Wage System and regulations
implementing those amendments;
(16) An action taken under 5 U.S.C. 7515.; or
(17) An action taken against a technician in the National Guard
concerning any activity under section 709(f)(4) of title 32, United
States Code, except as provided by section 709(f)(5) of title 32,
United States Code.
* * * * *
Sec. 752.402 [Amended]
0
14. Amend Sec. 752.402 by removing the definition for ``Business
day''.
0
15. Amend Sec. 752.403 by revising the section heading and removing
paragraphs (c) through (f) to read as follows:
Sec. 752.403 Standard for action.
* * * * *
0
16. Amend Sec. 752.404 by revising paragraph (b)(1), and removing
paragraph (g)(3) to read as follows:
Sec. 752.404 Procedures.
* * * * *
(b) * * *
(1) An employee against whom an action is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to paragraph (d) of this section. The notice must state the
specific reason(s) for the proposed action and inform the employee of
his or her right to review the material which is relied on to support
the reasons for action given in the notice. The notice must further
include detailed information with respect to any right to appeal the
action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the
forums in which the employee may file an appeal, and any limitations on
the rights of the employee that would apply because of the forum in
which the employee decides to file.
* * * * *
Sec. 752.407 [Removed]
0
17. Remove Sec. 752.407.
Subpart F--Regulatory Requirements for Taking Adverse Action Under
the Senior Executive Service
Sec. 752.602 [ Amended]
0
18. Amend Sec. 752.602 by removing the definition for ``Business
day''.
0
19. Amend Sec. 752.603 by revising the section heading and removing
paragraphs (c) through (f) to read as follows:
Sec. 752.603 Standard for action.
* * * * *
Sec. 752.604 [Amended]
0
20. Amend Sec. 752.604 by revising paragraph (b)(1), and removing
paragraph (g)(3) to read as follows:
Sec. 752.604 Procedures.
* * * * *
(b) * * *
(1) An appointee against whom an action is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to paragraph (d) of this section. The notice must state the
specific reason(s) for the proposed action and inform the appointee of
his or her right to review the material that is relied on to support
the reasons for action given in the notice. The notice must further
include detailed information with respect to any right to appeal the
action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the
forums in which the employee may file an appeal, and any limitations on
the rights of the employee that would apply because of the forum in
which the employee decides to file.
* * * * *
Sec. 752.607 [Removed]
0
21. Remove Sec. 752.607.
[FR Doc. 2021-28205 Filed 1-3-22; 8:45 am]
BILLING CODE 6325-39-P