Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 48794-48806 [2019-19636]

Download as PDF 48794 Proposed Rules Federal Register Vol. 84, No. 180 Tuesday, September 17, 2019 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. OFFICE OF PERSONNEL MANAGEMENT 5 CFR parts 315, 432 and 752 RIN 3206–AN60 Probation on Initial Appointment to a Competitive Position, PerformanceBased Reduction in Grade and Removal Actions and Adverse Actions Office of Personnel Management. ACTION: Proposed rule. AGENCY: 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 will effect a revision of OPM’s regulations to make procedures relating to these subjects more efficient and effective. The proposed rule also amends the regulations to incorporate other statutory changes and technical revisions. SUMMARY: Comments must be received on or before October 17, 2019. ADDRESSES: You may submit comments, identified by the docket number or Regulation Identifier Number (RIN) for this proposed rulemaking, by any of the following methods: • Federal eRulemaking Portal: http:// 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 the comment period jbell on DSK3GLQ082PROD with PROPOSALS DATES: VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 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 employeeaccountability@opm.gov or by telephone at (202) 606–2930. SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is proposing revisions to regulations governing probation on initial appointment to a competitive position; performance-based reduction in grade and removal actions; and adverse actions under statutory authority vested in it by Congress in 5 U.S.C. 3321, 4305, 4315, 7504, 7514 and 7543. The regulations will assist agencies in carrying out, consistent with law, certain of the President’s directives to the Executive Branch in Executive Order 13839 that are not currently enjoined, and update current procedures to make them more efficient and effective. The proposed regulations also will update references and language due to statutory changes; and clarify procedures and requirements to support managers in addressing unacceptable performance and promoting employee accountability for performance-based reduction-in-grade, removal actions and adverse actions. The proposed regulations support agencies in implementing their plans to maximize employee performance as required by Office of Management and Budget (OMB) M–17–22 (April 12, 2017) and elements of the President’s Management Agenda relating to the Workforce for the 21st Century. OPM is aware of the judiciallyimposed limitations on implementing other portions of Executive Order 13839. OPM has and will continue to comply fully with the injunction, and will not issue regulations implementing the invalidated parts of the Executive Order as long as the judicial injunction is in place. OPM will heed the court’s reaffirmation that ‘‘Congress has clearly vested OPM with the authority to ‘execut[e], administer [ ], and enforc[e] the civil service rules and regulations of the President and the Office and the PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 laws governing the civil service . . .’’ and with the authority to ‘aid [ ] the President, as the President may request, in preparing such civil service rules as the President prescribes.’ ’’ OPM further relies upon the court’s statement that, ‘‘given the wellsprings of authority that OPM enjoys in this area, OPM can surely receive directions from the President to promulgate regulations that are consistent with the rights and duties that the FSLMRS or CSRA prescribe, and setting aside the invalidity of some of the underlying substantive mandates.’’ American Federation of Government Employees, AFL–CIO v. Trump, 318 F. Supp. 3d 370, 438 (D.D.C. 2018). OPM is proposing these regulations under its congressionallygranted authority to regulate the Parts that it proposes to revise subject to the notice-and-comment process set forth in the Administrative Procedure Act, and mindful of the President’s expressed policy direction. The Case for Action ‘‘* * * I call on Congress to empower every Cabinet Secretary with the authority to reward good workers and to remove Federal employees who undermine the public trust or fail the American people.’’ With that statement on January 29, 2018, President Trump set a new direction for promoting efficient and effective use of the Federal workforce— reinforcing Federal employees should be both rewarded and held accountable for performance and conduct. Merit system principles provide a framework for responsible behavior that is aligned with the broader responsibility Federal government employees agree to when they take the oath to preserve and defend the Constitution. In keeping with merit system principles, the President’s Management Agenda (PMA) recognizes that Federal employees underpin nearly all the operations of the Government, ensuring the smooth functioning of our democracy. The Federal personnel system needs to keep pace with changing workplace needs and return to its root principles. Notably, as demonstrated in the Federal Employee Viewpoint Survey, a majority of both employees and managers agree that the performance management system fails to reward the best and address unacceptable performance. Finally, the PMA calls for agencies to establish E:\FR\FM\17SEP1.SGM 17SEP1 jbell on DSK3GLQ082PROD with PROPOSALS Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules processes that help agencies retain top employees and efficiently remove those who fail to perform or to uphold the public’s trust. Prior to establishment of the PMA, the Office of Management and Budget (OMB) issued a memorandum to agencies on April 12, 2017 entitled ‘‘M– 17–22—Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.’’ M–17–22 called on agencies to take near-term actions to ensure that the workforce they hire and retain is as effective as possible. OMB called on agencies to determine whether aspects of their current policies and practices present barriers to hiring and retaining the workforce necessary to execute their missions as well as appropriately managing it and, if necessary, removing poor performers and employees who commit misconduct. Notably, M–17–22 directed agencies to ensure that managers have the tools and support they need to manage performance and conduct effectively to achieve high-quality results for the American people. More recently, E.O. 13839 notes that merit system principles call for holding Federal employees accountable for performance and conduct. The merit system principles state that employees should maintain high standards of integrity, conduct, and concern for the public interest, and that the Federal workforce should be used efficiently and effectively. They further state that employees should be retained based on the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards. E.O. 13839 further notes that implementation of America’s civil service laws has fallen far short of these ideals. It acknowledged that the Federal Employee Viewpoint Survey has consistently found that less than one-third of Federal employees believe that the Government deals with poor performers effectively. E.O. 13839 finds that failure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies to accomplish their missions. E.O. 13839 requires executive agencies (as defined in section 105 of title 5, U.S. Code, excluding the Government Accountability Office) to facilitate a Federal supervisor’s ability to promote civil servant accountability while simultaneously recognizing employee’s procedural rights and protections. Agencies should recognize VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 and reward good performers, while unacceptable performers should be separated if they do not improve their performance to meet the required standards. A probationary period is one effective tool to evaluate a candidate’s potential to be an asset to an agency before the candidate’s appointment becomes final. Therefore, probationary periods, as the final step in the hiring process of new employees, should be used to the greatest extent possible to assess how well they are performing the duties of their jobs; and instances of poor performance and misconduct should be dealt with promptly. OPM is proposing changes to regulations to implement those requirements of E.O. 13839 not judicially enjoined as well as to implement the vision of the PMA and the objectives of M–17–22. These proposed changes not only support agency efforts in implementing E.O. 13839, the PMA, and M–17–22, but also will facilitate the ability of agencies to deliver on their mission and on providing service to American people. Ultimately, these changes support President Trump’s goal of effective stewardship of taxpayers’ money by our government. Data Collection of Adverse Actions Section 6 of E.O. 13839 outlines certain types of data for agencies to collect and report to OPM as of fiscal year 2018. To enhance public accountability of agencies, OPM will collect and, consistent with applicable law, publish the information received from agencies aggregated at a level necessary to protect personal privacy. OPM may withhold particular information if publication would unduly risk disclosing information protected by law, including personally identifiable information. Section 6 requires annual reporting of various categories of data, including: (1) The number of civilian employees in a probationary period or otherwise employed for a specific term who were removed by the agency; (2) the number of civilian employees reprimanded in writing by the agency; (3) the number of civilian employees afforded an opportunity period by the agency under section 4302(c)(6) of title 5, United States Code, breaking out the number of such employees receiving an opportunity period longer than 30 days; (4) the number of adverse actions taken against civilian employees by the agency, broken down by type of adverse action, including reduction in grade or pay (or equivalent), suspension, and removal; (5) the number of decisions on proposed removals by the agency taken PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 48795 under chapter 75 of title 5, United States Code, not issued within 15 business days of the end of the employee reply period; (6) the number of adverse actions by the agency for which employees received written notice in excess of the 30 days prescribed in section 7513(b)(1) of title 5, United States Code; (7) the number and key terms of settlements reached by the agency with civilian employees in cases arising out of adverse actions; and (8) the resolutions or outcomes of litigation about adverse actions involving civilian employees reached by the agency. On July 5, 2018, OPM issued guidance for implementation of E.O. 13839. This guidance included instructions for each department or agency head to coordinate the collection of data from their components and compile one consolidated report for submission to OPM using the form attached to the guidance memo. Forms must be submitted electronically to OPM via email at employeeaccountability@ opm.gov generally no later than 60 days following the conclusion of each fiscal year. In lieu of outlining the data collection requirements in OPM regulations, OPM will issue reminders of this requirement annually and provide periodic guidance consistent with the requirements of E.O. 13839. 5 CFR PART 315, SUBPART H— PROBATION ON INITIAL APPOINTMENT TO A COMPETITIVE POSITION Section 2(i) of E.O. 13839 provides that a probationary period should be used as the final step in the hiring process of a new employee. The E.O. further notes that supervisors should use that period to assess how well an employee can perform the duties of a job. 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 in an expeditious manner 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 E:\FR\FM\17SEP1.SGM 17SEP1 48796 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules of cooperativeness, or other unacceptable conduct or poor performance. To achieve the objective of maximizing the effectiveness of this probationary period, OPM believes that timely notifications to supervisors regarding probationary periods can be a useful tool for agencies and should be used. OPM is proposing amendments to regulations at Subpart H of 5 CFR part 315 to require agencies to notify supervisors that an employee’s probationary period is ending, at least three months or 90 days prior to expiration of the probationary period, and then again one month or 30 days prior to expiration of the probationary period, and advise a supervisor to make an affirmative decision regarding the employee’s fitness for continued employment or otherwise take appropriate action. OPM believes this requirement will assist agencies in making more effective use of the probationary period. Agencies have discretion to determine the method for making this communication, but are encouraged to make use of existing automated tools to facilitate timely notifications. 5 CFR part 432—Performance-Based Reduction in Grade and Removal Actions Section 432.101 Statutory Authority Part 432 applies to reduction in grade and removal of covered employees based on performance at the unacceptable level. Congress enacted chapter 43, in part, to create a simple, dedicated, though not exclusive, process for agencies to use in taking adverse actions based on unacceptable performance. Since that time however, chapter 43 has not worked as well as Congress intended. In particular, interpretations of chapter 43 have made it difficult for agencies to take actions against unacceptable performers and to have those actions upheld. jbell on DSK3GLQ082PROD with PROPOSALS Section 432.104 Addressing Unacceptable Performance The proposed rule at § 432.104 clarifies that, other than those requirements listed, there is no specific requirement regarding the nature of any assistance provided during an opportunity period, and is not determinative of the ultimate outcome with respect to reduction in grade or pay, or a removal. The proposed rule also states that no additional performance improvement period or similar informal period to demonstrate acceptable performance to meet the required performance standards shall be provided prior to or VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 in addition to the opportunity period under this part. This change supports the stated principles of E.O. 13839 which provide that removing unacceptable performers should be a straightforward process furthering effective stewardship of taxpayer money. Establishing limits on the opportunity to demonstrate acceptable performance by precluding additional opportunity periods beyond what is required by law encourages efficient use of the procedures under chapter 43 and furthers effective delivery of agency mission while still providing employees sufficient opportunity to demonstrate acceptable performance as required by law. The proposed rule is intended to clarify the requirements in chapter 43 of title 5 of the United States Code. The goal of these amendments, consistent with E.O. 13839, is to streamline civil service removal procedures related to unacceptable performance. Nothing in the proposed amendments to 5 CFR part 432 should be construed to relieve agencies of their continuing obligations under Federal law, e.g., 5 U.S.C. 6384 and 29 U.S.C. 791(g). Finally, we note that 5 U.S.C. 2301(b)(2) provides that employees should receive fair and equitable treatment without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, and handicapping condition, and with proper regard for their privacy and rights. All personnel actions must meet this statutory requirement. Section 432.105 Proposing and Taking Action Based on Unacceptable Performance 5 U.S.C. 4302(c)(5) provides for ‘‘assisting employees in improving unacceptable performance;’’ and 5 U.S.C. 4302(c)(6) provides for ‘‘reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.’’ The proposed rule de-links 5 U.S.C. 4302(c)(5) and (6) by clarifying in § 432.105 that the opportunity to demonstrate acceptable performance required prior to initiating an action pursuant to 5 U.S.C. 4303 may include any and all performance assistance measures taken during the performance appraisal period to assist employees pursuant to 5 U.S.C. 4302(c)(5), not just those taken during the formal opportunity period. Section 432.108 Settlement Agreements Section 5 of E.O. 13839 establishes a new requirement that an agency shall not agree to erase, remove, alter, or PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 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 action. Such agreements have traditionally been referred to as ‘‘clean record’’ agreements. This new requirement is intended to promote the high standards of integrity and accountability within the Federal workforce by requiring agencies to maintain personnel records that reflect complete information, and not to alter the information contained in those records in connection with a formal or informal complaint or adverse action. It is further intended to ensure that those records are preserved so that agencies can make appropriate and informed decisions regarding an employee’s qualification, fitness, and suitability as applicable to future employment. Section 5 requirements should not be construed to prevent agencies from correcting records of an action taken by the agency illegally or in error. In such cases, an agency has the authority— unilaterally or by agreement—to modify an employee’s personnel file to remove inaccurate information or the record of an erroneous or illegal action. Specifically, the proposed rule states that the Section 5 requirements of E.O. 13839 should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee’s personnel file to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/ complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. An agency should report any agreements relating to removal of such information as part of its annual report to the OPM Director, as required by Section 6 of E.O. 13839. Documents subject to withdrawal or E:\FR\FM\17SEP1.SGM 17SEP1 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS modification could include, for example, an SF–50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. See discussion above concerning ‘‘Data Collection of Adverse Actions.’’ Section 5 requirements should also not be construed to prevent agencies from entering into partial clean record settlements with regard to information provided to non-Federal employers. Finally, to the extent that an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency files. The proposed rule states that when persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period. To the extent an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency files. However, the requirements described in Section 5 would continue to apply to any accurate information about the employee’s performance or conduct which comes to light prior to issuance of a final agency decision on an adverse action. Based on the foregoing, the proposed rule at § 432.108 reflects E.O. 13839’s restrictions on settlement agreements arising from chapter 43 actions. Technical Amendments The proposed rule corrects the spelling of the word ‘‘incumbents’’ within § 432.103(g) and the word ‘‘extension’’ at § 432.105(a)(4)(i)(B)(3). OPM proposes to replace the term ‘‘handicapping condition’’ with ‘‘disability’’ at § 432.105(a)(4)(i)(B)(4) to bring the definition into conformance with 29 U.S.C. 705. In this rule, OPM also revises § 432.105(a)(4)(i)(C) to correctly identify the office that an agency shall contact if it believes that an extension of the advance notice period is necessary for a reason other than those listed in § 432.105(a)(4)(i)(B). OPM proposes to revise § 432.106(b)(1) to replace ‘‘i.g.’’ with ‘‘i.e.’’ within the parenthetical concerning non-exclusion VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 by the parties to a collective bargaining agreement. Finally, OPM corrects the use of the word ‘‘affected’’ versus ‘‘effected’’ within § 432.107(b). 5 CFR Part 752—Adverse Actions Subpart A—Discipline of Supervisors Based on Retaliation Against Whistleblowers 5 U.S.C. 7515 provides agencies the ability to deal with retaliation by supervisors for whistleblowing. The regulations reinforce the responsibility of agencies to protect whistleblowers from retaliation. These requirements are significant because of the essential protections they provide. Prohibited personnel actions are not consistent with the notion of a system based on merit and failure to observe these prohibitions must be addressed promptly and resolutely. Based on this need, OPM is proposing a new addition to the current adverse action system. We are revising our regulations to incorporate the changes created by the statute and ensure that agencies understand how to meet the additional requirements in connection with prohibited personnel actions. This new proposed rule falls under subpart A of 5 CFR part 752 as ‘‘Discipline of supervisors based on retaliation against whistleblowers.’’ The proposed language implements the statutory authority and procedures of 5 U.S.C. 7515 which require that certain actions be taken against a supervisor who retaliates against a whistleblower. These provisions reinforce the principle that increased accountability is warranted in situations where a supervisor commits a prohibited personnel action against an employee of an agency, in violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b). The proposed rule subjects an action taken under subpart A to many of the same procedural requirements as an action taken under subparts B, D, and F of this chapter. For example, Subpart A incorporates the standard for action from each of the related subparts in this chapter. However, the proposed rule also includes some key exceptions. These proposed regulations help to undergird and support agencies in meeting their requirements to take action against any supervisor who retaliates against whistleblowers. The following section identifies the major additions proposed by this subpart and briefly describes the purpose of each addition. Section 752.101 Coverage The proposed rule describes the adverse actions covered and defines key terms used throughout the subchapter. PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 48797 The proposed rule includes a definition for the term ‘‘business day.’’ This addition is necessary to implement the 15 business day decision period described in E.O. 13839. The proposed rule also includes a definition for ‘‘insufficient evidence.’’ OPM defines this new term as evidence that fails to meet the substantial evidence standard described in 5 CFR 1201.4(p). Section 752.102 Standard for Action and Penalty Determination 5 U.S.C. 7515 incorporates many of the procedural elements of 5 U.S.C. 7503, 7513 and 7543, to include the standards of action applied to each type of adverse action. For supervisors not covered under subchapter V of title 5, the proposed rule applies the efficiency of the service standard. For supervisors who are members of the Senior Executive Service, the proposed rule defines the standard of action as misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment, or to accompany a position in a transfer of function. 5 U.S.C. 7515 enhances statutory protection for whistleblowers through the creation of proposed mandatory penalties. Specifically, for the first incident of a prohibited personnel action, an agency is required to propose the penalty at a level no less than a 3day suspension. Further, the agency may propose an additional action, including a reduction in grade or pay. For the second incident of a prohibited personnel action, an agency is required to propose that the supervisor be removed. Section 752.103 Procedures The proposed rule establishes the procedures to be utilized for actions taken under this subpart. The procedures in the subpart are the same as those described in 5 U.S.C. 7503, 7513 and 7543, with the exception of provisions concerning advance notice and the reply period. Agencies must implement the related procedures on taking action, which have a shortened time period and require agencies to issue a final decision on a proposed action against a supervisor after the end of the 14-day advance notice period. Under this subpart, supervisors against whom an action is proposed are entitled to no more than 14 days to answer after receipt of the proposal notice. At the conclusion of the 14-day reply period, the agency shall carry out the proposed action if the supervisor fails to provide evidence or provides evidence that the head of the agency deems insufficient. Notably, the proposed rule also includes the requirement that, if the head of an E:\FR\FM\17SEP1.SGM 17SEP1 48798 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules agency is responsible for determining whether a supervisor has committed a prohibited personnel action, that responsibility may not be delegated. Finally, the proposed rule at § 752.103 (d) includes language that, to the extent practicable, 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. Section 752.104 Settlement Agreements The proposed language in this section establishes the same requirement that is detailed in the proposed rule changes at § 432.108, Settlement agreements. Please see discussion in § 432.108. Subpart B—Regulatory Requirements for Suspension for 14 Days or Less This subpart addresses the procedural requirements for suspensions of 14 days or less for covered employees. jbell on DSK3GLQ082PROD with PROPOSALS Section 752.201 Coverage Pursuant to the creation of subpart A within the proposed rule, § 752.201(c) reflects an exclusion for actions taken under 5 U.S.C. 7515. Section 752.202 Standard for Action and Penalty Determination While the standard for action under this subpart remains unchanged, the proposed rule makes clear that an agency is not required to use progressive discipline under this subpart. Further, OPM has decided to adopt formally by regulation in this section 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, the proposed rule adopts the requirement to propose and impose a penalty that is within the bounds of tolerable reasonableness. This is a principle that is embedded deeply in Federal civil-service law. Arbitrators are required to defer to an agency decision, and may not mitigate a penalty unless it is beyond the bounds of tolerable reasonableness. We now make it clear that this standard applies not only to those actions taken under 5 U.S.C. 7513, but apply as well to those taken under 5 U.S.C. 7503. Any collective-bargaining proposal in conflict with this government-wide regulation will be contrary to law and non-negotiable. There is no legal principle in the Federal Government that requires agencies to impose the least penalty to rehabilitate an employee. A proposed penalty is in the sole and exclusive discretion of the proposing official, and the penalty VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 decision is in the sole and exclusive discretion of the deciding official, subject to appellate or other review procedures prescribed in law and cannot be the subject of collective bargaining. The penalty for an instance of misconduct should be tailored to the facts and circumstances of each case. Further, employees should be treated equitably. Nevertheless, conduct that justifies discipline of one employee at one time by a particular deciding official does not necessarily justify the same or similar disciplinary decision for a different employee at a different time. So agencies should consider appropriate comparators when evaluating a potential disciplinary action. The Court of Appeals for the Federal Circuit has held that an agency need only provide ‘‘proof that the proffered comparator was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline.’’ Miskill v. Social Security Administration, 863 F.3d 1379 (Fed. Cir. 2017). It should not tie the hands of a different deciding official at a different time or in a different context, or under different circumstances. We are proposing adoption of the Miskill test. This reinforces the key principle that each case stands on its own factual and contextual footing. Finally, 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. These guidelines reflect established principles, but stress management discretion to promote efficient Government while protecting the interests of all involved. With respect to penalty determination, it is also noteworthy that some agencies develop and use tables of penalties to assist supervisors in identifying the level of discipline that may be appropriate to an individual case. The creation and use of a table of penalties is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic. The applicable standard, ‘‘to promote the efficiency of the service,’’ is broad and supple enough to encompass all occurrences that may occasion an adverse action. Thus, agencies have the ability to address misconduct appropriately without a table of penalties, and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct. Tables of penalties may create significant drawbacks to the viability of a particular action and to effective management. Specifically, tables of penalties, by creating a range of penalties for an PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 offense, limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum. Agencies that specify a range of penalties should expect that adjudicators may be, and have been, impervious to agency pleas that someone who holds a particular position may not be restored to the workplace. Although the law permits the agency to impose the maximum reasonable penalty, some adjudicators have responded that the existence of an agency promulgated range of penalties belies this claim. Although such adjudications are contrary to and undermine settled legal principles, they resist further administrative or judicial review of penalty decisions. Further, OPM encourages managers to think carefully and coherently about when and how to impose discipline in a way that fosters an effective and efficient workplace, in the best interests of all employees and the agency’s mission. By contrast, tables of penalties can foster a ‘‘by-the-numbers’’ approach in which managers may hide behind a chart imposed from above rather than take direct responsibility for their workplace. A further risk of having an agency table of penalties is that a supervisor may apply it so inflexibly as to impair consideration of other factors relevant to an individual case. This type of rigid application of a table of penalties runs counter to the overall directive of Douglas to consider all of the criteria that may apply to an individual set of factual circumstances. A table of penalties does not, and should not, replace supervisory judgment. It is vital that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty. However, once an agency establishes a table of penalties, it will be held accountable for striking a balance between ensuring that supervisors use their best judgment in applying the full spectrum of Douglas factors, with accountability for ensuring a level of consistency with the range of penalties described for a particular charge within the agency’s table. For that reason, the proposed amendments to this section emphasize that an agency is not required to use progressive discipline and that the penalty for an instance of misconduct should be tailored to the facts and the circumstances, in lieu of the type of formulaic and rigid penalty determination that frequently results from agency publication of tables of penalties. E:\FR\FM\17SEP1.SGM 17SEP1 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules jbell on DSK3GLQ082PROD with PROPOSALS Finally, there is a significant body of decisional law concerning elucidating required manners of labelling and charging misconduct with attendant proof of an employee’s state of mind. See for example, Nazelrod v. Department of Justice, 43 F.3d 663 (Fed. Cir. 1994). This type of common-law pleading is unusual in American law and is burdensome on agencies, spawning reams of costly training material and charging guides. It also slows the charging and decision making process. A table of penalties can exacerbate these problems further by implying that if an employee acts in a way that does not appear in a table of penalties’ list of ‘‘offenses,’’ the behavior is beyond the agency’s capacity to charge and penalize. In short, there is no substitute for managers thinking independently and carefully about each incident as it arises, and, as appropriate, proposing or deciding the best penalty to fit the circumstances. Progressive discipline and table of penalties are inimical to good management principles. Finally, the proposed rule at § 752.202(f) adds language stating that 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. Section 752.203 Procedures Section 752.203(b) discusses the requirements for a proposal notice issued under this subpart. This section provides that the notice of proposed action 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 proposed rule includes language that the notice must also provide detailed information with respect to any right to appeal the action pursuant to Public Law 115–91 section 1097(b)(2)(A); specifically, the forum 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. This additional language implements the requirement within Public Law 115–91 section 1097(b)(2)(A), which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). Finally, the proposed language in § 752.203(h) establishes the same VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 requirement that is detailed in the proposed rule changes at § 432.108, Settlement agreements. See discussion in § 432.108. 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 Pursuant to the creation of subpart A within the proposed rule, § 752.401(b)(14) reflects an exclusion for actions taken under 5 U.S.C. 7515. Section 752.401(c) identifies employees covered by this subpart. The proposed rule at § 752.401(c)(2) updates coverage to include an employee in the competitive service who is not serving a probationary or trial period under an initial appointment or, except as provided in section 1599e of title 10, United States Code, who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. This language has been updated to align with 5 U.S.C. 7511(a)(1)(A)(ii). Section 752.402 Definitions The proposed rule includes a definition for the term ‘‘business day.’’ This addition is necessary to implement the 15 business day decision period described in E.O. 13839. Section 752.403 Standard for Action and Penalty Determination As with the rule changes proposed for § 752.202, the standard for action under this subpart remains unchanged and incorporates a penalty determination based on the principles of E.O. 13839. Please see discussion in § 752.202. In addition, the proposed rule at § 752.403 adds paragraph (f) which states that a suspension or a reduction in pay or grade 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 reduced in pay or grade before a proposing official may propose removal, except as may be appropriate under applicable facts. Section 752.404 Procedures Section 752.404(b) discusses the requirements for a notice of proposed action issued under this subpart. PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 48799 Specifically, § 752.404(b)(1) provides 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). Any notice period greater than 30 days must be reported to OPM. The proposed rule also includes the requirement that the notice must provide detailed information with respect to any right to appeal the action pursuant to Public Law 115–91 section 1097(b)(2)(A); specifically, the forum 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. This additional language implements the requirement in Public Law 115–91 section 1097(b)(2)(A), which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). The proposed rule at § 752.404(b)(3)(iv) also incorporates by reference the provisions of 5 U.S.C. 6329b, the Administrative Leave Act of 2016, related to placing an employee in a paid non-duty status during the advance notice period. Until OPM has published the final regulation for 5 U.S.C. 6329b, and after conclusion of the agency implementation period, in those rare circumstances where the agency determines that the employee’s continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, an agency will continue to have as an alternative the ability to place an employee in a paid, nonduty status for such time to effect the action. Thereafter, an agency may use the provisions of 5 U.S.C. 6329b as applicable. Finally, the proposed rule at § 752.404(g) discusses the requirements for an agency decision issued under this subpart. Specifically, the proposed rule at § 752.404(g)(3) includes new language that, to the extent practicable, 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 to reflect a key principle of E.O. 13839. These proposed changes facilitate timely resolution of adverse actions while preserving employee rights. E:\FR\FM\17SEP1.SGM 17SEP1 48800 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules Section 752.407 Settlement Agreements The proposed language in this section establishes the same requirement that is detailed in the proposed rule changes at § 432.108, Settlement Agreements. See discussion regarding § 432.108 above. 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 forth in 5 U.S.C. 7542. Section 752.601 Coverage Pursuant to the creation of subpart A within the proposed rule, § 752.601(b)(2) reflects an exclusion for actions taken under 5 U.S.C. 7515. Section 752.602 Definitions The proposed rule includes a definition for the term ‘‘business day.’’ This addition is necessary to implement the 15 business day decision period described in E.O. 13839. jbell on DSK3GLQ082PROD with PROPOSALS Section 752.603 Standard for Action and Penalty Determination As with the rule changes proposed for §§ 752.202 and 752.403, the standard for action under this subpart remains unchanged and incorporates a penalty determination based on the principles of E.O. 13839. Please see discussion in § 752.202. In addition, the proposed rule at § 752.603 adds paragraph (f) which states that a suspension or a reduction in pay or grade 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 reduced in pay or grade before a proposing official may propose removal, except as may be appropriate under applicable facts. Section 752.604 Procedures Section 752.604(b) discusses the requirements for a notice of proposed action issued under this subpart. We have revised the language in this subpart to be consistent with the advance notice period for general schedule employees. Specifically, § 752.604(b)(1) provides 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. 7543(b)(1). Any notice period greater than 30 days must be reported to OPM. The proposed rule also includes additional language that the notice must VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 provide detailed information with respect to any right to appeal the action pursuant to Public Law 115–91 section 1097(b)(2)(A); specifically, the forum 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. This additional language implements the requirement within Public Law 115–91 section 1097(b)(2)(A), which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). The proposed rule at § 752.604(b)(2)(iv) also incorporates by reference the provisions of 5 U.S.C. 6329b, The Administrative Leave Act of 2016, related to placing an employee in a paid non-duty status during the advance notice period. However, as noted above, until OPM has published the final regulation for 5 U.S.C. 6329b, and after conclusion of the agency implementation period, in those rare circumstances where the agency determines that the employee’s continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, or otherwise jeopardize legitimate Government interests, an agency will continue to have as an alternative the ability to place an employee in a paid, nonduty status for such time to effect the action. Thereafter, an agency may use the provisions of 5 U.S.C. 6329b as applicable. Finally, the proposed rule at § 752.604(g) discusses the requirements for an agency decision issued under this subpart. Specifically, the proposed rule at § 752.604(g)(3) includes new language that, to the extent practicable, 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 to reflect one of the key principles of E.O. 13839. Section 752.607 Agreements Settlement The proposed language in this section establishes the same requirement that is detailed in the proposed rule changes at §§ 432.108, 752.203 and 752.407. Please see discussion regarding § 432.108 above. Regulatory Flexibility Act I certify that this regulation will not have a significant impact on a substantial number of small entities PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 because it applies only to Federal agencies and employees. E.O. 13563 and E.O. 12866, Regulatory Review Executive Orders 13563 and 12866 direct 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a ‘‘significant regulatory action,’’ under Executive Order 12866. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs This proposed rule is not expected to be subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this proposed rule is expected to be related to agency organization, management, or personnel. E.O. 13132, 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 rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment. E.O. 12988, Civil Justice Reform This regulation meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local or tribal governments of more than $100 million annually. Thus, no written assessment of unfunded mandates is required. Congressional Review Act This action pertains to agency management, personnel and organization and does not substantially affect the rights or obligations of nonagency parties and, accordingly, is not a ‘rule’ as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory E:\FR\FM\17SEP1.SGM 17SEP1 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act. List of Subjects in Title 5 CFR Parts 351, 430, 432 and 752 5 CFR Part 315 Government employees. 5 CFR Part 432 Government employees. 5 CFR Part 752 Government employees. (a)* * * (1) Once an employee has been afforded a reasonable opportunity to demonstrate acceptable performance pursuant to § 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. For the purposes of this section, the opportunity to demonstrate acceptable performance includes measures taken during the opportunity period as well as any other measures taken during the appraisal period for the purpose of assisting employees pursuant to 5 U.S.C. 4302(c)(5). Agencies may satisfy the requirement to provide assistance before or during the opportunity period. * * * * * (4)* * * (i)* * * (B)* * * (3) To consider the employee’s answer if an extension to the period for an answer has been granted (e.g., because of the employee’s illness or incapacitation); (4) To consider reasonable accommodation of a disability; * * * * * (C) If an agency believes that an extension of the advance notice period is necessary for another reason, it may request prior approval for such extension from the Manager, Employee Accountability, Accountability and Workforce Relations, Employee Services, Office of Personnel Management, 1900 E Street NW, Washington, DC 20415. * * * * * ■ 7. Revise § 432.106(b)(1) to read as follows: Authority: 5 U.S.C. 4303, 4305. 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; E.O. 13162, and E.O. 13839. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. 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 2. Revise § 315.803(a) to read as follows: ■ § 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 Jkt 247001 * * * * 4. Amend § 432.103 by revising paragraph (g) to read as follows: * * * * * (g) Similar positions mean positions in which the duties performed are similar in nature and character and require substantially the same or similar qualifications, so that the incumbents could be interchanged without significant training or undue interruption to the work. * * * * * ■ 5. Revise § 432.104 to read as follows: ■ ■ jbell on DSK3GLQ082PROD with PROPOSALS PART 432—PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS * PART 315—CAREER AND CAREERCONDITIONAL EMPLOYMENT 16:32 Sep 16, 2019 during the opportunity period. The nature of such assistance is not determinative of a reduction in grade or pay, or a removal. 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. * * * * * ■ 6. Amend § 432.105 by revising paragraphs (a)(1), (a)(4)(i)(B)(3) through (4) and paragraph (a)(4)(i)(C) to read as follows: 3. Revise the authority citation for part 432 to read as follows: Accordingly, for the reasons stated in the preamble, OPM proposes to amend 5 CFR parts 315, 432 and 752 as follows: VerDate Sep<11>2014 to demonstrate fully his or her qualifications for continued employment. The agency must notify its supervisors that an employee’s probationary period is ending at least three months or 90 days prior to the expiration of an employee’s probationary period, and then again one month or 30 days prior to the expiration of the probationary period, and advise a supervisor to make an affirmative decision regarding an employee’s fitness for continued employment or otherwise take appropriate action. * * * * * ■ Office of Personnel Management. Stephen Hickman, Federal Register Liaison. 48801 § 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. Other than the requirement described in 5 U.S.C. 4302(c)(5), there is no requirement regarding any assistance to be offered or provided by the agency PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 § 432.105 Proposing and taking action based on unacceptable performance. § 432.106 Appeal and grievance rights. * * * * * (b) Grievance rights. (1) A bargaining unit employee covered under E:\FR\FM\17SEP1.SGM 17SEP1 48802 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules § 432.102(e) who has been removed or reduced in grade under this part may file a grievance under an applicable negotiated grievance procedure if the removal or reduction in grade action falls within its coverage (i.e., is not excluded by the parties to the collective bargaining agreement) and the employee is: * * * * * ■ 8. Revise § 432.107(b) to read as follows: § 432.107 Agency records. * * * * * (b) When the action is not effected. As provided at 5 U.S.C. 4303(d), if, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee’s performance continues to be acceptable for one year from the date of the advanced written notice provided in accordance with § 432.105(a)(4)(i), any entry or other notation of the unacceptable performance for which the action was proposed shall be removed from any agency record relating to the employee. * * * * * ■ 9. Add § 432.108 to read as follows: jbell on DSK3GLQ082PROD with PROPOSALS § 432.108 Settlement agreements. (a) Agreements to alter personnel records. 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 action. (b) Corrective action based on discovery of agency error. The requirements described in paragraph (a) should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee’s personnel record(s) to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. And an agency should report any agreements relating to the removal of such information as part of its annual report to the OPM Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include, for example, an SF–50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. (c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period. To the extent an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency records. The requirements described in paragraph (a) would, however, continue to apply to any accurate information about the employee’s conduct leading up to that proposed action or separation from Federal service. PART 752—ADVERSE ACTIONS Subpart A—Discipline of Supervisors Based on Retaliation Against Whistleblowers Subpart B—Regulatory Requirements for Suspension for 14 Days or Less Sec. 752.201 Coverage. 752.202 Standard for action and penalty determination. 752.203 Procedures. Subpart C [Reserved] Subpart D—Regulatory Requirements for Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less Sec. 752.401 Coverage. 752.402 Definitions. 752.403 Standard for action and penalty determination. 752.404 Procedures. 752.405 Appeal and grievance rights. 752.406 Agency records. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 752.407 Settlement agreements. Subpart E [Reserved] Subpart F—Regulatory Requirements for Taking Adverse Actions Under the Senior Executive Service Sec. 752.601 Coverage. 752.602 Definitions. 752.603 Standard for action and penalty determination. 752.604 Procedures. 752.605 Appeal rights. 752.606 Agency records. 752.607 Settlement agreements. 10. Revise the authority citation for part 752 to read as follows: ■ Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115–91. * * * * * 11. Add subpart A to part 752 to read as follows: ■ Subpart A —Discipline of Supervisors Based on Retaliation Against Whistleblowers Sec. 752.101 Coverage. 752.102 Standard for action and penalty determination. 752.103 Procedures. 752.104 Settlement agreements. § 752.101 Coverage. (a) Adverse actions covered. This subpart applies to actions taken under 5 U.S.C. 7515. (b) Definitions. In this subpart— Agency— (1) Has the meaning given the term in 5 U.S.C. 2302(a)(2)(C), without regard to whether any other provision of this chapter is applicable to the entity; and (2) Does not include any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003). Business day means any day other than a Saturday, Sunday, or legal public holiday under 5 U.S.C. 6103(a). Day means a calendar day. Grade means a level of classification under a position classification system. Insufficient evidence means evidence that fails to meet the substantial evidence standard described in 5 CFR 1201.4(p). Pay means the rate of basic pay fixed by law or administrative action for the position held by the employee, that is, the rate of pay before any deductions and exclusive of additional pay of any kind. Prohibited personnel action means taking or failing to take an action in violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b) against an employee of an agency. E:\FR\FM\17SEP1.SGM 17SEP1 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules Supervisor means an employee who would be a supervisor, as defined in 5 U.S.C. 7103(a)(10), if the entity employing the employee was an agency. Suspension means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay. § 752.102 Standard for action and penalty determination. (a) Except for actions taken against supervisors covered under subchapter V of title 5, an agency may take an action under this subpart for such cause as will promote the efficiency of the service as described in 5 U.S.C. 7503(a) and 7513(a). For actions taken under this subpart against supervisors covered under subchapter V of title 5, an agency may take an action based on the standard described in 5 U.S.C. 7543(a). (b) Subject to 5 U.S.C. 1214(f), if the head of the agency in which a supervisor is employed, an administrative law judge, the Merit Systems Protection Board, the Special Counsel, a judge of the United States, or the Inspector General of the agency in which a supervisor is employed has determined that the supervisor committed a prohibited personnel action, the head of the agency in which the supervisor is employed, consistent with the procedures required under this subpart— (1) For the first prohibited personnel action committed by the supervisor— (i) Shall propose suspending the supervisor for a period that is not less than 3 days; and (ii) May propose an additional action determined appropriate by the head of the agency, including a reduction in grade or pay; and (2) For the second prohibited personnel action committed by the supervisor, shall propose removing the supervisor. jbell on DSK3GLQ082PROD with PROPOSALS § 752.103 Procedures. (a) Non-delegation. If the head of an agency is responsible for determining whether a supervisor has committed a prohibited personnel action for purposes of § 752.102(b), the head of the agency may not delegate that responsibility. (b) Scope. An action carried out under this subpart— (1) Except as provided in paragraph (b)(2) of this section, shall be subject to the same requirements and procedures, including those with respect to an appeal, as an action under 5 U.S.C. 7503, 7513, or 7543; and (2) Shall not be subject to— (i) Paragraphs (1) and (2) of 5 U.S.C. 7503(b); VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 (ii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of 5 U.S.C. 7513; and (iii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of 5 U.S.C. 7543. (c) Notice. A supervisor against whom an action is proposed to be taken under this subpart is entitled to written notice that— (1) States the specific reasons for the proposed action; (2) Informs the supervisor about the right of the supervisor to review the material that is relied on to support the reasons given in the notice for the proposed action;— and (3) Provides notice of 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. (d) Answer and evidence. (1) A supervisor who receives notice under paragraph (c) of this section may, not later than 14 days after the date on which the supervisor receives the notice, submit an answer and furnish evidence in support of that answer. (2) If, after the end of the 14-day period described in paragraph (d)(1) of this section, a supervisor does not furnish any evidence as described in that clause, or if the head of the agency in which the supervisor is employed determines that the evidence furnished by the supervisor is insufficient, the head of the agency shall carry out the action proposed under § 752.102(b), as applicable. (3) To the extent practicable, 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. § 752.104 Settlement agreements. (a) Agreements to alter official personnel records. 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 action. (b) Corrective action based on discovery of agency error. The requirements described in paragraph (a) PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 48803 should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee’s personnel record(s) to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. And an agency should report any agreements relating to the removal of such information as part of its annual report to the OPM Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include, for example, an SF–50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. (c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period. To the extent an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency records. The requirements described in paragraph (a) would, however, continue to apply to any accurate information about the employee’s conduct leading up to that proposed action or separation from Federal service. ■ 12. In § 752.201, revise paragraphs (c)(4) and (5) and add paragraph (c)(6) to read as follows: § 752.201 * Coverage. * * (c) * * * E:\FR\FM\17SEP1.SGM 17SEP1 * * 48804 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules (4) Of a re-employed annuitant; (5) Of a National Guard Technician; or (6) Taken under 5 U.S.C. 7515. * * * * * ■ 13. In § 752.202, revise the section heading and add paragraphs © through (f) to read as follows: § 752.202 Standard for action and penalty determination. * * * * (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 are individuals in the same work unit, with the same supervisor who were subjected to the same standards governing discipline. (e) Among other relevant factors, agencies should consider an employee’s disciplinary record and past work record, including all 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. * * * * * ■ 14. Amend § 752.203 by revising paragraph (b) and by adding paragraph (h) to read as follows: jbell on DSK3GLQ082PROD with PROPOSALS * § 752.203 Procedures. * * * * * (b) Notice of proposed action. 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 VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 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 forum 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. * * * * * (h) Settlement agreements. (1) 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 action. (2) The requirements described in paragraph (1) should not be construed to prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee’s personnel record(s) to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. And an agency should report any agreements relating to the removal of such information as part of its annual report to the OPM Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include, for example, an SF–50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. (3) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period. To the extent an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency records. The requirements described in paragraph (h)(1) of this section would, however, continue to apply to any accurate information about the employee’s conduct leading up to that proposed action or separation from Federal service. ■ 15. In § 752.401, revise paragraphs (b)(14) and (15), add paragraphs (b)(16) and revise paragraph (c)(2) to read as follows: § 752.401 Coverage. * * * * * (b) * * * (14) Placement of an employee serving on an intermittent or seasonal basis in a temporary nonduty, nonpay status in accordance with conditions established at the time of appointment; (15) Reduction of an employee’s rate of basic pay from a rate that is contrary 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; or (16) An action taken under 5 U.S.C. 7515. (c) * * * (2) An employee in the competitive service— (i) Who is not serving a probationary or trial period under an initial appointment; or (ii) Except as provided in section 1599e of title 10, United States Code, who has completed one year of current continuous service under other than a temporary appointment limited to one year or less; * * * * * ■ 16. In § 752.402, add the definition for ‘‘Business day’’ in alphabetical order to read as follows: § 752.402 Definitions. * * * * * Business day means any day other than a Saturday, Sunday, or legal public holiday under 5 U.S.C. 6103(a). * * * * * E:\FR\FM\17SEP1.SGM 17SEP1 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules 17. In § 752.403, revise the section heading and add paragraphs (c) through (f) to read as follows: ■ § 752.403 Standard for action and penalty determination. * * * * * (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 in that 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 are individuals in the same work unit, with the same supervisor who were subjected to the same standards governing discipline. (e) Among other relevant factors, agencies should consider an employee’s disciplinary record and past work record, including all prior misconduct, when taking an action under this subpart. (f) A suspension or a reduction in grade or pay 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 reduced in pay or grade before a proposing official may propose removal, except as may be appropriate under applicable facts. ■ 18. Amend § 752.404 by revising paragraphs (b)(1) and (b)(3)(iv), and adding paragraph (g)(3) to read as follows: § 752.404 Procedures. jbell on DSK3GLQ082PROD with PROPOSALS * * * * * (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. However, to the extent an agency in its sole and exclusive discretion deems practicable, VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 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. 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. * * * * * (3) * * * (iv) Placing the employee in a paid, nonduty status for such time as is necessary to effect the action. After publication of regulations for 5 U.S.C. 6329b, and the subsequent agency implementation period in accordance with 5 U.S.C. 6329b, an agency may place the employee in a notice leave status when applicable. * * * * * (g) * * * (3) To the extent practicable, 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 (c) of this section. * * * * * ■ 19. Add § 752.407 to to read as follows: § 752.407 Settlement agreements. (a) Agreements to alter official personnel records. 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 action. (b) Corrective action based on discovery of agency error. The requirements described in paragraph (a) of this section should not be construed to prevent agencies from taking corrective action, should it come to light, including during or after the issuance of an adverse personnel action PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 48805 that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee’s personnel record(s) to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. And an agency should report any agreements relating to the removal of such information as part of its annual report to the OPM Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include, for example, an SF–50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. (c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period. To the extent an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency records. The requirements described in paragraph (a) would, however, continue to apply to any accurate information about the employee’s conduct leading up to that proposed action or separation from Federal service. ■ 20. Revise § 752.601(b)(2) to read as follows: § 752.601 Coverage. * * * * * (b) * * * (2) This subpart does not apply to actions taken under 5 U.S.C. 1215, 3592, 3595, 7532, or 7515. * * * * * E:\FR\FM\17SEP1.SGM 17SEP1 48806 Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / Proposed Rules 21. Amend § 752.602 by adding a definition for ‘‘Business day’’ in alphabetical order to read as follows: ■ § 752.602 Definitions. * * * * * Business day means any day other than a Saturday, Sunday, or legal public holiday under 5 U.S.C. 6103(a). * * * * * ■ 22. In § 752.603, revise the section heading and add paragraphs (c) through (f) to read as follows: § 752.603 Standard for action and penalty determination. jbell on DSK3GLQ082PROD with PROPOSALS * * * * * (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. (d) Employees should be treated equitably in that 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 are individuals in the same work unit, with the same supervisor who were subjected to the same standards governing discipline. (e) Among other relevant factors, agencies should consider an employee’s disciplinary record and past work record, including all prior misconduct, when taking an action under this subpart. (f) A suspension or reduction in grade or pay 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 reduced in pay or grade before a proposing official may propose removal, except as may be appropriate under applicable facts. * * * * * ■ 23. Amend § 752.604 by revising paragraphs (b)(1) and (b)(2)(iv), and adding paragraph (g)(3) to read as follows: § 752.604 Procedures. * * * * * (b) * * * (1) An appointee against whom an action is proposed is entitled to at least 30 days’ advance written notice unless VerDate Sep<11>2014 16:32 Sep 16, 2019 Jkt 247001 there is an exception pursuant to paragraph (d) of this section. 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 7543(b)(1) of title 5, United States Code. Advance notices of greater than 30 days must be reported to the Office of Personnel Management. 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. (2) * * * (iv) Placing the appointee in a paid, no duty status for such time as is necessary to effect the action. After publication of regulations for 5 U.S.C. 6329b, and the subsequent agency implementation period in accordance with 5 U.S.C. 6329b, an agency may place the employee in a notice leave status when applicable. * * * * * (g) * * * (3) To the extent practicable, 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 (c) of this section. * * * * * ■ 24. Add § 752.607 to read as follows: § 752.607 Settlement agreements. (a) Agreements to alter official personnel records. 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 action. (b) Corrective action based on discovery of agency error. The requirements described in paragraph (a) of this section should not be construed to prevent agencies from taking corrective action, should it come to PO 00000 Frm 00013 Fmt 4702 Sfmt 9990 light, including during or after the issuance of an adverse personnel action that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee’s personnel record(s) to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. And an agency should report any agreements relating to the removal of such information as part of its annual report to the OPM Director required by Section 6 of E.O. 13839. Documents subject to withdrawal or modification could include, for example, an SF–50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. (c) Corrective action based on discovery of material information prior to final agency action. When persuasive evidence comes to light prior to the issuance of a final agency decision on an adverse personnel action casting doubt on the validity of the action or the ability of the agency to sustain the action in litigation, an agency may decide to cancel or vacate the proposed action. Additional information may come to light at any stage of the process prior to final agency decision including during an employee response period. To the extent an employee’s personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee’s personnel file or other agency records. The requirements described in paragraph (a) would, however, continue to apply to any accurate information about the employee’s conduct leading up to that proposed action or separation from Federal service. [FR Doc. 2019–19636 Filed 9–16–19; 8:45 am] BILLING CODE 6325–39–P E:\FR\FM\17SEP1.SGM 17SEP1

Agencies

[Federal Register Volume 84, Number 180 (Tuesday, September 17, 2019)]
[Proposed Rules]
[Pages 48794-48806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19636]


========================================================================
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.

========================================================================


Federal Register / Vol. 84, No. 180 / Tuesday, September 17, 2019 / 
Proposed Rules

[[Page 48794]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR parts 315, 432 and 752

RIN 3206-AN60


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.

-----------------------------------------------------------------------

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 will effect a revision of OPM's 
regulations to make procedures relating to these subjects more 
efficient and effective. The proposed rule also amends the regulations 
to incorporate other statutory changes and technical revisions.

DATES: Comments must be received on or before October 17, 2019.

ADDRESSES: You may submit comments, identified by the docket number or 
Regulation Identifier Number (RIN) for this proposed rulemaking, by any 
of the following methods:
     Federal eRulemaking Portal: http://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 the 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: The Office of Personnel Management (OPM) is 
proposing revisions to regulations governing probation on initial 
appointment to a competitive position; performance-based reduction in 
grade and removal actions; and adverse actions under statutory 
authority vested in it by Congress in 5 U.S.C. 3321, 4305, 4315, 7504, 
7514 and 7543. The regulations will assist agencies in carrying out, 
consistent with law, certain of the President's directives to the 
Executive Branch in Executive Order 13839 that are not currently 
enjoined, and update current procedures to make them more efficient and 
effective. The proposed regulations also will update references and 
language due to statutory changes; and clarify procedures and 
requirements to support managers in addressing unacceptable performance 
and promoting employee accountability for performance-based reduction-
in-grade, removal actions and adverse actions. The proposed regulations 
support agencies in implementing their plans to maximize employee 
performance as required by Office of Management and Budget (OMB) M-17-
22 (April 12, 2017) and elements of the President's Management Agenda 
relating to the Workforce for the 21st Century.
    OPM is aware of the judicially-imposed limitations on implementing 
other portions of Executive Order 13839. OPM has and will continue to 
comply fully with the injunction, and will not issue regulations 
implementing the invalidated parts of the Executive Order as long as 
the judicial injunction is in place. OPM will heed the court's 
reaffirmation that ``Congress has clearly vested OPM with the authority 
to `execut[e], administer [ ], and enforc[e] the civil service rules 
and regulations of the President and the Office and the laws governing 
the civil service . . .'' and with the authority to `aid [ ] the 
President, as the President may request, in preparing such civil 
service rules as the President prescribes.' '' OPM further relies upon 
the court's statement that, ``given the wellsprings of authority that 
OPM enjoys in this area, OPM can surely receive directions from the 
President to promulgate regulations that are consistent with the rights 
and duties that the FSLMRS or CSRA prescribe, and setting aside the 
invalidity of some of the underlying substantive mandates.'' American 
Federation of Government Employees, AFL-CIO v. Trump, 318 F. Supp. 3d 
370, 438 (D.D.C. 2018). OPM is proposing these regulations under its 
congressionally-granted authority to regulate the Parts that it 
proposes to revise subject to the notice-and-comment process set forth 
in the Administrative Procedure Act, and mindful of the President's 
expressed policy direction.

The Case for Action

``* * * I call on Congress to empower every Cabinet Secretary with the 
authority to reward good workers and to remove Federal employees who 
undermine the public trust or fail the American people.''

    With that statement on January 29, 2018, President Trump set a new 
direction for promoting efficient and effective use of the Federal 
workforce--reinforcing Federal employees should be both rewarded and 
held accountable for performance and conduct. Merit system principles 
provide a framework for responsible behavior that is aligned with the 
broader responsibility Federal government employees agree to when they 
take the oath to preserve and defend the Constitution. In keeping with 
merit system principles, the President's Management Agenda (PMA) 
recognizes that Federal employees underpin nearly all the operations of 
the Government, ensuring the smooth functioning of our democracy. The 
Federal personnel system needs to keep pace with changing workplace 
needs and return to its root principles. Notably, as demonstrated in 
the Federal Employee Viewpoint Survey, a majority of both employees and 
managers agree that the performance management system fails to reward 
the best and address unacceptable performance. Finally, the PMA calls 
for agencies to establish

[[Page 48795]]

processes that help agencies retain top employees and efficiently 
remove those who fail to perform or to uphold the public's trust.
    Prior to establishment of the PMA, the Office of Management and 
Budget (OMB) issued a memorandum to agencies on April 12, 2017 entitled 
``M-17-22--Comprehensive Plan for Reforming the Federal Government and 
Reducing the Federal Civilian Workforce.'' M-17-22 called on agencies 
to take near-term actions to ensure that the workforce they hire and 
retain is as effective as possible. OMB called on agencies to determine 
whether aspects of their current policies and practices present 
barriers to hiring and retaining the workforce necessary to execute 
their missions as well as appropriately managing it and, if necessary, 
removing poor performers and employees who commit misconduct. Notably, 
M-17-22 directed agencies to ensure that managers have the tools and 
support they need to manage performance and conduct effectively to 
achieve high-quality results for the American people.
    More recently, E.O. 13839 notes that merit system principles call 
for holding Federal employees accountable for performance and conduct. 
The merit system principles state that employees should maintain high 
standards of integrity, conduct, and concern for the public interest, 
and that the Federal workforce should be used efficiently and 
effectively. They further state that employees should be retained based 
on the adequacy of their performance, inadequate performance should be 
corrected, and employees should be separated who cannot or will not 
improve their performance to meet required standards. E.O. 13839 
further notes that implementation of America's civil service laws has 
fallen far short of these ideals. It acknowledged that the Federal 
Employee Viewpoint Survey has consistently found that less than one-
third of Federal employees believe that the Government deals with poor 
performers effectively. E.O. 13839 finds that failure to address 
unacceptable performance and misconduct undermines morale, burdens good 
performers with subpar colleagues, and inhibits the ability of 
executive agencies to accomplish their missions.
    E.O. 13839 requires executive agencies (as defined in section 105 
of title 5, U.S. Code, excluding the Government Accountability Office) 
to facilitate a Federal supervisor's ability to promote civil servant 
accountability while simultaneously recognizing employee's procedural 
rights and protections. Agencies should recognize and reward good 
performers, while unacceptable performers should be separated if they 
do not improve their performance to meet the required standards. A 
probationary period is one effective tool to evaluate a candidate's 
potential to be an asset to an agency before the candidate's 
appointment becomes final. Therefore, probationary periods, as the 
final step in the hiring process of new employees, should be used to 
the greatest extent possible to assess how well they are performing the 
duties of their jobs; and instances of poor performance and misconduct 
should be dealt with promptly.
    OPM is proposing changes to regulations to implement those 
requirements of E.O. 13839 not judicially enjoined as well as to 
implement the vision of the PMA and the objectives of M-17-22. These 
proposed changes not only support agency efforts in implementing E.O. 
13839, the PMA, and M-17-22, but also will facilitate the ability of 
agencies to deliver on their mission and on providing service to 
American people. Ultimately, these changes support President Trump's 
goal of effective stewardship of taxpayers' money by our government.

Data Collection of Adverse Actions

    Section 6 of E.O. 13839 outlines certain types of data for agencies 
to collect and report to OPM as of fiscal year 2018. To enhance public 
accountability of agencies, OPM will collect and, consistent with 
applicable law, publish the information received from agencies 
aggregated at a level necessary to protect personal privacy. OPM may 
withhold particular information if publication would unduly risk 
disclosing information protected by law, including personally 
identifiable information. Section 6 requires annual reporting of 
various categories of data, including: (1) The number of civilian 
employees in a probationary period or otherwise employed for a specific 
term who were removed by the agency; (2) the number of civilian 
employees reprimanded in writing by the agency; (3) the number of 
civilian employees afforded an opportunity period by the agency under 
section 4302(c)(6) of title 5, United States Code, breaking out the 
number of such employees receiving an opportunity period longer than 30 
days; (4) the number of adverse actions taken against civilian 
employees by the agency, broken down by type of adverse action, 
including reduction in grade or pay (or equivalent), suspension, and 
removal; (5) the number of decisions on proposed removals by the agency 
taken under chapter 75 of title 5, United States Code, not issued 
within 15 business days of the end of the employee reply period; (6) 
the number of adverse actions by the agency for which employees 
received written notice in excess of the 30 days prescribed in section 
7513(b)(1) of title 5, United States Code; (7) the number and key terms 
of settlements reached by the agency with civilian employees in cases 
arising out of adverse actions; and (8) the resolutions or outcomes of 
litigation about adverse actions involving civilian employees reached 
by the agency.
    On July 5, 2018, OPM issued guidance for implementation of E.O. 
13839. This guidance included instructions for each department or 
agency head to coordinate the collection of data from their components 
and compile one consolidated report for submission to OPM using the 
form attached to the guidance memo. Forms must be submitted 
electronically to OPM via email at [email protected] 
generally no later than 60 days following the conclusion of each fiscal 
year. In lieu of outlining the data collection requirements in OPM 
regulations, OPM will issue reminders of this requirement annually and 
provide periodic guidance consistent with the requirements of E.O. 
13839.

5 CFR PART 315, SUBPART H--PROBATION ON INITIAL APPOINTMENT TO A 
COMPETITIVE POSITION

    Section 2(i) of E.O. 13839 provides that a probationary period 
should be used as the final step in the hiring process of a new 
employee. The E.O. further notes that supervisors should use that 
period to assess how well an employee can perform the duties of a job. 
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 in an expeditious manner 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

[[Page 48796]]

of cooperativeness, or other unacceptable conduct or poor performance. 
To achieve the objective of maximizing the effectiveness of this 
probationary period, OPM believes that timely notifications to 
supervisors regarding probationary periods can be a useful tool for 
agencies and should be used. OPM is proposing amendments to regulations 
at Subpart H of 5 CFR part 315 to require agencies to notify 
supervisors that an employee's probationary period is ending, at least 
three months or 90 days prior to expiration of the probationary period, 
and then again one month or 30 days prior to expiration of the 
probationary period, and advise a supervisor to make an affirmative 
decision regarding the employee's fitness for continued employment or 
otherwise take appropriate action. OPM believes this requirement will 
assist agencies in making more effective use of the probationary 
period. Agencies have discretion to determine the method for making 
this communication, but are encouraged to make use of existing 
automated tools to facilitate timely notifications.

5 CFR part 432--Performance-Based Reduction in Grade and Removal 
Actions

Section 432.101 Statutory Authority

    Part 432 applies to reduction in grade and removal of covered 
employees based on performance at the unacceptable level. Congress 
enacted chapter 43, in part, to create a simple, dedicated, though not 
exclusive, process for agencies to use in taking adverse actions based 
on unacceptable performance. Since that time however, chapter 43 has 
not worked as well as Congress intended. In particular, interpretations 
of chapter 43 have made it difficult for agencies to take actions 
against unacceptable performers and to have those actions upheld.

Section 432.104 Addressing Unacceptable Performance

    The proposed rule at Sec.  432.104 clarifies that, other than those 
requirements listed, there is no specific requirement regarding the 
nature of any assistance provided during an opportunity period, and is 
not determinative of the ultimate outcome with respect to reduction in 
grade or pay, or a removal.
    The proposed rule also states that no additional performance 
improvement period or similar informal period to demonstrate acceptable 
performance to meet the required performance standards shall be 
provided prior to or in addition to the opportunity period under this 
part. This change supports the stated principles of E.O. 13839 which 
provide that removing unacceptable performers should be a 
straightforward process furthering effective stewardship of taxpayer 
money. Establishing limits on the opportunity to demonstrate acceptable 
performance by precluding additional opportunity periods beyond what is 
required by law encourages efficient use of the procedures under 
chapter 43 and furthers effective delivery of agency mission while 
still providing employees sufficient opportunity to demonstrate 
acceptable performance as required by law.
    The proposed rule is intended to clarify the requirements in 
chapter 43 of title 5 of the United States Code. The goal of these 
amendments, consistent with E.O. 13839, is to streamline civil service 
removal procedures related to unacceptable performance. Nothing in the 
proposed amendments to 5 CFR part 432 should be construed to relieve 
agencies of their continuing obligations under Federal law, e.g., 5 
U.S.C. 6384 and 29 U.S.C. 791(g). Finally, we note that 5 U.S.C. 
2301(b)(2) provides that employees should receive fair and equitable 
treatment without regard to political affiliation, race, color, 
religion, national origin, sex, marital status, age, and handicapping 
condition, and with proper regard for their privacy and rights. All 
personnel actions must meet this statutory requirement.

Section 432.105 Proposing and Taking Action Based on Unacceptable 
Performance

    5 U.S.C. 4302(c)(5) provides for ``assisting employees in improving 
unacceptable performance;'' and 5 U.S.C. 4302(c)(6) provides for 
``reassigning, reducing in grade, or removing employees who continue to 
have unacceptable performance but only after an opportunity to 
demonstrate acceptable performance.'' The proposed rule de-links 5 
U.S.C. 4302(c)(5) and (6) by clarifying in Sec.  432.105 that the 
opportunity to demonstrate acceptable performance required prior to 
initiating an action pursuant to 5 U.S.C. 4303 may include any and all 
performance assistance measures taken during the performance appraisal 
period to assist employees pursuant to 5 U.S.C. 4302(c)(5), not just 
those taken during the formal opportunity period.

Section 432.108 Settlement Agreements

    Section 5 of E.O. 13839 establishes a new 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 
action. Such agreements have traditionally been referred to as ``clean 
record'' agreements. This new requirement is intended to promote the 
high standards of integrity and accountability within the Federal 
workforce by requiring agencies to maintain personnel records that 
reflect complete information, and not to alter the information 
contained in those records in connection with a formal or informal 
complaint or adverse action. It is further intended to ensure that 
those records are preserved so that agencies can make appropriate and 
informed decisions regarding an employee's qualification, fitness, and 
suitability as applicable to future employment.
    Section 5 requirements should not be construed to prevent agencies 
from correcting records of an action taken by the agency illegally or 
in error. In such cases, an agency has the authority--unilaterally or 
by agreement--to modify an employee's personnel file to remove 
inaccurate information or the record of an erroneous or illegal action. 
Specifically, the proposed rule states that the Section 5 requirements 
of E.O. 13839 should not be construed to prevent agencies from taking 
corrective action should it come to light, including during or after 
the issuance of an adverse personnel action, that the information 
contained in a personnel record is not accurate or records an action 
taken by the agency illegally or in error. In such cases, an agency 
would have the authority, unilaterally or by agreement, to modify an 
employee's personnel file to remove inaccurate information or the 
record of an erroneous or illegal action. An agency may take such 
action even if an appeal/complaint has been filed relating to the 
information that the agency determines to be inaccurate or to reflect 
an action taken illegally or in error. In all events, however, the 
agency must ensure that it removes only information that the agency 
itself has determined to be inaccurate or to reflect an action taken 
illegally or in error. An agency should report any agreements relating 
to removal of such information as part of its annual report to the OPM 
Director, as required by Section 6 of E.O. 13839. Documents subject to 
withdrawal or

[[Page 48797]]

modification could include, for example, an SF-50 issuing a 
disciplinary or performance-based action, a decision memorandum 
accompanying such action, or an employee performance appraisal. See 
discussion above concerning ``Data Collection of Adverse Actions.'' 
Section 5 requirements should also not be construed to prevent agencies 
from entering into partial clean record settlements with regard to 
information provided to non-Federal employers. Finally, to the extent 
that an employee's personnel file or other agency records contain a 
proposed action that is subsequently cancelled, an agency would have 
the authority to remove that action from the employee's personnel file 
or other agency files. The proposed rule states that when persuasive 
evidence comes to light prior to the issuance of a final agency 
decision on an adverse personnel action casting doubt on the validity 
of the action or the ability of the agency to sustain the action in 
litigation, an agency may decide to cancel or vacate the proposed 
action. Additional information may come to light at any stage of the 
process prior to final agency decision including during an employee 
response period. To the extent an employee's personnel file or other 
agency records contain a proposed action that is subsequently 
cancelled, an agency would have the authority to remove that action 
from the employee's personnel file or other agency files. However, the 
requirements described in Section 5 would continue to apply to any 
accurate information about the employee's performance or conduct which 
comes to light prior to issuance of a final agency decision on an 
adverse action. Based on the foregoing, the proposed rule at Sec.  
432.108 reflects E.O. 13839's restrictions on settlement agreements 
arising from chapter 43 actions.

Technical Amendments

    The proposed rule corrects the spelling of the word ``incumbents'' 
within Sec.  432.103(g) and the word ``extension'' at Sec.  
432.105(a)(4)(i)(B)(3). OPM proposes to replace the term ``handicapping 
condition'' with ``disability'' at Sec.  432.105(a)(4)(i)(B)(4) to 
bring the definition into conformance with 29 U.S.C. 705. In this rule, 
OPM also revises Sec.  432.105(a)(4)(i)(C) to correctly identify the 
office that an agency shall contact if it believes that an extension of 
the advance notice period is necessary for a reason other than those 
listed in Sec.  432.105(a)(4)(i)(B). OPM proposes to revise Sec.  
432.106(b)(1) to replace ``i.g.'' with ``i.e.'' within the 
parenthetical concerning non-exclusion by the parties to a collective 
bargaining agreement. Finally, OPM corrects the use of the word 
``affected'' versus ``effected'' within Sec.  432.107(b).

5 CFR Part 752--Adverse Actions

Subpart A--Discipline of Supervisors Based on Retaliation Against 
Whistleblowers

    5 U.S.C. 7515 provides agencies the ability to deal with 
retaliation by supervisors for whistleblowing. The regulations 
reinforce the responsibility of agencies to protect whistleblowers from 
retaliation. These requirements are significant because of the 
essential protections they provide. Prohibited personnel actions are 
not consistent with the notion of a system based on merit and failure 
to observe these prohibitions must be addressed promptly and 
resolutely.
    Based on this need, OPM is proposing a new addition to the current 
adverse action system. We are revising our regulations to incorporate 
the changes created by the statute and ensure that agencies understand 
how to meet the additional requirements in connection with prohibited 
personnel actions. This new proposed rule falls under subpart A of 5 
CFR part 752 as ``Discipline of supervisors based on retaliation 
against whistleblowers.'' The proposed language implements the 
statutory authority and procedures of 5 U.S.C. 7515 which require that 
certain actions be taken against a supervisor who retaliates against a 
whistleblower. These provisions reinforce the principle that increased 
accountability is warranted in situations where a supervisor commits a 
prohibited personnel action against an employee of an agency, in 
violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b). The 
proposed rule subjects an action taken under subpart A to many of the 
same procedural requirements as an action taken under subparts B, D, 
and F of this chapter. For example, Subpart A incorporates the standard 
for action from each of the related subparts in this chapter. However, 
the proposed rule also includes some key exceptions. These proposed 
regulations help to undergird and support agencies in meeting their 
requirements to take action against any supervisor who retaliates 
against whistleblowers. The following section identifies the major 
additions proposed by this subpart and briefly describes the purpose of 
each addition.

Section 752.101 Coverage

    The proposed rule describes the adverse actions covered and defines 
key terms used throughout the subchapter. The proposed rule includes a 
definition for the term ``business day.'' This addition is necessary to 
implement the 15 business day decision period described in E.O. 13839. 
The proposed rule also includes a definition for ``insufficient 
evidence.'' OPM defines this new term as evidence that fails to meet 
the substantial evidence standard described in 5 CFR 1201.4(p).

Section 752.102 Standard for Action and Penalty Determination

    5 U.S.C. 7515 incorporates many of the procedural elements of 5 
U.S.C. 7503, 7513 and 7543, to include the standards of action applied 
to each type of adverse action. For supervisors not covered under 
subchapter V of title 5, the proposed rule applies the efficiency of 
the service standard. For supervisors who are members of the Senior 
Executive Service, the proposed rule defines the standard of action as 
misconduct, neglect of duty, malfeasance, or failure to accept a 
directed reassignment, or to accompany a position in a transfer of 
function.
    5 U.S.C. 7515 enhances statutory protection for whistleblowers 
through the creation of proposed mandatory penalties. Specifically, for 
the first incident of a prohibited personnel action, an agency is 
required to propose the penalty at a level no less than a 3-day 
suspension. Further, the agency may propose an additional action, 
including a reduction in grade or pay. For the second incident of a 
prohibited personnel action, an agency is required to propose that the 
supervisor be removed.

Section 752.103 Procedures

    The proposed rule establishes the procedures to be utilized for 
actions taken under this subpart. The procedures in the subpart are the 
same as those described in 5 U.S.C. 7503, 7513 and 7543, with the 
exception of provisions concerning advance notice and the reply period. 
Agencies must implement the related procedures on taking action, which 
have a shortened time period and require agencies to issue a final 
decision on a proposed action against a supervisor after the end of the 
14-day advance notice period. Under this subpart, supervisors against 
whom an action is proposed are entitled to no more than 14 days to 
answer after receipt of the proposal notice. At the conclusion of the 
14-day reply period, the agency shall carry out the proposed action if 
the supervisor fails to provide evidence or provides evidence that the 
head of the agency deems insufficient. Notably, the proposed rule also 
includes the requirement that, if the head of an

[[Page 48798]]

agency is responsible for determining whether a supervisor has 
committed a prohibited personnel action, that responsibility may not be 
delegated.
    Finally, the proposed rule at Sec.  752.103 (d) includes language 
that, to the extent practicable, 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.

Section 752.104 Settlement Agreements

    The proposed language in this section establishes the same 
requirement that is detailed in the proposed rule changes at Sec.  
432.108, Settlement agreements. Please see discussion in Sec.  432.108.

Subpart B--Regulatory Requirements for Suspension for 14 Days or Less

    This subpart addresses the procedural requirements for suspensions 
of 14 days or less for covered employees.

Section 752.201 Coverage

    Pursuant to the creation of subpart A within the proposed rule, 
Sec.  752.201(c) reflects an exclusion for actions taken under 5 U.S.C. 
7515.

Section 752.202 Standard for Action and Penalty Determination

    While the standard for action under this subpart remains unchanged, 
the proposed rule makes clear that an agency is not required to use 
progressive discipline under this subpart. Further, OPM has decided to 
adopt formally by regulation in this section 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, the proposed rule adopts the requirement to 
propose and impose a penalty that is within the bounds of tolerable 
reasonableness. This is a principle that is embedded deeply in Federal 
civil-service law. Arbitrators are required to defer to an agency 
decision, and may not mitigate a penalty unless it is beyond the bounds 
of tolerable reasonableness. We now make it clear that this standard 
applies not only to those actions taken under 5 U.S.C. 7513, but apply 
as well to those taken under 5 U.S.C. 7503. Any collective-bargaining 
proposal in conflict with this government-wide regulation will be 
contrary to law and non-negotiable. There is no legal principle in the 
Federal Government that requires agencies to impose the least penalty 
to rehabilitate an employee. A proposed penalty is in the sole and 
exclusive discretion of the proposing official, and the penalty 
decision is in the sole and exclusive discretion of the deciding 
official, subject to appellate or other review procedures prescribed in 
law and cannot be the subject of collective bargaining.
    The penalty for an instance of misconduct should be tailored to the 
facts and circumstances of each case. Further, employees should be 
treated equitably. Nevertheless, conduct that justifies discipline of 
one employee at one time by a particular deciding official does not 
necessarily justify the same or similar disciplinary decision for a 
different employee at a different time. So agencies should consider 
appropriate comparators when evaluating a potential disciplinary 
action. The Court of Appeals for the Federal Circuit has held that an 
agency need only provide ``proof that the proffered comparator was in 
the same work unit, with the same supervisor, and was subjected to the 
same standards governing discipline.'' Miskill v. Social Security 
Administration, 863 F.3d 1379 (Fed. Cir. 2017). It should not tie the 
hands of a different deciding official at a different time or in a 
different context, or under different circumstances. We are proposing 
adoption of the Miskill test. This reinforces the key principle that 
each case stands on its own factual and contextual footing. Finally, 
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. These guidelines 
reflect established principles, but stress management discretion to 
promote efficient Government while protecting the interests of all 
involved.
    With respect to penalty determination, it is also noteworthy that 
some agencies develop and use tables of penalties to assist supervisors 
in identifying the level of discipline that may be appropriate to an 
individual case. The creation and use of a table of penalties is not 
required by statute, case law or OPM regulation, and OPM does not 
provide written guidance on this topic. The applicable standard, ``to 
promote the efficiency of the service,'' is broad and supple enough to 
encompass all occurrences that may occasion an adverse action. Thus, 
agencies have the ability to address misconduct appropriately without a 
table of penalties, and with sufficient flexibility to determine the 
appropriate penalty for each instance of misconduct. Tables of 
penalties may create significant drawbacks to the viability of a 
particular action and to effective management. Specifically, tables of 
penalties, by creating a range of penalties for an offense, limit the 
scope of management's discretion to tailor the penalty to the facts and 
circumstances of a particular case by excluding certain penalties along 
the continuum. Agencies that specify a range of penalties should expect 
that adjudicators may be, and have been, impervious to agency pleas 
that someone who holds a particular position may not be restored to the 
workplace. Although the law permits the agency to impose the maximum 
reasonable penalty, some adjudicators have responded that the existence 
of an agency promulgated range of penalties belies this claim. Although 
such adjudications are contrary to and undermine settled legal 
principles, they resist further administrative or judicial review of 
penalty decisions.
    Further, OPM encourages managers to think carefully and coherently 
about when and how to impose discipline in a way that fosters an 
effective and efficient workplace, in the best interests of all 
employees and the agency's mission. By contrast, tables of penalties 
can foster a ``by-the-numbers'' approach in which managers may hide 
behind a chart imposed from above rather than take direct 
responsibility for their workplace.
    A further risk of having an agency table of penalties is that a 
supervisor may apply it so inflexibly as to impair consideration of 
other factors relevant to an individual case. This type of rigid 
application of a table of penalties runs counter to the overall 
directive of Douglas to consider all of the criteria that may apply to 
an individual set of factual circumstances. A table of penalties does 
not, and should not, replace supervisory judgment. It is vital that 
supervisors use independent judgment, take appropriate steps in 
gathering facts, and conduct a thorough analysis to decide the 
appropriate penalty. However, once an agency establishes a table of 
penalties, it will be held accountable for striking a balance between 
ensuring that supervisors use their best judgment in applying the full 
spectrum of Douglas factors, with accountability for ensuring a level 
of consistency with the range of penalties described for a particular 
charge within the agency's table. For that reason, the proposed 
amendments to this section emphasize that an agency is not required to 
use progressive discipline and that the penalty for an instance of 
misconduct should be tailored to the facts and the circumstances, in 
lieu of the type of formulaic and rigid penalty determination that 
frequently results from agency publication of tables of penalties.

[[Page 48799]]

    Finally, there is a significant body of decisional law concerning 
elucidating required manners of labelling and charging misconduct with 
attendant proof of an employee's state of mind. See for example, 
Nazelrod v. Department of Justice, 43 F.3d 663 (Fed. Cir. 1994). This 
type of common-law pleading is unusual in American law and is 
burdensome on agencies, spawning reams of costly training material and 
charging guides. It also slows the charging and decision making 
process. A table of penalties can exacerbate these problems further by 
implying that if an employee acts in a way that does not appear in a 
table of penalties' list of ``offenses,'' the behavior is beyond the 
agency's capacity to charge and penalize.
    In short, there is no substitute for managers thinking 
independently and carefully about each incident as it arises, and, as 
appropriate, proposing or deciding the best penalty to fit the 
circumstances. Progressive discipline and table of penalties are 
inimical to good management principles. Finally, the proposed rule at 
Sec.  752.202(f) adds language stating that 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.

Section 752.203 Procedures

    Section 752.203(b) discusses the requirements for a proposal notice 
issued under this subpart. This section provides that the notice of 
proposed action 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 proposed rule includes language that the notice must 
also provide detailed information with respect to any right to appeal 
the action pursuant to Public Law 115-91 section 1097(b)(2)(A); 
specifically, the forum 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. This additional 
language implements the requirement within Public Law 115-91 section 
1097(b)(2)(A), which mandates that information on whistleblower appeal 
rights be included in any notice provided to an employee under 5 U.S.C. 
7503(b)(1), 7513(b)(1), or 7543(b)(1).
    Finally, the proposed language in Sec.  752.203(h) establishes the 
same requirement that is detailed in the proposed rule changes at Sec.  
432.108, Settlement agreements. See discussion in Sec.  432.108.

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

    Pursuant to the creation of subpart A within the proposed rule, 
Sec.  752.401(b)(14) reflects an exclusion for actions taken under 5 
U.S.C. 7515.
    Section 752.401(c) identifies employees covered by this subpart. 
The proposed rule at Sec.  752.401(c)(2) updates coverage to include an 
employee in the competitive service who is not serving a probationary 
or trial period under an initial appointment or, except as provided in 
section 1599e of title 10, United States Code, who has completed 1 year 
of current continuous service under other than a temporary appointment 
limited to 1 year or less. This language has been updated to align with 
5 U.S.C. 7511(a)(1)(A)(ii).

Section 752.402 Definitions

    The proposed rule includes a definition for the term ``business 
day.'' This addition is necessary to implement the 15 business day 
decision period described in E.O. 13839.

Section 752.403 Standard for Action and Penalty Determination

    As with the rule changes proposed for Sec.  752.202, the standard 
for action under this subpart remains unchanged and incorporates a 
penalty determination based on the principles of E.O. 13839. Please see 
discussion in Sec.  752.202. In addition, the proposed rule at Sec.  
752.403 adds paragraph (f) which states that a suspension or a 
reduction in pay or grade 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 reduced 
in pay or grade before a proposing official may propose removal, except 
as may be appropriate under applicable facts.

Section 752.404 Procedures

    Section 752.404(b) discusses the requirements for a notice of 
proposed action issued under this subpart. Specifically, Sec.  
752.404(b)(1) provides 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). Any notice period greater than 30 
days must be reported to OPM. The proposed rule also includes the 
requirement that the notice must provide detailed information with 
respect to any right to appeal the action pursuant to Public Law 115-91 
section 1097(b)(2)(A); specifically, the forum 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. This additional language implements the requirement in Public Law 
115-91 section 1097(b)(2)(A), which mandates that information on 
whistleblower appeal rights be included in any notice provided to an 
employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1).
    The proposed rule at Sec.  752.404(b)(3)(iv) also incorporates by 
reference the provisions of 5 U.S.C. 6329b, the Administrative Leave 
Act of 2016, related to placing an employee in a paid non-duty status 
during the advance notice period. Until OPM has published the final 
regulation for 5 U.S.C. 6329b, and after conclusion of the agency 
implementation period, in those rare circumstances where the agency 
determines that the employee's continued presence in the workplace 
during the notice period may pose a threat to the employee or others, 
result in loss of or damage to Government property, or otherwise 
jeopardize legitimate Government interests, an agency will continue to 
have as an alternative the ability to place an employee in a paid, 
nonduty status for such time to effect the action. Thereafter, an 
agency may use the provisions of 5 U.S.C. 6329b as applicable.
    Finally, the proposed rule at Sec.  752.404(g) discusses the 
requirements for an agency decision issued under this subpart. 
Specifically, the proposed rule at Sec.  752.404(g)(3) includes new 
language that, to the extent practicable, 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 to 
reflect a key principle of E.O. 13839. These proposed changes 
facilitate timely resolution of adverse actions while preserving 
employee rights.

[[Page 48800]]

Section 752.407 Settlement Agreements

    The proposed language in this section establishes the same 
requirement that is detailed in the proposed rule changes at Sec.  
432.108, Settlement Agreements. See discussion regarding Sec.  432.108 
above.

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 forth 
in 5 U.S.C. 7542.

Section 752.601 Coverage

    Pursuant to the creation of subpart A within the proposed rule, 
Sec.  752.601(b)(2) reflects an exclusion for actions taken under 5 
U.S.C. 7515.

Section 752.602 Definitions

    The proposed rule includes a definition for the term ``business 
day.'' This addition is necessary to implement the 15 business day 
decision period described in E.O. 13839.

Section 752.603 Standard for Action and Penalty Determination

    As with the rule changes proposed for Sec. Sec.  752.202 and 
752.403, the standard for action under this subpart remains unchanged 
and incorporates a penalty determination based on the principles of 
E.O. 13839. Please see discussion in Sec.  752.202. In addition, the 
proposed rule at Sec.  752.603 adds paragraph (f) which states that a 
suspension or a reduction in pay or grade 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 reduced in pay or grade before a proposing official may 
propose removal, except as may be appropriate under applicable facts.

Section 752.604 Procedures

    Section 752.604(b) discusses the requirements for a notice of 
proposed action issued under this subpart. We have revised the language 
in this subpart to be consistent with the advance notice period for 
general schedule employees. Specifically, Sec.  752.604(b)(1) provides 
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. 
7543(b)(1). Any notice period greater than 30 days must be reported to 
OPM.
    The proposed rule also includes additional language that the notice 
must provide detailed information with respect to any right to appeal 
the action pursuant to Public Law 115-91 section 1097(b)(2)(A); 
specifically, the forum 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. This additional 
language implements the requirement within Public Law 115-91 section 
1097(b)(2)(A), which mandates that information on whistleblower appeal 
rights be included in any notice provided to an employee under 5 U.S.C. 
7503(b)(1), 7513(b)(1), or 7543(b)(1).
    The proposed rule at Sec.  752.604(b)(2)(iv) also incorporates by 
reference the provisions of 5 U.S.C. 6329b, The Administrative Leave 
Act of 2016, related to placing an employee in a paid non-duty status 
during the advance notice period. However, as noted above, until OPM 
has published the final regulation for 5 U.S.C. 6329b, and after 
conclusion of the agency implementation period, in those rare 
circumstances where the agency determines that the employee's continued 
presence in the workplace during the notice period may pose a threat to 
the employee or others, result in loss of or damage to Government 
property, or otherwise jeopardize legitimate Government interests, an 
agency will continue to have as an alternative the ability to place an 
employee in a paid, nonduty status for such time to effect the action. 
Thereafter, an agency may use the provisions of 5 U.S.C. 6329b as 
applicable.
    Finally, the proposed rule at Sec.  752.604(g) discusses the 
requirements for an agency decision issued under this subpart. 
Specifically, the proposed rule at Sec.  752.604(g)(3) includes new 
language that, to the extent practicable, 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 to 
reflect one of the key principles of E.O. 13839.

Section 752.607 Settlement Agreements

    The proposed language in this section establishes the same 
requirement that is detailed in the proposed rule changes at Sec. Sec.  
432.108, 752.203 and 752.407. Please see discussion regarding Sec.  
432.108 above.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant impact 
on a substantial number of small entities because it applies only to 
Federal agencies and employees.

E.O. 13563 and E.O. 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action,'' under Executive Order 12866.

Executive Order 13771, Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this 
proposed rule is expected to be related to agency organization, 
management, or personnel.

E.O. 13132, 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 rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local or 
tribal governments of more than $100 million annually. Thus, no written 
assessment of unfunded mandates is required.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a `rule' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory

[[Page 48801]]

Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting 
requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in Title 5 CFR Parts 351, 430, 432 and 752

5 CFR Part 315

    Government employees.

5 CFR Part 432

    Government employees.

5 CFR Part 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; E.O. 
13162, and E.O. 13839. Secs. 315.601 and 315.609 also issued under 
22 U.S.C. 3651 and 3652. 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. 
The agency must notify its supervisors that an employee's probationary 
period is ending at least three months or 90 days prior to the 
expiration of an employee's probationary period, and then again one 
month or 30 days prior to the expiration of the probationary period, 
and advise a supervisor to make an affirmative decision regarding an 
employee's fitness for continued employment or otherwise take 
appropriate action.
* * * * *

PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS

0
3. Revise the authority citation for part 432 to read as follows:

    Authority:  5 U.S.C. 4303, 4305.
* * * * *
0
4. Amend Sec.  432.103 by revising paragraph (g) to read as follows:
* * * * *
    (g) Similar positions mean positions in which the duties performed 
are similar in nature and character and require substantially the same 
or similar qualifications, so that the incumbents could be interchanged 
without significant training or undue interruption to the work.
* * * * *
0
5. 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. Other than 
the requirement described in 5 U.S.C. 4302(c)(5), there is no 
requirement regarding any assistance to be offered or provided by the 
agency during the opportunity period. The nature of such assistance is 
not determinative of a reduction in grade or pay, or a removal. 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.
* * * * *
0
6. Amend Sec.  432.105 by revising paragraphs (a)(1), (a)(4)(i)(B)(3) 
through (4) and paragraph (a)(4)(i)(C) 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. For the purposes of this section, 
the opportunity to demonstrate acceptable performance includes measures 
taken during the opportunity period as well as any other measures taken 
during the appraisal period for the purpose of assisting employees 
pursuant to 5 U.S.C. 4302(c)(5). Agencies may satisfy the requirement 
to provide assistance before or during the opportunity period.
* * * * *
    (4)* * *
    (i)* * *
    (B)* * *
    (3) To consider the employee's answer if an extension to the period 
for an answer has been granted (e.g., because of the employee's illness 
or incapacitation);
    (4) To consider reasonable accommodation of a disability;
* * * * *
    (C) If an agency believes that an extension of the advance notice 
period is necessary for another reason, it may request prior approval 
for such extension from the Manager, Employee Accountability, 
Accountability and Workforce Relations, Employee Services, Office of 
Personnel Management, 1900 E Street NW, Washington, DC 20415.
* * * * *
0
7. Revise Sec.  432.106(b)(1) to read as follows:


Sec.  432.106   Appeal and grievance rights.

* * * * *
    (b) Grievance rights. (1) A bargaining unit employee covered under

[[Page 48802]]

Sec.  432.102(e) who has been removed or reduced in grade under this 
part may file a grievance under an applicable negotiated grievance 
procedure if the removal or reduction in grade action falls within its 
coverage (i.e., is not excluded by the parties to the collective 
bargaining agreement) and the employee is:
* * * * *
0
8. Revise Sec.  432.107(b) to read as follows:


Sec.  432.107   Agency records.

* * * * *
    (b) When the action is not effected. As provided at 5 U.S.C. 
4303(d), if, because of performance improvement by the employee during 
the notice period, the employee is not reduced in grade or removed, and 
the employee's performance continues to be acceptable for one year from 
the date of the advanced written notice provided in accordance with 
Sec.  432.105(a)(4)(i), any entry or other notation of the unacceptable 
performance for which the action was proposed shall be removed from any 
agency record relating to the employee.
* * * * *
0
9. Add Sec.  432.108 to read as follows:


Sec.  432.108   Settlement agreements.

    (a) Agreements to alter personnel records. 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 action.
    (b) Corrective action based on discovery of agency error. The 
requirements described in paragraph (a) should not be construed to 
prevent agencies from taking corrective action should it come to light, 
including during or after the issuance of an adverse personnel action, 
that the information contained in a personnel record is not accurate or 
records an action taken by the agency illegally or in error. In such 
cases, an agency would have the authority, unilaterally or by 
agreement, to modify an employee's personnel record(s) to remove 
inaccurate information or the record of an erroneous or illegal action. 
An agency may take such action even if an appeal/complaint has been 
filed relating to the information that the agency determines to be 
inaccurate or to reflect an action taken illegally or in error. In all 
events, however, the agency must ensure that it removes only 
information that the agency itself has determined to be inaccurate or 
to reflect an action taken illegally or in error. And an agency should 
report any agreements relating to the removal of such information as 
part of its annual report to the OPM Director required by Section 6 of 
E.O. 13839. Documents subject to withdrawal or modification could 
include, for example, an SF-50 issuing a disciplinary or performance-
based action, a decision memorandum accompanying such action, or an 
employee performance appraisal.
    (c) Corrective action based on discovery of material information 
prior to final agency action. When persuasive evidence comes to light 
prior to the issuance of a final agency decision on an adverse 
personnel action casting doubt on the validity of the action or the 
ability of the agency to sustain the action in litigation, an agency 
may decide to cancel or vacate the proposed action. Additional 
information may come to light at any stage of the process prior to 
final agency decision including during an employee response period. To 
the extent an employee's personnel file or other agency records contain 
a proposed action that is subsequently cancelled, an agency would have 
the authority to remove that action from the employee's personnel file 
or other agency records. The requirements described in paragraph (a) 
would, however, continue to apply to any accurate information about the 
employee's conduct leading up to that proposed action or separation 
from Federal service.

PART 752--ADVERSE ACTIONS

Subpart A--Discipline of Supervisors Based on Retaliation Against 
Whistleblowers
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
Sec.
752.201 Coverage.
752.202 Standard for action and penalty determination.
752.203 Procedures.
Subpart C [Reserved]
Subpart D--Regulatory Requirements for Removal, Suspension for More 
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or 
Less
Sec.
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action and penalty determination.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
752.407 Settlement agreements.
Subpart E [Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the 
Senior Executive Service
Sec.
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action and penalty determination.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
752.607 Settlement agreements.

0
10. Revise the authority citation for part 752 to read as follows:

    Authority:  5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91.
* * * * *
0
11. Add subpart A to part 752 to read as follows:

Subpart A --Discipline of Supervisors Based on Retaliation Against 
Whistleblowers

Sec.
752.101 Coverage.
752.102 Standard for action and penalty determination.
752.103 Procedures.
752.104 Settlement agreements.


Sec.  752.101   Coverage.

    (a) Adverse actions covered. This subpart applies to actions taken 
under 5 U.S.C. 7515.
    (b) Definitions. In this subpart--
    Agency--
    (1) Has the meaning given the term in 5 U.S.C. 2302(a)(2)(C), 
without regard to whether any other provision of this chapter is 
applicable to the entity; and
    (2) Does not include any entity that is an element of the 
intelligence community, as defined in section 3 of the National 
Security Act of 1947 (50 U.S.C. 3003).
    Business day means any day other than a Saturday, Sunday, or legal 
public holiday under 5 U.S.C. 6103(a).
    Day means a calendar day.
    Grade means a level of classification under a position 
classification system.
    Insufficient evidence means evidence that fails to meet the 
substantial evidence standard described in 5 CFR 1201.4(p).
    Pay means the rate of basic pay fixed by law or administrative 
action for the position held by the employee, that is, the rate of pay 
before any deductions and exclusive of additional pay of any kind.
    Prohibited personnel action means taking or failing to take an 
action in violation of paragraph (8), (9), or (14) of 5 U.S.C. 2302(b) 
against an employee of an agency.

[[Page 48803]]

    Supervisor means an employee who would be a supervisor, as defined 
in 5 U.S.C. 7103(a)(10), if the entity employing the employee was an 
agency.
    Suspension means the placing of an employee, for disciplinary 
reasons, in a temporary status without duties and pay.


Sec.  752.102   Standard for action and penalty determination.

    (a) Except for actions taken against supervisors covered under 
subchapter V of title 5, an agency may take an action under this 
subpart for such cause as will promote the efficiency of the service as 
described in 5 U.S.C. 7503(a) and 7513(a). For actions taken under this 
subpart against supervisors covered under subchapter V of title 5, an 
agency may take an action based on the standard described in 5 U.S.C. 
7543(a).
    (b) Subject to 5 U.S.C. 1214(f), if the head of the agency in which 
a supervisor is employed, an administrative law judge, the Merit 
Systems Protection Board, the Special Counsel, a judge of the United 
States, or the Inspector General of the agency in which a supervisor is 
employed has determined that the supervisor committed a prohibited 
personnel action, the head of the agency in which the supervisor is 
employed, consistent with the procedures required under this subpart--
    (1) For the first prohibited personnel action committed by the 
supervisor--
    (i) Shall propose suspending the supervisor for a period that is 
not less than 3 days; and
    (ii) May propose an additional action determined appropriate by the 
head of the agency, including a reduction in grade or pay; and
    (2) For the second prohibited personnel action committed by the 
supervisor, shall propose removing the supervisor.


Sec.  752.103   Procedures.

    (a) Non-delegation. If the head of an agency is responsible for 
determining whether a supervisor has committed a prohibited personnel 
action for purposes of Sec.  752.102(b), the head of the agency may not 
delegate that responsibility.
    (b) Scope. An action carried out under this subpart--
    (1) Except as provided in paragraph (b)(2) of this section, shall 
be subject to the same requirements and procedures, including those 
with respect to an appeal, as an action under 5 U.S.C. 7503, 7513, or 
7543; and
    (2) Shall not be subject to--
    (i) Paragraphs (1) and (2) of 5 U.S.C. 7503(b);
    (ii) Paragraphs (1) and (2) of subsection (b) and subsection (c) of 
5 U.S.C. 7513; and
    (iii) Paragraphs (1) and (2) of subsection (b) and subsection (c) 
of 5 U.S.C. 7543.
    (c) Notice. A supervisor against whom an action is proposed to be 
taken under this subpart is entitled to written notice that--
    (1) States the specific reasons for the proposed action;
    (2) Informs the supervisor about the right of the supervisor to 
review the material that is relied on to support the reasons given in 
the notice for the proposed action;-- and
    (3) Provides notice of 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.
    (d) Answer and evidence. (1) A supervisor who receives notice under 
paragraph (c) of this section may, not later than 14 days after the 
date on which the supervisor receives the notice, submit an answer and 
furnish evidence in support of that answer.
    (2) If, after the end of the 14-day period described in paragraph 
(d)(1) of this section, a supervisor does not furnish any evidence as 
described in that clause, or if the head of the agency in which the 
supervisor is employed determines that the evidence furnished by the 
supervisor is insufficient, the head of the agency shall carry out the 
action proposed under Sec.  752.102(b), as applicable.
    (3) To the extent practicable, 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.


Sec.  752.104   Settlement agreements.

    (a) Agreements to alter official personnel records. 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 action.
    (b) Corrective action based on discovery of agency error. The 
requirements described in paragraph (a) should not be construed to 
prevent agencies from taking corrective action should it come to light, 
including during or after the issuance of an adverse personnel action, 
that the information contained in a personnel record is not accurate or 
records an action taken by the agency illegally or in error. In such 
cases, an agency would have the authority, unilaterally or by 
agreement, to modify an employee's personnel record(s) to remove 
inaccurate information or the record of an erroneous or illegal action. 
An agency may take such action even if an appeal/complaint has been 
filed relating to the information that the agency determines to be 
inaccurate or to reflect an action taken illegally or in error. In all 
events, however, the agency must ensure that it removes only 
information that the agency itself has determined to be inaccurate or 
to reflect an action taken illegally or in error. And an agency should 
report any agreements relating to the removal of such information as 
part of its annual report to the OPM Director required by Section 6 of 
E.O. 13839. Documents subject to withdrawal or modification could 
include, for example, an SF-50 issuing a disciplinary or performance-
based action, a decision memorandum accompanying such action, or an 
employee performance appraisal.
    (c) Corrective action based on discovery of material information 
prior to final agency action. When persuasive evidence comes to light 
prior to the issuance of a final agency decision on an adverse 
personnel action casting doubt on the validity of the action or the 
ability of the agency to sustain the action in litigation, an agency 
may decide to cancel or vacate the proposed action. Additional 
information may come to light at any stage of the process prior to 
final agency decision including during an employee response period. To 
the extent an employee's personnel file or other agency records contain 
a proposed action that is subsequently cancelled, an agency would have 
the authority to remove that action from the employee's personnel file 
or other agency records. The requirements described in paragraph (a) 
would, however, continue to apply to any accurate information about the 
employee's conduct leading up to that proposed action or separation 
from Federal service.
0
12. In Sec.  752.201, revise paragraphs (c)(4) and (5) and add 
paragraph (c)(6) to read as follows:


Sec.  752.201   Coverage.

* * * * *
    (c) * * *

[[Page 48804]]

    (4) Of a re-employed annuitant;
    (5) Of a National Guard Technician; or
    (6) Taken under 5 U.S.C. 7515.
* * * * *
0
13. In Sec.  752.202, revise the section heading and add paragraphs 
(copyright) through (f) to read as follows:


Sec.  752.202   Standard for action and penalty determination.

* * * * *
    (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 are 
individuals in the same work unit, with the same supervisor who were 
subjected to the same standards governing discipline.
    (e) Among other relevant factors, agencies should consider an 
employee's disciplinary record and past work record, including all 
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.
* * * * *
0
14. Amend Sec.  752.203 by revising paragraph (b) and by adding 
paragraph (h) to read as follows:


Sec.  752.203   Procedures.

* * * * *
    (b) Notice of proposed action. 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 forum 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.
* * * * *
    (h) Settlement agreements. (1) 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 action.
    (2) The requirements described in paragraph (1) should not be 
construed to prevent agencies from taking corrective action should it 
come to light, including during or after the issuance of an adverse 
personnel action that the information contained in a personnel record 
is not accurate or records an action taken by the agency illegally or 
in error. In such cases, an agency would have the authority, 
unilaterally or by agreement, to modify an employee's personnel 
record(s) to remove inaccurate information or the record of an 
erroneous or illegal action. An agency may take such action even if an 
appeal/complaint has been filed relating to the information that the 
agency determines to be inaccurate or to reflect an action taken 
illegally or in error. In all events, however, the agency must ensure 
that it removes only information that the agency itself has determined 
to be inaccurate or to reflect an action taken illegally or in error. 
And an agency should report any agreements relating to the removal of 
such information as part of its annual report to the OPM Director 
required by Section 6 of E.O. 13839. Documents subject to withdrawal or 
modification could include, for example, an SF-50 issuing a 
disciplinary or performance-based action, a decision memorandum 
accompanying such action, or an employee performance appraisal.
    (3) Corrective action based on discovery of material information 
prior to final agency action. When persuasive evidence comes to light 
prior to the issuance of a final agency decision on an adverse 
personnel action casting doubt on the validity of the action or the 
ability of the agency to sustain the action in litigation, an agency 
may decide to cancel or vacate the proposed action. Additional 
information may come to light at any stage of the process prior to 
final agency decision including during an employee response period. To 
the extent an employee's personnel file or other agency records contain 
a proposed action that is subsequently cancelled, an agency would have 
the authority to remove that action from the employee's personnel file 
or other agency records. The requirements described in paragraph (h)(1) 
of this section would, however, continue to apply to any accurate 
information about the employee's conduct leading up to that proposed 
action or separation from Federal service.
0
15. In Sec.  752.401, revise paragraphs (b)(14) and (15), add 
paragraphs (b)(16) and revise paragraph (c)(2) to read as follows:


Sec.  752.401   Coverage.

* * * * *
    (b) * * *
    (14) Placement of an employee serving on an intermittent or 
seasonal basis in a temporary nonduty, nonpay status in accordance with 
conditions established at the time of appointment;
    (15) Reduction of an employee's rate of basic pay from a rate that 
is contrary 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; or
    (16) An action taken under 5 U.S.C. 7515.
    (c) * * *
    (2) An employee in the competitive service--
    (i) Who is not serving a probationary or trial period under an 
initial appointment; or
    (ii) Except as provided in section 1599e of title 10, United States 
Code, who has completed one year of current continuous service under 
other than a temporary appointment limited to one year or less;
* * * * *
0
16. In Sec.  752.402, add the definition for ``Business day'' in 
alphabetical order to read as follows:


Sec.  752.402   Definitions.

* * * * *
    Business day means any day other than a Saturday, Sunday, or legal 
public holiday under 5 U.S.C. 6103(a).
* * * * *

[[Page 48805]]

0
17. In Sec.  752.403, revise the section heading and add paragraphs (c) 
through (f) to read as follows:


Sec.  752.403   Standard for action and penalty determination.

* * * * *
    (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 in that 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 are 
individuals in the same work unit, with the same supervisor who were 
subjected to the same standards governing discipline.
    (e) Among other relevant factors, agencies should consider an 
employee's disciplinary record and past work record, including all 
prior misconduct, when taking an action under this subpart.
    (f) A suspension or a reduction in grade or pay 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 reduced in pay or grade before a proposing 
official may propose removal, except as may be appropriate under 
applicable facts.
0
18. Amend Sec.  752.404 by revising paragraphs (b)(1) and (b)(3)(iv), 
and adding 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. 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. 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.
* * * * *
    (3) * * *
    (iv) Placing the employee in a paid, nonduty status for such time 
as is necessary to effect the action. After publication of regulations 
for 5 U.S.C. 6329b, and the subsequent agency implementation period in 
accordance with 5 U.S.C. 6329b, an agency may place the employee in a 
notice leave status when applicable.
* * * * *
    (g) * * *
    (3) To the extent practicable, 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 (c) 
of this section.
* * * * *
0
19. Add Sec.  752.407 to to read as follows:


Sec.  752.407   Settlement agreements.

    (a) Agreements to alter official personnel records. 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 action.
    (b) Corrective action based on discovery of agency error. The 
requirements described in paragraph (a) of this section should not be 
construed to prevent agencies from taking corrective action, should it 
come to light, including during or after the issuance of an adverse 
personnel action that the information contained in a personnel record 
is not accurate or records an action taken by the agency illegally or 
in error. In such cases, an agency would have the authority, 
unilaterally or by agreement, to modify an employee's personnel 
record(s) to remove inaccurate information or the record of an 
erroneous or illegal action. An agency may take such action even if an 
appeal/complaint has been filed relating to the information that the 
agency determines to be inaccurate or to reflect an action taken 
illegally or in error. In all events, however, the agency must ensure 
that it removes only information that the agency itself has determined 
to be inaccurate or to reflect an action taken illegally or in error. 
And an agency should report any agreements relating to the removal of 
such information as part of its annual report to the OPM Director 
required by Section 6 of E.O. 13839. Documents subject to withdrawal or 
modification could include, for example, an SF-50 issuing a 
disciplinary or performance-based action, a decision memorandum 
accompanying such action, or an employee performance appraisal.
    (c) Corrective action based on discovery of material information 
prior to final agency action. When persuasive evidence comes to light 
prior to the issuance of a final agency decision on an adverse 
personnel action casting doubt on the validity of the action or the 
ability of the agency to sustain the action in litigation, an agency 
may decide to cancel or vacate the proposed action. Additional 
information may come to light at any stage of the process prior to 
final agency decision including during an employee response period. To 
the extent an employee's personnel file or other agency records contain 
a proposed action that is subsequently cancelled, an agency would have 
the authority to remove that action from the employee's personnel file 
or other agency records. The requirements described in paragraph (a) 
would, however, continue to apply to any accurate information about the 
employee's conduct leading up to that proposed action or separation 
from Federal service.
0
20. Revise Sec.  752.601(b)(2) to read as follows:


Sec.  752.601   Coverage.

* * * * *
    (b) * * *
    (2) This subpart does not apply to actions taken under 5 U.S.C. 
1215, 3592, 3595, 7532, or 7515.
* * * * *

[[Page 48806]]

0
21. Amend Sec.  752.602 by adding a definition for ``Business day'' in 
alphabetical order to read as follows:


Sec.  752.602   Definitions.

* * * * *
    Business day means any day other than a Saturday, Sunday, or legal 
public holiday under 5 U.S.C. 6103(a).
* * * * *
0
22. In Sec.  752.603, revise the section heading and add paragraphs (c) 
through (f) to read as follows:


Sec.  752.603   Standard for action and penalty determination.

* * * * *
    (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.
    (d) Employees should be treated equitably in that 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 are 
individuals in the same work unit, with the same supervisor who were 
subjected to the same standards governing discipline.
    (e) Among other relevant factors, agencies should consider an 
employee's disciplinary record and past work record, including all 
prior misconduct, when taking an action under this subpart.
    (f) A suspension or reduction in grade or pay 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 reduced in pay or grade before a proposing 
official may propose removal, except as may be appropriate under 
applicable facts.
* * * * *
0
23. Amend Sec.  752.604 by revising paragraphs (b)(1) and (b)(2)(iv), 
and adding 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. 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 7543(b)(1) of title 5, United States Code. 
Advance notices of greater than 30 days must be reported to the Office 
of Personnel Management. 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.
    (2) * * *
    (iv) Placing the appointee in a paid, no duty status for such time 
as is necessary to effect the action. After publication of regulations 
for 5 U.S.C. 6329b, and the subsequent agency implementation period in 
accordance with 5 U.S.C. 6329b, an agency may place the employee in a 
notice leave status when applicable.
* * * * *
    (g) * * *
    (3) To the extent practicable, 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 (c) 
of this section.
* * * * *
0
24. Add Sec.  752.607 to read as follows:


Sec.  752.607   Settlement agreements.

    (a) Agreements to alter official personnel records. 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 action.
    (b) Corrective action based on discovery of agency error. The 
requirements described in paragraph (a) of this section should not be 
construed to prevent agencies from taking corrective action, should it 
come to light, including during or after the issuance of an adverse 
personnel action that the information contained in a personnel record 
is not accurate or records an action taken by the agency illegally or 
in error. In such cases, an agency would have the authority, 
unilaterally or by agreement, to modify an employee's personnel 
record(s) to remove inaccurate information or the record of an 
erroneous or illegal action. An agency may take such action even if an 
appeal/complaint has been filed relating to the information that the 
agency determines to be inaccurate or to reflect an action taken 
illegally or in error. In all events, however, the agency must ensure 
that it removes only information that the agency itself has determined 
to be inaccurate or to reflect an action taken illegally or in error. 
And an agency should report any agreements relating to the removal of 
such information as part of its annual report to the OPM Director 
required by Section 6 of E.O. 13839. Documents subject to withdrawal or 
modification could include, for example, an SF-50 issuing a 
disciplinary or performance-based action, a decision memorandum 
accompanying such action, or an employee performance appraisal.
    (c) Corrective action based on discovery of material information 
prior to final agency action. When persuasive evidence comes to light 
prior to the issuance of a final agency decision on an adverse 
personnel action casting doubt on the validity of the action or the 
ability of the agency to sustain the action in litigation, an agency 
may decide to cancel or vacate the proposed action. Additional 
information may come to light at any stage of the process prior to 
final agency decision including during an employee response period. To 
the extent an employee's personnel file or other agency records contain 
a proposed action that is subsequently cancelled, an agency would have 
the authority to remove that action from the employee's personnel file 
or other agency records. The requirements described in paragraph (a) 
would, however, continue to apply to any accurate information about the 
employee's conduct leading up to that proposed action or separation 
from Federal service.

[FR Doc. 2019-19636 Filed 9-16-19; 8:45 am]
BILLING CODE 6325-39-P