Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 200-209 [2021-28205]

Agencies

• Office of Personnel Management

[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Proposed Rules]
[Pages 200-209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28205]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / 
Proposed Rules

[[Page 200]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 315, 432, and 752

RIN 3206-AO23


Probation on Initial Appointment to a Competitive Position, 
Performance-Based Reduction in Grade and Removal Actions and Adverse 
Actions

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations governing probation on initial appointment to a competitive 
position, performance-based reduction in grade and removal actions, and 
adverse actions. The proposed rule would rescind certain regulatory 
changes made effective on November 16, 2020 and implements new 
statutory requirements for procedural and appeal rights for dual status 
National Guard technicians for certain adverse actions. OPM believes 
the proposed revisions would support implementation of an Executive 
Order to empower agencies to rebuild the career Federal workforce and 
protect the civil service rights of their employees, while preserving 
appropriate mechanisms for pursuing personnel actions where warranted.

DATES: Comments must be received on or before February 3, 2022.

ADDRESSES: You may submit comments, identified by the docket number or 
Regulation Identifier Number (RIN) for this proposed rulemaking, via 
the Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for sending comments.
    Instructions: All submissions must include the agency name and 
docket number or RIN for this rulemaking. Please arrange and identify 
your comments on the regulatory text by subpart and section number; if 
your comments relate to the supplementary information, please refer to 
the heading and page number. All comments received will be posted 
without change, including any personal information provided. Please 
ensure your comments are submitted within the specified open comment 
period. Comments received after the close of comment period will be 
marked ``late,'' and OPM is not required to consider them in 
formulating a final decision. Before acting on this proposal, OPM will 
consider and respond to all comments within the scope of the 
regulations that we receive on or before the closing date for comments. 
Changes to this proposal may be made in light of the comments we 
receive.

FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at 
[email protected] or by telephone at (202) 606-2930.

SUPPLEMENTARY INFORMATION: On October 16, 2020, the Office of Personnel 
Management (OPM) published a final rule governing probation on initial 
appointment to a competitive position, performance-based reduction in 
grade and removal actions, and adverse actions. 85 FR 65940 (Oct. 16, 
2020). The final rule implemented a provision of Public Law 115-91 
concerning the inclusion of appeals rights information in proposal 
notices for personnel actions, and amended the regulations in parts 
315, 432, and 752 of title 5, Code of Federal Regulations to 
incorporate certain requirements of Executive Order (E.O.) 13839, other 
statutory changes, and technical revisions.
    On January 22, 2021, President Biden issued E.O. 14003 on 
``Protecting the Federal Workforce'' which, among other things, revoked 
E.O. 13839 and directed agencies to ``as soon as practicable, suspend, 
revise, or rescind, or publish for notice and comment proposed rules 
suspending, revising, or rescinding, the actions'' implementing various 
E.O.s, including E.O. 13839, ``as appropriate and consistent with 
applicable law.'' E.O. 14003 states that ``[c]areer civil servants are 
the backbone of the Federal workforce, providing the expertise and 
experience necessary for the critical functioning of the Federal 
Government. It is the policy of the United States to protect, empower, 
and rebuild the career Federal workforce. It is also the policy of the 
United States to encourage employee organizing and collective 
bargaining. The Federal Government should serve as a model employer.''
    After consideration and review, OPM has concluded that portions of 
the final rule which became effective on November 16, 2020, and which 
implemented certain requirements of E.O. 13839, are inconsistent with 
the current policy of the United States to protect, empower and rebuild 
the career Federal workforce as well as its current policy to encourage 
employee organizing and collective bargaining. Therefore, in accordance 
with E.O. 14003, OPM proposes to rescind portions of the final rule 
published at 85 FR 65940 (October 16, 2020). The elements of the final 
rule that OPM proposes to rescind are described in detail below, 
together with the policy explanation in each instance. OPM is proposing 
these regulations under its congressionally granted authority to 
regulate the parts that it proposes to revise in accordance with 5 
U.S.C. 3321, 4305, 4315, 7504, 7514, and 7543, and subject to the 
notice-and-comment process set forth in the Administrative Procedure 
Act, and mindful of the President's expressed policy direction. 
Furthermore, pursuant to Public Law 114-328 (Dec. 23, 2016), OPM 
proposes to revise its regulations on coverage for performance-based 
actions and appealable adverse actions in accordance with statutory 
changes that extend title 5 rights to dual status National Guard 
technicians under certain conditions. Elements of the November 16, 
2020, regulatory amendments that were due to statutory changes will 
remain in effect, such as procedures for disciplinary action against 
supervisors who retaliate against whistleblowers (5 U.S.C. 7515) and 
the inclusion of appeals rights information in proposal notices for 
adverse actions (Pub. L. 115-91, section 1097(b)(2)(A)).
    OPM invites the public to comment on any aspect of the proposed 
changes, including whether members of the public believe that any 
matters proposed for rescission instead should be retained in OPM's 
regulations, consistent with OPM's statutory and regulatory 
authorities. Ultimately, the purpose of the revisions is to implement 
applicable statutory mandates and provide agencies the necessary tools 
and flexibility to address matters related to unacceptable performance 
and misconduct or other behavior contrary to the efficiency of the 
service by Federal employees when they arise,

[[Page 201]]

consistent with the policies of E.O. 14003.

5 CFR Part 315, Subpart H--Probation on Initial Appointment to a 
Competitive Position

    The regulations at subpart H of 5 CFR part 315 provide information 
regarding agency action during a probationary period. Under its 
authority at 5 U.S.C. 3321, OPM proposes to rescind its November 16, 
2020, amendment to regulations at Sec.  315.803(a) for two reasons. 
First, E.O. 14003 directs OPM to rescind any regulations effectuated by 
E.O. 13839, as appropriate and consistent with applicable law. Second, 
OPM has concluded that the amendment to the regulations at Sec.  
315.803(a) placed unnecessary requirements on agencies regarding how 
agencies addressed probationary period matters. OPM believes these 
requirements prevented agencies from implementing policies most 
suitable for each respective agency based on their unique 
circumstances. The November 2020 amendment requires agencies to notify 
supervisors at least three months prior to expiration of the 
probationary period that an employee's probationary period is ending, 
and then again one month prior to expiration of the probationary 
period, and to advise a supervisor to make an affirmative decision 
regarding the employee's fitness for continued employment or otherwise 
take appropriate action. While agencies are encouraged to notify 
supervisors that an employee's probationary period is ending, OPM 
believes the frequency and timing of notifications should be left up to 
the discretion of each agency.
    OPM guidance has stated previously that the probationary period is 
the last and crucial step in the examination process. The probationary 
period is intended to give the agency an opportunity to assess, on the 
job, an employee's overall fitness and qualifications for continued 
employment and permit the termination, without chapter 75 procedures, 
of an employee whose performance or conduct does not meet acceptable 
standards to deliver on the mission. Thus, it provides an opportunity 
for supervisors to address problems expeditiously, with minimum burden 
to the agency, and avoid long-term problems inhibiting effective 
service to the American people. Employees may be terminated from 
employment during the probationary period for reasons including 
demonstrated inability to perform the duties of the position, lack of 
cooperativeness, or other unacceptable conduct or poor performance. As 
a matter of good administration, agencies should ensure that their 
practices make effective use of the probationary period. While OPM is 
proposing to rescind a government-wide requirement to notify 
supervisors when an employee's probationary period is ending, agencies 
would not be precluded from providing such notifications under their 
own authorities and are strongly encouraged to do so.

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

    Part 432 applies to reduction in grade and removal of covered 
employees based on performance at the unacceptable level. Chapter 43 
provides a straightforward, though not exclusive, process for agencies 
to use in taking action based on unacceptable performance.

Section 432.102 Coverage

    Section 432.102 identifies actions and employees covered by this 
part. The proposed rule at Sec.  432.102 updates coverage to align with 
the National Defense Authorization Act (NDAA) for Fiscal Year 2017, 
Public Law 114-328 (Dec. 23, 2016). Specifically, section 512(a)(1)(C) 
of the 2017 NDAA provides appeal rights under 5 U.S.C. 7511, 7512, and 
7513 to dual status National Guard technicians for certain adverse 
actions. Section 512(c) repealed 5 U.S.C. 7511(b)(5), which excluded 
National Guard technicians from the definition of ``employee.''
    The repeal of 5 U.S.C. 7511(b)(5) and the coverage of National 
Guard technicians under 5 U.S.C. 7511, 7512, and 7513 required that OPM 
review 5 U.S.C. 4303. Section 4303(e) provides that any employee who is 
a preference eligible, in the competitive service, or in the excepted 
service and covered by subchapter II of chapter 75, and who has been 
reduced in grade or removed under this section is entitled to appeal 
the action to the MSPB under section 7701.
    Accordingly, MSPB appeal rights must be extended to National Guard 
technicians who are defined in section 4303(e). OPM proposes to revise 
paragraphs (b) and (f) of Sec.  432.102 to reflect that certain 
performance-based actions against dual status National Guard 
technicians are no longer excluded. Specifically, OPM proposes to add 
as an exclusion an action against a technician in the National Guard 
concerning any activity under section 709(f)(4) of title 32, United 
States Code, except as provided by section 709(f)(5) of title 32, 
United States Code. In addition, the proposed rule removes the 
exclusion at Sec.  432.102(f)(12): ``A technician in the National Guard 
described in 5 U.S.C. 8337(h)(1), employed under section 709(b) of 
title 32.'' The impact of the repeal of 5 U.S.C. 7511(b)(5) on adverse 
actions taken under chapter 75 will be further discussed below in the 
supplemental information for Sec.  752.401.

Section 432.104 Addressing Unacceptable Performance

    This section provides requirements in chapter 43 of title 5 of the 
United States Code for addressing unacceptable performance. While the 
regulatory amendments to part 432 made effective November 16, 2020, are 
within OPM's existing authority under 5 U.S.C. 4303 and 4305, E.O. 
13839 was the catalyst for the changes. OPM proposes to amend the 
regulation at Sec.  432.104 to remove the following language: ``The 
requirement described in 5 U.S.C. 4302(c)(5) refers only to that formal 
assistance provided during the period wherein an employee is provided 
with an opportunity to demonstrate acceptable performance, as 
referenced in 5 U.S.C. 4302(c)(6). The nature of assistance provided is 
in the sole and exclusive discretion of the agency. No additional 
performance assistance period or similar informal period shall be 
provided prior to or in addition to the opportunity period provided 
under this section.'' OPM will re-insert at Sec.  432.104 a statement 
that was in the regulation prior to the November 2020 amendment: ``As 
part of the employee's opportunity to demonstrate acceptable 
performance, the agency shall offer assistance to the employee in 
improving unacceptable performance.''
    OPM believes that the amendment to the regulations at Sec.  432.104 
placed unnecessary restrictions and limitations on agencies regarding 
decisions on when performance assistance is provided to employees. 
These restrictions and limitations removed previous flexibilities 
enjoyed by agencies in how to address performance issues with their 
employees under chapter 43. By placing these restrictions on agencies, 
OPM believes it was not supporting agencies and supervisors in 
determining the most effective assistance for struggling employees.
    OPM proposes to revert to the language in Sec.  432.104 prior to 
the November 2020 amendments regarding the agency's obligation to 
provide assistance to an employee who has demonstrated unacceptable 
performance. The proposed language restates the statutory requirement 
described in 5 U.S.C. 4302(c)(5) that agencies are obligated to provide

[[Page 202]]

performance assistance during the opportunity period. OPM would 
emphasize that the employee has a right to a reasonable opportunity to 
improve, which includes assistance from the agency in improving 
unacceptable performance.
    OPM encourages efficient use of chapter 43 procedures and effective 
delivery of agency mission while providing employees sufficient 
opportunity to demonstrate acceptable performance as required by law. 
Additionally, OPM advises agencies to act promptly and effectively to 
address and resolve poor performance. Supervisors should draw upon 
their skills and expertise to determine the most effective assistance 
for a struggling employee and work in concert with the technical advice 
received from their agency's human resources staff.

Section 432.105 Proposing and Taking Action Based on Unacceptable 
Performance

    This section specifies the procedures for proposing and taking 
action based on unacceptable performance once an employee has been 
afforded an opportunity to demonstrate acceptable performance. The 
regulatory amendments to Sec.  432.105(a)(1) that became effective 
November 16, 2020, were made for consistency with and promotion of the 
principles of E.O. 13839. For consistency with and promotion of the 
principles of E.O. 14003 and in accordance with its authority under 5 
U.S.C. 4302, OPM proposes to revise the regulation at Sec.  
432.105(a)(1).
    The proposed regulatory change to Sec.  432.105(a)(1) removes the 
language: ``For the purposes of this section, the agency's obligation 
to provide assistance, under 5 U.S.C. 4302(c)(5), may be discharged 
through measures, such as supervisory assistance, taken prior to the 
beginning of the opportunity period in addition to measures taken 
during the opportunity period. The agency must take at least some 
measures to provide assistance during the opportunity period in order 
to both comply with section 4302(c)(5) and provide an opportunity to 
demonstrate acceptable performance under 4302(c)(6).''
    OPM believes that the amendment to the regulations at Sec.  
432.105(a)(1) placed too much emphasis on supervisory assistance taken 
prior to the beginning of the opportunity period and placed too little 
emphasis on supervisory assistance taken during the opportunity period 
and could result in some agencies relying too much on supervisory 
assistance outside of the opportunity period to support any 
performance-based action taken against an employee.
    Agencies are reminded that they must provide assistance during the 
opportunity period in accordance with section 5 U.S.C. 4302(c)(5). OPM 
has long encouraged agencies to act promptly to address performance 
concerns as soon as they arise. Supervisors should continually monitor 
performance, provide ongoing feedback, and assist employees who exhibit 
performance issues. Agencies should also remain mindful that third 
parties (for example, arbitrators and judges) place a strong emphasis 
on a supervisor's effort to assist the employee in improving his or her 
performance. Evidence that the supervisor engaged an employee in 
discussion, counseling, training, or the like prior to the opportunity 
period may assist the agency in developing a stronger case before a 
third party that the employee was given a reasonable opportunity to 
demonstrate acceptable performance before a performance-based action is 
taken.
    The supplemental information supporting the regulatory changes 
issued pursuant to E.O. 13839, Probation on Initial Appointment to a 
Competitive Position, Performance-Based Reduction in Grade and Removal 
Action and Adverse Actions, 85 FR 65940 (October 16, 2020), and the 
subsequent revocation of E.O. 13839 and consequent rescission of some 
those regulations in this proposed rule, require clarification and 
reaffirmation of an agency's obligations with regard to actions based 
on unacceptable performance. Section 4302(c) states, in pertinent part, 
that, ``Under regulations which the Office of Personnel Management 
shall prescribe, each performance appraisal system shall provide for . 
. . (5) assisting employees in improving unacceptable performance; and 
(6) reassigning, reducing in grade, or removing employees who continue 
to have unacceptable performance but only after an opportunity to 
demonstrate acceptable performance.'' Section 4303(a) and (b)(1)(A) 
provides that ``an agency may reduce in grade or remove an employee for 
unacceptable performance'' subject to ``30 days advance written notice 
of the proposed action which identifies--(i) specific instances of 
unacceptable performance by the employee on which the proposed action 
is based; and (ii) the critical elements of the employee's position 
involved in each instance of unacceptable performance.'' Although the 
statute is silent regarding an agency's determination in the first 
instance that an employee's performance is unacceptable, OPM's 
regulation is pellucid. Pursuant to its authority to promulgate 
regulations, OPM issued 5 CFR 432.104, which it now proposes to 
restore. That regulation states in pertinent part: ``At any time during 
the performance appraisal cycle that an employee's performance is 
determined to be unacceptable in one or more critical elements, the 
agency shall notify the employee of the critical element(s) for which 
performance is unacceptable and inform the employee of the performance 
requirement(s) or standard(s) that must be attained in order to 
demonstrate acceptable performance in his or her position. The agency 
should also inform the employee that unless his or her performance in 
the critical element(s) improves to and is sustained at an acceptable 
level, the employee may be reduced in grade or removed. For each 
critical element in which the employee's performance is unacceptable, 
the agency shall afford the employee a reasonable opportunity to 
demonstrate acceptable performance, commensurate with the duties and 
responsibilities of the employee's position.'' (Emphasis added). This 
language in 5 CFR 432.104 was unchanged in the final rule issued on 
October 16, 2020.
    The comments summarized in the October 16, 2020, final rule, 
included concern that the amendment to 5 CFR 432.104 (which we are 
proposing to remove) might give some managers the ability to remove 
employees without factual evidence or deny them the ability to either 
counter the agency's assessment or correct it through a mandated 
improvement process. OPM responded to those concerns by saying, inter 
alia, that ``The amended rule does not relieve agencies of the 
responsibility to demonstrate that an employee was performing 
unacceptably--which per statute covers the period both prior to and 
during a formal opportunity period--before initiating an adverse action 
under chapter 43.'' 85 FR 65957 (Oct. 16, 2020). OPM's response was 
subsequently cited in Santos v. Nat'l. Aeronautics and Space Admin., 
990 F.3d 1355 (Fed. Cir. 2021), to support the court's implicit 
decision that an agency must prove by substantial evidence in a 
proceeding to challenge a performance-based removal that the employee 
was performing unacceptably prior to the opportunity period (i.e., 
prior to being placed on a performance improvement plan) as a 
prerequisite to removing the employee for failing to demonstrate 
acceptable performance during the opportunity period. This is a

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misreading of OPM's position. Accordingly, OPM takes this opportunity 
to make clear what OPM's position is so that OPM's failure to clarify 
its prior comments and address Santos when making changes to the same 
set of regulations will not be interpreted as OPM's endorsement of the 
Santos standard. OPM's reference to determining whether an employee is 
performing unacceptably concerns the requirement that an agency provide 
notice to an employee of unacceptable performance--before placing him 
on a PIP. OPM's comment in the supplemental information that the 
requirement to demonstrate that an employee was performing unacceptably 
``covers'' the period prior to the opportunity period should not be 
read to mean that an agency must justify the decision to place an 
employee on a PIP. Rather, the comment refers to the statutory 
provision that allows, but does not require, an agency to rely on 
unacceptable performance within 1 year prior to the date of the 
proposal notice to justify the removal itself. See 5 U.S.C. 4303(c)(2).
    Therefore, OPM wishes to clarify that the conclusion in Santos is 
contrary to OPM's comment in supplemental information on which Santos 
relies and OPM's interpretation of 5 U.S.C. 4302(c)(6). OPM does not 
agree that 5 U.S.C. 4302(c)(6) means that the agency must prove as part 
of its substantive case or as a required procedure that an employee 
performed unacceptably before he or she was placed on a PIP. Rather, 
the statute as interpreted by OPM's regulation at 5 CFR 432.104 
provides that an agency may not take a performance-based adverse action 
against an employee whom the agency determined was performing 
unacceptably unless the agency first provides the employee with notice 
and an opportunity to improve, and the employee continues to perform 
unacceptably. The determination to be reviewed on appeal to the Board 
and its reviewing courts is the final determination of unacceptable 
performance following the PIP, not any interim determination leading to 
the PIP. This interpretation enables agencies to address performance 
issues early through the mechanism of a PIP without concern that the 
employees who ultimately are unable to demonstrate acceptable 
performance despite early and sustained assistance cannot be removed 
because the MSPB or a court might find that they were not performing 
unacceptably when the PIP began.
    Section 432.105 addresses notice requirements when an agency 
proposes to take action based on an employee's unacceptable performance 
during or after the opportunity period once the employee has been 
afforded an opportunity to demonstrate acceptable performance. An 
agency must afford the employee a 30-day advance notice of the proposed 
action that identifies both the specific instances of unacceptable 
performance by the employee on which the proposed action is based and 
the critical element(s) of the employee's position involved in each 
instance of unacceptable performance. An agency may extend this advance 
notice period for a period not to exceed 30 days under regulations 
prescribed by the head of the agency. For the reasons listed in Sec.  
432.105(a)(4)(i)(B), an agency may further extend this advance notice 
period without OPM approval.
    OPM proposes to revise the reason at Sec.  432.105(a)(4)(i)(B)(6), 
which was derived from 5 U.S.C. 1208(b) because the statutory provision 
was repealed by section 3(a)(8) of Public Law 101-12, the Whistleblower 
Protection Act (WPA) of 1989. Section 1208(b) granted agencies the 
authority to extend the advance notice period for a performance-based 
action in order to comply with a stay ordered by a member of the Merit 
Systems Protection Board. Concurrent with the repeal of 5 U.S.C. 
1208(b), the WPA established 5 U.S.C. 1214(b)(1)(A)(i), wherein the 
Office of Special Counsel is granted the authority to request any 
member of the Board to order a stay of any personnel action for 45 days 
if the Special Counsel determines that there are reasonable grounds to 
believe that the personnel action was taken, or is to be taken, as a 
result of a prohibited personnel practice. Further, under 5 U.S.C. 
1214(b)(1)(B), the Board may extend the period of any stay granted 
under subparagraph (A) for any period which the Board considers 
appropriate. If the Board lacks a quorum, any remaining member of the 
Board may, upon request by the Special Counsel, extend the period of 
any stay granted under subparagraph (A). Therefore, OPM proposes to 
change the reason at subparagraph (B)(6) to read as follows: ``[t]o 
comply with a stay ordered by a member of the Merit Systems Protection 
Board under 5 U.S.C. 1214(b)(1)(A) or (B).''

Section 432.108 Settlement Agreements

    Section 5 of E.O. 13839, established a requirement that an agency 
shall not agree to erase, remove, alter or withhold from another agency 
any information about a civilian employee's performance or conduct in 
that employee's official personnel records, including an employee's 
Official Personnel Folder and Employee Performance File, as part of, or 
as a condition to, resolving a formal or informal complaint by the 
employee or settling an administrative challenge to an adverse 
personnel action. Such agreements have traditionally been referred to 
as ``clean record'' agreements. Consistent with the rescission of E.O. 
13839 and pursuant to its authorities under 5 U.S.C. 2951 to maintain 
personnel records and under 5 U.S.C. 1103(a)(5) to execute, administer, 
and enforce the law governing the civil service, OPM proposes to 
rescind Sec.  432.108, Settlement Agreements.
    Due to continued objections raised since the publication of the 
November 16, 2020, final rule, OPM believes that the prohibition of 
clean record agreements hampers agencies' ability to resolve informal 
and formal complaints at an early stage and with minimal costs to the 
agency. Notably, stakeholders have stressed that the prohibition of 
clean record agreements limits resolution options; reduces the 
likelihood of parties reaching a mutually agreeable resolution of 
informal or formal complaints; potentially increases costly litigation 
and arbitration; and crowds the dockets of third-party investigators, 
mediators, and adjudicators such as the Merit Systems Protection Board 
(MSPB), Office of Special Counsel (OSC), and Equal Employment 
Opportunity Commission. While agencies may derive some value from 
having access to unaltered personnel records when making hiring 
decisions, OPM believes it should place greater weight on granting 
agencies a degree of flexibility to resolve individual workplace 
disputes. Therefore, OPM proposes to delete Sec.  432.108. The clean 
record prohibition applied to actions taken under parts 432 and 752. 
Accordingly, the proposed rule would also rescind Sec. Sec.  752.104, 
752.203(h), 752.407 and 752.607. The removal of the prohibition on 
clean record agreements will allow agencies discretion to resolve 
informal and formal complaints and settle administrative challenges in 
a manner that balances the needs of the agency and fairness to the 
employee. In doing so, agencies should still adhere to the principles 
of promoting high standards of integrity and accountability within the 
Federal workforce. In addition, agencies are advised that, in any such 
agreement, they have an obligation to speak truthfully to Federal 
investigators performing future background investigations with respect 
to the employee and may not agree to

[[Page 204]]

withhold information about the circumstances of an individual's 
departure from the agency.

5 CFR Part 752--Adverse Actions

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

    This subpart addresses mandatory procedures for addressing 
retaliation by supervisors for whistleblowing.

Section 752.101 Coverage

    This section describes the adverse actions covered and defines key 
terms used throughout the subchapter. Section 752.101 includes a 
definition for the term ``business day.'' The requirement for taking an 
action within a proscribed number of business days was derived solely 
from Section 2(f) of E.O. 13839. With the rescission of E.O. 13839 and 
given that there is no other use for the definition of ``business day'' 
in subpart A, OPM proposes to revise the regulation at Sec.  752.101(b) 
to remove the definition of ``Business day''.

Section 752.103 Procedures

    This section establishes the procedures to be utilized for actions 
taken under this subpart. With the rescission of E.O. 13839 and 
pursuant to its congressionally granted authority to regulate chapter 
75 adverse actions, OPM proposes to rescind the requirement at Sec.  
752.103(d)(3) that an agency should issue the decision on a proposed 
removal under this subpart within 15 business days of the conclusion of 
the employee's opportunity to respond under paragraph (d)(1) of this 
section. The 15-day requirement was derived solely from Section 2(f) of 
E.O. 13839. Although it is good practice for agency deciding officials 
to resolve proposed removals promptly, some actions present multiple 
issues, conflicting evidence, or other complications that warrant full 
and fair consideration over a longer period of time, and careful 
crafting of the final decision. Accordingly, it is not in the 
Government's best interests to force decisions to be completed on an 
arbitrary timetable that may not allow for the deciding official to 
prepare a thoughtful, well-reasoned decision document.

Section 752.104 Settlement Agreements

    The language in this section establishes the same requirements that 
are detailed in Sec.  432.108, Settlement agreements. OPM proposes to 
remove this requirement. Please see the discussion at Sec.  432.108 
regarding the proposed rescission of OPM requirements related to 
settlement agreements.

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

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

Section 752.202 Standard for Action and Penalty Determination

    This section sets forth the standard for action applicable under 
this subpart and the penalty determination provisions that must be 
adhered to when taking suspensions for 14 days or less. Consistent with 
the rescission of E.O. 13839, under its congressionally granted 
authority to regulate part 752, OPM proposes to amend the regulation at 
Sec.  752.202 to revise the section heading to ``Standard for Action'' 
and rescind paragraphs (c) through (f). These paragraphs address the 
use of progressive discipline; appropriate comparators as the agency 
evaluates a potential disciplinary action; consideration of, among 
other factors, an employee's disciplinary record and past work record; 
and the requirement that a suspension should not be a substitute for 
removal in circumstances in which removal would be appropriate. 
Specifically, paragraphs (c) through (f) state:
    ``(c) An agency is not required to use progressive discipline under 
this subpart. The penalty for an instance of misconduct should be 
tailored to the facts and circumstances. In making a determination 
regarding the appropriate penalty for an instance of misconduct, an 
agency shall adhere to the standard of proposing and imposing a penalty 
that is within the bounds of tolerable reasonableness. Within the 
agency, a proposed penalty is in the sole and exclusive discretion of a 
proposing official, and a penalty decision is in the sole and exclusive 
discretion of the deciding official. Penalty decisions are subject to 
appellate or other review procedures prescribed in law.
    (d) Employees should be treated equitably. Conduct that justifies 
discipline of one employee at one time does not necessarily justify 
similar discipline of a different employee at a different time. An 
agency should consider appropriate comparators as the agency evaluates 
a potential disciplinary action. Appropriate comparators to be 
considered are primarily individuals in the same work unit, with the 
same supervisor, who engaged in the same or similar misconduct. 
Proposing and deciding officials are not bound by previous decisions in 
earlier similar cases, but should, as they deem appropriate, consider 
such decisions consonant with their own managerial authority and 
responsibilities and independent judgment. For example, a supervisor is 
not bound by his or her predecessor whenever there is similar conduct. 
A minor indiscretion for one supervisor based on a particular set of 
facts can amount to a more serious offense under a different 
supervisor. Nevertheless, they should be able to articulate why a more 
or less severe penalty is appropriate.
    (e) Among other relevant factors, agencies should consider an 
employee's disciplinary record and past work record, including all 
applicable prior misconduct, when taking an action under this subpart.
    (f) A suspension should not be a substitute for removal in 
circumstances in which removal would be appropriate. Agencies should 
not require that an employee have previously been suspended or demoted 
before a proposing official may propose removal, except as may be 
appropriate under applicable facts.''
    Given the revocation of E.O. 13839, and under its congressionally 
granted authority to regulate part 752, OPM proposes to rescind 
Sec. Sec.  752.202(c), 752.202(d), 752.202(e) and 752.202(f). Though 
the penalty determination guidelines of these subsections, as discussed 
below, reflect established principles, OPM believes that it is 
unnecessary to enshrine the guidelines in regulation, thus providing 
agencies maximum flexibility.
    In Sec.  752.202(c), OPM made clear that an agency is not required 
to use progressive discipline under this subpart. As we have previously 
said regarding progressive discipline and tables of penalties, each 
action stands on its own footing and demands careful consideration of 
facts, circumstances, context, and nuance. OPM reminds agencies to 
calibrate discipline to the unique facts and circumstances of each 
case, which is consistent with the flexibility afforded agencies under 
the ``efficiency of the service'' standard for imposing discipline 
contained in the Civil Service Reform Act. Proposing and deciding 
officials should consult with the agency counsel and the agency's human 
resources office to determine the most appropriate penalty.
    Further, in Sec.  752.202(d), OPM adopted the test articulated by 
the Court of Appeals for the Federal Circuit in Miskill v. Social 
Security Administration, 863 F.3d 1379 (Fed. Cir. 2017). We clarified 
that appropriate comparators are primarily individuals in the same work 
unit, with the same

[[Page 205]]

supervisor, who engaged in the same or similar misconduct. The adoption 
of the Miskill test reinforced the key principle that each case stands 
on its own factual and contextual footing. However, OPM believes that 
agencies can be sufficiently guided by Miskill and other applicable 
case law without a regulatory amendment.
    In Sec.  752.202(e), OPM adopted formally by regulation the 
standard applied by MSPB in Douglas v. Veterans Administration, 5 
M.S.P.R. 280 (1981) to removals, suspensions, and demotions, including 
suspensions of fewer than 15 days. Specifically, OPM adopted the 
requirement that agencies should propose and impose a penalty that is 
within the bounds of tolerable reasonableness. However, OPM believes 
that it is unnecessary to regulate a principle that is already embedded 
deeply in Federal civil-service law, thereby allowing greater 
flexibility for agencies. Douglas provides an adequate and useful 
template for arriving at reasonable penalty determinations. Douglas 
requires that, among other relevant factors, an agency should consider 
an employee's disciplinary record and past work record, including all 
prior misconduct, when taking an action under this subpart. Many 
agencies apply this standard not only to those actions taken under 5 
U.S.C. 7513 but also to those taken under 5 U.S.C. 7503 as well.
    In Sec.  752.202(f), OPM stated that suspension should not be a 
substitute for removal in circumstances in which removal would be 
appropriate. This is a straightforward principle that OPM believes 
agencies can apply without regulation. It is vital that supervisors use 
independent judgment, take appropriate steps in gathering facts, and 
conduct a thorough analysis to decide the appropriate penalty. If a 
penalty is disproportionate to the alleged violation or is 
unreasonable, it is subject to being reduced or reversed even when the 
charges are sustained. While OPM proposes to remove Sec.  752.202(f) 
and defer to agency management in selecting an appropriate penalty, OPM 
reminds agencies that imposing a suspension when removal is appropriate 
may adversely impact employee morale and productivity and hamper the 
agency's ability to achieve its mission and promote effective 
stewardship.
    Because of the revocation of E.O. 13839, and in light of OPM's 
independent regulatory authority under chapter 75, we propose to remove 
the penalty selection guidelines at Sec. Sec.  752.202(c) through (f). 
OPM reminds agencies that supervisors are responsible for ensuring that 
a disciplinary penalty is fair, reasonable, and appropriate to the 
facts and circumstances. In doing so, supervisors will address 
misconduct in a manner that has the greatest potential to avert harm to 
the efficiency of the service.

Section 752.203 Procedures

    The language in this section discusses the requirements for a 
proposal notice issued under this subpart. The language in this section 
also establishes the same requirements that are detailed in Sec.  
432.108, Settlement agreements. OPM proposes to remove the requirement 
set forth in Sec.  752.203(h). Please see the discussion at Sec.  
432.108 regarding the proposed rescission of OPM requirements related 
to settlement agreements.

Subpart D--Regulatory Requirements for Removal, Suspension for More 
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or 
Less

    This subpart addresses the procedural requirements for removals, 
suspensions for more than 14 days, including indefinite suspensions, 
reductions in grade, reductions in pay, and furloughs of 30 days or 
less for covered employees.

Section 752.401 Coverage

    This section discusses adverse actions and employees covered under 
this subpart. The National Defense Authorization Act (NDAA) for Fiscal 
Year 2017 added MSPB appeal rights for National Guard military 
technicians for certain adverse actions taken against them when they 
are not in a military pay status or when the issue does not involve 
fitness for duty in the reserve component. In Sec.  752.401(b), OPM 
proposes to add an exclusion for an action taken against a technician 
in the National Guard as provided in section 709(f)(4) of title 32, 
United States Code.
    In Sec.  752.401(d), OPM proposes to remove from the list of 
employees excluded from coverage of this subpart ``a technician in the 
National Guard described in section 8337(h)(1) of title 5, United 
States Code, who is employed under section 709(a) of title 32, United 
States Code.'' OPM proposes to remove this because the NDAA of 2017 
removed the exclusion from 5 U.S.C. 7511(b)(1) and this language was 
derived from section 7511(b)(1).

Section 752.402 Definitions

    This section defines key terms used throughout the subchapter. 
Section 752.402 includes a definition for the term ``business day.'' 
The requirement for taking an action within a proscribed number of 
business days for this section was derived solely from Section 2(f) of 
E.O. 13839. With the rescission of E.O. 13839 and given that there is 
no other use for the definition of ``business day'' in subpart D, OPM 
proposes to revise the regulation at Sec.  752.402 to remove the 
definition of ``Business day''.

Section 752.403 Standard for Action and Penalty Determination

    As with the proposed rule changes for the regulatory amendments to 
Sec.  752.202, the proposed regulatory change to Sec.  752.403 revises 
the heading to ``Standard for Action'' and rescinds paragraphs (c) 
through (f).
    Given the rescission of E.O. 13839 and under its congressionally 
granted authority to regulate part 752, as with Sec. Sec.  752.202(c), 
752.202(d), 752.202(e) and 752.202(f), OPM proposes to rescind 
Sec. Sec.  752.403(c), 752.403(d),752.403(e), and 752.403(f). Please 
see the discussion at Sec.  752.202.

Section 752.404 Procedures

    Section 752.404(b) discusses the requirements for a notice of 
proposed action issued under this subpart. Specifically, the 
requirements in Sec.  752.404(b)(1) include that, to the extent an 
agency, in its sole and exclusive discretion deems practicable, 
agencies should limit written notice of adverse actions taken under 
this subpart to the 30 days prescribed in 5 U.S.C. 7513(b)(1), as well 
as the requirement that any notice period greater than 30 days must be 
reported to OPM. The requirement was derived solely from Section 2(g) 
of E.O. 13839. In addition, we have come to the conclusion 
independently that there may be appropriate circumstances that warrant 
a notice period, and we no longer see a reason to burden agencies with 
a requirement to report to OPM every time they grant longer notice.
    OPM proposes to remove the following language in Sec.  
752.404(b)(1): ``However, to the extent an agency in its sole and 
exclusive discretion deems practicable, agencies should limit a written 
notice of an adverse action to the 30 days prescribed in section 
7513(b)(1) of title 5, United States Code. Advance notices of greater 
than 30 days must be reported to the Office of Personnel Management.''
    Additionally, Sec.  752.404(g) discusses the requirements for an 
agency decision issued under this subpart. Under its authority to 
regulate 5 CFR part 752, OPM proposes to rescind Sec.  752.404(g)(3). 
The requirement of Sec.  752.404(g)(3) was derived solely from Section 
2(f) of E.O. 13839. Specifically, Sec.  752.404(g)(3) includes language 
that, to the extent practicable, an agency

[[Page 206]]

should issue the decision on a proposed removal under this subpart 
within 15 business days of the conclusion of the employee's opportunity 
to respond. As discussed above with respect to section 752.103(d)(3) 
and the rescinding of the 15-day requirement to issue a decision on a 
proposal, although it is good practice for agency deciding officials to 
resolve proposed removals promptly, some actions present complications 
that warrant a longer period of time to achieve careful crafting of the 
final decision.
    Notwithstanding these proposed changes to the notice and decision 
requirements, agencies are reminded that misconduct should be addressed 
as soon as possible in each case. Prompt action helps promote changed 
behavior whereas failure to act promptly can damage morale and 
productivity, and failure to remove employees who should be removed can 
do the same.

Section 752.407 Settlement Agreements

    The language in this section establishes the same requirements that 
are detailed in 432.108, Settlement agreements. OPM proposes to remove 
this requirement. Please see the discussion at Sec.  432.108 regarding 
the proposed rescission of OPM requirements related to settlement 
agreements.

Subpart F--Regulatory Requirements for Taking Adverse Actions Under the 
Senior Executive Service

    This subpart addresses the procedural requirements for suspensions 
for more than 14 days and removals from the civil service as set for in 
5 U.S.C. 7542.

Section 752.602 Definitions

    This section defines key terms used throughout the subchapter. 
Section 752.602 includes a definition for the term ``business day.'' 
The requirement for taking an action within a proscribed number of 
business days for this section was derived solely from Section 2(f) of 
E.O. 13839. With the rescission of E.O. 13839 and given that there is 
no other use for ``business day'' in subpart F, OPM proposes to revise 
the regulation at Sec.  752.402 to remove the definition of ``Business 
day''.

Section 752.603 Standard for Action and Penalty Determination

    As with the proposed rule changes for the regulatory amendments to 
Sec.  752.202 and Sec.  752.403, the proposed regulatory change to 
Sec.  752.603 revises the heading to ``Standard for Action'' and 
rescinds paragraphs (c) through (f). Please see the discussion at Sec.  
752.202.
    Given the rescission of E.O. 13839 and under its congressionally 
granted authority to regulate part 752, as with Sec. Sec.  752.202(c), 
752.202(d), 752.202(e), and 752.202(f) and Sec. Sec.  752.403(c), 
752.403(d), 752.403(e), and 752.403(f), OPM proposes to rescind 
Sec. Sec.  752.603(c), 752.603(d),752.603(e), and 752.603(f). See 
discussion above with respect to section 752.202.

Section 752.604 Procedures

    This section discussed requirements for a notice of proposed 
action. Due to the revocation of E.O. 13839 and under its 
congressionally granted authority to regulate 5 CFR part 752, as with 
the rule changes proposed for Sec.  752.103(d)(3) and Sec.  
752.404(b)(1), and for the same reasons, OPM proposes to rescind the 
language at Sec.  752.604(b)(1) that requires to the extent an agency 
in its sole and exclusive discretion deems practicable, agencies should 
limit a written notice of an adverse action to the 30 days prescribed 
in section 7543(b)(1) of title 5, United States Code. As well, OPM 
proposes to remove the language in Sec.  752.604(b)(1) that requires 
that advance notices of greater than 30 days must be reported to OPM. 
These requirements were derived solely from Section 2(g) of E.O. 13839.
    OPM proposes to rescind Sec.  752.604(g)(3), which requires 
agencies to issue decisions, to the extent practicable, within 15 
business days of the conclusion of the employee's opportunity to 
respond under paragraph of this section. This requirement was derived 
solely from Section 2(f) of E.O. 13839. Thus, as with the discussion 
concerning the 15-day requirement for issuance of decisions in section 
752.103(d)(3) and section 752.404(g), while recognizing it is good 
practice for agency deciding officials to resolve proposed removals 
promptly, some actions present complexities that necessitate a longer 
period of time to prepare the final decision.

Section 752.607 Settlement Agreements

    The language in this section establishes the same requirements that 
are detailed in Sec.  432.108, Settlement agreements. OPM proposes to 
remove this requirement. Please see the discussion at Sec.  432.108 
regarding the proposed rescission of OPM requirements related to 
settlement agreements.

Expected Impact of This Proposed Rule

    OPM is issuing this proposed rule to implement requirements of E.O. 
14003 and new statutory requirements for procedural and appeal rights 
for dual status National Guard technicians for certain adverse actions. 
E.O. 14003 requires OPM to rescind portions of the OPM final rule 
published at 85 FR 65940 which implemented certain requirements of E.O. 
13839. In addition, section 512(a)(1)(C) of the 2017 NDAA provides 
appeal rights under 5 U.S.C. 7511, 7512, and 7513 to dual status 
National Guard technicians for certain adverse actions.
    OPM believes that portions of the final rule which became effective 
on November 16, 2020, and which implemented certain requirements of 
E.O. 13839, are inconsistent with the current policy of the United 
States to protect, empower and rebuild the career Federal workforce as 
well as its current policy to encourage employee organizing and 
collective bargaining. The proposed revisions implement applicable 
statutory mandates and provide agencies the necessary tools and 
flexibility to address matters related to unacceptable performance and 
misconduct or other behavior contrary to the efficiency of the service 
by Federal employees when they arise, consistent with the policies of 
E.O. 14003.
    Given that the November 16, 2020, regulations OPM proposes to 
rescind were in effect only for a brief period before E.O. 14003 was 
issued on January 22, 2021, agencies had limited opportunity to 
implement changes under the regulations. With the issuance of E.O. 
14003, OPM discontinued collecting agency data on performance-based 
actions, adverse actions, and settlement agreements as was required by 
Section 5 of E.O. 13839. OPM does not otherwise collect agency data 
about the matters covered by the November 2020 regulatory amendments 
that OPM proposes to rescind (namely, the timing and frequency of 
probationary period expiration notifications; the timing and nature of 
performance assistance for employees who have demonstrated unacceptable 
performance; penalty determination guidelines; advance notice and 
decision notice timeframes for adverse action; and settlement 
agreements). For these reasons, OPM has virtually no data on the extent 
to which adverse actions were pursued under the regulations proposed 
for rescission here. This proposed rule will relieve agencies of the 
administrative burden of implementing the November 2020 regulatory 
amendments to the extent that agencies did not already have such 
policies and practices in place. Out of an abundance of caution, we 
clarify that OPM still is requiring that agencies submit to it 
arbitration awards taken under 5 U.S.C. 4303 or 5

[[Page 207]]

U.S.C. 7512 of title 5 so that OPM can efficiently carry out its 
authority under 5 U.S.C. 7703(d) to seek judicial review of any 
arbitration award that the Director of OPM determines is erroneous and 
would have a substantial impact on civil service law, rule, or 
regulation affecting personnel management that will have a substantial 
impact on a civil service law, rule, regulation, or policy directive.

Costs

    This proposed rule will affect the operations of over 80 Federal 
agencies--ranging from cabinet-level departments to small independent 
agencies. Regarding implementation of E.O. 14003 requirements, we 
estimate that this proposed rule will require individuals employed by 
these agencies to revise and rescind policies and procedures to 
implement certain portions the OPM final rule published at 85 FR 65940 
to the extent agencies have not already done so. Section 3(e) of E.O. 
14003 directs heads of agencies whose practices were covered by E.O. 
13839 to review and identify existing agency actions related to or 
arising from E.O. 13839 and ``as soon as practicable, suspend, revise, 
or publish for notice and comment proposed rules suspending, revising, 
or rescinding, the actions identified in the review'' described in 
Section 3(e). On March 5, 2021, OPM issued ``Guidance for 
Implementation of Executive Order 14003--Protecting the Federal 
Workforce'' to heads of agencies. In this guidance, OPM advised that 
``agencies should not delay in implementing the requirements of Section 
3(e) of E.O. 14003 as it relates to any changes to agency policies made 
as a result of OPM's regulations.'' Therefore, some agencies may not 
need to make any updates to agency policies as a result of this revised 
OPM rule. For the purpose of this cost analysis, the assumed average 
salary rate of Federal employees performing this work will be the rate 
in 2021 for GS-14, step 5, from the Washington, DC, locality pay table 
($138,66 annual locality rate and $66.54 hourly locality rate). We 
assume that the total dollar value of labor, which includes wages, 
benefits, and overhead, is equal to 200 percent of the wage rate, 
resulting in an assumed labor cost of $133.08 per hour.
    In order to comply with the regulatory changes in this proposed 
rule, affected agencies will need to review the rule and update their 
policies and procedures. We estimate that, in the first year following 
publication of the final rule, this will require an average of 200 
hours of work by employees with an average hourly cost of $133.08. This 
would result in estimated costs in that first year of implementation of 
about $26,616 per agency, and about $2,129,280 in total Governmentwide. 
We do not believe this proposed rule will substantially increase the 
ongoing administrative costs to agencies.
    Regarding the portion of the proposed rule regarding appeal rights 
under 5 U.S.C. 7511, 7512, and 7513 for dual status National Guard 
technicians for certain adverse actions, this only impacts the Army 
National Guard and Air National Guard for dual status National Guard 
technicians that are covered by policies of the National Guard Bureau. 
Since this portion of the proposed rule reflects statutory changes in 
the 2017 NDAA which have been effective for several years, these 
statutory requirements should already be applied by the National Guard 
notwithstanding any regulatory changes by OPM. However, for the purpose 
of this cost analysis, the assumed average salary rate of Federal 
employees performing this work at the National Guard Bureau will be the 
rate in 2021 for GS-14, step 5, from the Washington, DC, locality pay 
table ($138,66 annual locality rate and $66.54 hourly locality rate). 
We assume that the total dollar value of labor, which includes wages, 
benefits, and overhead, is equal to 200 percent of the wage rate, 
resulting in an assumed labor cost of $133.08 per hour. In order to 
comply with the regulatory changes in this proposed rule, the affected 
agency will need to review the rule and update its policies and 
procedures. We estimate that, in the first year following publication 
of the final rule, this will require an average of 40 hours of work by 
employees with an average hourly cost of $133.08. This would result in 
estimated costs in that first year of implementation of about $5,323 
for the impacted agency. We do not believe this proposed rule will 
substantially increase the ongoing administrative costs to the National 
Guard.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). In accordance with the 
provisions of Executive Order 12866, this proposed rule was reviewed by 
the Office of Management and Budget as a significant, but not 
economically significant rule.

Regulatory Flexibility Act

    The Director of the Office of Personnel Management certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities.

Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this proposed rule does not have 
sufficient federalism implications to warrant preparation of a 
Federalism Assessment.

Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any year and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Congressional Review Act

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 
801 et seq.) requires rules to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this proposed rule 
before its effective date, as required by 5 U.S.C. 801. The Office of 
Information and Regulatory Affairs in the Office of Management and 
Budget has determined that this proposed rule is not a major rule as 
defined by the CRA (5 U.S.C. 804). The Office of Information and 
Regulatory Affairs in the Office of Management and Budget has 
determined that this proposed rule is not a major rule as defined by 
the CRA (5 U.S.C. 804).

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)

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

[[Page 208]]

List of Subjects in 5 CFR Parts 315, 432 and 752

    Government employees.

Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.

    Accordingly, for the reasons stated in the preamble, OPM proposes 
to amend 5 CFR parts 315, 432 and 752 as follows:

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
1. Revise the authority citation for part 315 to read as follows:

    Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O. 
10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and 
E.O. 13162. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 
3651 and 365. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 
1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 
also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606 
also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 
315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued 
under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued 
under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 
3304(f). Sec. 315.612 also issued under E.O. 13473. Sec. 315.708 
also issued under E.O. 13318, 3 CFR, 2004 Comp. p. 265. Sec. 315.710 
also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I 
also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p. 
264.

Subpart H--Probation on Initial Appointment to a Competitive 
Position

0
2. Revise Sec.  315.803(a) to read as follows:


Sec.  315.803  Agency action during probationary period (general).

    (a) The agency shall utilize the probationary period as fully as 
possible to determine the fitness of the employee and shall terminate 
his or her services during this period if the employee fails to 
demonstrate fully his or her qualifications for continued employment.
* * * * *

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

0
3. The authority for part 432 continues to read as follows:

    Authority:  5 U.S.C. 4303, 4305.


0
4. Amend Sec.  432.102 by:
0
a. Revising paragraphs (b)(14) and (15);
0
b. Adding paragraph (b)(16);
0
c. Removing paragraph (f)(12); and
0
d. Redesignating (f)(13) and (14) as (f)(12) and (13).
    The revisions and additions read as follows:


Sec.  432.102  Coverage.

* * * * *
    (b) * * *
    (14) A termination in accordance with terms specified as conditions 
of employment at the time the appointment was made;
    (15) An involuntary retirement because of disability under part 831 
of this chapter; and
    (16) An action against a technician in the National Guard 
concerning any activity under section 709(f)(4) of title 32, United 
States Code, except as provided by section 709(f)(5) of title 32, 
United States Code.
* * * * *

0
4. Revise Sec.  432.104 to read as follows:


Sec.  432.104  Addressing unacceptable performance.

    At any time during the performance appraisal cycle that an 
employee's performance is determined to be unacceptable in one or more 
critical elements, the agency shall notify the employee of the critical 
element(s) for which performance is unacceptable and inform the 
employee of the performance requirement(s) or standard(s) that must be 
attained in order to demonstrate acceptable performance in his or her 
position. The agency should also inform the employee that unless his or 
her performance in the critical element(s) improves to and is sustained 
at an acceptable level, the employee may be reduced in grade or 
removed. For each critical element in which the employee's performance 
is unacceptable, the agency shall afford the employee a reasonable 
opportunity to demonstrate acceptable performance, commensurate with 
the duties and responsibilities of the employee's position. As part of 
the employee's opportunity to demonstrate acceptable performance, the 
agency shall offer assistance to the employee in improving unacceptable 
performance.

0
5. Amend Sec.  432.105 by revising paragraphs (a)(1) and 
(a)(4)(i)(B)(6) to read as follows:


Sec.  432.105  Proposing and taking action based on unacceptable 
performance.

    (a) * * *
    (1) Once an employee has been afforded a reasonable opportunity to 
demonstrate acceptable performance pursuant to Sec.  432.104, an agency 
may propose a reduction-in-grade or removal action if the employee's 
performance during or following the opportunity to demonstrate 
acceptable performance is unacceptable in one or more of the critical 
elements for which the employee was afforded an opportunity to 
demonstrate acceptable performance.
    (4) * * *
    (i) * * *
    (B) * * *
    (6) To comply with a stay ordered by a member of the Merit Systems 
Protection Board under 5 U.S.C. 1214(b)(1)(A) or (B).
* * * * *


Sec.  432.108  [Removed]

0
6. Remove Sec.  432.108.

PART 752--ADVERSE ACTIONS

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

    Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91, and 
Pub. L. 114-328.

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


Sec.  752.101  [Amended]

0
8. Amend Sec.  752.101(b) by removing the definition for ``Business 
day''.


Sec.  752.103  [Amended]

0
9. Amend Sec.  752.103 by removing paragraph (d)(3).


Sec.  752.104  [Removed]

0
10. Remove Sec.  752.104.

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

0
11. Amend Sec.  752.202 by revising the section heading and removing 
paragraphs (c) through (f) to read as follows:


Sec.  752.202  Standard for action.

* * * * *


Sec.  752.203  [Amended]

0
12. Amend Sec.  752.203 by removing paragraph (h).

Subpart D--Regulatory Requirements for Removal, Suspension for More 
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or 
Less

0
13. Amend Sec.  752.401 by:
0
a. Revising paragraphs (b)(15) and (16);
0
b. Adding paragraph (b)(17);
0
c. Removing paragraph (d)(5); and
0
d. Redesignating paragraphs (d)(6) through (13) as paragraphs (d)(5) 
through (12).
    The revisions and additions read as follows:


Sec.  752.401  Coverage.

* * * * *
    (b) * * *
    (15) Reduction of an employee's rate of basic pay from a rate that 
is contrary

[[Page 209]]

to law or regulation, including a reduction necessary to comply with 
the amendments made by Public Law 108-411, regarding pay-setting under 
the General Schedule and Federal Wage System and regulations 
implementing those amendments;
    (16) An action taken under 5 U.S.C. 7515.; or
    (17) An action taken against a technician in the National Guard 
concerning any activity under section 709(f)(4) of title 32, United 
States Code, except as provided by section 709(f)(5) of title 32, 
United States Code.
* * * * *


Sec.  752.402  [Amended]

0
14. Amend Sec.  752.402 by removing the definition for ``Business 
day''.

0
15. Amend Sec.  752.403 by revising the section heading and removing 
paragraphs (c) through (f) to read as follows:


Sec.  752.403  Standard for action.

* * * * *

0
16. Amend Sec.  752.404 by revising paragraph (b)(1), and removing 
paragraph (g)(3) to read as follows:


Sec.  752.404  Procedures.

* * * * *
    (b) * * *
    (1) An employee against whom an action is proposed is entitled to 
at least 30 days' advance written notice unless there is an exception 
pursuant to paragraph (d) of this section. The notice must state the 
specific reason(s) for the proposed action and inform the employee of 
his or her right to review the material which is relied on to support 
the reasons for action given in the notice. The notice must further 
include detailed information with respect to any right to appeal the 
action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the 
forums in which the employee may file an appeal, and any limitations on 
the rights of the employee that would apply because of the forum in 
which the employee decides to file.
* * * * *


Sec.  752.407  [Removed]

0
17. Remove Sec.  752.407.

Subpart F--Regulatory Requirements for Taking Adverse Action Under 
the Senior Executive Service


Sec.  752.602  [ Amended]

0
18. Amend Sec.  752.602 by removing the definition for ``Business 
day''.

0
19. Amend Sec.  752.603 by revising the section heading and removing 
paragraphs (c) through (f) to read as follows:


Sec.  752.603  Standard for action.

* * * * *


Sec.  752.604  [Amended]

0
20. Amend Sec.  752.604 by revising paragraph (b)(1), and removing 
paragraph (g)(3) to read as follows:


Sec.  752.604  Procedures.

* * * * *
    (b) * * *
    (1) An appointee against whom an action is proposed is entitled to 
at least 30 days' advance written notice unless there is an exception 
pursuant to paragraph (d) of this section. The notice must state the 
specific reason(s) for the proposed action and inform the appointee of 
his or her right to review the material that is relied on to support 
the reasons for action given in the notice. The notice must further 
include detailed information with respect to any right to appeal the 
action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the 
forums in which the employee may file an appeal, and any limitations on 
the rights of the employee that would apply because of the forum in 
which the employee decides to file.
* * * * *


Sec.  752.607  [Removed]

0
21. Remove Sec.  752.607.

[FR Doc. 2021-28205 Filed 1-3-22; 8:45 am]
BILLING CODE 6325-39-P