[Federal Register Volume 73, Number 26 (Thursday, February 7, 2008)]
[Rules and Regulations]
[Pages 7187-7188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2121]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

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Federal Register / Vol. 73, No. 26 / Thursday, February 7, 2008 / 
Rules and Regulations

[[Page 7187]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 315 and 752

RIN 3206-AL30


Career and Career-Conditional Employment and Adverse Actions

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations governing Federal adverse actions. The final regulations 
conform the adverse action rules regarding employee coverage to binding 
judicial decisions interpreting the underlying statute.

DATE: Effective Date: The rule is effective March 10, 2008.

FOR FURTHER INFORMATION CONTACT: Sharon L. Mayhew by telephone at (202) 
606-2930; by FAX at (202) 606-2613; or by e-mail at CWRAP@opm.gov.

SUPPLEMENTARY INFORMATION: On May 1, 2007, OPM published at 72 FR 23772 
(2007) proposed amendments to the regulations in 5 CFR part 752, to 
conform the adverse action rules regarding the procedural and appeal 
rights of individuals serving a probationary period in the competitive 
service or a trial period in the excepted service to binding judicial 
decisions interpreting the underlying statute. We also proposed 
amendments to 5 CFR part 315 to make corresponding changes to the 
career and career-conditional employment rules governing probationary 
periods. The public comment period on the proposed regulations ended on 
July 2, 2007. OPM carefully considered the three comments received.
    Two commenters supported and commended OPM's proposed amendments to 
the regulations in parts 315 and 752 of title 5 CFR. They recommended 
OPM make similar changes to procedural and appeal rights in 5 CFR part 
432, the regulations governing performance-based actions. One of the 
commenters suggested additional amendments be made to 5 CFR part 315 to 
cover actions taken under 5 CFR part 432. These suggestions, however, 
are beyond the scope of the proposed regulations.
    The third commenter supported OPM's proposed amendments to the 
regulations in parts 315 and 752 of title 5 CFR. The commenter also 
advocated Congressional legislation to support OPM's interpretation of 
the statute at 5 U.S.C. 7511 and recommended that OPM repeat previously 
stated interpretive guidance regarding trial periods for excepted 
service appointments pending conversion to the competitive service. See 
57 FR 20041. These recommendations are beyond the scope of the proposed 
regulations and will not be further addressed.
    Finally, while supporting the language in the proposed regulations, 
the third commenter expressed concern that a literal reading of the 
Federal Circuit decision in Van Wersch v. Department of Health and 
Human Services, 197 F.3d 1144 (Fed. Cir. 1999), could potentially 
result in coverage, for example, of a recently hired nonpreference 
eligible excepted service employee serving in a temporary position not 
pending conversion to the competitive service. As stated in the 
supplementary information accompanying the notice of proposed 
rulemaking, 72 FR at 23773 (2007), OPM's reading of the statute with 
regard to those employees, among others, is consistent with statute, 
and supported by the Merit Systems Protection Board's (Board) decision 
in Johnson v. Department of Veterans Affairs, 99 MSPR 362 (2005), which 
was decided after Van Wersch. OPM, like the Board, considers this 
interpretation to be consistent with Van Wersch and in accordance with 
the law.
    For these and all the reasons stated in the proposed regulations 
published at 72 FR 23772 (2007), OPM issues these final regulations 
without modification, except for two minor non-substantive grammatical 
changes in Sec.  752.401(11) and Sec.  752.401(13).

E.O. 12866, Regulatory Review

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 12866.

Regulatory Flexibility Act

    OPM has determined these amendments will not have a significant 
economic impact on a substantial number of small entities because they 
will apply only to Federal agencies and employees.

List of Subjects in 5 CFR Parts 315 and 752

    Administrative practice and procedure, Government employees.

Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly, OPM amends parts 315 and 752 of title 5, Code of Federal 
Regulations, as follows:

PART 315--CAREER AND CAREER CONDITIONAL EMPLOYMENT

0
1. The authority citation for part 315 continues to read as follows:

    Authority: 5 U.S.C. 1302, 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 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(d). Sec 315.611 also issued under Section 511, Pub. L. 
106-117, 113 Stat. 1575-76. Sec 315.708 also issued under E.O. 
13318. 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.


0
2. Revise Sec.  315.803 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 services during this period if he fails to demonstrate fully his 
qualifications for continued employment.
    (b) Termination of an individual serving a probationary period must 
be

[[Page 7188]]

taken in accordance with subpart D of part 752 of this chapter if the 
individual has completed one year of current continuous service under 
other than a temporary appointment limited to 1 year or less and is not 
otherwise excluded by the provisions of that subpart.


0
3. Revise Sec.  315.804(a) to read as follows:


Sec.  315.804  Termination of probationers for unsatisfactory 
performance or conduct.

    (a) Subject to Sec.  315.803(b), when an agency decides to 
terminate an employee serving a probationary or trial period because 
his work performance or conduct during this period fails to demonstrate 
his fitness or his qualifications for continued employment, it shall 
terminate his services by notifying him in writing as to why he is 
being separated and the effective date of the action. The information 
in the notice as to why the employee is being terminated shall, as a 
minimum, consist of the agency's conclusions as to the inadequacies of 
his performance or conduct.
* * * * *


0
4. Revise Sec.  315.805 introductory text to read as follows:


Sec.  315.805  Termination of probationers for conditions arising 
before appointment.

    Subject to Sec.  315.803(b), when an agency proposes to terminate 
an employee serving a probationary or trial period for reasons based in 
whole or in part on conditions arising before his appointment, the 
employee is entitled to the following:
* * * * *

PART 752--ADVERSE ACTIONS

0
1. The authority citation for part 752 continues to read as follows:

    Authority: 5 U.S.C. 7504, 7514, and 7543.


0
2. Revise Sec.  752.401 (c)(1) and (2), (d)(11) and (12), and add 
(d)(13) to read as follows:


Sec.  752.401  Coverage.

* * * * *
    (c) * * *
    (1) A career or career conditional employee in the competitive 
service who is not serving a probationary or trial period;
    (2) An employee in the competitive service who has completed 1 year 
of current continuous service under other than a temporary appointment 
limited to 1 year or less;
* * * * *
    (d) * * *
    (11) A nonpreference eligible employee serving a probationary or 
trial period under an initial appointment in the excepted service 
pending conversion to the competitive service, unless they meet the 
requirements of paragraph (c)(5) of this section;
    (12) An employee whose agency or position has been excluded from 
the appointing provisions of title 5, United States Code, by separate 
statutory authority in the absence of any provision to place the 
employee within the coverage of chapter 75 of title 5, United States 
Code; and
    (13) An employee in the competitive service serving a probationary 
or trial period, unless they meet the requirements of paragraph (c)(2) 
of this section.


0
3. Revise Sec.  752.402 (b) to read as follows:


Sec.  752.402  Definitions.

* * * * *
    (b) Current continuous employment means a period of employment or 
service immediately preceding an adverse action without a break in 
Federal civilian employment of a workday.
* * * * *
 [FR Doc. E8-2121 Filed 2-6-08; 8:45 am]
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