[Federal Register Volume 73, Number 182 (Thursday, September 18, 2008)]
[Proposed Rules]
[Pages 54075-54082]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21523]
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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. 73, No. 182 / Thursday, September 18, 2008 /
Proposed Rules
[[Page 54075]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 752
RIN 3206-AL39
Adverse Actions
AGENCY: Office of Personnel Management.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of Personnel Management (OPM) proposes to amend its
regulations governing Federal adverse actions. The proposed amendments
would clarify the adverse action rules regarding reductions in pay and
indefinite suspension. In addition, OPM proposes to remove unnecessary
subparts pertaining to statutory requirements, make a number of
technical corrections, and utilize consistent language for similar
regulatory requirements. OPM also proposes various revisions to make
the regulations more readable.
DATES: Submit comments on or before November 17, 2008.
ADDRESSES: Send or deliver written comments to Ana A. Mazzi, Deputy
Associate Director for Workforce Relations and Accountability Policy,
Office of Personnel Management, 1900 E Street, NW., Room 7H28,
Washington, DC 20415; by FAX to 202-606-2613; or by e-mail to
CWRAP@opm.gov.
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: Sections 7504, 7514, and 7543(a) of title 5,
United States Code (U.S.C.), provide the statutory authority for OPM to
prescribe regulations pertaining to adverse actions. These regulations
are found at title 5, Code of Federal Regulations (CFR), part 752, and
are the subject of this proposed rule.
Amendment To Clarify Adverse Action Rules Regarding Reduction in Pay
A reduction in pay is an adverse action covered by chapter 75 of
title 5, United States Code. (See 5 U.S.C. 7512(4).) Under current
adverse action regulations, ``pay'' is defined as the rate of basic pay
exclusive of additional pay of any kind. (See definition of ``pay'' in
5 CFR 752.402.) Thus any pay supplement, such as a locality payment or
special rate supplement is not considered part of basic pay in
determining whether a reduction in pay and thus an adverse action has
occurred.
The Federal Workforce Flexibility Act of 2004 (the Act) (Pub. L.
108-411, October 30, 2004) created new pay administration rules for
Federal employees covered by chapter 53 of title 5, United States
Code--i.e., employees in the General Schedule (GS) pay system and the
Federal Wage System (FWS). Among other purposes, this Act modified pay
administration rules to correct anomalies that created unwarranted pay
increases or reductions for certain employees. The Act also established
the principle that, in cases where an employee's official duty station
is moved to a new location where different pay schedules apply, the
employee's pay will be treated as if the position he or she is leaving
were at the new location, before processing other pay actions. (See 5
U.S.C. 5305(i), 5334(g), and 5363(c) and OPM regulations published on
May 31, 2005, 70 FR 31278.)
Implementation of the Act's provisions on locality pay, special
rates, and pay retention resolves the problem of unwarranted increases
and reductions. However, in certain limited situations, the new pay
rules established under the Act, by design, can result in a reduction
of an employee's ``basic'' or base rate of pay even while protecting
the employee's total salary rate. Such a reduction may occur when a
personnel action changes an employee's pay entitlement from a rate of
basic pay without any supplement to an adjusted rate of basic pay
consisting of a base rate and a basic pay supplement (i.e., locality
payment or special rate supplement for a GS employee).
For example, an employee may change positions and move from the
Federal Wage System (FWS), in which the locality pay adjustment is
essentially incorporated within the rate of basic pay, to the GS pay
system, which often provides a separate supplement (locality payment or
special rate supplement) on top of the rate of basic pay. Under the new
pay administration rules in effect as a result of Public Law 108-411,
the FWS rate (after applying geographic pay conversion as necessary) is
compared to GS supplement-adjusted rates. If an FWS-to-GS movement is
involuntary, pay retention would apply and the GS total pay rate
(including any supplement) would be set at a rate equal to or greater
than the FWS rate. However, the new GS basic rate excluding the
supplement may be lower than the FWS rate.
Another example involves a change of pay entitlements within the
same pay system. A GS employee may be entitled to a retained rate,
which is a rate of basic pay without any supplement, and then, as the
result of a personnel or pay action, the employee may cease to be
entitled to the retained rate. In such case, the employee would receive
an adjusted rate consisting of a base rate and a supplement. If the
supplement is not considered, the employee could be viewed as having a
reduction in basic pay--even though there is no reduction in the total
rate of pay and the rate is being correctly set in accordance with the
new applicable pay administration rules.
Public Law 108-411 also provided that pay retention would no longer
apply when an FWS employee is involuntarily reassigned to a different
geographic location where a lower wage schedule applies. While the FWS
employee keeps the same grade and step, the employee's wage rate will
be lower. Under 5 U.S.C. 5363, as amended by Public Law 108-411, the
FWS employee is not entitled to pay retention when the reduction is
attributable to a geographic move. This is consistent with the
treatment of GS employees who may become entitled to a lower locality
payment due to a geographic move and who are also not entitled to pay
retention. Thus, the FWS employee's pay reduction occurs by operation
of law as a result of geographic pay conversion.
In the examples cited above, pay is being correctly set under the
new law and applicable pay administration rules. While paragraph
(b)(15) of 5 CFR
[[Page 54076]]
752.401 currently excludes from adverse action coverage any
``[r]eduction of an employee's rate of basic pay from a rate that is
contrary to law or regulation,'' we believe the clarity of the
regulations would be enhanced by specifically excluding from coverage
those actions that result from compliance with the new pay-setting
requirements of Public Law 108-411.
Accordingly, we are proposing to amend 5 CFR 752.401(b)(15), to
clarify that a reduction in an employee's rate of basic pay resulting
from the application of Public Law 108-411 and implementing regulations
is excluded from adverse action coverage.
Amendments To Clarify Adverse Action Rules Regarding Indefinite
Suspension
Background
Indefinite suspensions involve the placing of an employee in a
temporary status without duties and pay pending an investigation,
inquiry, or further agency action. An indefinite suspension continues
for an indeterminate period of time and ends with the completion of the
pending condition subsequent set forth in the notice of proposed
action. That pending condition may include, for example, a criminal or
administrative investigation and any subsequent administrative action
taken.
An indefinite suspension is an infrequently utilized but critical
option when public employees are being investigated or charged with
serious criminal offenses, or are under investigation for other serious
or egregious misconduct. With these regulations and supplementary
materials, OPM clarifies that a portion of 5 U.S.C. 7513(b)(1),
frequently referred to as the ``crime provision,'' is exclusively a
notice provision. It does not set a higher standard for indefinite
suspensions than for other adverse actions.
Specifically, in the vast majority of adverse actions, thirty (30)
days' advance written notice to the employee is required. However, the
law carves out a narrow exception to that 30 days' advance notice
requirement in those limited situations where there is reasonable cause
to believe that the employee has committed a crime for which a sentence
of imprisonment may be imposed. This notice exception has sometimes
been erroneously interpreted to establish an entirely new and different
``reasonable cause'' review standard for indefinite suspensions in
general. That standard, however, only applies to the determination of
whether the 30-day notice period may be shortened. Like all other
adverse actions, indefinite suspensions must meet the statutory
requirement of promoting the efficiency of the service. Moreover,
indefinite suspensions are not restricted to occasions when employees
have been indicted for a criminal offense. Indefinite suspensions may
also be warranted when an employee is under investigation for other
serious misconduct that, if proven to be true, would warrant removal
when, for example, the employee is under investigation for an
allegation of conduct posing a significant risk to the life, health or
safety of others, government or public property, the effective
accomplishment of the agency's operations, national security or privacy
interests. An indefinite suspension with a 30-day notice period in
these instances may be appropriate to ensure the efficiency of the
service by maintaining public trust in the Federal workforce. It may
also be appropriate when, for example, the employee is under
investigation based on an allegation that the employee poses a risk to
the health or safety of others, the employee's security clearance has
been suspended or revoked, or the employee's fitness-for-duty
examination or determination is pending.
OPM's interpretation of the ``crime provision'' in 5 U.S.C. 7513(b)
recently was affirmed by the U.S. Court of Appeals for the Federal
Circuit in Perez v. Department of Justice, 480 F.3d 1309, 1313
(Fed.Cir. 2007). In this case, the Court held that section 7513(b) ``is
solely a notice provision, and it provides an exception to the 30-day
notice requirement for all the types of adverse actions specified in 5
U.S.C. 7512(2) if the agency has reasonable cause to believe an
employee has committed a crime for which imprisonment may be imposed.''
Id. Thus, reasonable cause is only required if the agency provides the
employee less than a 30-day notice period in its notice of proposed
action. Id. The Federal Circuit further confirmed that adverse actions,
including indefinite suspensions, must ``promote the efficiency of the
service,'' noting that arbitrary action against an employee would not
satisfy that standard. Id.
Accordingly, to clarify that the ``crime provision'' is only an
exception to the general 30-day notice requirement for taking adverse
actions and is not a separate standard of proof for indefinite
suspensions, OPM therefore proposes to specify in paragraph (a) of 5
CFR 752.403 that an indefinite suspension is an adverse action an
agency may take to promote the efficiency of the service. OPM also
proposes to include the term ``indefinite suspension'' in paragraph
(b)(1) of 5 CFR 752.404, ``Notice of proposed action,'' to emphasize
that an indefinite suspension is to be taken in the same manner as any
other adverse action under that subpart. Additionally, OPM proposes to
add a new paragraph (c) to 5 CFR 752.403, ``Standard for Action,'' to
clarify the applicable standard for indefinite suspensions when 30 days
notice is provided to the employee.
Amendments To Modify and Clarify Adverse Actions Rules Under the Senior
Executive Service
Section 752.604 sets forth the procedures to be followed for SES
adverse actions under 5 U.S.C. chapter 75. Revising the regulations to
make them more comprehensible, OPM proposes to delete redundant
sections and change the placement of some information to make it more
clear and accessible to agencies and employees.
We further propose four additional amendments to the SES
regulations. First, we propose to add a new Sec. 752.604(f), ``Agency
review of medical information,'' to explain agency authority and
responsibilities in obtaining and reviewing medical information as
provided under 5 CFR 339.301 and 339.302. Second, we propose to add a
new Sec. 752.604(h) to address applications for disability retirement
and their effect on adverse actions. These two sections mirror the
provisions currently provided in the regulations applicable to non-SES
employees. Third, as a result of adding these new sections, we have
redesignated the former Sec. 752.604(f) as Sec. 752.604(g), and added
language to clarify procedural rights. Fourth, we propose to modify
Sec. 752.606 Agency Records to specify the documentation that should
be maintained in the agency's record, and we are proposing a similar
modification to the provisions applicable to non-SES employees (Sec.
752.406).
Amendments To Update Definitions Formatting
The Federal Register Document Drafting Handbook recommends a
particular format for CFR definitions sections. Accordingly, we take
this opportunity to propose revising Sec. Sec. 752.201 and 752.402 by
removing the letter designations and placing the terms in alphabetical
order.
Amendments To Correct Statutory and Regulatory References
Section 752.201 addresses actions excluded from coverage under 5
U.S.C. chapter 75. Section 752.201(c)(2) excludes actions taken for
national
[[Page 54077]]
security reasons but erroneously cites 5 U.S.C. 7531 as the authority
under which an agency may take action. Section 7531 of title 5, U.S.
Code, addresses the definition of ``agency.'' The correct citation is 5
U.S.C. 7532, which describes suspensions and removals for national
security reasons. Accordingly, we propose to correct the citation.
In addition, section 752.201(c)(3) excluded actions taken under a
provision of statute, other than one codified in title 5, U.S. Code,
which excepts the action from subchapter I, chapter 75 of title 5, U.S.
Code. In light of recent statutory amendments authorizing establishment
of alternative personnel systems within title 5, U.S. Code, such as for
the Department of Homeland Security and the Department of Defense, this
exclusion is too narrow. We propose to modify this section to exclude
actions excepted by law, regardless of whether such law is codified in
title 5, U.S. Code. For the same reason, we propose to make the same
modification in Sec. 752.401(b)(7).
Section 752.203 describes procedures for actions taken under 5
U.S.C. chapter 75. Section 752.203(f), ``Grievances,'' erroneously
cites 5 U.S.C 7121(b)(3) as governing representation for an employee in
an exclusive bargaining unit. Section 7121(b)(3) was removed when the
law was amended in 1997. The correct citation is 5 U.S.C.
7121(b)(1)(C). This correction also applies to Sec. 752.405(b).
Accordingly, we propose to correct these citations.
Section 752.401(b) sets forth actions excluded from coverage under
5 U.S.C. chapter 75. Section 752.401(b)(1) excludes actions ``imposed
by the Merit Systems Protection Board,'' and it erroneously cites 5
U.S.C. 1206 as the authority under which the Board may take actions.
Instead, 5 U.S.C. 1206 addresses the annual reporting requirement for
the MSPB. The correct citation is 5 U.S.C. 1215. Accordingly, we
propose to correct the citation.
The current Sec. 752.401(c)(3) references covered employees in the
Postal Rate Commission. The Postal Accountability and Enhancement Act
(Pub. L. 109-435) which was signed into law on December 20, 2006,
changed the name of the Postal Rate Commission to the Postal Regulatory
Commission. We propose to reflect the current name in the regulations
at paragraph (c)(3) and in paragraph (d)(9) of section 752.401.
Section 752.401(d) describes employees excluded from coverage under
5 U.S.C. chapter 75. Section 752.401(d)(5) excludes technicians in the
National Guard from coverage, and it erroneously cites 32 U.S.C. 709(b)
as the authority for the exclusion. The correct citation is 32 U.S.C.
709(a). Similarly, Sec. 752.401(d)(8) excludes employees of the
Veterans Health Administration (Department of Veterans Affairs) from
coverage and it erroneously cites 5 U.S.C. 7401(3) as an exception to
the exclusion. Section 7401(3) does not exist. The correct citation is
38 U.S.C. 7401(3). Accordingly, we propose to correct these citations.
Finally, Sec. 752.401(d)(9) excludes nonpreference eligibles in
specified Department of Defense intelligence components or activities.
This exclusion was based on 5 U.S.C. 7511(b)(8) which was amended in
1996 by Public Law 104-201 to modify the reference to title 10, U.S.
Code. We propose to amend Sec. 752.401(d)(9) to reflect the current
statutory provision.
Section 752.404 explains the procedures for actions taken under 5
U.S.C. chapter 75. Section 752.404(b)(1) makes reference to a
prohibition against releasing certain medical information to an
employee. That prohibition no longer exists. Accordingly, we propose to
remove this language. For the same reason we propose to make the same
modification in Sec. 752.604(b). The requirement in Sec. Sec.
752.404(b)(1) and 752.604(b) that an employee be informed of his or her
right to review the material relied on to support the action is
retained. Section 752.404(c)(3) addresses medical documentation
submitted as a part of the employee's answer and erroneously cites 5
CFR 339.102 for the definition of medical documentation. Section
339.102 states the purpose and effect of acquiring medical
documentation. Instead, Sec. 339.104 defines ``medical documentation''
and is the correct cite. Similarly, Sec. 752.404(h) addresses
applications for disability retirement and erroneously cites Sec.
831.501(d), which does not exist. The correct citation is Sec.
831.1204(e).
In addition, 5 CFR 752.404(h) erroneously cites Sec. 831.1203 as
providing the basis under which agencies shall file an application for
disability retirement on behalf of an employee. Section 831.1203
describes the basic requirements for disability retirement. The correct
citation is Sec. 831.1205, which addresses agency-filed disability
retirement applications. Accordingly, we propose to correct these
citations.
Section 752.601 addresses coverage under 5 U.S.C. chapter 75.
Section 752.601(a)(2) excludes actions taken under other authorities in
title 5, United States Code, and erroneously cites 5 U.S.C. 1206(g) as
one of the exclusions. This section, however, does not exist. The
correct citation is 5 U.S.C. 1215. Section 1215 describes disciplinary
actions imposed by the MSPB. Accordingly, we propose to correct this
citation.
Amendment To Remove Subparts A, C, and E
In an effort to streamline and make more readable our regulations
at 5 CFR part 752, OPM proposes to remove three superfluous subparts.
Subparts A, C, and E merely reprint the sections of the United States
Code that are the basis of the regulations found at 5 CFR part 752,
subparts B, D, and F. OPM proposes to remove this material and reserve
subparts A, C, and E.
Amendments to Adverse Action Procedures
Section 752.404 sets forth the procedures to be followed for
adverse actions under 5 U.S.C. chapter 75. Revising the regulations to
make them more comprehensible, OPM proposes to delete redundant
sections and change the placement of some information to make it more
clear and accessible to agencies and employees.
In addition, we propose to modify Sec. 752.406, Agency Records, to
clearly identify the documentation that should be maintained in the
agency's record consistent with the law. An identical modification is
proposed for Sec. Sec. 752.203 and 752.606.
Amendments To Adopt Regulatory Language
In addition to the above substantive changes, OPM proposes to
rewrite the regulations in 5 CFR part 752 to replace most instances of
the word ``shall'' with appropriate regulatory equivalents, such as
``must'' or ``will.'' This is undertaken in an effort to differentiate
regulatory from legislative language. In no case do these modifications
change the meaning or intent of the regulation.
Amendments To Adopt Consistent Language for Similar Provisions
Similar regulatory provisions were stated somewhat differently
throughout the various sections of the regulations (e.g., subparts B,
D, and F). Where applicable, we have proposed to utilize consistent
language for similar regulatory requirements without altering the
intent of the regulations.
Public Participation
OPM invites interested persons to participate in this proposed
rulemaking by submitting written comments, data, or views.
Before finalizing these proposed amendments, we will consider all
[[Page 54078]]
comments received on or before the closing date for comments. We will
consider comments filed late if it is possible to do so without
incurring expense or delay. We may change these proposed amendments in
light of the comments we receive.
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 Part 752
Administrative practice and procedure, Government employees.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
Accordingly, OPM proposes to revise part 752 of title 5, Code of
Federal Regulations, as follows:
PART 752--ADVERSE ACTIONS
Subpart A--[Removed and Reserved]
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
Sec.
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
Subpart C--[Removed and 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.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
Subpart E--[Removed and 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.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.
Authority: 5 U.S.C. 7504, 7514, and 7543.
Subpart A--[Removed and Reserved]
Subpart B--Regulatory Requirements for Suspension for 14 Days or
Less
Sec. 752.201 Coverage.
(a) Adverse actions covered. This subpart covers suspension for 14
days or less.
(b) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completed a
probationary or trial period;
(2) An employee in the competitive service serving in an
appointment which requires no probationary or trial period, and who has
completed 1 year of current continuous employment in the same or
similar positions under other than a temporary appointment limited to 1
year or less;
(3) An employee with competitive status who occupies a position
under Schedule B of part 213 of this chapter;
(4) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and still occupies that position;
(5) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(6) An employee of the Government Printing Office.
(c) Exclusions. This subpart does not apply to a suspension for 14
days or less:
(1) Of an administrative law judge under 5 U.S.C. 7521;
(2) Taken for national security reasons under 5 U.S.C. 7532;
(3) Taken under any other provision of law which excepts the action
from subchapter I, chapter 75, of title 5, U.S. Code;
(4) Of a reemployed annuitant; or
(5) Of a National Guard Technician.
(d) Definitions. In this subpart--
Current continuous employment means a period of employment
immediately preceding a suspension action without a break in Federal
civilian employment of a workday.
Day means a calendar day.
Similar positions means positions in which the duties performed are
similar in nature and character and require substantially the same or
similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue
interruption to the work.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
Sec. 752.202 Standard for action.
(a) An agency may take action under this subpart for such cause as
will promote the efficiency of the service as set forth in 5 U.S.C.
7503(a).
(b) An agency may not take a suspension against an employee on the
basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.203 Procedures.
(a) Statutory entitlements. An employee under this subpart whose
suspension is proposed under this subpart is entitled to the procedures
provided in 5 U.S.C. 7503(b).
(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.
(c) Employee's answer. The employee must be given a reasonable
time, but not less than 24 hours, to answer orally and in writing and
to furnish affidavits and other documentary evidence in support of the
answer.
(d) Representation. An employee covered by this subpart is entitled
to be represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or her official position
would give rise to unreasonable costs or whose priority work
assignments preclude his or her release.
(e) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the employee or his or her representative, or
both, made to a designated official.
(2) The agency must specify in writing the reason(s) for the
decision and advise the employee of any grievance rights under
paragraph (f) of this section. The agency must deliver the notice of
decision to the employee on or before the effective date of the action.
(f) Grievances. The employee may file a grievance through an agency
administrative grievance system (if applicable) or, if the suspension
falls within the coverage of an applicable negotiated grievance
procedure, an employee in an exclusive bargaining unit may file a
grievance only under that procedure. Sections 7114(a)(5) and
7121(b)(1)(C) of title 5, U.S. Code, and the terms of any collective
bargaining agreement, govern representation for employees in an
exclusive bargaining
[[Page 54079]]
unit who grieve a suspension under this subpart through the negotiated
grievance procedure.
(g) Agency records. The agency must maintain copies of, and will
furnish to the Merit Systems Protection Board and to the employee upon
their request, the following documents:
(1) Notice of the proposed action;
(2) Employee's written reply, if any;
(3) Summary of the employee's oral reply, if any;
(4) Notice of decision; and
(5) Any order effecting the suspension, together with any
supporting material.
Subpart C--[Removed and 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.
(a) Adverse actions covered. This subpart applies to the following
actions:
(1) Removals;
(2) Suspensions for more than 14 days, including indefinite
suspensions;
(3) Reductions in grade;
(4) Reductions in pay; and
(5) Furloughs of 30 days or less.
(b) Actions excluded. This subpart does not apply to:
(1) An action imposed by the Merit Systems Protection Board under
the authority of 5 U.S.C. 1215;
(2) The reduction in grade of a supervisor or manager who has not
completed the probationary period under 5 U.S.C. 3321(a)(2) if such a
reduction is to the grade held immediately before becoming a supervisor
or manager;
(3) A reduction-in-force action under 5 U.S.C. 3502;
(4) A reduction in grade or removal under 5 U.S.C. 4303;
(5) An action against an administrative law judge under 5 U.S.C.
7521;
(6) A suspension or removal under 5 U.S.C. 7532;
(7) Actions taken under any other provision of law which excepts
the action from subchapter II of chapter 75 of title 5, United States
Code;
(8) Action that entitles an employee to grade retention under part
536 of this chapter, and an action to terminate this entitlement;
(9) A voluntary action by the employee;
(10) Action taken or directed by the Office of Personnel Management
under part 731 of this chapter;
(11) Termination of appointment on the expiration date specified as
a basic condition of employment at the time the appointment was made;
(12) Action that terminates a temporary or term promotion and
returns the employee to the position from which temporarily promoted,
or to a different position of equivalent grade and pay, if the agency
informed the employee that it was to be of limited duration;
(13) Cancellation of a promotion to a position not classified prior
to the promotion;
(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; or
(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.
(c) Employees covered. This subpart covers:
(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;
(3) An employee in the excepted service who is a preference
eligible in an Executive agency as defined at section 105 of title 5,
United States Code, the U.S. Postal Service, or the Postal Regulatory
Commission and who has completed 1 year of current continuous service
in the same or similar positions;
(4) A Postal Service employee covered by Public Law 100-90 who has
completed 1 year of current continuous service in the same or similar
positions and who is either a supervisory or management employee or an
employee engaged in personnel work in other than a purely
nonconfidential clerical capacity;
(5) An employee in the excepted service who is a nonpreference
eligible in an Executive agency as defined at section 105 of title, 5,
United States Code, and who has completed 2 years of current continuous
service in the same or similar positions under other than a temporary
appointment limited to 2 years or less;
(6) An employee with competitive status who occupies a position in
Schedule B of part 213 of this chapter;
(7) An employee who was in the competitive service at the time his
or her position was first listed under Schedule A, B, or C of the
excepted service and who still occupies that position;
(8) An employee of the Department of Veterans Affairs appointed
under section 7401(3) of title 38, United States Code; and
(9) An employee of the Government Printing Office.
(d) Employees excluded. This subpart does not apply to:
(1) An employee whose appointment is made by and with the advice
and consent of the Senate;
(2) An employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character by the President for a position that the President has
excepted from the competitive service; the Office of Personnel
Management for a position that the Office has excepted from the
competitive service (Schedule C); or the President or the head of an
agency for a position excepted from the competitive service by statute;
(3) A Presidential appointee;
(4) A reemployed annuitant;
(5) 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;
(6) A Foreign Service member as described in section 103 of the
Foreign Service Act of 1980;
(7) An employee of the Central Intelligence Agency or the
Government Accountability Office;
(8) An employee of the Veterans Health Administration (Department
of Veterans Affairs) in a position which has been excluded from the
competitive service by or under a provision of title 38, United States
Code, unless the employee was appointed to the position under section
7401(3) of title 38, United States Code;
(9) A nonpreference eligible employee with the U.S. Postal Service,
the Postal Regulatory Commission, the Panama Canal Commission, the
Tennessee Valley Authority, the Federal Bureau of Investigation, the
National Security Agency, the Defense Intelligence Agency, or any other
intelligence component of the Department of Defense (as defined in
section 1614 of title 10, United States Code), or an intelligence
activity of a military department covered under subchapter I of chapter
83 of title 10, United States Code;
(10) An employee described in section 5102(c)(11) of title 5,
United States
[[Page 54080]]
Code, who is an alien or noncitizen occupying a position outside the
United States;
(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 he or she meets
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 he or she meets the requirements of paragraph
(c)(2) of this section.
Sec. 752.402 Definitions.
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.
Day means a calendar day.
Furlough means the placing of an employee in a temporary status
without duties and pay because of lack of work or funds or other
nondisciplinary reasons.
Grade means a level of classification under a position
classification system.
Indefinite suspension means the placing of an employee in a
temporary status without duties and pay pending investigation, inquiry,
or further agency action. The indefinite suspension continues for an
indeterminate period of time and ends with the occurrence of the
pending conditions set forth in the notice of action which may include
the completion of any subsequent administrative action.
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.
Similar positions means positions in which the duties performed are
similar in nature and character and require substantially the same or
similar qualifications, so that the incumbent could be interchanged
between the positions without significant training or undue
interruption to the work.
Suspension means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay for more than 14
days.
Sec. 752.403 Standard for action.
(a) An agency may take an adverse action, including a performance-
based adverse action or an indefinite suspension, under this subpart
only for such cause as will promote the efficiency of the service.
(b) An agency may not take an adverse action against an employee on
the basis of any reason prohibited by 5 U.S.C. 2302.
(c) An agency may indefinitely suspend an employee, without
invoking the crime provision in Sec. 752.404(d)(1) of this part when,
for example--
(1) The employee's fitness-for-duty examination or determination is
pending; or
(2) The employee is under investigation for serious misconduct
that, if proven to be true, would warrant removal, such as when the
employee is alleged to have engaged in conduct posing a significant,
ongoing risk to:
(i) The life, health or safety of self or others;
(ii) Government or public property including, but not limited to,
information technology systems;
(iii) The effective accomplishment of the agency's operations;
(iv) National security; or
(v) Privacy interests.
Sec. 752.404 Procedures.
(a) Statutory entitlements. An employee against whom action is
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7513(b).
(b) Notice of proposed action. (1) An employee against whom an
action, including an indefinite suspension, is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to Sec. 752.404(d) of this part. 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.
(2) When some but not all employees in a given competitive level
are being furloughed, the notice of proposed action must state the
basis for selecting a particular employee for furlough, as well as the
reasons for the furlough.
(3) Under ordinary circumstances, an employee whose removal or
suspension, including indefinite suspension, has been proposed will
remain in a duty status in his or her regular position during the
advance notice 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, the agency may elect one or
a combination of the following alternatives:
(i) Assigning the employee to duties where he or she is no longer a
threat to safety, the agency mission, or to Government property;
(ii) Allowing the employee to take leave, or carrying him or her in
an appropriate leave status (annual, sick, leave without pay, or
absence without leave) if the employee has absented himself or herself
from the worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the
provisions of Sec. 752.404(d)(1) of this part; or
(iv) Placing the employee in a paid, nonduty status for such time
as is necessary to effect the action.
(c) Employee's answer. (1) An employee may answer orally and in
writing except as provided in paragraph (c)(2) of this section. The
agency must give the employee a reasonable amount of official time to
review the material relied on to support its proposed action, to
prepare an answer orally and in writing, and to secure affidavits, if
the employee is in an active duty status. The agency may require the
employee to furnish any answer to the proposed action, and affidavits
and other documentary evidence in support of the answer, within such
time as would be reasonable, but not less than 7 days.
(2) The agency will designate an official to hear the employee's
oral answer who has authority either to make or recommend a final
decision on the proposed adverse action. The right to answer orally in
person does not include the right to a formal hearing with examination
of witnesses unless the agency provides for such hearing in its
regulations. Under 5 U.S.C. 7513(c), the agency may, in its
regulations, provide a hearing in place of or in addition to the
opportunity for written and oral answer.
(3) If the employee wishes the agency to consider any medical
condition which may contribute to a conduct, performance, or leave
problem, the employee must be given a reasonable time to furnish
medical documentation (as defined in Sec. 339.104 of this chapter) of
the condition. Whenever possible, the employee will supply such
documentation within the time limits allowed for an answer.
(d) Exceptions. (1) Section 7513(b) of title 5, U.S. Code,
authorizes an exception to the 30 days' advance written notice when the
agency has reasonable cause to believe that the employee has committed
a crime for
[[Page 54081]]
which a sentence of imprisonment may be imposed and is proposing a
removal or suspension, including indefinite suspension. This notice
exception is commonly referred to as the ``crime provision.'' This
provision may be invoked even in the absence of judicial action.
(2) The advance written notice and opportunity to answer are not
required for furlough without pay due to unforeseeable circumstances,
such as sudden breakdowns in equipment, acts of God, or sudden
emergencies requiring immediate curtailment of activities.
(e) Representation. Section 7513(b)(3) of title 5, U.S. Code,
provides that an employee covered by this part is entitled to be
represented by an attorney or other representative. An agency may
disallow as an employee's representative an individual whose activities
as representative would cause a conflict of interest or position, or an
employee of the agency whose release from his or her official position
would give rise to unreasonable costs or whose priority work
assignments preclude his or her release.
(f) Agency review of medical information. When medical information
is supplied by the employee pursuant to paragraph (c)(3) of this
section, the agency may, if authorized, require a medical examination
under the criteria of Sec. 339.301, or otherwise, at its option, offer
a medical examination in accordance with the criteria of Sec. 339.302.
If the employee has the requisite years of service under the Civil
Service Retirement System or the Federal Employees Retirement System,
the agency must provide information concerning disability retirement.
The agency must be aware of the affirmative obligations of the
provisions of 29 CFR 1614.203, which require reasonable accommodation
of a qualified individual with a disability.
(g) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the employee or his or her representative, or
both, made to a designated official and any medical documentation
reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision
and advise the employee of any appeal or grievance rights under Sec.
752.405 of this part. The agency must deliver the notice of decision to
the employee on or before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of
this chapter provides that an employee's application for disability
retirement need not delay any other appropriate personnel action.
Section 831.1205 and section 844.202 of this chapter set forth the
basis under which an agency must file an application for disability
retirement on behalf of an employee.
Sec. 752.405 Appeal and grievance rights.
(a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an
employee against whom an action is taken under this subpart is entitled
to appeal to the Merit Systems Protection Board.
(b) Grievance rights. As provided at 5 U.S.C. 7121(e)(1), if a
matter covered by this subpart falls within the coverage of an
applicable negotiated grievance procedure, an employee may elect to
file a grievance under that procedure or appeal to the Merit Systems
Protection Board under 5 U.S.C. 7701, but not both. Sections 7114(a)(5)
and 7121(b)(1)(C) of title 5, U.S. Code, and the terms of an applicable
collective bargaining agreement, govern representation for employees in
an exclusive bargaining unit who grieve a matter under this subpart
through the negotiated grievance procedure.
Sec. 752.406 Agency records.
The agency must maintain copies of, and will furnish to the Merit
Systems Protection Board and to the employee upon their request, the
following documents:
(1) Notice of the proposed action;
(2) Employee's written reply, if any;
(3) Summary of the employee's oral reply, if any;
(4) Agency notice of decision; and
(5) Any order effecting the action, together with any supporting
material.
Subpart E--[Removed and Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Action Under
the Senior Executive Service
Sec. 752.601 Coverage.
(a) Adverse actions covered. This subpart applies to suspensions
for more than 14 days, including indefinite suspensions for more than
14 days, and removals from the civil service as set forth in 5 U.S.C.
7542.
(b) Actions excluded. (1) An agency may not take a suspension
action of 14 days or less.
(2) This subpart does not apply to actions taken under 5 U.S.C.
1215, 3592, 3595, or 7532.
(c) Employees covered. This subpart covers the following
appointees:
(1) A career appointee--
(i) Who has completed the probationary period in the Senior
Executive Service;
(ii) Who is not required to serve a probationary period in the
Senior Executive Service; or
(iii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(2) A limited term or limited emergency appointee--
(i) Who received the limited appointment without a break in service
in the same agency as the one in which the employee held a career or
career-conditional appointment (or an appointment of equivalent tenure
as determined by the Office of Personnel Management) in a permanent
civil service position outside the Senior Executive Service; and
(ii) Who was covered under 5 U.S.C. 7511 immediately before
appointment to the Senior Executive Service.
(d) Employees excluded. This subpart does not cover an appointee
who is serving as a reemployed annuitant.
Sec. 752.602 Definitions.
In this subpart--
Career appointee, limited term appointee, and limited emergency
appointee have the meaning given in 5 U.S.C. 3132(a).
Day means calendar day.
Suspension has the meaning given in 5 U.S.C. 7501(2).
Sec. 752.603 Standard for action.
(a) An agency may take an adverse action under this subpart only
for reasons of misconduct, neglect of duty, malfeasance, or failure to
accept a directed reassignment or to accompany a position in a transfer
of function.
(b) An agency may not take an adverse action under this subpart on
the basis of any reason prohibited by 5 U.S.C. 2302.
Sec. 752.604 Procedures.
(a) Statutory entitlements. An appointee against whom action is
proposed under this subpart is entitled to the procedures provided in 5
U.S.C. 7543(b).
(b) Notice of proposed action. (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 Sec. 752.604(d) of
this part. 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.
(2) Under ordinary circumstances, an appointee whose removal has
been proposed will remain in a duty status in his or her regular
position during the advance notice period. In those rare circumstances
where the agency
[[Page 54082]]
determines that the appointee's continued presence in the work place
during the notice period may pose a threat to the appointee or others,
result in loss of or damage to Government property, or otherwise
jeopardize legitimate Government interests, the agency may elect one or
a combination of the following alternatives:
(i) Assigning the appointee to duties where he or she is no longer
a threat to safety, the agency mission, or Government property;
(ii) Allowing the appointee to take leave, or carrying him or her
in an appropriate leave status (annual, sick, leave without pay, or
absence without leave) if the appointee has absented himself or herself
from the worksite without requesting leave;
(iii) Curtailing the notice period when the agency can invoke the
provisions of paragraph (d) of this section; or
(iv) Placing the employee in a paid, nonduty status for such time
as is necessary to effect the action.
(c) Appointee's answer. (1) The appointee may answer orally and in
writing except as provided in Sec. 752.604(c)(2) of this part. The
agency must give the appointee a reasonable amount of official time to
review the material relied on to support its proposed action, to
prepare an answer orally and in writing, and to secure affidavits, if
the appointee is in an active duty status. The agency may require the
appointee to furnish any answer to the proposed action, and affidavits
and other documentary evidence in support of the answer, within such
time as would be reasonable, but not less than 7 days.
(2) The agency will designate an official to hear the appointee's
oral answer who has authority either to make or to recommend a final
decision on the proposed adverse action. The right to answer orally in
person does not include the right to a formal hearing with examination
of witnesses unless the agency provides for such hearing in its
regulations. Under 5 U.S.C. 7543(c), the agency may in its regulations
provide a hearing in place of or in addition to the opportunity for
written and oral answer.
(3) If the appointee wishes the agency to consider any medical
condition that may have affected the basis for the adverse action, the
appointee must be given reasonable time to furnish medical
documentation (as defined in Sec. 339.104 of this chapter) of the
condition. Whenever possible, the appointee will supply such
documentation within the time limits allowed for an answer.
(d) Exception. Section 7543(b)(1) of title 5, U.S. Code, authorizes
an exception to the 30 days' advance written notice when the agency has
reasonable cause to believe that the employee has committed a crime for
which a sentence of imprisonment may be imposed and is proposing a
removal or suspension, including indefinite suspension. This notice
exception is commonly referred to as the ``crime provision.'' This
provision may be invoked even in the absence of judicial action.
(e) Representation. Section 7543(b)(3) of title 5, U.S. Code,
provides that an appointee covered by this part is entitled to be
represented by an attorney or other representative. An agency may
disallow as an appointee's representative an individual whose
activities as representative would cause a conflict of interest or
position, or an employee of the agency whose release from his or her
official position would give rise to unreasonable costs or whose
priority work assignments preclude his or her release.
(f) Agency review of medical information. When medical information
is supplied by the appointee pursuant to paragraph (c)(3) of this
section, the agency may, if authorized, require a medical examination
under the criteria of Sec. 339.301, or otherwise, at its option, offer
a medical examination in accordance with the criteria of Sec. 339.302.
If the appointee has the requisite years of service under the Civil
Service Retirement System or the Federal Employees Retirement System,
the agency must provide information concerning disability retirement.
The agency must be aware of the affirmative obligations of the
provisions of 29 CFR 1614.203, which require reasonable accommodation
of a qualified individual with a disability.
(g) Agency decision. (1) In arriving at its decision, the agency
will consider only the reasons specified in the notice of proposed
action and any answer of the appointee or the appointee's
representative, or both, made to a designated official and any medical
documentation reviewed under paragraph (f) of this section.
(2) The notice must specify in writing the reasons for the decision
and advise the appointee of any appeal or grievance rights under Sec.
752.605 of this part. The agency must deliver the notice of decision to
the appointee on or before the effective date of the action.
(h) Applications for disability retirement. Section 831.1204(e) of
this chapter provides that an appointee's application for disability
retirement need not delay any other appropriate personnel action.
Section 831.1205 and section 844.202 of this chapter set forth the
basis under which an agency must file an application for disability
retirement on behalf of an appointee.
Sec. 752.605 Appeal rights.
(a) Under 5 U.S.C. 7543(d), a career appointee against whom an
action is taken under this subpart is entitled to appeal to the Merit
Systems Protection Board.
(b) A limited term or limited emergency appointee who is covered
under Sec. 752.601(c)(2) also may appeal an action taken under this
subpart to the Merit Systems Protection Board.
Sec. 752.606 Agency records.
The agency must maintain copies of, and will furnish to the Merit
Systems Protection Board and to the employee upon his or her request,
the following documents:
(1) Notice of the proposed action;
(2) Employee's written reply, if any;
(3) Summary of the employee's oral reply, if any;
(4) Agency notice of decision; and
(5) Any order effecting the action, together with any supporting
material.
[FR Doc. E8-21523 Filed 9-17-08; 8:45 am]
BILLING CODE 6325-39-P