[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Rules and Regulations]
[Pages 63531-63537]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28995]



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

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

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


Federal Register / Vol. 74, No. 232 / Friday, December 4, 2009 / 
Rules and Regulations

[[Page 63531]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 752

RIN 3206-AL39


Adverse Actions

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

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

SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final 
regulations governing Federal adverse actions. The final regulations 
clarify the adverse action rules regarding reductions in pay. In 
addition, the final regulations remove unnecessary subparts pertaining 
to statutory requirements, make a number of technical corrections, and 
utilize consistent language for similar regulatory requirements. The 
changes also include various revisions to make the regulations more 
readable.

DATES: Effective Date: The rule is effective February 2, 2010.

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

SUPPLEMENTARY INFORMATION: 

Introduction

    On September 18, 2008, OPM published at 73 FR 54075 (2008) proposed 
amendments to the regulations in part 752 of title 5, Code of Federal 
Regulations (CFR), to clarify the adverse action rules regarding 
reductions in pay and indefinite suspension, remove unnecessary 
subparts pertaining to statutory requirements, make technical 
corrections, utilize consistent language for similar regulatory 
requirements, and make the regulations more readable. The public 
comment period on the proposed amendments ended on November 17, 2008. 
OPM received comments from four Federal agencies or departments, four 
unions, an employment law attorney, and a professional organization of 
attorneys specializing in employment law. OPM has carefully considered 
the comments received.

Amendment To Clarify Adverse Action Rules Regarding Reduction in Pay

    OPM proposed 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 The Federal Workforce Flexibility Act (Pub. L. 108-411, 
October 30, 2004) and implementing regulations is excluded from adverse 
action coverage. We received no comments on this proposed change. One 
agency recommended that we also modify 5 CFR 752.401(b)(2) to 
substitute the term ``pay'' for ``grade'' and thereby extend the 
exclusion to pay-banded systems as well as systems using grades. This 
recommendation is outside the scope of the current proposed regulation 
and therefore has not been considered.

Amendment To Clarify Adverse Action Rules Regarding Indefinite 
Suspension

    OPM proposed to revise the regulations to clarify that the ``crime 
provision'' at 5 U.S.C. 7513(b)(1) is an exception only to the general 
30-day notice requirement for taking adverse actions and that it does 
not set a higher or separate standard of proof for indefinite 
suspensions.
    OPM also proposed a ``Standard for Action'' to list examples of 
serious misconduct for which an indefinite suspension could be an 
appropriate action. These examples were the types of misconduct that 
would pose a specific significant and ongoing risk.
    We received comments regarding the proposed clarification of OPM 
regulations on this topic. Several commenters stated that OPM's 
interpretation of the law represented an unwarranted expansion of the 
grounds for indefinite suspension based on an overreaching 
interpretation of the Federal Circuit Court of Appeals' decision in 
Perez v. Department of Justice, 480 F.3d 1309 (Fed. Cir. 2007). While 
not within the scope of the proposed regulations, two commenters urged 
that agencies be required to meet the ``reasonable cause'' standard 
specified in 5 U.S.C. 7513(b)(1) in all indefinite suspensions 
involving allegations of criminal activity.
    One comment asserted that OPM was giving agencies license to 
suspend employees indefinitely, without pay, for virtually any serious 
misconduct. This comment focused on duration and control--that is, 
agencies would have the power to suspend employees indefinitely for a 
duration solely within the agency's control, unbounded by any external 
event, such as a criminal investigation resulting in a criminal charge 
or other disposition.
    Focusing on the agencies' burden of proof, this comment also 
asserted that the proposed regulations did not make clear what an 
agency would have to show to a reviewing body to justify its action. 
That is, although OPM clarified that the correct standard is 
``preponderance of the evidence'' rather than a universally applied 
and, in the commenter's view, more appropriate ``reasonable cause'' 
standard, it is unclear exactly what OPM contemplates that the agency 
would be required to prove by a preponderance of the evidence.
    Several commenters also took issue with the enumeration of types of 
categories that would warrant an indefinite suspension. They described 
the list as vague and overbroad.
    One commenter suggested additional language be added to sections 
752.403(a), 752.404(b)(1), and 752.404(g) to state that regardless of 
whether the agency invokes the ``crime provision'' and shortens the 
notice period under 5 U.S.C. 7513(b)(1), action taken under this 
subpart must satisfy the requirement of 5 U.S.C. 7513(a) to prove that 
the suspension promotes the efficiency of the service.
    Finally, one commenter suggested a change in the regulation at 5 
CFR 752.404(b)(3)(ii) to require that when the provisions of 5 U.S.C. 
7513(b)(1) are invoked to curtail the 30-day notice period, the 
employee will continue to receive pay and benefits for up to 30 days 
with no charge to his or her accrued leave.
    After reviewing the comments, OPM has decided not to make any 
changes in the current regulations relating to indefinite suspensions.
    The comments regarding standards and procedures for using 
indefinite suspensions persuade us that the issues raised are quite 
complex. These include

[[Page 63532]]

the amount of evidence needed to justify use of indefinite suspensions, 
issues relating to the absence of external events limiting the duration 
of investigations, and the types of misconduct that would justify the 
indefinite suspension action. Accordingly, we have determined that we 
should await further delineation of the law by MSPB and the Court of 
Appeals for the Federal Circuit before deciding whether to propose 
substantive regulations on this subject.

Miscellaneous Comments

    One commenter expressed concern that the slow processing of 
security clearance appeals can leave employees on an indefinite 
suspension in limbo for months or years. The commenter recommended that 
OPM promulgate a new regulation to require that employees who have had 
their clearance suspended either be placed in another position not 
requiring a clearance or be provided back pay for the period of 
suspension if no such position exists. In addition, an agency proposed 
additional text be added to sections 752.404(c)(3), 752.404(f), 
752.604(c)(3), and 752.604(f) to clarify that any request for medical 
information must be consistent with the Rehabilitation Act of 1973 [29 
U.S.C. 791]. Since no change in the substantive content of the 
regulations in these areas was proposed, these suggestions are outside 
the scope of the current proposed regulation and therefore have not 
been considered.
    Another agency recommended amendment of Sec.  752.404(f) to clarify 
what they described as a new obligation to provide disability 
retirement information to employees with the requisite years of service 
for disability retirement even if the medical documentation is 
unrelated to the proposed adverse action. While the text in this area 
was reorganized for clarity, no change to the substantive content of 
the regulations in this area was proposed. Accordingly, this suggestion 
is outside the scope of the current proposed regulation and therefore 
has not been considered.
    One commenter recommended changing the provisions governing appeals 
of adverse actions to the Merit Systems Protection Board (MSPB). They 
recommended that MSPB be authorized to issue summary judgment decisions 
without a hearing where the MSPB administrative judge finds there are 
no material facts in dispute or genuine issues of credibility. One 
agency recommended deletion of 5 CFR 752.401(c)(6), arguing that as 
written, it conflicts with case law, specifically Van Wersch v. DHHS, 
197 F.3d 1144 (Fed. Cir. 1999), and the line of cases that followed. 
One union recommended that 5 CFR 752.201(b)(2) should be amended 
because it is inconsistent with 5 U.S.C. 7501. Since no change in the 
substantive content of the regulations in these areas was proposed, 
these suggestions are outside the scope of the current proposed 
regulation and therefore have not been considered.

Executive Order 12866, Regulatory Review

    The Office of Management and Budget has reviewed the final rule in 
accordance with Executive Order 12866.

Regulatory Flexibility Act

    I certify that these regulations will not have significant economic 
impact on a substantial number of small entities because they will 
affect Federal agencies, employees, and applicants only.

E.O. 13132

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

E.O. 12988--Civil Justice Reform

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

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private section, of 
$100,000,000 or more in any one 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

    This action pertains to agency management, personnel and 
organization, and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 5 CFR Part 752

    Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.
John Berry,
Director.

0
Accordingly, OPM is revising part 752 of title 5, Code of Federal 
Regulations, to read as follows:

PART 752--ADVERSE ACTIONS

Sec.
Subpart A--[Reserved]
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
Subpart C--[Reserved]
Subpart D--Regulatory Requirements for Removal, Suspension for More 
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or 
Less
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--[Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the 
Senior Executive Service
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--[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;

[[Page 63533]]

    (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 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--[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

[[Page 63534]]

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 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.

    In this subpart--
    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.


Sec.  752.404   Procedures.

    (a) Statutory entitlements. An employee against whom action is

[[Page 63535]]

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 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.
    (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 paragraph (d)(1) of this section; 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 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 of this chapter, or otherwise, at 
its option, offer a medical examination in accordance with the criteria 
of Sec.  339.302 of this chapter. 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 Sec.  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 his or her request, 
the following documents:

[[Page 63536]]

    (a) Notice of the proposed action;
    (b) Employee's written reply, if any;
    (c) Summary of the employee's oral reply, if any;
    (d) Notice of decision; and
    (e) Any order effecting the action, together with any supporting 
material.

Subpart E--[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 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 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.
    (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 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 appointee 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 paragraph (c)(2) of this section. 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 appointee has committed a crime 
for which a sentence of imprisonment may be imposed and is proposing a 
removal or 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 of this chapter, or otherwise, at 
its option, offer a medical examination in accordance with the criteria 
of Sec.  339.302 of this chapter. If the appointee has the requisite 
years of service under the Civil Service Retirement System or the 
Federal

[[Page 63537]]

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 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 Sec.  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 appointee upon his or her request, 
the following documents:
    (a) Notice of the proposed action;
    (b) Appointee's written reply, if any;
    (c) Summary of the appointee's oral reply, if any;
    (d) Notice of decision; and
    (e) Any order effecting the action, together with any supporting 
material.

[FR Doc. E9-28995 Filed 12-3-09; 8:45 am]
BILLING CODE 6325-39-P