Rule2022-24309
Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 10, 2022
Effective
December 12, 2022
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing final regulations governing probation on initial appointment to a competitive position, performance-based reduction in grade and removal actions, and adverse actions. The final rule rescinds certain regulatory changes made effective on November 16, 2020, and implements new statutory requirements for Merit Systems Protection Board (MSPB) procedural and appeal rights for dual status National Guard technicians for certain adverse actions. OPM believes the final revisions will support implementation of an Executive order to empower agencies to rebuild the career Federal workforce and protect the civil service rights of their employees, while preserving appropriate mechanisms for pursuing personnel actions where warranted.
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[Federal Register Volume 87, Number 217 (Thursday, November 10, 2022)]
[Rules and Regulations]
[Pages 67765-67783]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-24309]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 217 / Thursday, November 10, 2022 /
Rules and Regulations
[[Page 67765]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 315, 432, and 752
RIN 3206-AO23
Probation on Initial Appointment to a Competitive Position,
Performance-Based Reduction in Grade and Removal Actions and Adverse
Actions
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations governing probation on initial appointment to a competitive
position, performance-based reduction in grade and removal actions, and
adverse actions. The final rule rescinds certain regulatory changes
made effective on November 16, 2020, and implements new statutory
requirements for Merit Systems Protection Board (MSPB) procedural and
appeal rights for dual status National Guard technicians for certain
adverse actions. OPM believes the final revisions will support
implementation of an Executive order to empower agencies to rebuild the
career Federal workforce and protect the civil service rights of their
employees, while preserving appropriate mechanisms for pursuing
personnel actions where warranted.
DATES: Effective December 12, 2022.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
<a href="/cdn-cgi/l/email-protection#badfd7cad6d5c3dfdfdbd9d9d5cfd4cedbd8d3d6d3cec3fad5cad794ddd5cc"><span class="__cf_email__" data-cfemail="66030b160a091f03030705050913081207040f0a0f121f2609160b48010910">[email protected]</span></a> or by telephone at (202) 606-2930.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing revised regulations governing probation on initial appointment
to a competitive position; performance-based reduction in grade and
removal actions; and adverse actions, mindful of the President's
expressed policy direction and under its congressionally granted
authority in 5 U.S.C. 3321, 4305, 4315, 7504, 7514 and 7543. On January
22, 2021, President Biden issued Executive Order (E.O.) 14003 on
``Protecting the Federal Workforce'' which, among other things, revoked
E.O. 13839 and directed agencies to ``as soon as practicable, suspend,
revise, or rescind, or publish for notice and comment proposed rules
suspending, revising, or rescinding, the actions'' implementing various
E.O.s, including E.O. 13839, ``as appropriate and consistent with
applicable law.'' E.O. 14003 states that ``[c]areer civil servants are
the backbone of the Federal workforce, providing the expertise and
experience necessary for the critical functioning of the Federal
Government. It is the policy of the United States to protect, empower,
and rebuild the career Federal workforce. It is also the policy of the
United States to encourage employee organizing and collective
bargaining. The Federal Government should serve as a model employer.''
These revisions both effect statutory requirements and support
agency efforts in implementing E.O. 14003, as well as advance agencies'
efforts to fulfill their mission and achieve superior results for the
American people. With respect to statutory requirements, we have made
changes to be consistent with the requirements for dual status National
Guard technicians in Public Law 114-328 (Dec. 23, 2016). Additionally,
we have made regulation changes to be consistent with statutory
requirements for procedures under the Whistleblower Protection Act.
Therefore, in accordance with E.O. 14003, OPM issued proposed
regulations published at 87 FR 200, January 4, 2022, to rescind
portions of the final rule published at 85 FR 65940, October 16, 2020.
The proposed regulations provide agencies the necessary tools and
flexibility to address matters related to unacceptable performance and
misconduct or other matters contrary to the efficiency of the service,
by Federal employees when they arise, consistent with the policies of
E.O. 14003. Pursuant to Public Law 114-328 (Dec. 23, 2016), OPM also
proposed to revise its regulations on coverage for performance-based
actions and adverse actions appealable to the MSPB in accordance with
statutory changes that extend title 5 rights to dual status National
Guard technicians under certain conditions.
After consideration of public comments on the proposed regulations,
OPM is now issuing these revised regulations. These revisions not only
implement statutory requirements and support agency efforts in
implementing E.O. 14003 but also facilitate the ability of agencies to
deliver on their mission and provide the best possible service to the
American people.
Public Comments
In response to the proposed rule, OPM received 31 comments during
the 30-day public comment period from a variety of individuals,
including current and retired Federal employees, labor organizations,
Federal agencies, management associations, organizations, a law firm,
and the general public. At the conclusion of the public comment period,
OPM reviewed and analyzed the comments. In general, comments ranged
from enthusiastic support of the proposed regulations to categorical
rejection. Many commenters expressed support or non-support only on
particular portions of the regulations without addressing other aspects
of the rule. Many of those in support of the regulatory changes cited
the benefit of returning more discretion to agencies to allow them to
best manage the Federal workforce with efficiency and effectiveness.
OPM's discussion in the supplementary information of Santos v. Nat
'l Aeronautics and Space Admin., 990 F.3d 1355 (Fed. Cir. 2021),
received a significant number of comments. The national unions and
other commenters except for one agency who specifically mentioned
Santos voiced objection to OPM's discussion regarding Santos, with a
national union requesting that the discussion be clarified or
withdrawn. The agency stated no opinion on OPM's treatment of Santos.
The clean-record agreement was another issue that received a
substantial number of comments. Some commenters expressed agreement
with the clean-record settlement portion of the rule. Other commenters
vigorously commended the restoration of clean-record agreements but
disagreed with certain aspects of this provision, and finally there
were commenters who disagreed with the rescission.
The commenters who categorically disagreed with the proposed rule
and those commenters who were silent on the rule overall and only cited
[[Page 67766]]
opposition to particular portions raised various areas of concern such
as: OPM's position on Santos, clean-record agreements, removal of the
notification for the end of the probationary period, the rescission of
the requirements regarding penalty determination, the agency's
obligation to provide assistance to an employee who has demonstrated
unacceptable performance, and the lifting of the requirement to issue
the decision on a proposed removal within 15 business days of the
conclusion of the employee's opportunity to respond.
OPM reviewed and carefully considered all comments in support of
and in opposition to the proposed changes. The significant comments are
summarized below, along with the suggestions for revisions that we
considered and did not adopt. In addition to substantive comments, we
received some comments that were not addressed below because they were
beyond the scope of the proposed changes to regulations or were vague
or incomplete. Finally, comments that were received after the due date
for comments or not identified by the docket number or Regulation
Identifier Number (RIN) for this proposed rulemaking, as required by
the notice of proposed rulemaking, were not addressed below.
In the first section below, we address general or overarching
comments. In the sections that follow, we address comments related to
specific portions of the regulations.
General Comments
National unions, as well as some organizations, Federal employees,
and members of the public expressed strong support for many of the
changes. Some national unions urged OPM to issue its final rule
promptly, notwithstanding their objections to portions of the rule. A
national union remarked that OPM's adoption of the proposed rule
changes as written as soon as possible would provide immediate benefit
to the employees they represent. Another national union declared that
rescission of certain regulatory changes that implemented E.O. 13839
and which were made effective on November 16, 2020, was not only
necessary because of E.O. 14003 but also ``sound policy.'' This
national union declared that given E.O. 14003's explicit direction,
OPM's rescission of its November 2020 regulatory changes is
``appropriate and indeed imperative as a matter of law'' and that
``[r]escission is also sound policy.'' Further, the national union
emphasized that E.O. 13839 and OPM's implementing regulations
``eviscerated federal employees' rights and were grossly unfair to hard
working civil servants.'' Another national union observed that the
proposed rule would bring OPM's regulations into better alignment with
the plain text of chapter 43 and chapter 75 of title 5 of the U.S.
Code. The national union further asserted that ``Title V does not
elevate the need for efficient government above the requirement of due
process and fundamental fairness for federal employees.'' Additionally,
this national union stated that ``[r]escission would therefore be
appropriate even in the absence of Executive Order 14003 because the
changes made by the 2020 Rule were contrary to law.'' A local union
endorsed the rulemaking action, especially restoring the ability to
make clean-record agreements.
Some organizations stated that they generally supported revocation
of E.O. 13839 through the issuance of E.O. 14003 and as a result
welcomed OPM's rulemaking. An organization reported that their members
have observed the damaging effects of the November 2020 rule that this
organization predicted in their comments at the time. Another
organization concurred with this observation. These organizations, one
concurring with the other's comment submissions, welcomed OPM's
compliance with E.O. 14003 in the present rulemaking and looked forward
to ``the striking of the harmful provisions of E.O. 13839 from the Code
of Federal Regulations at the earliest practicable date.''
A commenter said the proposed rule was a ``necessity'' in certain
areas of the Federal Government. Another individual voiced support for
the changes as well and remarked that ``[t]his proposed rule is [a]
necessity in high flux parts of federal agencies.'' Many commenters in
support of the regulatory changes noted the benefit of returning more
discretion to agencies to allow them to best manage the Federal
workforce with efficiency and effectiveness.
Pursuant to E.O. 14003, OPM has reviewed the prior regulations,
which implemented certain requirements of E.O. 13839, and concluded
that some provisions of the amendments of November 2020 are contrary to
the current policy of the United States. The final rule effectuates
E.O. 14003 requirements and allows agencies to implement policies most
suitable for each respective agency based on its unique circumstances.
OPM believes the rule establishes procedures and requirements needed to
support managers in addressing unacceptable performance and misconduct
and related matters impacting the successful operation of the Federal
Government while simultaneously preserving employees' rights and
protections.
An individual commenter asked ``[t]o what extent will this rule
affect removal and adverse actions?'' As discussed in each pertinent
portion of this final rule, this rulemaking affects adverse actions,
including removals, in several ways. Regarding penalty considerations,
the rule rescinds these provisions and explains in detail the reasons
for doing so and OPM's views. They are: an express provision that an
agency is not required to use progressive discipline; adoption of the
test for appropriate comparators in Miskill v. Social Security
Administration, 863 F.3d 1379 (Fed. Cir. 2017); adoption of the
standard that requires consideration of, among other factors, an
employee's disciplinary record and past work record as applied by the
Merit Systems Protection Board (MSPB or the Board) in Douglas v.
Veterans Administration, 5 M.S.P.R. 280 (1981); and the requirement
that suspension should not be a substitute for removal. As well, OPM
removed the express language limiting response and decisional periods
for adverse actions, including removals. In addition, as discussed
above, the rule changes the coverage criteria for dual status National
Guard technicians to be consistent with Public Law 114-328 for certain
adverse actions.
Other commenters expressed concerns about the proposed rule. An
organization commented that ``the wholesale rescinding of these
commonsense ideas was not only premature, but ill-advised and harmful
to the overall management of the federal workforce.'' Another
individual expressed that ``the proposed rules do the exact opposite of
its stated purpose to empower agencies to rebuild the career Federal
workforce and protect the civil service rights of their employees.''
This commenter went on to state that the proposed rule instead limits
both an agency's ability to take an action against a Federal employee
when warranted and the agency's ability to rebuild a productive Federal
workforce. Also expressing disagreement with the rescissions of certain
regulatory changes that implemented E.O. 13839 and which were made
effective on November 16, 2020, an individual said it was ``an attack''
on the former administration. Additionally, a commenter stated that the
November 2020 regulations should remain as they were better suited to
hold a workforce accountable. Another commenter supported keeping the
regulations the way they were, except for the rescission of the clean-
record agreement, because ``[s]ome of the
[[Page 67767]]
changes implemented by the subject regulations made it easier to ensure
good order and discipline within the civilian workforce and to ensure
that the relevant processes are more streamlined than before them.
There are certain aspects that should be kept.''
We disagree with the general assertions contesting promulgation of
these rules and the characterization that they are ill-considered,
detrimental, and ineffective. We also do not concur with the
commenters' depiction that the proposed rules are restrictive and the
prior rules were better suited for workforce accountability. E.O. 14003
requires OPM to rescind portions of the OPM final rule which
implemented certain requirements of E.O. 13839. In fact, E.O. 14003
directs agencies to ``as soon as practicable, suspend, revise, or
rescind, or publish for notice and comment proposed rules suspending,
revising, or rescinding, the actions.'' We believe that the proposed
revisions retain applicable statutory mandates while continuing to
provide agencies the necessary tools and flexibility to address matters
related to unacceptable performance and misconduct or other matters
contrary to the efficiency of the service by Federal employees when
they arise, consistent with the policies of E.O. 14003. For example,
this final rule provides several necessary tools, such as previous
longstanding flexibilities enjoyed by agencies in how to address
performance issues with their employees under chapter 43 of title 5 of
the United States Code regarding decisions on when and how performance
assistance is provided to employees. The final rule also restores
agencies' ability to resolve informal and formal complaints at an early
stage and with minimal costs to the agency.
A management association stated they are ``[o]verall extremely
concerned by and confused about the proposed changes to current
regulations.'' Another management association stated that it was
``deeply concerned by these proposals and the impact they may have
across our workforce.'' One of these management associations declared
with regard to the November 2020 rule: ``where clarity had been
provided, it has been replaced with opacity and confusion.''
Correspondingly, the other management association asserted that the
clarity of the November 2020 rule ``has been replaced with bureaucratic
doublespeak.''
We disagree with the management associations' claim that the
proposed rule is obscure and confusing. We do not believe that the rule
is unclear or is difficult to comprehend as these regulatory changes
restore well-established principles and practices that are familiar to
Federal agencies and have proven to be successful tools to support
managers in addressing unacceptable performance and promoting employee
accountability for performance-based reduction-in-grade, removal
actions, and adverse actions while recognizing employee rights and
protections.
Two management associations expressed that it is ``disconcerting''
that the proposed rule is based entirely on a shift in policy rather
than on well-founded data and evidence which should be the approach
used by OPM. They emphasized this point by stating that OPM has
virtually no data on the extent to which adverse actions were pursued
under the current regulations that are being proposed for rescission,
and OPM's lack of collection of basic data or discontinuance of data
collection from agencies on performance-based and adverse actions and
settlement agreements ``is not a way to run the largest employer in the
nation.''
An agency's ability to repeal an existing regulation through
notice-and-comment rulemaking is well-grounded in the law. The APA
defines ``rule making'' to mean ``agency process for formulating,
amending, or repealing a rule.'' 5 U.S.C. 551(5). Agencies ``are free
to change their existing policies as long as they provide a reasoned
explanation for the change.'' See Encino Motorcars, LLC v. Navarro, 136
S. Ct. 2117, 2125 (2016); see also 82 FR 34901; 83 FR 32231. Agencies
may seek to revise or repeal regulations based on changes in
circumstance or changes in statutory interpretation or policy
judgments. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S.
502, 514-15 (2009) (``Fox''); Ctr. for Sci. in Pub. Interest v. Dep't
of Treasury, 797 F.2d 995, 998-99 & n.1 (D.C. Cir. 1986). Indeed, the
agencies' interpretation of the statutes they administer are not
``instantly carved in stone''; quite the contrary, the agencies ``must
consider varying interpretations and the wisdom of [their] policy on a
continuing basis, . . . for example, in response to . . . a change in
administrations.'' Nat'l Cable & Telecommunications Ass'n v. Brand X
Internet Servs., 545 U.S. 967, 981-82 (2005) (``Brand X'') (internal
quotation marks omitted) (quoting Chevron U.S.A., Inc. v. NRDC, 467
U.S. 837, 863-64 (1984)) (citing Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist, J.,
concurring in part and dissenting in part)). Revised rulemaking based
``on a reevaluation of which policy would be better in light of the
facts'' is ``well within an agency's discretion,'' and ``[a] change in
administration brought about by the people casting their votes is a
perfectly reasonable basis for an executive agency's reappraisal'' of
its regulations and programs. Nat'l Ass'n of Home Builders v. EPA, 682
F.3d 1032, 1038 & 1043 (D.C. Cir. 2012) (``NAHB'').
Agencies are free to change their existing policies as long as they
provide a ``reasoned'' explanation. See, e.g., National Cable &
Telecommunications Assn., 545 U.S. at 981-982; Chevron, 467 U.S. at
863-864. This does not require the agency to ``demonstrate to a court's
satisfaction that the reasons for the new policy are better than the
reasons for the old one.'' FCC v. Fox Television Stations, Inc., 556
U.S. 502, 514, (2009). A stronger justification may be required if the
agency's prior position ``may have engendered serious reliance
interests that must be taken into account.'' Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117, 2131 (2016) (internal quotation marks and
citation omitted). Here, however, the 2020 final rule was effective on
November 16, 2020, and Executive Order 14003 issued just two months
later, on January 22, 2021. Under the circumstances, OPM does not
believe that the November 2020 final rule was in effect long enough to
create significant reliance interests because of the brief time period
to effect a change in agency policy to conform to any new final OPM
regulation or for agencies to actually apply any change that may have
been made. With almost 57% of the Executive Branch workforce
represented by labor unions in over 1,800 bargaining units, agencies
also needed to satisfy any applicable collective bargaining obligations
with unions prior to implementation of the new final OPM regulation and
related agency policy which conforms to the OPM regulation.
5 CFR Part 315, Subpart H--Probation on Initial Appointment to a
Competitive Position
The regulations at subpart H of 5 CFR part 315 provide information
regarding agency action during a probationary period. The November 2020
amendment required agencies to notify supervisors, at least three
months prior to expiration of the probationary period, that an
employee's probationary period is ending, and then again one month
prior to expiration of the probationary period, and to advise a
supervisor to make an affirmative decision regarding the employee's
fitness for continued employment or otherwise take appropriate action.
Under its authority at 5 U.S.C. 3321, OPM proposed to rescind its
November 16, 2020,
[[Page 67768]]
amendment to regulations at Sec. 315.803(a) for two reasons. First,
E.O. 14003 directs OPM to rescind any regulations effectuated by E.O.
13839, as appropriate and consistent with applicable law. Second, OPM
has concluded that the amendment to the regulations at Sec.
315.803(a), although useful to some agencies that may not have used the
probationary period to full effect, placed unnecessarily restrictive
procedural requirements on agencies regarding how agencies administer
the probationary period. OPM has reconsidered the wisdom of a
categorical, centralized rule, and has concluded that it is more
efficacious and eminently reasonable to rescind this provision so that
agencies feel free to adopt any procedures that work best for them for
reminding supervisors not to overlook the expiration of employee
probationary periods.
Some national unions supported OPM's proposed rescission of the
probationary period expiration notice requirements with one national
union describing the current requirements as being ``unnecessary''.
This national union expounded that these requirements sent the wrong
message ``that termination should be at the forefront of a supervisor's
mind.'' Further, this commenter expressed hope that OPM's proposed
change will reinforce to agencies that supervisors should instead be
focused on helping probationary employees succeed. Another national
union commented that OPM is correct to amend this provision. However,
this national union mischaracterized the change by stating that OPM is
``eliminating the language requiring an affirmative supervisory
determination prior to the expiration of the probationary period''. The
former regulation merely provided for specific points during an
employee's probationary period (i.e., three months and one month) at
which agencies must give advance notice to supervisors of expiration of
probationary periods.
This commenter further asserted that the current regulation created
the incorrect impression that an employee must receive an affirmative
supervisory determination to successfully complete the probationary
period. This national union added that the probationary period for
Federal civilian employees, however, is controlled by statute and
contains no such requirement.
While OPM recognizes one national union's support of the rescission
of the November 2020 probationary period amendments, OPM notes that it
is incorrect to interpret the proposed rule at Sec. 315.803(a) as
instructing agencies to focus on ``helping probationary employees
succeed'' during the probationary period rather than termination. The
probationary period is the final step in the examination process. Thus,
probationers are candidates for final appointment, and, accordingly,
the focus of supervisors should be to assess probationers to determine
whether they should be retained beyond the probationary period. At
most, the November 2020 regulatory amendment reminded supervisors of
their responsibility to make an affirmative decision and not allow a
probationer to become a career employee merely by default; it did not
alter the decision-making process nor did it in any way alter the
regulatory structure currently in place that governs the decision-
making process for probationers.
Another commenter recommended changing the language ``The agency
shall utilize the probationary period as fully as possible'' to the
language ``The agency shall utilize the probationary period fully'' in
the first sentence of Sec. 315.803(a).
We are not adopting this recommendation because the proposed
regulatory language better emphasizes that an agency must utilize the
probationary period to the maximum extent based on the particular facts
and circumstances, recognizing that the probationary period is the last
and crucial step in the examination process. Supervisors must determine
the employee's fitness for continued employment; this can be assessed
in several ways, including but not limited to, closely monitoring and
documenting the employee's performance and progress during the
employee's first year of employment and providing timely and meaningful
feedback to the employee; providing training that would enable the
employee to more successfully perform the duties of the position; and
placing the employee on a performance improvement plan as appropriate.
Despite some support for the proposed rule, OPM received comments
from those who expressed opposition and concern. One organization
expressed that the probationary period has not been effectively used
and supported the requirement to notify management at the 90-day point.
This commenter was perplexed by the rescission of the requirement to
notify management at the 90-day point of an employee's probationary
period which they viewed as an ``innocuous notice.'' The organization
stated that they understood the rescission was required by E.O. 14003
and appreciated that OPM continues to encourage agencies to provide
managers with notifications when probationary periods are expiring.
Two management associations also strongly opposed OPM's proposal to
rescind the requirements at Sec. 315.803(a). In the management
associations' view, ``[t]his issue is too important to leave up to
agencies, who have proven themselves incapable of self- regulation and
proper use of the probationary period.'' The management associations
stated that probationary periods are a critical tool for effective
employee onboarding. These commenters discussed ``countless reports''
from the MSPB and Government Accountability Office (GAO) that highlight
the ``government's inconsistent and poor use of the probationary period
for new hires and for new supervisors.'' These management associations
also asserted that a core finding of those reports is that managers do
not properly use the probationary period because managers are not
reminded when an employee's probationary period is reaching its
conclusion. They contended that when the probationary period ends,
employees are automatically deemed fit for service. These commenters
further maintained that the probationary period ``is meant to be the
last crucial step in the examination process, yet instead, it is
largely obsolete and formalistic.'' The management associations stated
that to improve the practical usefulness of probationary periods,
agencies need to create systems for providing many advance notices that
an employee's probationary period is concluding and require supervisors
to make an affirmative determination regarding the employee's
completion of their probationary period. The commenters declared that
when the probationary period is not used appropriately then employees
are not ``set up for success and may be entrenched in roles they cannot
perform.'' One association opined that determinations regarding
probationary periods should be made by permanent managers while another
association stated that it is imperative that agencies make appropriate
use of the probationary periods for not only new hires, but also for
new supervisors and executives.
OPM will not make any revisions based on these comments. As stated
earlier, E.O. 14003 directs OPM to rescind any regulations effectuated
by E.O. 13839, as appropriate and consistent with applicable law. OPM
has concluded that the amendment to the regulations at Sec. 315.803(a)
placed centralized categorical procedural requirements on how agencies
administer the probationary period. OPM believes these requirements
[[Page 67769]]
prevented agencies from implementing policies most suitable for each
respective agency based on their unique circumstances. While agencies
are encouraged to notify supervisors that an employee's probationary
period is ending, OPM believes the frequency and timing of
notifications should be left up to the discretion of each agency. The
commenters noted the critical nature of the probationary periods, and
OPM guidance has stated previously that the probationary period is the
last and crucial step in the examination process. The probationary
period is intended to give the agency an opportunity to assess, on the
job, an employee's overall fitness and qualifications for continued
employment and permit the termination without chapter 75 procedures of
an employee whose performance or conduct does not meet acceptable
standards to deliver on the mission. Thus, it provides an opportunity
for supervisors to address problems expeditiously, with minimum burden
to the agency, and avoid long-term problems inhibiting effective
service to the American people. Employees may be terminated from
employment during the probationary period for reasons including
demonstrated inability to perform the duties of the position, lack of
cooperativeness, or other unacceptable conduct or poor performance. As
a matter of good administration, agencies should ensure that their
practices make effective use of the probationary period. While OPM
proposed to rescind a government-wide requirement to notify supervisors
at prescribed intervals when an employee's probationary period is
ending, agencies would not be precluded from providing such
notifications under their own authorities and are strongly encouraged
to do so. OPM plans to issue a Chief Human Capital Officers (CHCO)
Memorandum to encourage agencies to adopt a notification process.
5 CFR Part 432--Performance-Based Reduction in Grade and Removal
Actions
Section 432.102 Coverage
Section 432.102 identifies actions and employees covered by this
part. The final rule at Sec. 432.102 updates coverage to align with
the National Defense Authorization Act (NDAA) for Fiscal Year 2017,
Public Law 114-328 (Dec. 23, 2016). Specifically, section 512(a)(1)(C)
of the 2017 NDAA provides appeal rights under 5 U.S.C. 7511, 7512, and
7513 to dual status National Guard technicians for certain adverse
actions. Section 512(c) repealed 5 U.S.C. 7511(b)(5), which excluded
National Guard technicians from the definition of ``employee.''
The repeal of 5 U.S.C. 7511(b)(5) and the coverage of National
Guard technicians under 5 U.S.C. 7511, 7512, and 7513 required that OPM
review 5 U.S.C. 4303. Section 4303(e) provides that any employee who is
a preference eligible, in the competitive service, or in the excepted
service and covered by subchapter II of chapter 75, and who has been
reduced in grade or removed under this section is entitled to appeal
the action to the MSPB under section 7701.
Accordingly, MSPB appeal rights must be extended to National Guard
technicians who are defined in section 4303(e) for consistency with the
statutory requirements in Public Law 114-328. OPM will revise
paragraphs (b) and (f) of Sec. 432.102 to reflect that certain
performance-based actions against dual status National Guard
technicians are no longer excluded. Specifically, the final rule adds
as an exclusion an action against a technician in the National Guard
concerning any activity under section 709(f)(4) of title 32, United
States Code, except as provided by section 709(f)(5) of title 32,
United States Code. In addition, the final rule removes the exclusion
at Sec. 432.102(f)(12): ``A technician in the National Guard described
in 5 U.S.C. 8337(h)(1), employed under section 709(b) of title 32.''
The impact of the repeal of 5 U.S.C. 7511(b)(5) on adverse actions
taken under chapter 75 will be further discussed below in the
Supplementary Information for Sec. 752.401.
Two organizations, one concurring with the other's comment
submissions, expressed support for the extension of civil service
protections to National Guard technicians under Public Law 114-328 as
well as support for OPM's inclusion of an implementing regulation for
that statute in this rule.
Section 432.104 Addressing Unacceptable Performance
This section provides requirements in chapter 43 of title 5 of the
United States Code for addressing unacceptable performance. While the
regulatory amendments to part 432 made effective November 16, 2020, are
within OPM's existing authority under 5 U.S.C. 4303 and 4305, E.O.
13839 was the catalyst for the changes. OPM proposed to amend the
regulation at Sec. 432.104 to remove the following language: ``The
requirement described in 5 U.S.C. 4302(c)(5) refers only to that formal
assistance provided during the period wherein an employee is provided
with an opportunity to demonstrate acceptable performance, as
referenced in 5 U.S.C. 4302(c)(6). The nature of assistance provided is
in the sole and exclusive discretion of the agency. No additional
performance assistance period or similar informal period shall be
provided prior to or in addition to the opportunity period provided
under this section.'' In addition, OPM will re-insert at Sec. 432.104
a statement that was in the regulation prior to the November 2020
amendment: ``As part of the employee's opportunity to demonstrate
acceptable performance, the agency shall offer assistance to the
employee in improving unacceptable performance.''
Some national unions expressed support for OPM's proposed changes
to Sec. 432.104. One union stated that OPM's November 2020 regulatory
changes limited the types of assistance and opportunities that agencies
could offer to employees to help them demonstrate acceptable
performance. The union added, ``Employees deserve a full and fair
opportunity to improve their performance with assistance from their
employer.'' Moreover, this national union stated agencies should have
the needed flexibility to help employees improve their performance to
an acceptable level. One of these national unions offered comments of
support on sections Sec. Sec. 432.104 and 432.105 which were identical
to each other and are addressed in Sec. 432.105.
Indeed, this rule reverts to the language in Sec. 432.104 prior to
the November 2020 amendments regarding the agency's obligation to
provide assistance to an employee who has demonstrated unacceptable
performance. The language restates the statutory requirement described
in 5 U.S.C. 4302(c)(5) that agencies are obligated to provide
performance assistance during the opportunity period. In the proposed
rule, OPM emphasized that the employee has a right to a reasonable
opportunity to improve, which includes assistance from the agency in
improving unacceptable performance.
Though two organizations expressed general support for this
rulemaking, they mischaracterized OPM's November 2020 rulemaking. One
organization, with which the other concurred, erroneously referred to
``rules which set fixed durations for Performance Improvement Periods
(PIPs)'' and stated that such rules ``resulted in arbitrarily
inflexible PIP timeframes rather than the prior tailoring of PIPs to
the nature of the work involved''. The organizations credit OPM with
restoring agencies' discretion in these matters. OPM points out that
there was no restriction on the duration of PIPs or tailoring of PIPs
to
[[Page 67770]]
the nature of the work involved in our prior rulemaking. Specifically,
OPM did not amend the language in Sec. 432.104 that reads, ``For each
critical element in which the employee's performance is unacceptable,
the agency shall afford the employee a reasonable opportunity to
demonstrate acceptable performance, commensurate with the duties and
responsibilities of the employee's position.''
Two management associations disagreed with OPM's proposal to amend
Sec. 432.104. The management associations expressed concern that the
proposed revisions to Sec. 432.104 would rescind OPM's prior
regulation governing the process for addressing unacceptable
performance. The organizations asserted, ``OPM's proposed regulation
would return performance management to allow for additional processes
not provided for in the plain language reading'' of 5 U.S.C. 4302 and
4303, which the organizations also described as ``extra-statutory
protections'' which would be ``at the expense of taxpayer
accountability at a time when public trust in government remains
dangerously low, regardless of political ideology.'' The organizations
stated that research indicates only about one-quarter of Americans say
they can trust the government in Washington to do what is right ``just
about always'' (2%) or ``most of the time'' (22%) and that public
distrust is deepened each time administrative agencies impose
additional burdens on a supervisor's capacity to hold employees
accountable. One of the associations shared that its ``members are
effectively unable to remove an employee for unacceptable performance.
Instead, they find themselves hoping to identify misconduct because
they know those cases are easier to adjudicate and have a clear path to
removal.'' Both associations stated that employee protections are
critical to the merit system, and the ``imposition of excessive hurdles
to successful employee performance management frustrates the effective
functioning of our government and is not in the public interest.'' In
further criticism, one of these commenters added that this
``imposition'' also ``discourages well-qualified candidates from
joining leadership's ranks.''
OPM disagrees with the associations' characterization that the
rescission of the November 2020 changes to Sec. 432.104 allows for
extra-statutory protections at the expense of taxpayer accountability.
OPM reiterates that agencies should take swift action to address and
resolve poor performance, including by communicating clear performance
standards and expectations to employees; providing periodic feedback on
performance; making full use of the probationary period for employees;
and maintaining effective lines of communication with a well-trained
human resources staff and agency legal counsel. We believe that
agencies can deliver on their mission and uphold public trust and at
the same time provide employees assistance and a reasonable opportunity
to demonstrate acceptable performance through efficient and effective
use of chapter 43 and amended Sec. 432.104.
A commenter recommended that OPM edit Sec. 432.104 to read, ``For
each critical element in which the employee's performance is
unacceptable, the agency shall afford the employee 120 days to
demonstrate acceptable performance, commensurate with the duties and
responsibilities of the employee's position. There's only one year in
the evaluation period.'' OPM disagrees with the commenter's suggested
changes to the current regulation. First, OPM is opposed to prescribing
an opportunity period of any specific length. We note that Sec.
432.104 requires the agency to ``afford the employee a reasonable
opportunity to demonstrate acceptable performance, commensurate with
the duties and responsibilities of the employee's position.'' OPM
believes the supervisor is in the best position to determine the length
of the opportunity to demonstrate acceptable performance. The duration
of the opportunity period should be left to the discretion of each
agency, to include consultation with human resources staff and any
applicable collective-bargaining agreement.
Second, it is unclear why the commenter suggested insertion of the
sentence ``There's only one year in the evaluation period.'' OPM will
not adopt the suggestion because it is unnecessary and contrary to
OPM's performance management regulations in 5 CFR part 430. The length
of a covered agency's appraisal period must be established in
accordance with Sec. 430.206 of title 5, Code of Federal Regulations,
which states, ``The appraisal period generally shall be 12 months so
that employees are provided a rating of record on an annual basis. A
program's appraisal period may be longer when work assignments and
responsibilities so warrant or performance management objectives can be
achieved more effectively.'' The length of the appraisal period does
not determine the length of the opportunity period.
A commenter disagreed with OPM's proposal to amend Sec. 432.104,
and in particular, OPM's rationale for the change. With regard to the
statement ``[w]hile the regulatory amendments to part 432 made
effective November 16, 2020, are within OPM's existing authority under
5 U.S.C. 4303 and 4305 . . . .'', the commenter asked if the current
language is within the existing authority, why does it need to be
changed. Moreover, the commenter explained, ``The current language does
not place any unnecessary restrictions or limitations on agencies
regarding their decision on providing assistance, it provides clear
guidance on what the agency is responsible for in addressing
performance issues.''
We disagree with this comment. Although the current language for
regulatory amendments to part 432 made effective November 16, 2020, is
within OPM's existing authority under 5 U.S.C. 4303 and 4305, the
proposed changes also are a reasonable interpretation of the statute
and within OPM's authority. The provision is being removed from part
432 through the required regulatory process. In addition, as we
explained in the proposed rule, E.O. 13839 was the catalyst for the
changes made effective on November 16, 2020. E.O. 14003, among other
things, revoked E.O. 13839 and directed agencies to ``as soon as
practicable, suspend, revise, or rescind, or publish for notice and
comment proposed rules suspending, revising, or rescinding, the
actions'' implementing various Executive Orders, including E.O. 13839,
``as appropriate and consistent with applicable law.'' OPM did not
require an Executive Order to effect this change.
As discussed in the proposed rule, OPM believes that the November
2020 amendments placed restrictions and limitations on agencies
regarding decisions on when performance assistance is provided to
employees that, upon further consideration, were unhelpful. These
constraints removed previous flexibilities enjoyed by agencies in
addressing performance issues with their employees under chapter 43. By
placing these restrictions on agencies, OPM believes it was not
supporting agencies and supervisors in determining the most effective
assistance for struggling employees.
Section 432.105 Proposing and Taking Action Based on Unacceptable
Performance
This section specifies the procedures for proposing and taking
action based on unacceptable performance once an employee has been
afforded an opportunity to demonstrate acceptable performance. The
regulatory amendments to Sec. 432.105(a)(1) that became effective
November 16, 2020,
[[Page 67771]]
were made for consistency with and promotion of the principles of E.O.
13839 within the bounds of OPM's regulatory authority conferred by
Congress. For consistency with and promotion of the principles of E.O.
14003 and in accordance with its authority under 5 U.S.C. 4302, OPM
proposed to revise the regulation at Sec. 432.105(a)(1).
The regulatory change to Sec. 432.105(a)(1) removes the language:
``For the purposes of this section, the agency's obligation to provide
assistance, under 5 U.S.C. 4302(c)(5), may be discharged through
measures, such as supervisory assistance, taken prior to the beginning
of the opportunity period in addition to measures taken during the
opportunity period. The agency must take at least some measures to
provide assistance during the opportunity period in order to both
comply with section 4302(c)(5) and provide an opportunity to
demonstrate acceptable performance under 4302(c)(6).''
OPM believes that the November 2020 amendment to the regulations at
Sec. 432.105(a)(1) placed too much emphasis on supervisory assistance
taken prior to the beginning of the opportunity period and placed too
little emphasis on supervisory assistance taken during the opportunity
period and could result in some agencies relying too much on
supervisory assistance outside of the opportunity period to support any
performance-based action taken against an employee. Two national unions
support OPM's proposal to rescind the language in 5 CFR 432.105(a)(1)
that pertains to assistance offered to employees prior to and during an
opportunity period. One of these national unions agreed with OPM that
the November 2020 amendments placed too much emphasis on agencies
providing assistance before the opportunity period and not enough
emphasis on assistance given during the opportunity period. Similarly,
another national union stated that OPM is correctly concerned that the
regulatory language could result in agencies relying too much on
supervisory assistance offered outside of the opportunity period to
support a performance-based action against an employee. The union
stated also, ``Employees are entitled to supervisory assistance and a
meaningful opportunity to improve, and help offered both prior to and
during the opportunity period will aid in achieving this.'' (emphasis
in original)
After agreeing with OPM's rationale for the decision, a national
union erroneously asserted that the prior regulatory changes were
inconsistent with the language and intent of the Civil Service Reform
Act (CSRA) ``because they failed to ensure that employees were provided
with a reasonable opportunity to improve during the performance
improvement period, which is a `substantive guarantee[ ] and may not be
diminished by regulation.' '' In support of this statement, the union
cited Sandland v. General Services Admin., 23 M.S.P.R. 583, 589 (1984).
The union added that rescission of the prior amendments to Sec. Sec.
432.104 and 432.105 will better enable agencies to effectively utilize
the Federal workforce by requiring and encouraging agencies to provide
employees with meaningful opportunities to improve. OPM believes the
union is in error because the prior regulatory changes were not
contrary to the language and intent of the CSRA. The changes did not
inhibit an agency's ability to ensure that employees were provided with
a reasonable opportunity to improve during the performance improvement
period.
A commenter recommended that OPM edit Sec. 432.105(a)(1) to insert
``120 days'' as the duration of the opportunity to demonstrate
acceptable performance. The commenter made a similar suggestion to edit
Sec. 432.104 to require a 120-day opportunity period. As explained
above under Sec. 432.104, OPM will not prescribe an opportunity period
of any length. The supervisor is in the best position to determine the
length of the opportunity to demonstrate acceptable performance. OPM
believes the duration of the opportunity period should be left to the
discretion of each agency, to include consultation with human resources
staff and any applicable provision of a collective-bargaining
agreement.
Regardless of the length of the opportunity period, OPM reminds
agencies that they must provide assistance during the opportunity
period in accordance with 5 U.S.C. 4302(c)(5). OPM has long encouraged
agencies to act promptly to address performance concerns as soon as
they arise. Supervisors should continually monitor performance, provide
ongoing feedback, and assist employees who exhibit performance issues.
Agencies should also remain mindful that third parties (for example,
arbitrators and judges) place a strong emphasis on a supervisor's
effort to assist the employee in improving the employee's performance.
Evidence that the supervisor engaged an employee in discussion,
counseling, training, or the like prior to the opportunity period may
assist the agency in developing a stronger case before a third party
that the employee was given a reasonable opportunity to demonstrate
acceptable performance before a performance-based action is taken.
Several commenters noted disagreement with OPM's inclusion in the
supplementary information of a discussion of Santos v. National
Aeronautics and Space Admin., 990 F.3d 1355 (Fed. Cir. 2021). In
particular, commenters stated that inclusion was unnecessary for the
purposes of this regulation and that the Santos court relied on
statutory language and not on OPM's interpretation in reaching its
conclusion. In Santos, the court remarked on OPM's statement in prior
supplementary information, and OPM's discussion of Santos was for the
sole purpose of clarifying the meaning of that prior supplementary
information. OPM's reference to Santos did not concern the proposed
regulation. Accordingly, OPM is not making any changes to the proposed
regulation in response to these comments. OPM further recognizes that,
until and unless Santos is revisited, agencies proposing a removal
under 5 U.S.C. 4302(c)(6) must establish that the employee performed
unacceptably both prior to and during the performance improvement
period.
In addition, Sec. 432.105 addresses notice requirements when an
agency proposes to take action based on an employee's unacceptable
performance during or after the opportunity period once the employee
has been afforded an opportunity to demonstrate acceptable performance.
An agency must afford the employee a 30-day advance notice of the
proposed action that identifies both the specific instances of
unacceptable performance by the employee on which the proposed action
is based and the critical element(s) of the employee's position
involved in each instance of unacceptable performance. An agency may
extend this advance notice period for a period not to exceed 30 days
under regulations prescribed by the head of the agency. For the reasons
listed in Sec. 432.105(a)(4)(i)(B), an agency may further extend this
advance notice period without OPM approval.
OPM proposed to revise the reason at Sec. 432.105(a)(4)(i)(B)(6),
which was derived from 5 U.S.C. 1208(b), because the statutory
provision was repealed by section 3(a)(8) of Public Law 101-12, the
Whistleblower Protection Act (WPA) of 1989. Section 1208(b) granted
agencies the authority to extend the advance notice period for a
performance-based action in order to comply with a stay ordered by a
member of the MSPB. Concurrent with the repeal of 5 U.S.C. 1208(b), the
WPA established 5 U.S.C. 1214(b)(1)(A)(i),
[[Page 67772]]
wherein the Office of Special Counsel is granted the authority to
request any member of the Board to order a stay of any personnel action
for 45 days if the Special Counsel determines that there are reasonable
grounds to believe that the personnel action was taken, or is to be
taken, as a result of a prohibited personnel practice. Further, under 5
U.S.C. 1214(b)(1)(B), the Board may extend the period of any stay
granted under subparagraph (A) for any period which the Board considers
appropriate. If the Board lacks a quorum, any remaining member of the
Board may, upon request by the Special Counsel, extend the period of
any stay granted under subparagraph (A). Therefore, OPM proposed to
change the reason at subparagraph (B)(6) to read as follows: ``[t]o
comply with a stay ordered by a member of the MSPB under 5 U.S.C.
1214(b)(1)(A) or (B).'' A national union supports this change.
Section 432.108 Settlement Agreement
Section 5 of E.O. 13839 established a requirement that an agency
shall not agree to erase, remove, alter, or withhold from another
agency any information about a civilian employee's performance or
conduct in that employee's official personnel records, including an
employee's Official Personnel Folder and Employee Performance File, as
part of, or as a condition to, resolving a formal or informal complaint
by the employee or settling an administrative challenge to an adverse
personnel action. Such agreements have traditionally been referred to
as ``clean-record'' agreements. Consistent with the rescission of E.O.
13839 and pursuant to its authorities under 5 U.S.C. 2951 to maintain
personnel records and under 5 U.S.C. 1103(a)(5) to execute, administer,
and enforce the law governing the civil service, OPM proposed to
rescind Sec. 432.108, Settlement agreements. OPM's proposal to rescind
the current regulations for settlement agreements applies to actions
taken under parts 432 and 752. All comments related to settlement
agreements are addressed here in the Supplementary Information for the
change at Sec. 432.108, where the change appears first.
Three national unions, a local union, an organization, and five
individual commenters expressed explicit support for OPM's proposal to
rescind the settlement agreement provisions in 5 CFR parts 432 and 752.
One of the national unions stated that settlements are less costly and
burdensome than litigation or arbitration, and it is in employees' as
well as management's interest to encourage resolution of employment
disputes through settlement. The national union described a clean-
record agreement as a reasonable and frequently used tool that agencies
and employees should have. One particular benefit this union
highlighted is the removal of the November 2020 regulations that allow
an agency to cancel or vacate a personnel action when persuasive
evidence casts doubt on the validity of the action. The union labeled
this standard as confusing and said that it appears to wrongly place
the burden of proof on the employee facing the action. This union
welcomed OPM's proposed rescission of this language.
The second national union stated that removal of the regulatory
provisions barring clean record settlements will lead to more efficient
government administration while also promoting fairness and the
effective resolution of employment disputes. This union added that the
prior regulations created a substantial amount of unnecessary and
wasteful litigation. Moreover, this union stated that the proposed
changes will reduce the likelihood of ``arbitrary and capricious''
agency action by removing the incentive for agencies to unilaterally
modify an employee's personnel record to avoid litigation.
The third national union voiced overall support for the rescission,
though they objected to a related statement in the proposed rule that
is discussed below along with other commenters who expressed a similar
concern. Furthermore, a local union described clean-record agreements
as an effective labor-management relations tool that benefits workers,
management, and taxpayers. This local union added that agency and union
officials at the lowest levels know how best to resolve issues and
should have maximum flexibility to do so.
An organization also stated that the prohibition on clean-record
agreements is harmful to employees and employers because it removes a
valid and useful tool that promotes productive settlement of employment
disputes. This organization shared that it has experience with several
settlements that it reached on behalf of clients that were possible
``only because of the availability of clean record terms.''
Additionally, this organization expressed particular concern for public
employees who engage in protected whistleblower activity, stating that
they are often retaliated against with unfounded or exaggerated claims
of poor performance or misconduct and unwarranted disciplinary actions.
The organization stated further that the existing rule prevents
agencies from correcting personnel records that employees allege
contain false and retaliatory material. The organization also observed
that in order to avoid lengthy and costly litigation over the accuracy
and validity of matters reflected in the personnel record, the employee
and the agency often wish to adopt a clean record as part of a
settlement. This organization believes this rulemaking ``would
reestablish a workable standard where agencies and employees can
negotiate in good faith to provide employees with clean record
settlements that do not obstruct future employment within or outside
the federal government.'' Finally, the organization believes this
rulemaking will conserve agency resources that otherwise would be used
in protracted litigation and will make it more possible for employees
who engaged in protected activity to move on after retaliation by
former supervisors.
Another commenter discussed ``first-hand knowledge'' that
regardless of the type or severity of the matter in dispute, or the
organizational levels of the relevant parties, the prohibition on
clean-record agreements has adversely impacted agency mission
accomplishment and degraded the employees' well-being. The commenter
stated that the prohibition has severely limited opportunities for
agencies to efficiently and cost-effectively manage employee disputes
at the lowest possible level in that settlement officials have few, if
any, alternatives to taxpayer-funded monetary remedies and,
consequently, have little incentive to resolve conflict early. The
commenter represented that removing this overly broad restriction is
greatly appreciated by all in the dispute resolution field, and will
have significant, measurable positive outcomes throughout the Federal
Government.
Several of the supportive commenters observed that the prohibition
on clean-record agreements impacted settlement of employment
discrimination or Equal Employment Opportunity (EEO) matters. OPM notes
that for the purpose of this rule the settlement agreements addressed
are those arising from agency actions covered by chapter 43 and chapter
75. One commenter stated that clean-record provisions have made it
``extraordinarily more difficult'' for employment law practitioners and
employees to reasonably resolve matters they believe to be unjust
without resorting to clogging the already taxed MSPB or Equal
Employment Opportunity Commission systems. The commenter observed,
``Many matters could have been resolved with, for example[,] a simple
restoration of leave
[[Page 67773]]
and removal of so-called bad paper or coding a termination as a
resignation.'' Moreover, the commenter added that considerations ``such
as job references and the interview process in general may serve to
root out employees who should not be re-hired as government employees
without tying the hands of those who are having [to] endure unnecessary
litigation.''
Another supportive commenter stated that the courts are currently
overwhelmed with employment discrimination cases, many of which could
be resolved with a clean-record agreement. The commenter continued that
it is costly and inefficient and results in unnecessary court
congestion, unfair expense to employees and the agency, and backlogs
cases affecting all subsequent cases. The commenter opined that if it
takes a court order to remove a record, it should have taken a court
order to place the record. The commenter asked, ``Why should the
standard be higher to remove the record than to place the record in the
first place?'' The commenter added that if the agency has discretion to
put the record into official personnel files, the agency should have
the discretion to remove them.
Yet another commenter stated that in representing several employees
in Equal Employment Opportunity (EEO) complaints the ban on clean-
record agreements has created incredible harm to many parties, but most
of all to EEO complainants. The commenter remarked that the prohibition
resulted in ``a huge waste of time'' in litigation which usually takes
years when the employee just urgently needs to move on. Further, the
commenter claimed that a few agency attorneys and judges confided
privately about the waste of time and backlog. The commenter observed
that all parties simply would have preferred to move on with little
interest in litigation.
OPM recognizes the commenters' support for rescission of the clean-
record provisions in Sec. Sec. 432.108, 752.104, 752.203(h), 752.407,
and 752.607.
Three management associations and four individuals disagreed with
OPM's proposal to rescind the settlement agreement provisions. One
management association described the prohibition on clean-record
agreements as one of the most valuable parts of the rule that took
effect in November 2020. This management association stated that some
of its members were ``victims'' of clean-record settlements and ``lied
to by previous supervisors because the agreement had a confidentiality
clause.'' The management association said this is a practice that
should be eliminated from the civil service. While another commenter
discussed seeing clean-record agreements typically accompanied by
``muzzling supervisors and directing personnel to withhold or destroy
information.'' This commenter recommended that OPM explicitly prohibit
clean-record agreements in the regulation.
We believe that clean-record agreements should be an option for
agencies to resolve informal and formal complaints when the agency
deems it is in the best interests of effective and efficient management
to achieve the agency's mission. OPM believes that alleged anecdotal
instances of misuse of the discretion to use clean-record agreements
should not deprive agencies of the option to use clean-record
agreements to resolve informal and formal complaints and settle
administrative challenges in a manner that balances the needs of the
agency and fairness to the employee. In regard to the commenter's
assertions that supervisors are silenced and personnel are directed to
withhold or destroy information, we note that merit system principles
require that Federal employees should maintain high standards of
integrity, conduct, and concern for the public interest. After a
settlement agreement is reached, the agency should properly advise
supervisors on how to adhere to its terms regarding permitted
disclosures and records management. As noted by supportive commenters,
there are many disadvantages to prohibiting clean-record agreements:
reduced likelihood of parties reaching a mutually agreeable resolution
of informal or formal complaints; increase of costly litigation and
arbitration; and crowding of the dockets of third-party investigators,
mediators, and adjudicators. Cases languishing impact the agency's
credibility, supervisor morale, and efficient execution of the agency's
mission. OPM's own conclusions as well as the feedback from
stakeholders weigh in favor of rescission.
Some commenters asserted that clean-record settlements are wasteful
of taxpayer dollars while another commenter stated it was unlawful and
an additional commenter posited that this provision should be
withdrawn. Some management associations opined that the American
taxpayer is entitled to an accurate recording of an employee's
performance. One management association asserted that taxpayers should
not suffer the results of employees committing the same offenses
repeatedly across government while another management association
stated that taxpayers should not endure the consequences of inadequate
employee job performance or employees committing the same offenses time
and again across government. Both management associations contended
that ``flexibility should not be the code word for diminished
accountability.''
One commenter posited that ``arbitrary'' rule changes cause undue
hardship and waste taxpayer dollars by paying employees who need to be
removed and are not. Similarly, another commenter stated that clean-
record agreements ``perpetuate[] that sense of entitlement that some
Federal employee[s] have, that the Federal Government somehow owes
them''. This commenter asserted that this is offensive to the American
taxpayer and unfair to Federal employees who adhere to the rules and do
their job. The commenter requested that OPM withdraw the proposal to
rescind the clean-record provisions. Finally, an individual stated that
removal of the clean-record rule is unlawful.
OPM disagrees with the commenters. The purpose of the prohibition
rescission is to remove a provision that hampers agencies' ability to
resolve workplace disputes at an early stage and with minimal costs to
the agency when appropriate. Rather than adverse consequences for
taxpayers, the numerous benefits of clean-record settlements have been
detailed by agencies and stakeholders as providing greater efficiency
and effectiveness. These significant advantages include minimizing the
burden of the substantial cost of litigation in relation to the issues
at stake and achieving a result that benefits agencies and taxpayers.
Further, this rule is not unlawful or arbitrary. E.O. 14003 requires
that OPM rescind the prohibition, and OPM, pursuant to its authorities
under 5 U.S.C. 2951 to maintain personnel records and under 5 U.S.C.
1103(a)(5) to execute, administer, and enforce the law governing the
civil service, has decided to rescind Sec. Sec. 432.108, 752.104,
752.203(h), 752.407, and 752.607. We believe this rule will have a
positive impact on the Federal Government's ability to accomplish its
mission for the American taxpayers.
Some commenters remarked that clean records prevent holding
employees accountable for their performance and conduct. Among these
commenters, a management association stated that we should all be
striving to maintain high standards of integrity and accountability,
not longevity and seniority at all costs. Another commenter expressed
disagreement
[[Page 67774]]
with the proposed rule by stating that ``too many employees'' are not
held accountable for issues that warrant discipline and ``it all just
goes away.'' This commenter recommended, ``Do not change back to the
way of hiding history of bad employees.'' Yet another individual
related seeing clean records used as a tool to undermine the agency's
decision to hold an employee accountable for their actions or lack
thereof, basically rewarding an employee for their bad behavior or
performance.
OPM agrees that all members of the Federal Government should strive
to maintain high standards and accountability. However, we disagree
that clean-record agreements are inconsistent with accountability. In
adhering to the principles of high standards of integrity and
accountability, each agency decision as to whether and how to settle a
case should be based on valid considerations, such as litigation risk.
Further, OPM notes that the statutory and regulatory frameworks for
addressing poor performance and misconduct and rewarding satisfactory
or better performance remain intact. Effective utilization of the
available tools and flexibilities will permit agencies to address poor
performance and misconduct when they arise, consistent with the
policies of E.O. 14003.
Some management associations asserted that the proposed rescission
overvalues the agencies' ``ability to resolve informal and formal
complaints at an early stage and with minimal costs to the agency,''
while undervaluing the process provided by the merit system.
OPM disagrees with these comments. Decisions to resolve informal
and formal complaints at an early stage are at the discretion of the
agency's authority. Thus, returning this firmly established discretion
to agencies for resolving informal and formal complaints gives the
proper value to agencies' authority in this area without imposed
restrictions. Further, granting agencies a degree of flexibility to
resolve individual workplace disputes does not undervalue the merit
system process. Clean-record agreements provide agencies with an
important tool and flexibility, consistent with the policies of E.O.
14003.
Commenters expressed that clean-record agreements have a negative
impact on hiring practices. A management association asserted that
clean-record settlements are a favored way to help their constituents
get re-hired. Other management associations asserted that OPM
emphasizes ``flexibility'' to resolve disputes, but in reality the
proposed changes in this rule enable agencies to pass problematic
employees between one another. In fact, a commenter stated that clean
records result in a ``vicious cycle'' whereby the employee is allowed
to pursue employment at another agency, where their behavior/
performance does not improve, and that agency bears the cost, time, and
effort to hold the employee accountable. A management association added
that failing to document a reason for removal leads directly to
``dangerous situations for Federal workers who serve honorably and
places managers in impossible situations.''
OPM disagrees with these characterizations of rescinding this
regulatory provision. We are simply rescinding a rigid regulation that,
upon reflection and further consideration, we deem impracticable,
unrealistic, and unhelpful because it absolutely prohibits agencies
from altering or removing information about performance or misconduct
as a condition to resolve or settle a complaint or challenge to a
personnel action, even where doing so furthers the best interests of an
effective and efficient Government and the interests, voluntarily
expressed, of both parties to personnel litigation. OPM's rescission
does not take a position on whether any particular case should be
settled, and does not prohibit settlements, which through lessening a
penalty or permitting resignation, may in certain circumstances lessen
the risk of outright reversal with its high costs without benefit, or
may otherwise adversely affect governmental interests.
Some management associations stressed the importance of maintaining
accurate official personnel records and stated that they are
``extremely concerned by OPM's proposal to delete Sec. 432.108,
752.104, 752.407, and 752.607''. They believe the proposed rule lacks
the balance that existed in the regulations that were effective in
November 2020 whereby OPM banned clean-record settlements but permitted
an agency to correct errors, either unilaterally or pursuant to a
settlement agreement, based on discovery of agency error or illegality.
To further illustrate their views on the balance that currently exists,
the management associations quoted OPM's November 2020 final rule,
which stated that agencies are permitted to ``modify an employee's
personnel file'' when persuasive evidence comes to light prior to the
issuance of a final agency decision on adverse action ``casting doubt
on the validity of the action or the ability of the agency to sustain
the action in litigation''. These management associations assert that
the record should reflect what is correct. Another commenter discussed
seeing a large amount of destruction and altering of official personnel
records, which the commenter described as ``fraudulent, unethical, and
demoralizing to the workforce.'' This commenter asserted that there is
no legitimate reason to alter an official record. The commenter
believes that 5 CFR 432.108(a) correctly prohibits such dishonesty and
should be left standing. Regarding correcting errors in records, the
commenter offered that the proper approach is to add a statement to the
existing record explaining why it is in error and updating it, thus
maintaining the correct history of the record. The commenter asserted
that this standard is ``the only way that ``agencies [c]ould still
adhere to the principles of promoting high standards of integrity and
accountability within the Federal workforce.'' The commenter stated
that the corrective actions currently allowed in 5 CFR 432.108(b) and
(c) are too open-ended and should be amended to require a correct
historical record.
OPM will not make any changes based on these comments. Agencies are
still permitted to correct errors based on discovery of error or
illegality, but there are other considerations at play, including
evolving, unforeseen litigation risks, among others. Nor is OPM
asserting a general and all-encompassing position that settlement of
disputes or its opposite is to be commended or favored. Each matter is
to stand on its own footing. Still less is OPM suggesting that agencies
should lightly change personnel records, and certainly not in a way
that undermines Government integrity. Agencies are expected to exercise
good judgment in determining whether and how to settle a case after due
consideration of all relevant factors, including litigation risk.
We also disagree with the comment that there is ``no legitimate
reason'' to alter an official record. Legitimate reasons include a
cancellation or correction ordered by a third party or discovery of
agency error, and such corrections do in fact promote integrity and
ethical standards. Moreover, the purpose of paragraphs (b) and (c) that
one commenter asks OPM to retain was to clarify for agencies that the
prohibition on clean-record agreements did not preclude agencies from
taking corrective action based on discovery of agency error or
discovery of material information prior to final agency action. The
removal of the prohibition on clean-record agreements means that the
[[Page 67775]]
clarifications for corrective action are no longer needed in parts 432
and 752. These clarifications are rooted in statutes, regulations, and
policies that are still applicable to Federal agencies, including
agencies' obligation to maintain accurate personnel records in
accordance with the Privacy Act, 5 CFR part 293, and OPM's Guide to
Personnel Recordkeeping. Agencies continue to have the authority to
modify an employee's personnel file or other agency files to remove
inaccurate information or the record of an erroneous or illegal action.
In further disagreement with the change in the clean-record
agreement requirements, some management associations remarked, ``Even
OPM's efficiency argument fails.'' They posited that OPM presented ``no
data or evidence that agencies were impeded in their ability to
adjudicate employee complaints and disputes'' and simply listened to
recurring objections from agencies that were required to enforce the
law and comply with procedures enacted by Congress and implemented
through OPM regulation.
OPM disagrees with the commenters' characterization that OPM's
rulemaking requires data or evidence that agencies were adversely
impacted in their ability to resolve employee complaints and disputes.
OPM acknowledged in the Expected Impact section of the proposed rule,
that OPM has virtually no data on the extent to which adverse actions
were pursued under the regulations proposed for rescission here. As
discussed above, agencies ``are free to change their existing policies
as long as they provide a reasoned explanation for the change.'' See
Encino Motorcars, LLC v. Navarro. Among other factors, OPM considered
both opposing and supporting perspectives raised by stakeholders during
the notice-and-comment period.
For the reasons discussed above, OPM will rescind Sec. Sec.
432.108, 752.104, 752.203(h), 752.407, and 752.607 in their entirety.
While some commenters voiced overall support for rescission of this
requirement, they opposed the provision related to the obligation to
speak truthfully to Federal investigators performing background
investigations. One national union, two organizations, and one
individual objected to OPM's statement in the January 2022 proposed
rule that, ``In addition, agencies are advised that, in any such
[clean-record] agreement, they have an obligation to speak truthfully
to Federal investigators performing future background investigations
with respect to the employee and may not agree to withhold information
about the circumstances of an individual's departure from the agency.''
Though a national union expressed overall support for rescinding
the prohibition on clean-record agreements, the union stated that the
advice in question is vague and could give rise to potential breaches,
particularly in settlements that contain ``no admission'' and
confidentiality clauses. The union requested that OPM work with all
Federal employee unions, and other stakeholders as appropriate, to
develop a shared understanding of this section of the commentary and to
advise agencies appropriately thereafter.
We disagree. OPM believes the language in question is clear and
consistent with what agencies have always been required to do regarding
the need to speak truthfully to Federal investigators performing
background investigations with respect to an employee covered by a
settlement agreement. On any matters involving employees or former
employees covered by a settlement agreement, agency officials should
always consult with agency legal counsel before responding to inquiries
about these individuals to avoid violating enforceable settlement
agreements.
One organization wrote that the statement concerning speaking
truthfully to Federal investigators in the proposed rule is contrary to
the President's policy in E.O. 14003 of rescinding restrictions on
agencies' discretion to enter into clean-record settlements in disputed
cases. The organization stated that its members have observed that
agencies are often guilty of giving incomplete information to
background investigators in a fashion skewed to denigrate targeted
employees, selectively including information adverse to subject
employees while materially omitting the employees' counterarguments (in
particular, if the employee challenged agency actions against them as
unlawful discrimination, unlawful EEO reprisal or whistleblower
reprisal, etc.). The organization added that efficiency of the Federal
service is not promoted by ``giving license to continuing retaliation
through providing negatively skewed information to future employers; to
the contrary, doing so represents further retaliatory action in
violation of 5 U.S.C. 2302(b)(1, 8, 9, 10) and other statutes.'' The
second organization concurred with this organization's comments.
OPM's reminder to agencies concerning the need to be truthful to
Federal investigators is in connection with background investigations.
Accordingly, agencies may not agree to withhold information about an
individual's departure from the agency. The requirement for agencies to
be truthful applies also to suitability determinations and other
inquiries related to vetting for personnel security. This reminder does
not give license to retaliate. In fact, the requirement to be truthful
to background investigators necessarily includes that the agency makes
full disclosure of information provided by the employee. Full
disclosure is inherent in speaking truthfully.
A commenter wrote that it seems inconsistent to withhold agency
discretion when it comes to divulging the particulars of clean-record
separation agreements to future Federal employers. The commenter
asserted that if the agency is mandated to ``adhere to the principles
of promoting high standards of integrity and accountability within the
Federal workforce,'' then it should be the agency's responsibility to
balance that standard against the value of a conflict resolved. The
commenter raised a concern that an investigator will likely be
adversely influenced by the revelation of the particulars of a clean-
record agreement. The individual characterized this as a form of
``backdoor'' retaliation that can have a ``chilling effect'' for
employees. The commenter offered that a middle ground would be to
permit agencies to include language that stipulates what will be
divulged and what will not to any future Federal investigator. The
commenter added that if this avenue is not widely used, it is a further
negotiation point that will help parties reach resolution.
While a different commenter also stated support for the rescission
of the clean-record prohibition, this individual suggested that the
final rule should clearly allow clean-record agreements to stipulate
what will be divulged and what will not be divulged to any future
Federal investigator. The commenter offered an example: ``if a
settlement agreement, legally approved by a federal judge, calls for
permanent and irrevocable removal of a specific personnel action, that
action should never be represented by either party as ever having
legitimately occurred.'' The commenter added that ``clean'' should
truly mean ``clean'' to preserve and avoid undermining the integrity of
such agreements.
OPM will not adopt the suggestion that the final rule address any
stipulation in clean-record agreements as to what will be divulged and
what will not be divulged to any future Federal investigator. As stated
earlier, agencies must provide truthful information about the
circumstances of
[[Page 67776]]
an individual's departure from the agency during the course of
investigations. These investigations include those conducted for the
purpose of determining suitability or eligibility for sensitive
national security positions. OPM will defer to agency officials,
including agency counsel, with regard to negotiating the specific terms
of settlement agreements necessary to enable the agency to fulfill any
disclosure obligation based on the particular facts .
Additionally, if an agency wishes to maintain an agency policy that
prohibits clean-record agreements, the agency is reminded that E.O.
14003 directs heads of affected agencies to, as soon as practicable,
suspend, revise, or rescind actions arising from E.O. 13839. Given that
E.O. 13839 was the sole reason for the clean-records prohibition and
E.O. 13839 has been rescinded by E.O. 14003, it would be contrary to
the spirit and intent of E.O. 14003 for an agency to broadly prohibit
clean-record agreements. Instead, OPM strongly encourages each agency
to make determinations about clean records on a case-by-case basis.
A Federal agency expressed concern that the proposed rescission of
the settlement agreement provisions competes with the agency's ability
to comply with 5 CFR part 731.101 regarding suitability determinations;
Security Executive Agent Directive 4, which requires a risk assessment
to make an informed national security determination; and Trusted
Workforce 2.0 fundamentals such as improving policies, procedures, and
automation to streamline and enhance the government's posture against
national security risks. The agency requested that OPM address the
interplay of these parts of the CFR, and the potential impact that this
change may have on the ability of agencies to make fully informed
decisions relative to risk. Additionally, one commenter disagreed with
OPM's rescission of the settlement agreement provision. This commenter
asserted that the November 2020 amendments were intended to promote the
highest standards of integrity and accountability in the Federal
workforce and were implemented to aid in records being preserved so
that agencies can make appropriate and informed decisions regarding
qualifications such as fitness and suitability for future employment.
OPM disagrees that the rescission of Sec. Sec. 432.108, 752.104,
752.203(h), 752.407, and 752.607 will compete with an agency's ability
to comply with 5 CFR 731.101, Security Executive Agent Directive 4, and
Trusted Workforce 2.0 fundamentals as asserted by the agency. The
agency did not provide an explanation or examples of how the clean-
record prohibition impacted the agency's ability to make fully informed
decisions relative to risk. Without additional information, it is
difficult to address the agency's concern in more detail. Sections
432.108, 752.104, 752.203(h), 752.407 and 752.607 were in effect for
less than two months at the time E.O. 14003 rescinded E.O. 13839.
Consistent with the requirements that existed before and during the
implementation of the clean-record prohibitions, when negotiating
settlement agreement terms that involve disclosure of information about
the employee, agency officials should consult with agency legal
counsel.
In conclusion, OPM believes that the prohibition of clean-record
agreements hampers agencies' ability to resolve informal and formal
complaints at an early stage and with minimal costs to the agency. The
removal of the prohibition on clean-record agreements will allow
agencies discretion to resolve informal and formal complaints and
settle administrative challenges in a manner that balances the needs of
the agency and fairness to the employee. In doing so, agencies should
still adhere to the principles of promoting high standards of integrity
and accountability within the Federal workforce.
5 CFR Part 752--Adverse Actions
Subpart A--Discipline of Supervisors Based on Retaliation Against
Whistleblowers
This subpart addresses mandatory procedures for addressing
retaliation by supervisors for whistleblowing.
An organization emphasized its support of the requirements for
whistleblower protection. This organization elaborated on its
longstanding advocacy in favor of ``robust protection for
whistleblowers, which necessarily includes disciplinary consequences
for those federal managers who abuse their authority to retaliate
against whistleblowers in defiance of federal law.'' The organization
expressed that thus it supported the policy behind 5 U.S.C. 7515 and 5
CFR part 752, subpart A, and encouraged OPM to continue in its
enforcement. A second organization concurred with this commenter.
Section 752.101 Coverage
This section describes the adverse actions covered and defines key
terms used throughout the subchapter. Section 752.101 includes a
definition for the term ``business day.'' Given the revocation of E.O.
13839 and under its congressionally granted authority to regulate part
752, OPM rescinds Sec. 752.101, and given that there is no other use
for the definition of ``business day'' in subpart A, in this rule OPM
revises the regulation at Sec. 752.101(b) to remove the definition of
``Business day''.
We received no comments on this section.
Section 752.103 Procedures
This section establishes the procedures to be utilized for actions
taken under this subpart. With the rescission of E.O. 13839 and under
its congressionally granted authority to regulate chapter 75 adverse
actions, OPM rescinds the requirement at Sec. 752.103(d)(3) that, to
the extent practicable, an agency should issue the decision on a
proposed removal under this subpart within 15 business days of the
conclusion of the employee's opportunity to respond under paragraph
(d)(1) of this section. All comments related to the rescission of the
requirement that an agency issue the decision on a proposed removal
within 15 business days of the conclusion of the employee's opportunity
to respond are addressed here in the Supplementary Information for the
change at Sec. 752.103, where the change appears first.
Some commenters including national unions voiced support regarding
the removal of the requirement that an agency must issue the decision
on a proposed removal within 15 days of the conclusion of the
employee's opportunity to respond. Two national unions commented that
the elimination of the 15-day requirement to issue a decision on a
proposal was warranted and that the deadline imposed by the November
2020 amendment was arbitrary. In fact, a national union commented that
the requirement to issue a decision on a proposal within 15 business
days ``is an arbitrary and unnecessarily short time frame and that it
might not allow thoughtful well-reasoned disciplinary decisions.''
Further, another national union stated that there was no statutory
antecedent for this requirement and this mandate was counterproductive
because it forced agencies to rush in issuing decisions ``which in turn
weakened the agency's action upon review.'' This national union
commented that agencies must engage in reasoned decision making and
that a ``decision reached merely to comply with an arbitrary deadline
is itself arbitrary and capricious and subject to reversal.''
Additionally, this national union observed that every proposed adverse
action is different and
[[Page 67777]]
some proposed adverse actions require more time than others for full
consideration of the employee's response and the underlying facts. In
further support of this rescission, the national union commented by
providing agencies added flexibility the proposed change will ``lead to
the more efficient and effective resolution of employment disputes.''
Two organizations, one concurring with the other's comment
submissions, objected to the 15-day restriction on decisional periods
for adverse actions and pronounced that these restrictions resulted in
inferior rushed disciplinary decisions on incomplete information by
agencies. Moreover, these organizations remarked that E.O. 14003 and
OPM's rule ``restor[ed] agencies' reasonable discretion'' and
``bring[s] to a close a misguided policy.''
While some commenters voiced support, other commenters disagreed
with this change to the regulations. Two management associations
erroneously stated that OPM only made a change regarding the 15-day
requirement to issue the decision on a proposed removal in ``a very
narrow section of Part 752 focused on whistleblower retaliation.''
These commenters also remarked that establishing dissimilar, seemingly
arbitrary timelines across government appears ``contrary to the policy
of the United States government, per E.O. 14003.'' The organizations
commented that the proposed rule does not change the 15-day requirement
in other portions of the rule. In response to this incorrect assertion,
we note that OPM proposed to rescind the 15-day requirement to issue a
decision on a proposal at Sec. Sec. 752.404(g)(3) and 752.604(g)(3),
not only at Sec. 752.103(d)(3).
These management associations also raised concerns that removing
the 15-day requirement ``without offering any guidance on a minimum or
maximum acceptable timeline . . . agencies may continue practices that
include abuse of administrative leave and failing to make timely
decisions.'' Further, these commenters said that lacking OPM guidance,
including the final regulations for the Administrative Leave Act of
2016, agencies will be enabled in such practices. The management
associations remarked that taxpayers rather than employees are
``ultimately paying for the delayed decision.''
We disagree with these comments. Regarding the commenters'
objection that no OPM guidance is provided to agencies as to when a
decision must be issued, as we stated in the proposed rule, it is good
practice for agency deciding officials to resolve proposed removals
promptly. However, some actions present complications that warrant a
longer period of time to achieve careful crafting of the final
decision. In executing due diligence concerning the employee's
performance or alleged misconduct, agencies have an opportunity to
obtain all of the available relevant information to make an informed
and defensible decision. This latitude allows agencies to continue
fact-finding in a deliberate fashion and avoids a rush to judgment. It
is not in the Government's best interests to force decisions to be
completed on an arbitrary timetable that may not allow for the deciding
official to prepare a thoughtful, well-reasoned decision document as
this may lead to prolonged litigation resulting in unnecessary cost to
the taxpayer. Further, with respect to the commenters' concern
regarding agencies' use of administrative leave and failing to make
timely decisions, we note that while administrative leave may be
appropriate under various circumstances, administrative leave is an
option that should be used sparingly. We provide several alternatives
for an agency to use during the advance notice period, depending on the
facts and circumstances of the situation. OPM regulations at Sec.
752.404(b)(3)(i) through (iv) explain that ``[u]nder 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''. In the rare circumstances where the
employee's continued presence in the workplace during the notice period
may present ``a threat to the employee or others'' or involve other
extenuating circumstances as outlined in the regulation, the agency may
choose one or a combination of options: assigning the employee to other
duties, granting leave or otherwise carrying the individual in an
appropriate leave status, shortening the notice period when an agency
invokes the ``crime provision'', and, finally, placing the employee in
a paid nonduty status for such time as is necessary to effect the
action. Until OPM has published the final regulation for 5 U.S.C. 6329b
and after the conclusion of the agency implementation period, these
provisions may be used. After publication of 5 U.S.C. 6329b, and the
subsequent agency implementation period, an agency may place the
employee in a notice leave status when applicable.
Section 752.104 Settlement Agreements
The language in this section establishes the same requirements that
are detailed in Sec. Sec. 432.108, 752.203, 752.407, and 752.607,
Settlement agreements. This final rule removes Sec. 752.104,
Settlement agreements. Please see the discussion in Sec. 432.108
regarding the rescission of OPM requirements related to settlement
agreements.
Subpart B--Regulatory Requirements for Suspensions for 14 Days or Less
This subpart addresses the procedural requirements for suspensions
of 14 days or less for covered employees.
Section 752.202 Standard for Action and Penalty Determination
Consistent with the rescission of E.O. 13839 and under its
congressionally granted authority to regulate part 752, OPM amends this
section to revise the section heading to ``Standard for action'' and
rescinds paragraphs (c) through (f). These paragraphs address the use
of progressive discipline; appropriate comparators as the agency
evaluates a potential disciplinary action; consideration of, among
other factors, an employee's disciplinary record and past work record;
and the requirement that a suspension should not be a substitute for
removal in circumstances in which removal would be appropriate.
All comments related to the rescission of the requirement for the
use of progressive discipline; appropriate comparators as the agency
evaluates a potential disciplinary action; consideration of, among
other factors, an employee's disciplinary record and past work record;
and the requirement that a suspension should not be a substitute for
removal in circumstances in which removal would be appropriate are
addressed here in the Supplementary Information for the change at Sec.
752.202 where the change appears first.
Several commenters, including national unions, voiced support for
rescission of this section in its entirety, and additional commenters
endorsed removal of various portions. In fact, one national union
declared that ``OPM is correct to remove these provisions as they
existed solely to encourage agencies to remove employees from federal
service, which is not a purpose expressed or countenanced by the
controlling statutes.''
This final rule removes from regulation the provision regarding the
use of progressive discipline. Describing the November 2020 regulations
as ``ill-advised provisions discouraging the use of progressive
discipline,'' a national union commended the removal of this regulatory
language and lauded progressive discipline as a ``well-
[[Page 67778]]
established and equitable way to ensure employees are treated fairly.''
In non-support of the rescission, a management association
articulated that in their view the November 2020 amendments provided
advantages for management. One member of the association declared this
section as the best part of the former rule. The management association
went on to state that ``eliminating the `requirement' for progressive
discipline and codifying that elimination was a huge management
benefit.'' The association further noted that the amendments of
November 2020 also formalized the requirement for a penalty to be
```within the bounds of tolerable reasonableness,' instead of a cookie-
cutter progression.'' The management association noted that there has
never been a legal requirement for progressive discipline or
rehabilitation and viewed progressive discipline as something that
``has grown within most agencies to the point of being a roadblock in
many instances to removals or suspensions that would promote the
efficiency of the service because there was no prior discipline. They
also commented that ``[f]ar too many union contracts require management
to utilize progressive discipline, which eliminates a key management
flexibility when dealing with conduct/performance issues.'' Further,
the management association asserted that ``[r]estricting an
arbitrator's ability to mitigate reasonable penalties was good for
management.'' The management association also viewed the November 2020
rules favorably because they ``took the penalty out of the bargaining
arena'' and remarked that ``[i]t never belonged there in the first
place as 5 U.S.C. 7106 (a)(2) reserved the right (authority) to
discipline employees to management without bargaining.''
OPM will not make any modifications based on these comments. OPM
disagrees with the management association's assessment that the
requirement in regulation as to agencies' optional use of progressive
discipline was beneficial to management and that the use of progressive
discipline is a ``roadblock'' to suspensions and removals. As we have
previously said each action stands on its own footing and demands
careful consideration of facts, circumstances, context, and nuance. OPM
reminds agencies to calibrate discipline to the unique facts and
circumstances of each case, which is consistent with the flexibility
afforded agencies under the ``efficiency of the service'' standard for
imposing discipline contained in the CSRA. Proposing and deciding
officials should consult with the agency counsel and the agency's human
resources office to determine the most appropriate penalty. In regard
to the commenter's statement that there is no requirement in law for
progressive discipline and progressive discipline provisions in union
contracts eliminate a management flexibility, bargaining proposals
involving penalty determinations such as mandatory use of progressive
discipline impermissibly interfere with the exercise of a statutory
management right to discipline employees, and are thus contrary to law.
Moreover, the final rule at Sec. 752.202 rescinds the prior
regulations' reliance on the test pronounced in Miskill v. Social
Security Administration, 863 F.3d 1379 (Fed. Cir. 2017). A national
union applauded OPM's rescission and described the provisions of OPM's
November 2020 regulations as ``ill-advised provisions'' and ``as
narrowly defining appropriate comparators''. This national union
concurred with OPM removing this language and allowing agencies to be
guided by court precedent on this issue.
However, some management associations disagreed with the rescission
saying, ``The proposed changes result in guidance to agencies and
supervisors that is far less clear and actionable.'' These commenters
questioned whether human resources specialists clearly understand the
Miskill test and would be able to apply it ``the same way as peers in
other agencies.'' They protested that ``in the name of flexibility OPM
simply continues its history of abdicating its own responsibility'' to
provide guidance that is ``coherent and useful'' despite responsibility
for providing government-wide guidance for a vast, robust statutory
scheme with over 40 years of Congressional amendments and as many years
of accompanying case law. One of these management associations
emphasized that absent additional, specific OPM guidance the system is
not clear at all and will continue to provoke confusion in the
employing agencies. To illustrate their point of view, the management
association stated they are seeking additional educational resources to
help understand regulations, guidance, case law and other resources to
understand the Civil Service. They asserted that ``OPM should not rely
on associations like ours to fill in the vast knowledge gaps that it
and agencies are leaving.''
OPM will not make any revisions based on these comments. The
adoption of the Miskill test reinforced the key principle that each
case stands on its own factual and contextual footing. Federal human
resources specialists involved in advising management and agency
counsel routinely apply case law with overwhelmingly successful
outcomes for agencies. We do not believe the Miskill case is an
exception to this consistent track record in support of efficient and
effective disciplinary actions taken by agencies. OPM believes that
agencies can be sufficiently guided by Miskill and other applicable
case law without a regulatory amendment. Note that OPM provides
guidance to agencies through its accountability toolkit, which includes
some of the key practices and lessons learned as discussed in the GAO
report. OPM frequently communicates these strategies and approaches to
the Federal community through the OPM website and ongoing outreach to
agencies.
Furthermore, the final rule removes from regulation the standard
applied by the MSPB in Douglas v. Veterans Administration, 5 M.S.P.R.
280 (1981). This rule specifically rescinds the requirement that among
other factors, agencies should consider an employee's disciplinary
record and past work record, including all applicable prior misconduct,
when taking an action under this subpart.
Two organizations, one concurring with the other's comment
submission, declared that although they previously had supported
placing the Douglas factor analysis in OPM regulations, these
organizations understood the necessity to comply with E.O. 14003 to
rescind this provision. They applauded OPM's recognition of the
importance of the Douglas standard and expressed the hope that OPM will
consider future rulemaking activity to re-include the Douglas factor
analysis in its regulations when the occasion permits. OPM will not
commit to or rule out any specific future rulemaking activity at this
time.
In another rescission to the final rule at Sec. 752.202, OPM
rescinds the requirement that a suspension may not be a substitute for
removal. In support of this rescission, a national union commented that
the November 2020 amendments to OPM's regulations ``contain ill-advised
provisions'' and commended the rescission of those requirements which
``promot[ed] removals over suspensions.'' In its endorsement of OPM's
rescission of this provision, the national union asserted that
supervisors should exercise their judgment regarding appropriate
penalties after their consideration of all of the pertinent factors and
should not be compelled to impose removals over other disciplinary
alternatives.
Another national union supported this rescission in Sec. Sec.
752.202 and 752.403 with comments which were
[[Page 67779]]
identical to each other and are addressed here. This national union
expounded that ``disproportionate and unreasonable penalties do not
promote the efficiency of the service. The primary purpose of
disciplinary actions is to correct misconduct--not to serve as a
punishment.'' Additionally, the national union posited that removal
should be limited for ``egregious misconduct'' or when it is evident
that rehabilitation cannot be achieved. The national union opined that
each removal results in lost time, effort, and funds invested in
training that employee and loss of institutional knowledge, which may
be irreplaceable. In further comment, this national union stated, ``It
is remarkably inefficient for an agency to remove an employee
regardless of the offense.'' Also with respect to penalties, the
national union said that agencies are ``best served'' by taking action
with the minimum penalty necessary to correct the misconduct which
improves employee morale and minimizes the disruption to the agency.
This national union affirmed, ``OPM's proposed changes are consistent
with the CSRA and will better protect the due process rights of federal
employees.''
While some commenters agreed with the rescission concerning the
requirement that a suspension should not be a substitute for removal, a
management association disagreed with this change. This management
association questioned, ``Why keep an unacceptable employee?'' and
observed that if the issue is conduct, ``a new position isn't going to
`fix' the underlying problem.'' This commenter stated that it
understood that ``the rescission of E.O. 13839 led to rescinding this
section.''
OPM will not make any changes based on this comment. If agencies
implement a penalty other than removal, when it is appropriate, it does
not follow that the employee is reassigned to a new position. The
concept that suspension should not be a substitute for removal in
circumstances in which removal would be appropriate is a
straightforward principle that OPM believes agencies can apply without
regulation. If a penalty is disproportionate to the alleged violation
or is unreasonable, it is subject to being reduced or reversed even
when the charges are sustained. Although OPM has decided to remove the
provision regarding a suspension should not be a substitute for removal
and defer to agency management in selecting an appropriate penalty, OPM
reiterates that imposing a suspension when removal is appropriate may
adversely impact employee morale and productivity and hamper the
agency's ability to achieve its mission and promote effective
stewardship. OPM reminds agencies that supervisors are responsible for
ensuring that a disciplinary penalty is fair, reasonable, and
appropriate to the facts and circumstances. In doing so, supervisors
will address misconduct in a manner that has the greatest potential to
avert harm to the efficiency of the service.
Section 752.203 Procedures
This section discusses the requirements for a proposal notice
issued under this subpart. The language in this section establishes the
same requirements for settlement agreements in the final rule that are
detailed in Sec. Sec. 432.108, 752.104, 752.407, and 752.607. Given
the revocation of E.O. 13839 and under OPM's congressionally granted
authority to regulate part 752, this final rule removes the requirement
set forth in Sec. 752.203(h). Please see the discussion in Sec.
432.108 regarding the rescission of OPM requirements related to
settlement agreements.
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
This subpart addresses the procedural requirements for removals,
suspensions for more than 14 days, including indefinite suspensions,
reductions in grade, reductions in pay, and furloughs of 30 days or
less for covered employees.
Section 752.401 Coverage
This section discusses adverse actions and employees covered under
this subpart. The National Defense Authorization Act (NDAA) for Fiscal
Year 2017 added MSPB appeal rights for National Guard technicians for
certain adverse actions taken against them when they are not in a
military pay status or when the issue does not involve fitness for duty
in the reserve component.
In Sec. 752.401(b), the final rule adds an exclusion for an action
taken against a technician in the National Guard as provided in section
709(f)(4) of title 32, United States Code, and in Sec. 752.401(d)
removes from the list of employees excluded from coverage of this
subpart ``a technician in the National Guard described in section
8337(h)(1) of title 5, United States Code, who is employed under
section 709(a) of title 32, United States Code.''
An organization supported the extension of civil service
protections to National Guard technicians under Public Law 114-328, and
stated that, accordingly, the organization supported OPM's inclusion of
an implementing regulation for that statute in this proposed rule.
Another organization concurred with this organization's comments.
Section 752.402 Definitions
This section defines key terms used throughout the subchapter. With
the rescission of E.O. 13839 and given that there is no other use for
the definition of ``business day'' in subpart D, the final rule revises
the regulation at Sec. 752.402 to remove the definition of ``Business
day''.
We did not receive any comments for this section.
Section 752.403 Standard for Action and Penalty Determination
Given the rescission of E.O. 13839 and under OPM's congressionally
granted authority to regulate part 752, as with the final rule changes
for Sec. 752.202, the final regulatory changes to this section revise
the heading to ``Standard for action'' and, as with Sec. Sec.
752.202(c), 752.202(d), 752.202(e), and 752.202(f), rescind Sec. Sec.
752.403(c), 752.403(d), 752.403(e), and 752.403(f). Please see the
discussion in Sec. 752.202.
Section 752.404 Procedures
Section 752.404(b) discusses the requirements for a notice of
proposed action issued under this subpart. In particular, under OPM's
authority to regulate 5 CFR part 752, the final rule rescinds the
requirements in Sec. 752.404(b)(1) that, to the extent an agency in
its sole and exclusive discretion deems practicable, agencies should
limit written notice of adverse actions taken under this subpart to the
30 days prescribed in 5 U.S.C. 7513(b)(1), as well as the requirement
that any notice period greater than 30 days must be reported to OPM.
All comments related to the rescission of the requirement that an
agency limit written notice of adverse actions to 30 days, as well as
the reporting requirement to OPM, are addressed here in the
Supplementary Information for the change at Sec. 752.404, where the
change appears first.
Two organizations, one concurring with the other's comment
submissions, endorsed the rescission of this regulatory requirement.
The organizations asserted that the restrictions on response periods
for adverse actions had an adverse impact on an employee's ability to
respond appropriately and impaired their ``due process rights,'' as
well as resulted in substandard and hurried decisions based on
incomplete information.
[[Page 67780]]
Two national unions expressed their overall support for rescinding
the requirements to issue a decision within 30 days of the end of the
employee's response period. One union further commented that this
language wrongly took a negotiable topic, notice periods, off the
bargaining table and the reporting requirement would chill agencies
from providing notice beyond 30 days. Another national union agreed
with OPM's assessment that there are many legitimate reasons to provide
a longer notice period. They commented that the reporting requirement
was also ``inefficient, inasmuch as it placed an additional and
unnecessary burden on OPM and on agencies seeking to take an adverse
action.''
Additionally, this section discusses the requirements for an agency
decision issued under Sec. 752.404(g). Under OPM's authority to
regulate 5 CFR part 752, the final rule rescinds the requirement at
Sec. 752.404(g)(3) that, to the extent practicable, an agency should
issue the decision on a proposed removal under this subpart within 15
business days of the conclusion of the employee's opportunity to
respond. All comments related to the rescission of the Sec.
752.404(g)(3) requirement for agencies to issue decisions, to the
extent practicable, within 15 business days of the conclusion of the
employee's opportunity to respond under this subpart are addressed in
the Supplementary Information for the change at Sec. 752.103, where
the change appears first.
Section 752.407 Settlement Agreements
The language in this section establishes the same requirement that
is detailed in the final rule changes at Sec. Sec. 432.108, 752.104,
752.203, and 752.607, Settlement agreements. This final rule removes
Sec. 752.407, Settlement agreements. Please see the discussion
regarding settlement agreements in Sec. 432.108 above.
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the
Senior Executive Service
This subpart addresses the procedural requirements for suspensions
for more than 14 days and removals from the civil service as set forth
in 5 U.S.C. 7542.
Section 752.602 Definitions
This section defines key terms used throughout the subchapter.
Section 752.602 includes a definition for the term ``business day.''
With the rescission of E.O. 13839 and given that there is no other use
for ``business day'' in subpart F, OPM revises the regulation at Sec.
752.602 to remove the definition of ``Business day''.
We did not receive any comments for this section.
Section 752.603 Standard for Action and Penalty Determination
Given the rescission of E.O. 13839 and under its congressionally
granted authority to regulate part 752, as with the final rule changes
for Sec. Sec. 752.202 and 752.403, the final regulatory change to
Sec. 752.603 revises the heading to ``Standard for action'' and as
with Sec. Sec. 752.202(c), 752.202(d), 752.202(e), 752.202(f),
752.403(c), 752.403(d), 752.403(e), and 752.403(f), OPM rescinds
Sec. Sec. 752.603(c), 752.603(d), 752.603(e), and 752.603(f). Please
see the discussion in Sec. 752.202.
Section 752.604 Procedures
This section discusses requirements for a notice of proposed
action. Due to the revocation of E.O. 13839 and under its
congressionally granted authority to regulate 5 CFR part 752, as with
the rule changes made for Sec. Sec. 752.103(d)(3) and 752.404(b)(1),
and for the same reasons, OPM rescinds the language at Sec.
752.604(b)(1) that requires, to the extent an agency in its sole and
exclusive discretion deems practicable, that agencies should limit a
written notice of an adverse action to the 30 days prescribed in
section 7543(b)(1) of title 5, United States Code. As well, in this
rule OPM removes the language in Sec. 752.604(b)(1) that requires that
advance notices of greater than 30 days must be reported to OPM.
Additionally, OPM rescinds Sec. 752.604(g)(3), which requires that
an agency issue the decision on a proposed removal, to the extent
practicable, within 15 business days of the conclusion of the
employee's opportunity to respond. As with the discussion concerning
the 15-day requirement for issuance of decisions in Sec. Sec.
752.103(d)(3) and 752.404(g)(3), while recognizing it is good practice
for agency deciding officials to resolve proposed removals promptly,
some actions present complexities that necessitate a longer period of
time to prepare the final decision. All comments related to the
procedural requirements are addressed in the Supplementary Information
for the changes at Sec. Sec. 752.103 and 752.404, where the changes
appear first.
Section 752.607 Settlement Agreements
The language in this section establishes the same requirements that
are detailed in Sec. Sec. 432.108, 752.104, 752.203 and 752.407,
Settlement agreements. This final rule removes Sec. 752.607,
Settlement agreements. Please see the discussion at Sec. 432.108.
Expected Impact of This Rule
OPM is issuing this final rule to implement requirements of E.O.
14003 and new statutory requirements for procedural and appeal rights
for dual status National Guard technicians for certain adverse actions.
E.O. 14003 requires OPM to rescind portions of the OPM final rule
published at 85 FR 65940 which implemented certain requirements of E.O.
13839. In addition, section 512(a)(1)(C) of the 2017 NDAA provides MSPB
appeal rights under 5 U.S.C. 7511, 7512, and 7513 to dual status
National Guard technicians for certain adverse actions.
OPM believes that portions of the final rule which became effective
on November 16, 2020, and which implemented certain requirements of
E.O. 13839, are inconsistent with the current policy of the United
States to protect, empower and rebuild the career Federal workforce as
well as its current policy to encourage employee organizing and
collective bargaining. The revisions implement applicable statutory
mandates and provide agencies the necessary tools and flexibility to
address matters related to unacceptable performance and misconduct or
other behavior contrary to the efficiency of the service by Federal
employees when they arise, consistent with the policies of E.O. 14003.
Given that the November 16, 2020, regulations OPM rescinds in this
rule were in effect only for a brief period before E.O. 14003 was
issued on January 22, 2021, agencies had limited opportunity to
implement changes under the regulations. With the issuance of E.O.
14003, OPM discontinued collecting agency data on performance-based
actions, adverse actions, and settlement agreements as was required by
Section 5 of E.O. 13839. OPM does not otherwise collect agency data
about the matters covered by the November 2020 regulatory amendments
that OPM rescinds in this rule (namely, the timing and frequency of
probationary period expiration notifications; the timing and nature of
performance assistance for employees who have demonstrated unacceptable
performance; penalty determination guidelines; advance notice and
decision notice timeframes for adverse action; and settlement
agreements). For these reasons, OPM has virtually no data on the extent
to which adverse actions were pursued under the regulations for
rescission
[[Page 67781]]
here. This rule will relieve agencies of the administrative burden of
implementing the November 2020 regulatory amendments to the extent that
agencies did not already have such policies and practices in place. Out
of an abundance of caution, we clarify that OPM still is requiring that
agencies submit to it arbitration awards taken under 5 U.S.C. 4303 or 5
U.S.C. 7512 so that OPM can efficiently carry out its authority under 5
U.S.C. 7703(d) to seek judicial review of any arbitration award that
the Director of OPM determines is erroneous and would have a
substantial impact on civil service law, rule, or regulation affecting
personnel management that will have a substantial impact on a civil
service law, rule, regulation, or policy directive.
Costs
This final rule will affect the operations of over 80 Federal
agencies--ranging from cabinet-level departments to small independent
agencies. Regarding implementation of E.O. 14003 requirements, we
estimate that this rule will require individuals employed by these
agencies to revise and rescind policies and procedures to implement
certain portions of the OPM final rule published at 85 FR 65940 to the
extent agencies have not already done so. Section 3(e) of E.O. 14003
directs heads of agencies whose practices were covered by E.O. 13839 to
review and identify existing agency actions related to or arising from
E.O. 13839 and ``as soon as practicable, suspend, revise, or publish
for notice and comment proposed rules suspending, revising, or
rescinding, the actions identified in the review'' described in Section
3(e). On March 5, 2021, OPM issued ``Guidance for Implementation of
Executive Order 14003--Protecting the Federal Workforce'' to heads of
agencies. In this guidance, OPM advised that ``agencies should not
delay in implementing the requirements of Section 3(e) of E.O. 14003 as
it relates to any changes to agency policies made as a result of OPM's
regulations.'' Therefore, some agencies may not need to make any
updates to agency policies as a result of this revised OPM rule. For
the purpose of this cost analysis, the assumed average salary rate of
Federal employees performing this work will be the rate in 2022 for GS-
14, step 5, from the Washington, DC, locality pay table ($143,064
annual locality rate and $68.55 hourly locality rate). We assume that
the total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $137.10 per hour.
In order to comply with the regulatory changes in this final rule,
affected agencies will need to review the rule and update their
policies and procedures. We estimate that, in the first year following
publication of the final rule, this will require an average of 200
hours of work by employees with an average hourly cost of $137.10. This
would result in estimated costs in that first year of implementation of
about $27,420 per agency, and about $2,193,600 in total government-
wide. We do not believe this final rule will substantially increase the
ongoing administrative costs to agencies.
Regarding the portion of the rule regarding appeal rights under 5
U.S.C. 7511, 7512, and 7513 for dual status National Guard technicians
for certain adverse actions, this only impacts the Army National Guard
and Air National Guard for dual status National Guard technicians that
are covered by policies of the National Guard Bureau. Since this
portion of the final rule reflects statutory changes in the 2017 NDAA
which have been effective for several years, these statutory
requirements should already be applied by the National Guard
notwithstanding any regulatory changes by OPM. However, for the purpose
of this cost analysis, the assumed average salary rate of Federal
employees performing this work at the National Guard Bureau will be the
rate in 2022 for GS-14, step 5, from the Washington, DC, locality pay
table ($143,064 annual locality rate and $68.55 hourly locality rate).
We assume that the total dollar value of labor, which includes wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $137.10 per hour. In order to
comply with the regulatory changes in this rule, the affected agency
will need to review the rule and update its policies and procedures. We
estimate that, in the first year following publication of the final
rule, this will require an average of 40 hours of work by employees
with an average hourly cost of $137.10. This would result in estimated
costs in that first year of implementation of about $5,484 for the
impacted agency. We do not believe this rule will substantially
increase the ongoing administrative costs to the National Guard.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). In accordance with the
provisions of Executive Order 12866, this final rule was reviewed by
the Office of Management and Budget as a significant, but not
economically significant rule.
Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies that
this final rule will not have a significant economic impact on a
substantial number of small entities.
Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this final rule does not have
sufficient federalism implications to warrant preparation of a
Federalism Assessment.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by state, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any year and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires rules to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this final rule before
its effective date, as required by 5 U.S.C. 801. The Office of
Information and Regulatory Affairs in the Office of Management and
Budget has determined that this final rule is not a major rule as
defined by the CRA (5 U.S.C. 804). The Office of Information and
Regulatory Affairs in the Office of Management and Budget has
determined that this final rule is not a major rule as defined by the
CRA (5 U.S.C. 804).
[[Page 67782]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
This regulatory action is not expected to impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
List of Subjects in 5 CFR Parts 315, 432, and 752
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM amends 5
CFR parts 315, 432, and 752 as follows:
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
1. Revise the authority citation for part 315 to read as follows:
Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O.
10577, 19 FR 7521, 3 CFR, 1954-1958 Comp., p. 218, unless otherwise
noted; and E.O. 13162, 65 FR 43211, 3 CFR, 2000 Comp., p. 283. Secs.
315.601 and 315.609 also issued under 22 U.S.C. 3651 and 365. Secs.
315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 315.603
also issued under 5 U.S.C. 8151. Sec. 315.605 also issued under E.O.
12034, 43 FR 1917, 3 CFR, 1978 Comp., p. 111. Sec. 315.606 also
issued under E.O. 11219, 30 FR 6381, 3 CFR, 1964-1965 Comp., p. 303.
Sec. 315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also
issued under E.O. 12721, 55 FR 31349, 3 CFR, 1990 Comp., p. 293.
Sec. 315.610 also issued under 5 U.S.C. 3304(c). Sec. 315.611 also
issued under 5 U.S.C. 3304(f). Sec. 315.612 also issued under E.O.
13473, 73 FR 56703, 3 CFR, 2008 Comp., p. 241. Sec. 315.708 also
issued under E.O. 13318, 68 FR 66317, 3 CFR, 2003 Comp., p. 265.
Sec. 315.710 also issued under E.O. 12596, 52 FR 17537, 3 CFR, 1987
Comp., p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O.
12107, 44 FR 1055, 3 CFR, 1978 Comp., p. 264.
Subpart H--Probation on Initial Appointment to a Competitive
Position
0
2. Amend Sec. 315.803 by revising paragraph (a) to read as follows:
Sec. 315.803 Agency action during probationary period (general).
(a) The agency shall utilize the probationary period as fully as
possible to determine the fitness of the employee and shall terminate
his or her services during this period if the employee fails to
demonstrate fully his or her qualifications for continued employment.
* * * * *
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
0
3. The authority for part 432 continues to read as follows:
Authority: 5 U.S.C. 4303, 4305.
0
4. Amend Sec. 432.102 by:
0
a. Revising paragraphs (b)(14) and (15);
0
b. Adding paragraph (b)(16);
0
c. Removing paragraph (f)(12); and
0
d. Redesignating paragraphs (f)(13) and (14) as paragraphs (f)(12) and
(13).
The revisions and additions read as follows:
Sec. 432.102 Coverage.
* * * * *
(b) * * *
(14) A termination in accordance with terms specified as conditions
of employment at the time the appointment was made;
(15) An involuntary retirement because of disability under part 831
of this chapter; and
(16) An action against a technician in the National Guard
concerning any activity under 32 U.S.C. 709(f)(4), except as provided
by 32 U.S.C. 709(f)(5).
* * * * *
0
5. Revise Sec. 432.104 to read as follows:
Sec. 432.104 Addressing unacceptable performance.
At any time during the performance appraisal cycle that an
employee's performance is determined to be unacceptable in one or more
critical elements, the agency shall notify the employee of the critical
element(s) for which performance is unacceptable and inform the
employee of the performance requirement(s) or standard(s) that must be
attained in order to demonstrate acceptable performance in his or her
position. The agency should also inform the employee that unless his or
her performance in the critical element(s) improves to and is sustained
at an acceptable level, the employee may be reduced in grade or
removed. For each critical element in which the employee's performance
is unacceptable, the agency shall afford the employee a reasonable
opportunity to demonstrate acceptable performance, commensurate with
the duties and responsibilities of the employee's position. As part of
the employee's opportunity to demonstrate acceptable performance, the
agency shall offer assistance to the employee in improving unacceptable
performance.
0
6. Amend Sec. 432.105 by revising paragraphs (a)(1) and
(a)(4)(i)(B)(6) to read as follows:
Sec. 432.105 Proposing and taking action based on unacceptable
performance.
(a) * * *
(1) Once an employee has been afforded a reasonable opportunity to
demonstrate acceptable performance pursuant to Sec. 432.104, an agency
may propose a reduction-in-grade or removal action if the employee's
performance during or following the opportunity to demonstrate
acceptable performance is unacceptable in one or more of the critical
elements for which the employee was afforded an opportunity to
demonstrate acceptable performance.
* * * * *
(4) * * *
(i) * * *
(B) * * *
(6) To comply with a stay ordered by a member of the Merit Systems
Protection Board under 5 U.S.C. 1214(b)(1)(A) or (B).
* * * * *
Sec. 432.108 [Removed]
0
7. Remove Sec. 432.108.
PART 752--ADVERSE ACTIONS
0
8. Revise the authority citation for part 752 to read as follows:
Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91, 131
Stat. 1283, and Pub. L. 114-328, 130 Stat. 2000.
Subpart A--Discipline of Supervisors Based on Retaliation Against
Whistleblowers
Sec. 752.101 [Amended]
0
9. Amend Sec. 752.101 in paragraph (b) by removing the definition for
``Business day''.
Sec. 752.103 [Amended]
0
10. Amend Sec. 752.103 by removing paragraph (d)(3).
Sec. 752.104 [Removed]
0
11. Remove Sec. 752.104.
Subpart B--Regulatory Requirements for Suspensions for 14 Days or
Less
0
12. Amend Sec. 752.202 by:
0
a. Revising the section heading; and
0
b. Removing paragraphs (c) through (f).
The revision reads as follows:
Sec. 752.202 Standard for action.
* * * * *
Sec. 752.203 [Amended]
0
13. Amend Sec. 752.203 by removing paragraph (h).
[[Page 67783]]
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
0
14. Amend Sec. 752.401 by:
0
a. Revising paragraphs (b)(15) and (16);
0
b. Adding paragraph (b)(17);
0
c. Removing paragraph (d)(5); and
0
d. Redesignating paragraphs (d)(6) through (13) as paragraphs (d)(5)
through (12).
The revisions and additions read as follows:
Sec. 752.401 Coverage.
* * * * *
(b) * * *
(15) Reduction of an employee's rate of basic pay from a rate that
is contrary 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 in this subchapter implementing those amendments;
(16) An action taken under 5 U.S.C. 7515.; or
(17) An action taken against a technician in the National Guard
concerning any activity under 32 U.S.C. 709(f)(4), except as provided
by 32 U.S.C. 709(f)(5).
* * * * *
Sec. 752.402 [Amended]
0
15. Amend Sec. 752.402 by removing the definition for ``Business
day''.
0
16. Amend Sec. 752.403 by:
0
a. Revising the section heading; and
0
b. Removing paragraphs (c) through (f).
The revision reads as follows:
Sec. 752.403 Standard for action.
* * * * *
0
17. Amend Sec. 752.404 by:
0
a. Revising paragraph (b)(1); and
0
b. Removing paragraph (g)(3).
The revision reads as follows:
Sec. 752.404 Procedures.
* * * * *
(b) * * *
(1) An employee against whom an action is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to paragraph (d) of this section. The notice must state the
specific reason(s) for the proposed action and inform the employee of
his or her right to review the material which is relied on to support
the reasons for action given in the notice. The notice must further
include detailed information with respect to any right to appeal the
action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the
forums in which the employee may file an appeal, and any limitations on
the rights of the employee that would apply because of the forum in
which the employee decides to file.
* * * * *
Sec. 752.407 [Removed]
0
18. Remove Sec. 752.407.
Subpart F--Regulatory Requirements for Taking Adverse Action Under
the Senior Executive Service
0
19. Amend Sec. 752.602 by removing the definition for ``Business
day''.
0
20. Amend Sec. 752.603 by:
0
a. Revising the section heading; and
0
b. Removing paragraphs (c) through (f).
The revision reads as follows:
Sec. 752.603 Standard for action.
* * * * *
0
21. Amend Sec. 752.604 by:
0
a. Revising paragraph (b)(1); and
0
b. Removing paragraph (g)(3).
The revision reads as follows:
Sec. 752.604 Procedures.
* * * * *
(b) * * *
(1) An appointee against whom an action is proposed is entitled to
at least 30 days' advance written notice unless there is an exception
pursuant to paragraph (d) of this section. The notice must state the
specific reason(s) for the proposed action and inform the appointee of
his or her right to review the material that is relied on to support
the reasons for action given in the notice. The notice must further
include detailed information with respect to any right to appeal the
action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the
forums in which the employee may file an appeal, and any limitations on
the rights of the employee that would apply because of the forum in
which the employee decides to file.
* * * * *
Sec. 752.607 [Removed]
0
22. Remove Sec. 752.607.
[FR Doc. 2022-24309 Filed 11-9-22; 8:45 am]
BILLING CODE 6325-38-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.