This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

7187 

Vol. 73, No. 26 

Thursday, February 7, 2008 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 315 and 752 

RIN 3206–AL30 

Career and Career-Conditional 

Employment and Adverse Actions 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing final 

regulations governing Federal adverse 

actions. The final regulations conform 

the adverse action rules regarding 

employee coverage to binding judicial 

decisions interpreting the underlying 

statute. 

DATE: Effective Date: The rule is 

effective March 10, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Sharon L. Mayhew by telephone at (202) 

606–2930; by FAX at (202) 606–2613; or 

by e-mail at CWRAP@opm.gov. 

SUPPLEMENTARY INFORMATION: On May 1, 

2007, OPM published at 72 FR 23772 

(2007) proposed amendments to the 

regulations in 5 CFR part 752, to 

conform the adverse action rules 

regarding the procedural and appeal 

rights of individuals serving a 

probationary period in the competitive 

service or a trial period in the excepted 

service to binding judicial decisions 

interpreting the underlying statute. We 

also proposed amendments to 5 CFR 

part 315 to make corresponding changes 

to the career and career-conditional 

employment rules governing 

probationary periods. The public 

comment period on the proposed 

regulations ended on July 2, 2007. OPM 

carefully considered the three 

comments received. 

Two commenters supported and 

commended OPM’s proposed 

amendments to the regulations in parts 

315 and 752 of title 5 CFR. They 

recommended OPM make similar 

changes to procedural and appeal rights 

in 5 CFR part 432, the regulations 

governing performance-based actions. 

One of the commenters suggested 

additional amendments be made to 5 

CFR part 315 to cover actions taken 

under 5 CFR part 432. These 

suggestions, however, are beyond the 

scope of the proposed regulations. 

The third commenter supported 

OPM’s proposed amendments to the 

regulations in parts 315 and 752 of title 

5 CFR. The commenter also advocated 

Congressional legislation to support 

OPM’s interpretation of the statute at 5 

U.S.C. 7511 and recommended that 

OPM repeat previously stated 

interpretive guidance regarding trial 

periods for excepted service 

appointments pending conversion to the 

competitive service. See 57 FR 20041. 

These recommendations are beyond the 

scope of the proposed regulations and 

will not be further addressed. 

Finally, while supporting the 

language in the proposed regulations, 

the third commenter expressed concern 

that a literal reading of the Federal 

Circuit decision in Van Wersch v. 

Department of Health and Human 

Services, 197 F.3d 1144 (Fed. Cir. 1999), 

could potentially result in coverage, for 

example, of a recently hired 

nonpreference eligible excepted service 

employee serving in a temporary 

position not pending conversion to the 

competitive service. As stated in the 

supplementary information 

accompanying the notice of proposed 

rulemaking, 72 FR at 23773 (2007), 

OPM’s reading of the statute with regard 

to those employees, among others, is 

consistent with statute, and supported 

by the Merit Systems Protection Board’s 

(Board) decision in Johnson v. 

Department of Veterans Affairs, 99 

MSPR 362 (2005), which was decided 

after Van Wersch. OPM, like the Board, 

considers this interpretation to be 

consistent with Van Wersch and in 

accordance with the law. 

For these and all the reasons stated in 

the proposed regulations published at 

72 FR 23772 (2007), OPM issues these 

final regulations without modification, 

except for two minor non-substantive 

grammatical changes in § 752.401(11) 

and § 752.401(13). 

E.O. 12866, Regulatory Review 

The Office of Management and Budget 

has reviewed this rule in accordance 

with E.O. 12866. 

Regulatory Flexibility Act 

OPM has determined these 

amendments will not have a significant 

economic impact on a substantial 

number of small entities because they 

will apply only to Federal agencies and 

employees. 

List of Subjects in 5 CFR Parts 315 and 

752 

Administrative practice and 

procedure, Government employees. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, OPM amends parts 315 

and 752 of title 5, Code of Federal 

Regulations, as follows: 

PART 315—CAREER AND CAREER 

CONDITIONAL EMPLOYMENT 

■ 1. The authority citation for part 315 

continues to read as follows: 

Authority: 5 U.S.C. 1302, 3301, and 3302; 

E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218, 

unless otherwise noted; and E.O. 13162; secs, 

315.601 and 315.609 also issued under 22 

U.S.C. 3651 and 3652. Secs. 315.602 and 

315.604 also issued under 5 U.S.C. 1104. Sec 

315.603 also issued under 5 U.S.C. 8151. Sec 

315.605 also issued under E.O. 12034, 3 CFR, 

1978 Comp., p. 111. Sec 315.606 also issued 

under E.O. 11219, 3 CFR, 1964–1965 Comp., 

p. 303. Sec 315.607 also issued under 22 

U.S.C. 2506. Sec 315.608 also issued under 

E.O. 12721, 3 CFR, 1990 Comp., p. 293. Sec. 

315.610 also issued under 5 U.S.C. 3304(d). 

Sec 315.611 also issued under Section 511, 

Pub. L. 106–117, 113 Stat. 1575–76. Sec 

315.708 also issued under E.O. 13318. Sec. 

315.710 also issued under E.O. 12596, 3 CFR, 

1987 Comp., p. 229. Subpart I also issued 

under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 

Comp., p. 264. 

■ 2. Revise § 315.803 to read as follows: 

§ 315.803 Agency action during 

probationary period (general). 

(a) The agency shall utilize the 

probationary period as fully as possible 

to determine the fitness of the employee 

and shall terminate his services during 

this period if he fails to demonstrate 

fully his qualifications for continued 

employment. 

(b) Termination of an individual 

serving a probationary period must be 


rfrederick on PROD1PC67 with RULES
7188 Federal Register / Vol. 73, No. 26 / Thursday, February 7, 2008 / Rules and Regulations 

taken in accordance with subpart D of 

part 752 of this chapter if the individual 

has completed one year of current 

continuous service under other than a 

temporary appointment limited to 1 

year or less and is not otherwise 

excluded by the provisions of that 

subpart. 

■ 3. Revise § 315.804(a) to read as 

follows: 

§ 315.804 Termination of probationers for 

unsatisfactory performance or conduct. 

(a) Subject to § 315.803(b), when an 

agency decides to terminate an 

employee serving a probationary or trial 

period because his work performance or 

conduct during this period fails to 

demonstrate his fitness or his 

qualifications for continued 

employment, it shall terminate his 

services by notifying him in writing as 

to why he is being separated and the 

effective date of the action. The 

information in the notice as to why the 

employee is being terminated shall, as a 

minimum, consist of the agency’s 

conclusions as to the inadequacies of 

his performance or conduct. 

* * * * * 

■ 4. Revise § 315.805 introductory text 

to read as follows: 

§ 315.805 Termination of probationers for 

conditions arising before appointment. 

Subject to § 315.803(b), when an 

agency proposes to terminate an 

employee serving a probationary or trial 

period for reasons based in whole or in 

part on conditions arising before his 

appointment, the employee is entitled to 

the following: 

* * * * * 

PART 752—ADVERSE ACTIONS 

■ 1. The authority citation for part 752 

continues to read as follows: 

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

■ 2. Revise § 752.401 (c)(1) and (2), 

(d)(11) and (12), and add (d)(13) to read 

as follows: 

§ 752.401 Coverage. 

* * * * * 

(c) * * * 

(1) A career or career conditional 

employee in the competitive service 

who is not serving a probationary or 

trial period; 

(2) An employee in the competitive 

service who has completed 1 year of 

current continuous service under other 

than a temporary appointment limited 

to 1 year or less; 

* * * * * 

(d) * * * 

(11) A nonpreference eligible 

employee serving a probationary or trial 

period under an initial appointment in 

the excepted service pending 

conversion to the competitive service, 

unless they meet the requirements of 

paragraph (c)(5) of this section; 

(12) An employee whose agency or 

position has been excluded from the 

appointing provisions of title 5, United 

States Code, by separate statutory 

authority in the absence of any 

provision to place the employee within 

the coverage of chapter 75 of title 5, 

United States Code; and 

(13) An employee in the competitive 

service serving a probationary or trial 

period, unless they meet the 

requirements of paragraph (c)(2) of this 

section. 

■ 3. Revise § 752.402 (b) to read as 

follows: 

§ 752.402 Definitions. 

* * * * * 

(b) Current continuous employment 

means a period of employment or 

service immediately preceding an 

adverse action without a break in 

Federal civilian employment of a 

workday. 

* * * * * 

[FR Doc. E8–2121 Filed 2–6–08; 8:45 am] 

BILLING CODE 6325–39–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 550 and 892 

RIN 3206–AJ88 

Allotments From Federal Employees 

AGENCY: U.S. Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management (OPM) is issuing final 

regulations dealing with the use of 

OPM’s allotment authority to allow for 

pretax salary reductions as part of 

OPM’s flexible benefits plan. Using an 

allotment from an employee’s pay to the 

employing agency allows certain 

payments (e.g., employee health 

insurance premiums, contributions to a 

flexible spending arrangement, and 

contributions to a health savings 

account) to be paid with pretax dollars, 

as provided under section 125 of the 

Internal Revenue Code. In addition, 

these regulations finalize certain policy 

clarifications and changes to make the 

regulations more readable. 

DATES: Effective Date: The final 

regulations are effective on March 10, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Kitchelt by telephone at (202) 

606–2858; by fax at (202) 606–0824; or 

by e-mail at pay-performancepolicy@opm.gov. 

SUPPLEMENTARY INFORMATION: On 

November 17, 2006, the U.S. Office of 

Personnel Management (OPM), issued 

interim regulations (71 FR 66827) on 

OPM’s allotment authority at 5 CFR part 

550, subpart C, to allow for pretax salary 

reductions as part of OPM’s flexible 

benefits plan. Using an allotment from 

an employee’s pay to the employing 

agency allows certain payments (e.g., 

employee health insurance premiums, 

contributions to a flexible spending 

arrangement, and contributions to a 

health savings account) to be paid with 

pretax dollars, as provided under 

section 125 of the Internal Revenue 

Code. The interim regulations also made 

certain policy clarifications and changes 

to make the regulations more readable 

The 60-day comment period ended on 

January 16, 2007. During the comment 

period, OPM received one comment that 

was outside the scope of these 

regulations. Therefore, we are adopting 

the interim regulations as final with a 

correction to a section title. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

E.O. 12866, Regulatory Review 

The Office of Management and Budget 

has reviewed this rule in accordance 

with E.O. 12866. 

List of Subjects in 5 CFR Parts 550 and 

892 

Administrative practice and 

procedure, Claims, Government 

employees, Wages, Health insurance, 

and Taxes. 

U.S. Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, the interim rule 

amending 5 CFR parts 550 and 892 

which was published at 71 FR 66827 on 

November 17, 2006, is adopted as final 

with the following change: 

PART 550—PAY ADMINISTRATION 

(GENERAL) 

Subpart C—Allotments From Federal 

Employees 

■ 1. The authority citation for subpart C 

of part 550 continues to read as follows: 

Authority: 5 U.S.C. 5527; E.O. 10982, 3 

CFR 1959–1963 Comp., p.502. 


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