This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

54075 

Vol. 73, No. 182 

Thursday, September 18, 2008 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 752 

RIN 3206–AL39 

Adverse Actions 

AGENCY: Office of Personnel 

Management. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Office of Personnel 

Management (OPM) proposes to amend 

its regulations governing Federal 

adverse actions. The proposed 

amendments would clarify the adverse 

action rules regarding reductions in pay 

and indefinite suspension. In addition, 

OPM proposes to remove unnecessary 

subparts pertaining to statutory 

requirements, make a number of 

technical corrections, and utilize 

consistent language for similar 

regulatory requirements. OPM also 

proposes various revisions to make the 

regulations more readable. 

DATES: Submit comments on or before 

November 17, 2008. 

ADDRESSES: Send or deliver written 

comments to Ana A. Mazzi, Deputy 

Associate Director for Workforce 

Relations and Accountability Policy, 

Office of Personnel Management, 1900 E 

Street, NW., Room 7H28, Washington, 

DC 20415; by FAX to 202–606–2613; or 

by e-mail to CWRAP@opm.gov. 

FOR FURTHER INFORMATION CONTACT: 

Sharon L. Mayhew by telephone at (202) 

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

by e-mail at CWRAP@opm.gov. 

SUPPLEMENTARY INFORMATION: Sections 

7504, 7514, and 7543(a) of title 5, 

United States Code (U.S.C.), provide the 

statutory authority for OPM to prescribe 

regulations pertaining to adverse 

actions. These regulations are found at 

title 5, Code of Federal Regulations 

(CFR), part 752, and are the subject of 

this proposed rule. 

Amendment To Clarify Adverse Action 

Rules Regarding Reduction in Pay 

A reduction in pay is an adverse 

action covered by chapter 75 of title 5, 

United States Code. (See 5 U.S.C. 

7512(4).) Under current adverse action 

regulations, ‘‘pay’’ is defined as the rate 

of basic pay exclusive of additional pay 

of any kind. (See definition of ‘‘pay’’ in 

5 CFR 752.402.) Thus any pay 

supplement, such as a locality payment 

or special rate supplement is not 

considered part of basic pay in 

determining whether a reduction in pay 

and thus an adverse action has 

occurred. 

The Federal Workforce Flexibility Act 

of 2004 (the Act) (Pub. L. 108–411, 

October 30, 2004) created new pay 

administration rules for Federal 

employees covered by chapter 53 of title 

5, United States Code—i.e., employees 

in the General Schedule (GS) pay 

system and the Federal Wage System 

(FWS). Among other purposes, this Act 

modified pay administration rules to 

correct anomalies that created 

unwarranted pay increases or 

reductions for certain employees. The 

Act also established the principle that, 

in cases where an employee’s official 

duty station is moved to a new location 

where different pay schedules apply, 

the employee’s pay will be treated as if 

the position he or she is leaving were at 

the new location, before processing 

other pay actions. (See 5 U.S.C. 5305(i), 

5334(g), and 5363(c) and OPM 

regulations published on May 31, 2005, 

70 FR 31278.) 

Implementation of the Act’s 

provisions on locality pay, special rates, 

and pay retention resolves the problem 

of unwarranted increases and 

reductions. However, in certain limited 

situations, the new pay rules established 

under the Act, by design, can result in 

a reduction of an employee’s ‘‘basic’’ or 

base rate of pay even while protecting 

the employee’s total salary rate. Such a 

reduction may occur when a personnel 

action changes an employee’s pay 

entitlement from a rate of basic pay 

without any supplement to an adjusted 

rate of basic pay consisting of a base rate 

and a basic pay supplement (i.e., 

locality payment or special rate 

supplement for a GS employee). 

For example, an employee may 

change positions and move from the 

Federal Wage System (FWS), in which 

the locality pay adjustment is 

essentially incorporated within the rate 

of basic pay, to the GS pay system, 

which often provides a separate 

supplement (locality payment or special 

rate supplement) on top of the rate of 

basic pay. Under the new pay 

administration rules in effect as a result 

of Public Law 108–411, the FWS rate 

(after applying geographic pay 

conversion as necessary) is compared to 

GS supplement-adjusted rates. If an 

FWS-to-GS movement is involuntary, 

pay retention would apply and the GS 

total pay rate (including any 

supplement) would be set at a rate equal 

to or greater than the FWS rate. 

However, the new GS basic rate 

excluding the supplement may be lower 

than the FWS rate. 

Another example involves a change of 

pay entitlements within the same pay 

system. A GS employee may be entitled 

to a retained rate, which is a rate of 

basic pay without any supplement, and 

then, as the result of a personnel or pay 

action, the employee may cease to be 

entitled to the retained rate. In such 

case, the employee would receive an 

adjusted rate consisting of a base rate 

and a supplement. If the supplement is 

not considered, the employee could be 

viewed as having a reduction in basic 

pay—even though there is no reduction 

in the total rate of pay and the rate is 

being correctly set in accordance with 

the new applicable pay administration 

rules. 

Public Law 108–411 also provided 

that pay retention would no longer 

apply when an FWS employee is 

involuntarily reassigned to a different 

geographic location where a lower wage 

schedule applies. While the FWS 

employee keeps the same grade and 

step, the employee’s wage rate will be 

lower. Under 5 U.S.C. 5363, as amended 

by Public Law 108–411, the FWS 

employee is not entitled to pay retention 

when the reduction is attributable to a 

geographic move. This is consistent 

with the treatment of GS employees 

who may become entitled to a lower 

locality payment due to a geographic 

move and who are also not entitled to 

pay retention. Thus, the FWS 

employee’s pay reduction occurs by 

operation of law as a result of 

geographic pay conversion. 

In the examples cited above, pay is 

being correctly set under the new law 

and applicable pay administration rules. 

While paragraph (b)(15) of 5 CFR 


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752.401 currently excludes from adverse 

action coverage any ‘‘[r]eduction of an 

employee’s rate of basic pay from a rate 

that is contrary to law or regulation,’’ we 

believe the clarity of the regulations 

would be enhanced by specifically 

excluding from coverage those actions 

that result from compliance with the 

new pay-setting requirements of Public 

Law 108–411. 

Accordingly, we are proposing to 

amend 5 CFR 752.401(b)(15), to clarify 

that a reduction in an employee’s rate of 

basic pay resulting from the application 

of Public Law 108–411 and 

implementing regulations is excluded 

from adverse action coverage. 

Amendments To Clarify Adverse Action 

Rules Regarding Indefinite Suspension 

Background 

Indefinite suspensions involve the 

placing of an employee in a temporary 

status without duties and pay pending 

an investigation, inquiry, or further 

agency action. An indefinite suspension 

continues for an indeterminate period of 

time and ends with the completion of 

the pending condition subsequent set 

forth in the notice of proposed action. 

That pending condition may include, 

for example, a criminal or 

administrative investigation and any 

subsequent administrative action taken. 

An indefinite suspension is an 

infrequently utilized but critical option 

when public employees are being 

investigated or charged with serious 

criminal offenses, or are under 

investigation for other serious or 

egregious misconduct. With these 

regulations and supplementary 

materials, OPM clarifies that a portion 

of 5 U.S.C. 7513(b)(1), frequently 

referred to as the ‘‘crime provision,’’ is 

exclusively a notice provision. It does 

not set a higher standard for indefinite 

suspensions than for other adverse 

actions. 

Specifically, in the vast majority of 

adverse actions, thirty (30) days’ 

advance written notice to the employee 

is required. However, the law carves out 

a narrow exception to that 30 days’ 

advance notice requirement in those 

limited situations where there is 

reasonable cause to believe that the 

employee has committed a crime for 

which a sentence of imprisonment may 

be imposed. This notice exception has 

sometimes been erroneously interpreted 

to establish an entirely new and 

different ‘‘reasonable cause’’ review 

standard for indefinite suspensions in 

general. That standard, however, only 

applies to the determination of whether 

the 30-day notice period may be 

shortened. Like all other adverse 

actions, indefinite suspensions must 

meet the statutory requirement of 

promoting the efficiency of the service. 

Moreover, indefinite suspensions are 

not restricted to occasions when 

employees have been indicted for a 

criminal offense. Indefinite suspensions 

may also be warranted when an 

employee is under investigation for 

other serious misconduct that, if proven 

to be true, would warrant removal 

when, for example, the employee is 

under investigation for an allegation of 

conduct posing a significant risk to the 

life, health or safety of others, 

government or public property, the 

effective accomplishment of the 

agency’s operations, national security or 

privacy interests. An indefinite 

suspension with a 30-day notice period 

in these instances may be appropriate to 

ensure the efficiency of the service by 

maintaining public trust in the Federal 

workforce. It may also be appropriate 

when, for example, the employee is 

under investigation based on an 

allegation that the employee poses a risk 

to the health or safety of others, the 

employee’s security clearance has been 

suspended or revoked, or the 

employee’s fitness-for-duty examination 

or determination is pending. 

OPM’s interpretation of the ‘‘crime 

provision’’ in 5 U.S.C. 7513(b) recently 

was affirmed by the U.S. Court of 

Appeals for the Federal Circuit in Perez 

v. Department of Justice, 480 F.3d 1309, 

1313 (Fed.Cir. 2007). In this case, the 

Court held that section 7513(b) ‘‘is 

solely a notice provision, and it 

provides an exception to the 30-day 

notice requirement for all the types of 

adverse actions specified in 5 U.S.C. 

7512(2) if the agency has reasonable 

cause to believe an employee has 

committed a crime for which 

imprisonment may be imposed.’’ Id. 

Thus, reasonable cause is only required 

if the agency provides the employee less 

than a 30-day notice period in its notice 

of proposed action. Id. The Federal 

Circuit further confirmed that adverse 

actions, including indefinite 

suspensions, must ‘‘promote the 

efficiency of the service,’’ noting that 

arbitrary action against an employee 

would not satisfy that standard. Id. 

Accordingly, to clarify that the ‘‘crime 

provision’’ is only an exception to the 

general 30-day notice requirement for 

taking adverse actions and is not a 

separate standard of proof for indefinite 

suspensions, OPM therefore proposes to 

specify in paragraph (a) of 5 CFR 

752.403 that an indefinite suspension is 

an adverse action an agency may take to 

promote the efficiency of the service. 

OPM also proposes to include the term 

‘‘indefinite suspension’’ in paragraph 

(b)(1) of 5 CFR 752.404, ‘‘Notice of 

proposed action,’’ to emphasize that an 

indefinite suspension is to be taken in 

the same manner as any other adverse 

action under that subpart. Additionally, 

OPM proposes to add a new paragraph 

(c) to 5 CFR 752.403, ‘‘Standard for 

Action,’’ to clarify the applicable 

standard for indefinite suspensions 

when 30 days notice is provided to the 

employee. 

Amendments To Modify and Clarify 

Adverse Actions Rules Under the 

Senior Executive Service 

Section 752.604 sets forth the 

procedures to be followed for SES 

adverse actions under 5 U.S.C. chapter 

75. Revising the regulations to make 

them more comprehensible, OPM 

proposes to delete redundant sections 

and change the placement of some 

information to make it more clear and 

accessible to agencies and employees. 

We further propose four additional 

amendments to the SES regulations. 

First, we propose to add a new 

§ 752.604(f), ‘‘Agency review of medical 

information,’’ to explain agency 

authority and responsibilities in 

obtaining and reviewing medical 

information as provided under 5 CFR 

339.301 and 339.302. Second, we 

propose to add a new § 752.604(h) to 

address applications for disability 

retirement and their effect on adverse 

actions. These two sections mirror the 

provisions currently provided in the 

regulations applicable to non-SES 

employees. Third, as a result of adding 

these new sections, we have 

redesignated the former § 752.604(f) as 

§ 752.604(g), and added language to 

clarify procedural rights. Fourth, we 

propose to modify § 752.606 Agency 

Records to specify the documentation 

that should be maintained in the 

agency’s record, and we are proposing a 

similar modification to the provisions 

applicable to non-SES employees 

(§ 752.406). 

Amendments To Update Definitions 

Formatting 

The Federal Register Document 

Drafting Handbook recommends a 

particular format for CFR definitions 

sections. Accordingly, we take this 

opportunity to propose revising 

§§ 752.201 and 752.402 by removing the 

letter designations and placing the terms 

in alphabetical order. 

Amendments To Correct Statutory and 

Regulatory References 

Section 752.201 addresses actions 

excluded from coverage under 5 U.S.C. 

chapter 75. Section 752.201(c)(2) 

excludes actions taken for national 


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Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Proposed Rules 54077 

security reasons but erroneously cites 5 

U.S.C. 7531 as the authority under 

which an agency may take action. 

Section 7531 of title 5, U.S. Code, 

addresses the definition of ‘‘agency.’’ 

The correct citation is 5 U.S.C. 7532, 

which describes suspensions and 

removals for national security reasons. 

Accordingly, we propose to correct the 

citation. 

In addition, section 752.201(c)(3) 

excluded actions taken under a 

provision of statute, other than one 

codified in title 5, U.S. Code, which 

excepts the action from subchapter I, 

chapter 75 of title 5, U.S. Code. In light 

of recent statutory amendments 

authorizing establishment of alternative 

personnel systems within title 5, U.S. 

Code, such as for the Department of 

Homeland Security and the Department 

of Defense, this exclusion is too narrow. 

We propose to modify this section to 

exclude actions excepted by law, 

regardless of whether such law is 

codified in title 5, U.S. Code. For the 

same reason, we propose to make the 

same modification in § 752.401(b)(7). 

Section 752.203 describes procedures 

for actions taken under 5 U.S.C. chapter 

75. Section 752.203(f), ‘‘Grievances,’’ 

erroneously cites 5 U.S.C 7121(b)(3) as 

governing representation for an 

employee in an exclusive bargaining 

unit. Section 7121(b)(3) was removed 

when the law was amended in 1997. 

The correct citation is 5 U.S.C. 

7121(b)(1)(C). This correction also 

applies to § 752.405(b). Accordingly, we 

propose to correct these citations. 

Section 752.401(b) sets forth actions 

excluded from coverage under 5 U.S.C. 

chapter 75. Section 752.401(b)(1) 

excludes actions ‘‘imposed by the Merit 

Systems Protection Board,’’ and it 

erroneously cites 5 U.S.C. 1206 as the 

authority under which the Board may 

take actions. Instead, 5 U.S.C. 1206 

addresses the annual reporting 

requirement for the MSPB. The correct 

citation is 5 U.S.C. 1215. Accordingly, 

we propose to correct the citation. 

The current § 752.401(c)(3) references 

covered employees in the Postal Rate 

Commission. The Postal Accountability 

and Enhancement Act (Pub. L. 109–435) 

which was signed into law on December 

20, 2006, changed the name of the 

Postal Rate Commission to the Postal 

Regulatory Commission. We propose to 

reflect the current name in the 

regulations at paragraph (c)(3) and in 

paragraph (d)(9) of section 752.401. 

Section 752.401(d) describes 

employees excluded from coverage 

under 5 U.S.C. chapter 75. Section 

752.401(d)(5) excludes technicians in 

the National Guard from coverage, and 

it erroneously cites 32 U.S.C. 709(b) as 

the authority for the exclusion. The 

correct citation is 32 U.S.C. 709(a). 

Similarly, § 752.401(d)(8) excludes 

employees of the Veterans Health 

Administration (Department of Veterans 

Affairs) from coverage and it 

erroneously cites 5 U.S.C. 7401(3) as an 

exception to the exclusion. Section 

7401(3) does not exist. The correct 

citation is 38 U.S.C. 7401(3). 

Accordingly, we propose to correct 

these citations. Finally, § 752.401(d)(9) 

excludes nonpreference eligibles in 

specified Department of Defense 

intelligence components or activities. 

This exclusion was based on 5 U.S.C. 

7511(b)(8) which was amended in 1996 

by Public Law 104–201 to modify the 

reference to title 10, U.S. Code. We 

propose to amend § 752.401(d)(9) to 

reflect the current statutory provision. 

Section 752.404 explains the 

procedures for actions taken under 5 

U.S.C. chapter 75. Section 752.404(b)(1) 

makes reference to a prohibition against 

releasing certain medical information to 

an employee. That prohibition no longer 

exists. Accordingly, we propose to 

remove this language. For the same 

reason we propose to make the same 

modification in § 752.604(b). The 

requirement in §§ 752.404(b)(1) and 

752.604(b) that an employee be 

informed of his or her right to review 

the material relied on to support the 

action is retained. Section 752.404(c)(3) 

addresses medical documentation 

submitted as a part of the employee’s 

answer and erroneously cites 5 CFR 

339.102 for the definition of medical 

documentation. Section 339.102 states 

the purpose and effect of acquiring 

medical documentation. Instead, 

§ 339.104 defines ‘‘medical 

documentation’’ and is the correct cite. 

Similarly, § 752.404(h) addresses 

applications for disability retirement 

and erroneously cites § 831.501(d), 

which does not exist. The correct 

citation is § 831.1204(e). 

In addition, 5 CFR 752.404(h) 

erroneously cites § 831.1203 as 

providing the basis under which 

agencies shall file an application for 

disability retirement on behalf of an 

employee. Section 831.1203 describes 

the basic requirements for disability 

retirement. The correct citation is 

§ 831.1205, which addresses agencyfiled disability retirement applications. 

Accordingly, we propose to correct 

these citations. 

Section 752.601 addresses coverage 

under 5 U.S.C. chapter 75. Section 

752.601(a)(2) excludes actions taken 

under other authorities in title 5, United 

States Code, and erroneously cites 5 

U.S.C. 1206(g) as one of the exclusions. 

This section, however, does not exist. 

The correct citation is 5 U.S.C. 1215. 

Section 1215 describes disciplinary 

actions imposed by the MSPB. 

Accordingly, we propose to correct this 

citation. 

Amendment To Remove Subparts A, C, 

and E 

In an effort to streamline and make 

more readable our regulations at 5 CFR 

part 752, OPM proposes to remove three 

superfluous subparts. Subparts A, C, 

and E merely reprint the sections of the 

United States Code that are the basis of 

the regulations found at 5 CFR part 752, 

subparts B, D, and F. OPM proposes to 

remove this material and reserve 

subparts A, C, and E. 

Amendments to Adverse Action 

Procedures 

Section 752.404 sets forth the 

procedures to be followed for adverse 

actions under 5 U.S.C. chapter 75. 

Revising the regulations to make them 

more comprehensible, OPM proposes to 

delete redundant sections and change 

the placement of some information to 

make it more clear and accessible to 

agencies and employees. 

In addition, we propose to modify 

§ 752.406, Agency Records, to clearly 

identify the documentation that should 

be maintained in the agency’s record 

consistent with the law. An identical 

modification is proposed for §§ 752.203 

and 752.606. 

Amendments To Adopt Regulatory 

Language 

In addition to the above substantive 

changes, OPM proposes to rewrite the 

regulations in 5 CFR part 752 to replace 

most instances of the word ‘‘shall’’ with 

appropriate regulatory equivalents, such 

as ‘‘must’’ or ‘‘will.’’ This is undertaken 

in an effort to differentiate regulatory 

from legislative language. In no case do 

these modifications change the meaning 

or intent of the regulation. 

Amendments To Adopt Consistent 

Language for Similar Provisions 

Similar regulatory provisions were 

stated somewhat differently throughout 

the various sections of the regulations 

(e.g., subparts B, D, and F). Where 

applicable, we have proposed to utilize 

consistent language for similar 

regulatory requirements without altering 

the intent of the regulations. 

Public Participation 

OPM invites interested persons to 

participate in this proposed rulemaking 

by submitting written comments, data, 

or views. 

Before finalizing these proposed 

amendments, we will consider all 


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54078 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Proposed Rules 

comments received on or before the 

closing date for comments. We will 

consider comments filed late if it is 

possible to do so without incurring 

expense or delay. We may change these 

proposed amendments in light of the 

comments we receive. 

E.O. 12866, Regulatory Review 

The Office of Management and Budget 

has reviewed this rule in accordance 

with E.O. 12866. 

Regulatory Flexibility Act 

OPM has determined these 

amendments will not have a significant 

economic impact on a substantial 

number of small entities because they 

will apply only to Federal agencies and 

employees. 

List of Subjects in 5 CFR Part 752 

Administrative practice and 

procedure, Government employees. 

Office of Personnel Management. 

Michael W. Hager, 

Acting Director. 

Accordingly, OPM proposes to revise 

part 752 of title 5, Code of Federal 

Regulations, as follows: 

PART 752—ADVERSE ACTIONS 

Subpart A—[Removed and Reserved] 

Subpart B—Regulatory Requirements for 

Suspension for 14 Days or Less 

Sec. 

752.201 Coverage. 

752.202 Standard for action. 

752.203 Procedures. 

Subpart C—[Removed and Reserved] 

Subpart D—Regulatory Requirements for 

Removal, Suspension for More Than 14 

Days, Reduction in Grade or Pay, or 

Furlough for 30 Days or Less 

Sec. 

752.401 Coverage. 

752.402 Definitions. 

752.403 Standard for action. 

752.404 Procedures. 

752.405 Appeal and grievance rights. 

752.406 Agency records. 

Subpart E—[Removed and Reserved] 

Subpart F—Regulatory Requirements for 

Taking Adverse Actions Under the Senior 

Executive Service 

Sec. 

752.601 Coverage. 

752.602 Definitions. 

752.603 Standard for action. 

752.604 Procedures. 

752.605 Appeal rights. 

752.606 Agency records. 

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

Subpart A—[Removed and Reserved] 

Subpart B—Regulatory Requirements 

for Suspension for 14 Days or Less 

§ 752.201 Coverage. 

(a) Adverse actions covered. This 

subpart covers suspension for 14 days or 

less. 

(b) Employees covered. This subpart 

covers: 

(1) An employee in the competitive 

service who has completed a 

probationary or trial period; 

(2) An employee in the competitive 

service serving in an appointment 

which requires no probationary or trial 

period, and who has completed 1 year 

of current continuous employment in 

the same or similar positions under 

other than a temporary appointment 

limited to 1 year or less; 

(3) An employee with competitive 

status who occupies a position under 

Schedule B of part 213 of this chapter; 

(4) An employee who was in the 

competitive service at the time his or 

her position was first listed under 

Schedule A, B, or C of the excepted 

service and still occupies that position; 

(5) An employee of the Department of 

Veterans Affairs appointed under 

section 7401(3) of title 38, United States 

Code; and 

(6) An employee of the Government 

Printing Office. 

(c) Exclusions. This subpart does not 

apply to a suspension for 14 days or 

less: 

(1) Of an administrative law judge 

under 5 U.S.C. 7521; 

(2) Taken for national security reasons 

under 5 U.S.C. 7532; 

(3) Taken under any other provision 

of law which excepts the action from 

subchapter I, chapter 75, of title 5, U.S. 

Code; 

(4) Of a reemployed annuitant; or 

(5) Of a National Guard Technician. 

(d) Definitions. In this subpart— 

Current continuous employment 

means a period of employment 

immediately preceding a suspension 

action without a break in Federal 

civilian employment of a workday. 

Day means a calendar day. 

Similar positions means positions in 

which the duties performed are similar 

in nature and character and require 

substantially the same or similar 

qualifications, so that the incumbent 

could be interchanged between the 

positions without significant training or 

undue interruption to the work. 

Suspension means the placing of an 

employee, for disciplinary reasons, in a 

temporary status without duties and 

pay. 

§ 752.202 Standard for action. 

(a) An agency may take action under 

this subpart for such cause as will 

promote the efficiency of the service as 

set forth in 5 U.S.C. 7503(a). 

(b) An agency may not take a 

suspension against an employee on the 

basis of any reason prohibited by 5 

U.S.C. 2302. 

§ 752.203 Procedures. 

(a) Statutory entitlements. An 

employee under this subpart whose 

suspension is proposed under this 

subpart is entitled to the procedures 

provided in 5 U.S.C. 7503(b). 

(b) Notice of proposed action. The 

notice must state the specific reason(s) 

for the proposed action, and inform the 

employee of his or her right to review 

the material which is relied on to 

support the reasons for action given in 

the notice. 

(c) Employee’s answer. The employee 

must be given a reasonable time, but not 

less than 24 hours, to answer orally and 

in writing and to furnish affidavits and 

other documentary evidence in support 

of the answer. 

(d) Representation. An employee 

covered by this subpart is entitled to be 

represented by an attorney or other 

representative. An agency may disallow 

as an employee’s representative an 

individual whose activities as 

representative would cause a conflict of 

interest or position, or an employee of 

the agency whose release from his or her 

official position would give rise to 

unreasonable costs or whose priority 

work assignments preclude his or her 

release. 

(e) Agency decision. (1) In arriving at 

its decision, the agency will consider 

only the reasons specified in the notice 

of proposed action and any answer of 

the employee or his or her 

representative, or both, made to a 

designated official. 

(2) The agency must specify in writing 

the reason(s) for the decision and advise 

the employee of any grievance rights 

under paragraph (f) of this section. The 

agency must deliver the notice of 

decision to the employee on or before 

the effective date of the action. 

(f) Grievances. The employee may file 

a grievance through an agency 

administrative grievance system (if 

applicable) or, if the suspension falls 

within the coverage of an applicable 

negotiated grievance procedure, an 

employee in an exclusive bargaining 

unit may file a grievance only under 

that procedure. Sections 7114(a)(5) and 

7121(b)(1)(C) of title 5, U.S. Code, and 

the terms of any collective bargaining 

agreement, govern representation for 

employees in an exclusive bargaining 


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unit who grieve a suspension under this 

subpart through the negotiated 

grievance procedure. 

(g) Agency records. The agency must 

maintain copies of, and will furnish to 

the Merit Systems Protection Board and 

to the employee upon their request, the 

following documents: 

(1) Notice of the proposed action; 

(2) Employee’s written reply, if any; 

(3) Summary of the employee’s oral 

reply, if any; 

(4) Notice of decision; and 

(5) Any order effecting the 

suspension, together with any 

supporting material. 

Subpart C—[Removed and Reserved] 

Subpart D—Regulatory Requirements 

for Removal, Suspension for More 

Than 14 Days, Reduction in Grade or 

Pay, or Furlough for 30 Days or Less 

§ 752.401 Coverage. 

(a) Adverse actions covered. This 

subpart applies to the following actions: 

(1) Removals; 

(2) Suspensions for more than 14 

days, including indefinite suspensions; 

(3) Reductions in grade; 

(4) Reductions in pay; and 

(5) Furloughs of 30 days or less. 

(b) Actions excluded. This subpart 

does not apply to: 

(1) An action imposed by the Merit 

Systems Protection Board under the 

authority of 5 U.S.C. 1215; 

(2) The reduction in grade of a 

supervisor or manager who has not 

completed the probationary period 

under 5 U.S.C. 3321(a)(2) if such a 

reduction is to the grade held 

immediately before becoming a 

supervisor or manager; 

(3) A reduction-in-force action under 

5 U.S.C. 3502; 

(4) A reduction in grade or removal 

under 5 U.S.C. 4303; 

(5) An action against an 

administrative law judge under 5 U.S.C. 

7521; 

(6) A suspension or removal under 5 

U.S.C. 7532; 

(7) Actions taken under any other 

provision of law which excepts the 

action from subchapter II of chapter 75 

of title 5, United States Code; 

(8) Action that entitles an employee to 

grade retention under part 536 of this 

chapter, and an action to terminate this 

entitlement; 

(9) A voluntary action by the 

employee; 

(10) Action taken or directed by the 

Office of Personnel Management under 

part 731 of this chapter; 

(11) Termination of appointment on 

the expiration date specified as a basic 

condition of employment at the time the 

appointment was made; 

(12) Action that terminates a 

temporary or term promotion and 

returns the employee to the position 

from which temporarily promoted, or to 

a different position of equivalent grade 

and pay, if the agency informed the 

employee that it was to be of limited 

duration; 

(13) Cancellation of a promotion to a 

position not classified prior to the 

promotion; 

(14) Placement of an employee 

serving on an intermittent or seasonal 

basis in a temporary nonduty, nonpay 

status in accordance with conditions 

established at the time of appointment; 

or 

(15) Reduction of an employee’s rate 

of basic pay from a rate that is contrary 

to law or regulation, including a 

reduction necessary to comply with the 

amendments made by Public Law 108– 

411, regarding pay-setting under the 

General Schedule and Federal Wage 

System and regulations implementing 

those amendments. 

(c) Employees covered. This subpart 

covers: 

(1) A career or career conditional 

employee in the competitive service 

who is not serving a probationary or 

trial period; 

(2) An employee in the competitive 

service who has completed 1 year of 

current continuous service under other 

than a temporary appointment limited 

to 1 year or less; 

(3) An employee in the excepted 

service who is a preference eligible in 

an Executive agency as defined at 

section 105 of title 5, United States 

Code, the U.S. Postal Service, or the 

Postal Regulatory Commission and who 

has completed 1 year of current 

continuous service in the same or 

similar positions; 

(4) A Postal Service employee covered 

by Public Law 100–90 who has 

completed 1 year of current continuous 

service in the same or similar positions 

and who is either a supervisory or 

management employee or an employee 

engaged in personnel work in other than 

a purely nonconfidential clerical 

capacity; 

(5) An employee in the excepted 

service who is a nonpreference eligible 

in an Executive agency as defined at 

section 105 of title, 5, United States 

Code, and who has completed 2 years of 

current continuous service in the same 

or similar positions under other than a 

temporary appointment limited to 2 

years or less; 

(6) An employee with competitive 

status who occupies a position in 

Schedule B of part 213 of this chapter; 

(7) An employee who was in the 

competitive service at the time his or 

her position was first listed under 

Schedule A, B, or C of the excepted 

service and who still occupies that 

position; 

(8) An employee of the Department of 

Veterans Affairs appointed under 

section 7401(3) of title 38, United States 

Code; and 

(9) An employee of the Government 

Printing Office. 

(d) Employees excluded. This subpart 

does not apply to: 

(1) An employee whose appointment 

is made by and with the advice and 

consent of the Senate; 

(2) An employee whose position has 

been determined to be of a confidential, 

policy-determining, policy-making, or 

policy-advocating character by the 

President for a position that the 

President has excepted from the 

competitive service; the Office of 

Personnel Management for a position 

that the Office has excepted from the 

competitive service (Schedule C); or the 

President or the head of an agency for 

a position excepted from the 

competitive service by statute; 

(3) A Presidential appointee; 

(4) A reemployed annuitant; 

(5) A technician in the National Guard 

described in section 8337(h)(1) of title 5, 

United States Code, who is employed 

under section 709(a) of title 32, United 

States Code; 

(6) A Foreign Service member as 

described in section 103 of the Foreign 

Service Act of 1980; 

(7) An employee of the Central 

Intelligence Agency or the Government 

Accountability Office; 

(8) An employee of the Veterans 

Health Administration (Department of 

Veterans Affairs) in a position which 

has been excluded from the competitive 

service by or under a provision of title 

38, United States Code, unless the 

employee was appointed to the position 

under section 7401(3) of title 38, United 

States Code; 

(9) A nonpreference eligible employee 

with the U.S. Postal Service, the Postal 

Regulatory Commission, the Panama 

Canal Commission, the Tennessee 

Valley Authority, the Federal Bureau of 

Investigation, the National Security 

Agency, the Defense Intelligence 

Agency, or any other intelligence 

component of the Department of 

Defense (as defined in section 1614 of 

title 10, United States Code), or an 

intelligence activity of a military 

department covered under subchapter I 

of chapter 83 of title 10, United States 

Code; 

(10) An employee described in section 

5102(c)(11) of title 5, United States 


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Code, who is an alien or noncitizen 

occupying a position outside the United 

States; 

(11) A nonpreference eligible 

employee serving a probationary or trial 

period under an initial appointment in 

the excepted service pending 

conversion to the competitive service, 

unless he or she meets the requirements 

of paragraph (c)(5) of this section; 

(12) An employee whose agency or 

position has been excluded from the 

appointing provisions of title 5, United 

States Code, by separate statutory 

authority in the absence of any 

provision to place the employee within 

the coverage of chapter 75 of title 5, 

United States Code; and 

(13) An employee in the competitive 

service serving a probationary or trial 

period, unless he or she meets the 

requirements of paragraph (c)(2) of this 

section. 

§ 752.402 Definitions. 

Current continuous employment 

means a period of employment or 

service immediately preceding an 

adverse action without a break in 

Federal civilian employment of a 

workday. 

Day means a calendar day. 

Furlough means the placing of an 

employee in a temporary status without 

duties and pay because of lack of work 

or funds or other nondisciplinary 

reasons. 

Grade means a level of classification 

under a position classification system. 

Indefinite suspension means the 

placing of an employee in a temporary 

status without duties and pay pending 

investigation, inquiry, or further agency 

action. The indefinite suspension 

continues for an indeterminate period of 

time and ends with the occurrence of 

the pending conditions set forth in the 

notice of action which may include the 

completion of any subsequent 

administrative action. 

Pay means the rate of basic pay fixed 

by law or administrative action for the 

position held by the employee, that is, 

the rate of pay before any deductions 

and exclusive of additional pay of any 

kind. 

Similar positions means positions in 

which the duties performed are similar 

in nature and character and require 

substantially the same or similar 

qualifications, so that the incumbent 

could be interchanged between the 

positions without significant training or 

undue interruption to the work. 

Suspension means the placing of an 

employee, for disciplinary reasons, in a 

temporary status without duties and pay 

for more than 14 days. 

§ 752.403 Standard for action. 

(a) An agency may take an adverse 

action, including a performance-based 

adverse action or an indefinite 

suspension, under this subpart only for 

such cause as will promote the 

efficiency of the service. 

(b) An agency may not take an adverse 

action against an employee on the basis 

of any reason prohibited by 5 U.S.C. 

2302. 

(c) An agency may indefinitely 

suspend an employee, without invoking 

the crime provision in § 752.404(d)(1) of 

this part when, for example— 

(1) The employee’s fitness-for-duty 

examination or determination is 

pending; or 

(2) The employee is under 

investigation for serious misconduct 

that, if proven to be true, would warrant 

removal, such as when the employee is 

alleged to have engaged in conduct 

posing a significant, ongoing risk to: 

(i) The life, health or safety of self or 

others; 

(ii) Government or public property 

including, but not limited to, 

information technology systems; 

(iii) The effective accomplishment of 

the agency’s operations; 

(iv) National security; or 

(v) Privacy interests. 

§ 752.404 Procedures. 

(a) Statutory entitlements. An 

employee against whom action is 

proposed under this subpart is entitled 

to the procedures provided in 5 U.S.C. 

7513(b). 

(b) Notice of proposed action. (1) An 

employee against whom an action, 

including an indefinite suspension, is 

proposed is entitled to at least 30 days’ 

advance written notice unless there is 

an exception pursuant to § 752.404(d) of 

this part. The notice must state the 

specific reason(s) for the proposed 

action, and inform the employee of his 

or her right to review the material which 

is relied on to support the reasons for 

action given in the notice. 

(2) When some but not all employees 

in a given competitive level are being 

furloughed, the notice of proposed 

action must state the basis for selecting 

a particular employee for furlough, as 

well as the reasons for the furlough. 

(3) Under ordinary circumstances, an 

employee whose removal or suspension, 

including indefinite suspension, has 

been proposed will remain in a duty 

status in his or her regular position 

during the advance notice period. In 

those rare circumstances where the 

agency determines that the employee’s 

continued presence in the workplace 

during the notice period may pose a 

threat to the employee or others, result 

in loss of or damage to Government 

property, or otherwise jeopardize 

legitimate Government interests, the 

agency may elect one or a combination 

of the following alternatives: 

(i) Assigning the employee to duties 

where he or she is no longer a threat to 

safety, the agency mission, or to 

Government property; 

(ii) Allowing the employee to take 

leave, or carrying him or her in an 

appropriate leave status (annual, sick, 

leave without pay, or absence without 

leave) if the employee has absented 

himself or herself from the worksite 

without requesting leave; 

(iii) Curtailing the notice period when 

the agency can invoke the provisions of 

§ 752.404(d)(1) of this part; or 

(iv) Placing the employee in a paid, 

nonduty status for such time as is 

necessary to effect the action. 

(c) Employee’s answer. (1) An 

employee may answer orally and in 

writing except as provided in paragraph 

(c)(2) of this section. The agency must 

give the employee a reasonable amount 

of official time to review the material 

relied on to support its proposed action, 

to prepare an answer orally and in 

writing, and to secure affidavits, if the 

employee is in an active duty status. 

The agency may require the employee to 

furnish any answer to the proposed 

action, and affidavits and other 

documentary evidence in support of the 

answer, within such time as would be 

reasonable, but not less than 7 days. 

(2) The agency will designate an 

official to hear the employee’s oral 

answer who has authority either to 

make or recommend a final decision on 

the proposed adverse action. The right 

to answer orally in person does not 

include the right to a formal hearing 

with examination of witnesses unless 

the agency provides for such hearing in 

its regulations. Under 5 U.S.C. 7513(c), 

the agency may, in its regulations, 

provide a hearing in place of or in 

addition to the opportunity for written 

and oral answer. 

(3) If the employee wishes the agency 

to consider any medical condition 

which may contribute to a conduct, 

performance, or leave problem, the 

employee must be given a reasonable 

time to furnish medical documentation 

(as defined in § 339.104 of this chapter) 

of the condition. Whenever possible, the 

employee will supply such 

documentation within the time limits 

allowed for an answer. 

(d) Exceptions. (1) Section 7513(b) of 

title 5, U.S. Code, authorizes an 

exception to the 30 days’ advance 

written notice when the agency has 

reasonable cause to believe that the 

employee has committed a crime for 


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which a sentence of imprisonment may 

be imposed and is proposing a removal 

or suspension, including indefinite 

suspension. This notice exception is 

commonly referred to as the ‘‘crime 

provision.’’ This provision may be 

invoked even in the absence of judicial 

action. 

(2) The advance written notice and 

opportunity to answer are not required 

for furlough without pay due to 

unforeseeable circumstances, such as 

sudden breakdowns in equipment, acts 

of God, or sudden emergencies requiring 

immediate curtailment of activities. 

(e) Representation. Section 7513(b)(3) 

of title 5, U.S. Code, provides that an 

employee covered by this part is 

entitled to be represented by an attorney 

or other representative. An agency may 

disallow as an employee’s 

representative an individual whose 

activities as representative would cause 

a conflict of interest or position, or an 

employee of the agency whose release 

from his or her official position would 

give rise to unreasonable costs or whose 

priority work assignments preclude his 

or her release. 

(f) Agency review of medical 

information. When medical information 

is supplied by the employee pursuant to 

paragraph (c)(3) of this section, the 

agency may, if authorized, require a 

medical examination under the criteria 

of § 339.301, or otherwise, at its option, 

offer a medical examination in 

accordance with the criteria of 

§ 339.302. If the employee has the 

requisite years of service under the Civil 

Service Retirement System or the 

Federal Employees Retirement System, 

the agency must provide information 

concerning disability retirement. The 

agency must be aware of the affirmative 

obligations of the provisions of 29 CFR 

1614.203, which require reasonable 

accommodation of a qualified 

individual with a disability. 

(g) Agency decision. (1) In arriving at 

its decision, the agency will consider 

only the reasons specified in the notice 

of proposed action and any answer of 

the employee or his or her 

representative, or both, made to a 

designated official and any medical 

documentation reviewed under 

paragraph (f) of this section. 

(2) The notice must specify in writing 

the reasons for the decision and advise 

the employee of any appeal or grievance 

rights under § 752.405 of this part. The 

agency must deliver the notice of 

decision to the employee on or before 

the effective date of the action. 

(h) Applications for disability 

retirement. Section 831.1204(e) of this 

chapter provides that an employee’s 

application for disability retirement 

need not delay any other appropriate 

personnel action. Section 831.1205 and 

section 844.202 of this chapter set forth 

the basis under which an agency must 

file an application for disability 

retirement on behalf of an employee. 

§ 752.405 Appeal and grievance rights. 

(a) Appeal rights. Under the 

provisions of 5 U.S.C. 7513(d), an 

employee against whom an action is 

taken under this subpart is entitled to 

appeal to the Merit Systems Protection 

Board. 

(b) Grievance rights. As provided at 5 

U.S.C. 7121(e)(1), if a matter covered by 

this subpart falls within the coverage of 

an applicable negotiated grievance 

procedure, an employee may elect to file 

a grievance under that procedure or 

appeal to the Merit Systems Protection 

Board under 5 U.S.C. 7701, but not both. 

Sections 7114(a)(5) and 7121(b)(1)(C) of 

title 5, U.S. Code, and the terms of an 

applicable collective bargaining 

agreement, govern representation for 

employees in an exclusive bargaining 

unit who grieve a matter under this 

subpart through the negotiated 

grievance procedure. 

§ 752.406 Agency records. 

The agency must maintain copies of, 

and will furnish to the Merit Systems 

Protection Board and to the employee 

upon their request, the following 

documents: 

(1) Notice of the proposed action; 

(2) Employee’s written reply, if any; 

(3) Summary of the employee’s oral 

reply, if any; 

(4) Agency notice of decision; and 

(5) Any order effecting the action, 

together with any supporting material. 

Subpart E—[Removed and Reserved] 

Subpart F—Regulatory Requirements 

for Taking Adverse Action Under the 

Senior Executive Service 

§ 752.601 Coverage. 

(a) Adverse actions covered. This 

subpart applies to suspensions for more 

than 14 days, including indefinite 

suspensions for more than 14 days, and 

removals from the civil service as set 

forth in 5 U.S.C. 7542. 

(b) Actions excluded. (1) An agency 

may not take a suspension action of 14 

days or less. 

(2) This subpart does not apply to 

actions taken under 5 U.S.C. 1215, 3592, 

3595, or 7532. 

(c) Employees covered. This subpart 

covers the following appointees: 

(1) A career appointee— 

(i) Who has completed the 

probationary period in the Senior 

Executive Service; 

(ii) Who is not required to serve a 

probationary period in the Senior 

Executive Service; or 

(iii) Who was covered under 5 U.S.C. 

7511 immediately before appointment 

to the Senior Executive Service. 

(2) A limited term or limited 

emergency appointee— 

(i) Who received the limited 

appointment without a break in service 

in the same agency as the one in which 

the employee held a career or careerconditional appointment (or an 

appointment of equivalent tenure as 

determined by the Office of Personnel 

Management) in a permanent civil 

service position outside the Senior 

Executive Service; and 

(ii) Who was covered under 5 U.S.C. 

7511 immediately before appointment 

to the Senior Executive Service. 

(d) Employees excluded. This subpart 

does not cover an appointee who is 

serving as a reemployed annuitant. 

§ 752.602 Definitions. 

In this subpart— 

Career appointee, limited term 

appointee, and limited emergency 

appointee have the meaning given in 5 

U.S.C. 3132(a). 

Day means calendar day. 

Suspension has the meaning given in 

5 U.S.C. 7501(2). 

§ 752.603 Standard for action. 

(a) An agency may take an adverse 

action under this subpart only for 

reasons of misconduct, neglect of duty, 

malfeasance, or failure to accept a 

directed reassignment or to accompany 

a position in a transfer of function. 

(b) An agency may not take an adverse 

action under this subpart on the basis of 

any reason prohibited by 5 U.S.C. 2302. 

§ 752.604 Procedures. 

(a) Statutory entitlements. An 

appointee against whom action is 

proposed under this subpart is entitled 

to the procedures provided in 5 U.S.C. 

7543(b). 

(b) Notice of proposed action. (1) An 

appointee against whom an action is 

proposed is entitled to at least 30 days’ 

advance written notice unless there is 

an exception pursuant to § 752.604(d) of 

this part. The notice must state the 

specific reason(s) for the proposed 

action, and inform the appointee of his 

or her right to review the material that 

is relied on to support the reasons for 

action given in the notice. 

(2) Under ordinary circumstances, an 

appointee whose removal has been 

proposed will remain in a duty status in 

his or her regular position during the 

advance notice period. In those rare 

circumstances where the agency 


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54082 Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / Proposed Rules 

determines that the appointee’s 

continued presence in the work place 

during the notice period may pose a 

threat to the appointee or others, result 

in loss of or damage to Government 

property, or otherwise jeopardize 

legitimate Government interests, the 

agency may elect one or a combination 

of the following alternatives: 

(i) Assigning the appointee to duties 

where he or she is no longer a threat to 

safety, the agency mission, or 

Government property; 

(ii) Allowing the appointee to take 

leave, or carrying him or her in an 

appropriate leave status (annual, sick, 

leave without pay, or absence without 

leave) if the appointee has absented 

himself or herself from the worksite 

without requesting leave; 

(iii) Curtailing the notice period when 

the agency can invoke the provisions of 

paragraph (d) of this section; or 

(iv) Placing the employee in a paid, 

nonduty status for such time as is 

necessary to effect the action. 

(c) Appointee’s answer. (1) The 

appointee may answer orally and in 

writing except as provided in 

§ 752.604(c)(2) of this part. The agency 

must give the appointee a reasonable 

amount of official time to review the 

material relied on to support its 

proposed action, to prepare an answer 

orally and in writing, and to secure 

affidavits, if the appointee is in an 

active duty status. The agency may 

require the appointee to furnish any 

answer to the proposed action, and 

affidavits and other documentary 

evidence in support of the answer, 

within such time as would be 

reasonable, but not less than 7 days. 

(2) The agency will designate an 

official to hear the appointee’s oral 

answer who has authority either to 

make or to recommend a final decision 

on the proposed adverse action. The 

right to answer orally in person does not 

include the right to a formal hearing 

with examination of witnesses unless 

the agency provides for such hearing in 

its regulations. Under 5 U.S.C. 7543(c), 

the agency may in its regulations 

provide a hearing in place of or in 

addition to the opportunity for written 

and oral answer. 

(3) If the appointee wishes the agency 

to consider any medical condition that 

may have affected the basis for the 

adverse action, the appointee must be 

given reasonable time to furnish 

medical documentation (as defined in 

§ 339.104 of this chapter) of the 

condition. Whenever possible, the 

appointee will supply such 

documentation within the time limits 

allowed for an answer. 

(d) Exception. Section 7543(b)(1) of 

title 5, U.S. Code, authorizes an 

exception to the 30 days’ advance 

written notice when the agency has 

reasonable cause to believe that the 

employee has committed a crime for 

which a sentence of imprisonment may 

be imposed and is proposing a removal 

or suspension, including indefinite 

suspension. This notice exception is 

commonly referred to as the ‘‘crime 

provision.’’ This provision may be 

invoked even in the absence of judicial 

action. 

(e) Representation. Section 7543(b)(3) 

of title 5, U.S. Code, provides that an 

appointee covered by this part is 

entitled to be represented by an attorney 

or other representative. An agency may 

disallow as an appointee’s 

representative an individual whose 

activities as representative would cause 

a conflict of interest or position, or an 

employee of the agency whose release 

from his or her official position would 

give rise to unreasonable costs or whose 

priority work assignments preclude his 

or her release. 

(f) Agency review of medical 

information. When medical information 

is supplied by the appointee pursuant to 

paragraph (c)(3) of this section, the 

agency may, if authorized, require a 

medical examination under the criteria 

of § 339.301, or otherwise, at its option, 

offer a medical examination in 

accordance with the criteria of 

§ 339.302. If the appointee has the 

requisite years of service under the Civil 

Service Retirement System or the 

Federal Employees Retirement System, 

the agency must provide information 

concerning disability retirement. The 

agency must be aware of the affirmative 

obligations of the provisions of 29 CFR 

1614.203, which require reasonable 

accommodation of a qualified 

individual with a disability. 

(g) Agency decision. (1) In arriving at 

its decision, the agency will consider 

only the reasons specified in the notice 

of proposed action and any answer of 

the appointee or the appointee’s 

representative, or both, made to a 

designated official and any medical 

documentation reviewed under 

paragraph (f) of this section. 

(2) The notice must specify in writing 

the reasons for the decision and advise 

the appointee of any appeal or grievance 

rights under § 752.605 of this part. The 

agency must deliver the notice of 

decision to the appointee on or before 

the effective date of the action. 

(h) Applications for disability 

retirement. Section 831.1204(e) of this 

chapter provides that an appointee’s 

application for disability retirement 

need not delay any other appropriate 

personnel action. Section 831.1205 and 

section 844.202 of this chapter set forth 

the basis under which an agency must 

file an application for disability 

retirement on behalf of an appointee. 

§ 752.605 Appeal rights. 

(a) Under 5 U.S.C. 7543(d), a career 

appointee against whom an action is 

taken under this subpart is entitled to 

appeal to the Merit Systems Protection 

Board. 

(b) A limited term or limited 

emergency appointee who is covered 

under § 752.601(c)(2) also may appeal 

an action taken under this subpart to the 

Merit Systems Protection Board. 

§ 752.606 Agency records. 

The agency must maintain copies of, 

and will furnish to the Merit Systems 

Protection Board and to the employee 

upon his or her request, the following 

documents: 

(1) Notice of the proposed action; 

(2) Employee’s written reply, if any; 

(3) Summary of the employee’s oral 

reply, if any; 

(4) Agency notice of decision; and 

(5) Any order effecting the action, 

together with any supporting material. 

[FR Doc. E8–21523 Filed 9–17–08; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

7 CFR Part 301 

[Docket No. APHIS–2006–0153] 

RIN 0579 AC25 

South American Cactus Moth; 

Availability of an Environmental 

Assessment and Reopening of 

Comment Period 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Notice of availability and 

request for comments; reopening of 

comment period. 

SUMMARY: We are advising the public 

that an environmental assessment has 

been prepared by the Animal and Plant 

Health Inspection Service relative to the 

establishment of domestic quarantine 

regulations for the South American 

cactus moth, Cactoblastis cactorum. The 

environmental assessment documents 

our review and analysis of 

environmental impacts associated with 

the proposed rulemaking. We are 

making this environmental assessment 

available to the public for review and 


dwashington3 on PRODPC61 with PROPOSALS