[Federal Register Volume 73, Number 182 (Thursday, September 18, 2008)]
[Proposed Rules]
[Pages 54075-54082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21523]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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


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

[[Page 54075]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 752

RIN 3206-AL39


Adverse Actions

AGENCY: Office of Personnel Management.

ACTION: Notice of proposed rulemaking.

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

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 
<a href="/cdn-cgi/l/email-protection#8ecdd9dccfdecee1fee3a0e9e1f8"><span class="__cf_email__" data-cfemail="d0938782918090bfa0bdfeb7bfa6">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Sharon L. Mayhew by telephone at (202) 
606-2930; by FAX at (202) 606-2613; or by e-mail at <a href="/cdn-cgi/l/email-protection#337064617263735c435e1d545c45"><span class="__cf_email__" data-cfemail="4e0d191c0f1e0e213e2360292138">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Sections 7504, 7514, and 7543(a) of title 5, 
United States Code (U.S.C.), provide the statutory authority for OPM to 
prescribe regulations pertaining to adverse actions. These regulations 
are found at title 5, Code of Federal Regulations (CFR), part 752, and 
are the subject of this proposed rule.

Amendment To Clarify Adverse Action Rules Regarding Reduction in Pay

    A reduction in pay is an adverse action covered by chapter 75 of 
title 5, United States Code. (See 5 U.S.C. 7512(4).) Under current 
adverse action regulations, ``pay'' is defined as the rate of basic pay 
exclusive of additional pay of any kind. (See definition of ``pay'' in 
5 CFR 752.402.) Thus any pay supplement, such as a locality payment or 
special rate supplement is not considered part of basic pay in 
determining whether a reduction in pay and thus an adverse action has 
occurred.
    The Federal Workforce Flexibility Act of 2004 (the Act) (Pub. L. 
108-411, October 30, 2004) created new pay administration rules for 
Federal employees covered by chapter 53 of title 5, United States 
Code--i.e., employees in the General Schedule (GS) pay system and the 
Federal Wage System (FWS). Among other purposes, this Act modified pay 
administration rules to correct anomalies that created unwarranted pay 
increases or reductions for certain employees. The Act also established 
the principle that, in cases where an employee's official duty station 
is moved to a new location where different pay schedules apply, the 
employee's pay will be treated as if the position he or she is leaving 
were at the new location, before processing other pay actions. (See 5 
U.S.C. 5305(i), 5334(g), and 5363(c) and OPM regulations published on 
May 31, 2005, 70 FR 31278.)
    Implementation of the Act's provisions on locality pay, special 
rates, and pay retention resolves the problem of unwarranted increases 
and reductions. However, in certain limited situations, the new pay 
rules established under the Act, by design, can result in a reduction 
of an employee's ``basic'' or base rate of pay even while protecting 
the employee's total salary rate. Such a reduction may occur when a 
personnel action changes an employee's pay entitlement from a rate of 
basic pay without any supplement to an adjusted rate of basic pay 
consisting of a base rate and a basic pay supplement (i.e., locality 
payment or special rate supplement for a GS employee).
    For example, an employee may change positions and move from the 
Federal Wage System (FWS), in which the locality pay adjustment is 
essentially incorporated within the rate of basic pay, to the GS pay 
system, which often provides a separate supplement (locality payment or 
special rate supplement) on top of the rate of basic pay. Under the new 
pay administration rules in effect as a result of Public Law 108-411, 
the FWS rate (after applying geographic pay conversion as necessary) is 
compared to GS supplement-adjusted rates. If an FWS-to-GS movement is 
involuntary, pay retention would apply and the GS total pay rate 
(including any supplement) would be set at a rate equal to or greater 
than the FWS rate. However, the new GS basic rate excluding the 
supplement may be lower than the FWS rate.
    Another example involves a change of pay entitlements within the 
same pay system. A GS employee may be entitled to a retained rate, 
which is a rate of basic pay without any supplement, and then, as the 
result of a personnel or pay action, the employee may cease to be 
entitled to the retained rate. In such case, the employee would receive 
an adjusted rate consisting of a base rate and a supplement. If the 
supplement is not considered, the employee could be viewed as having a 
reduction in basic pay--even though there is no reduction in the total 
rate of pay and the rate is being correctly set in accordance with the 
new applicable pay administration rules.
    Public Law 108-411 also provided that pay retention would no longer 
apply when an FWS employee is involuntarily reassigned to a different 
geographic location where a lower wage schedule applies. While the FWS 
employee keeps the same grade and step, the employee's wage rate will 
be lower. Under 5 U.S.C. 5363, as amended by Public Law 108-411, the 
FWS employee is not entitled to pay retention when the reduction is 
attributable to a geographic move. This is consistent with the 
treatment of GS employees who may become entitled to a lower locality 
payment due to a geographic move and who are also not entitled to pay 
retention. Thus, the FWS employee's pay reduction occurs by operation 
of law as a result of geographic pay conversion.
    In the examples cited above, pay is being correctly set under the 
new law and applicable pay administration rules. While paragraph 
(b)(15) of 5 CFR

[[Page 54076]]

752.401 currently excludes from adverse action coverage any 
``[r]eduction of an employee's rate of basic pay from a rate that is 
contrary to law or regulation,'' we believe the clarity of the 
regulations would be enhanced by specifically excluding from coverage 
those actions that result from compliance with the new pay-setting 
requirements of Public Law 108-411.
    Accordingly, we are proposing to amend 5 CFR 752.401(b)(15), to 
clarify that a reduction in an employee's rate of basic pay resulting 
from the application of Public Law 108-411 and implementing regulations 
is excluded from adverse action coverage.

Amendments To Clarify Adverse Action Rules Regarding Indefinite 
Suspension

Background

    Indefinite suspensions involve the placing of an employee in a 
temporary status without duties and pay pending an investigation, 
inquiry, or further agency action. An indefinite suspension continues 
for an indeterminate period of time and ends with the completion of the 
pending condition subsequent set forth in the notice of proposed 
action. That pending condition may include, for example, a criminal or 
administrative investigation and any subsequent administrative action 
taken.
    An indefinite suspension is an infrequently utilized but critical 
option when public employees are being investigated or charged with 
serious criminal offenses, or are under investigation for other serious 
or egregious misconduct. With these regulations and supplementary 
materials, OPM clarifies that a portion of 5 U.S.C. 7513(b)(1), 
frequently referred to as the ``crime provision,'' is exclusively a 
notice provision. It does not set a higher standard for indefinite 
suspensions than for other adverse actions.
    Specifically, in the vast majority of adverse actions, thirty (30) 
days' advance written notice to the employee is required. However, the 
law carves out a narrow exception to that 30 days' advance notice 
requirement in those limited situations where there is reasonable cause 
to believe that the employee has committed a crime for which a sentence 
of imprisonment may be imposed. This notice exception has sometimes 
been erroneously interpreted to establish an entirely new and different 
``reasonable cause'' review standard for indefinite suspensions in 
general. That standard, however, only applies to the determination of 
whether the 30-day notice period may be shortened. Like all other 
adverse actions, indefinite suspensions must meet the statutory 
requirement of promoting the efficiency of the service. Moreover, 
indefinite suspensions are not restricted to occasions when employees 
have been indicted for a criminal offense. Indefinite suspensions may 
also be warranted when an employee is under investigation for other 
serious misconduct that, if proven to be true, would warrant removal 
when, for example, the employee is under investigation for an 
allegation of conduct posing a significant risk to the life, health or 
safety of others, government or public property, the effective 
accomplishment of the agency's operations, national security or privacy 
interests. An indefinite suspension with a 30-day notice period in 
these instances may be appropriate to ensure the efficiency of the 
service by maintaining public trust in the Federal workforce. It may 
also be appropriate when, for example, the employee is under 
investigation based on an allegation that the employee poses a risk to 
the health or safety of others, the employee's security clearance has 
been suspended or revoked, or the employee's fitness-for-duty 
examination or determination is pending.
    OPM's interpretation of the ``crime provision'' in 5 U.S.C. 7513(b) 
recently was affirmed by the U.S. Court of Appeals for the Federal 
Circuit in Perez v. Department of Justice, 480 F.3d 1309, 1313 
(Fed.Cir. 2007). In this case, the Court held that section 7513(b) ``is 
solely a notice provision, and it provides an exception to the 30-day 
notice requirement for all the types of adverse actions specified in 5 
U.S.C. 7512(2) if the agency has reasonable cause to believe an 
employee has committed a crime for which imprisonment may be imposed.'' 
Id. Thus, reasonable cause is only required if the agency provides the 
employee less than a 30-day notice period in its notice of proposed 
action. Id. The Federal Circuit further confirmed that adverse actions, 
including indefinite suspensions, must ``promote the efficiency of the 
service,'' noting that arbitrary action against an employee would not 
satisfy that standard. Id.
    Accordingly, to clarify that the ``crime provision'' is only an 
exception to the general 30-day notice requirement for taking adverse 
actions and is not a separate standard of proof for indefinite 
suspensions, OPM therefore proposes to specify in paragraph (a) of 5 
CFR 752.403 that an indefinite suspension is an adverse action an 
agency may take to promote the efficiency of the service. OPM also 
proposes to include the term ``indefinite suspension'' in paragraph 
(b)(1) of 5 CFR 752.404, ``Notice of proposed action,'' to emphasize 
that an indefinite suspension is to be taken in the same manner as any 
other adverse action under that subpart. Additionally, OPM proposes to 
add a new paragraph (c) to 5 CFR 752.403, ``Standard for Action,'' to 
clarify the applicable standard for indefinite suspensions when 30 days 
notice is provided to the employee.

Amendments To Modify and Clarify Adverse Actions Rules Under the Senior 
Executive Service

    Section 752.604 sets forth the procedures to be followed for SES 
adverse actions under 5 U.S.C. chapter 75. Revising the regulations to 
make them more comprehensible, OPM proposes to delete redundant 
sections and change the placement of some information to make it more 
clear and accessible to agencies and employees.
    We further propose four additional amendments to the SES 
regulations. First, we propose to add a new Sec.  752.604(f), ``Agency 
review of medical information,'' to explain agency authority and 
responsibilities in obtaining and reviewing medical information as 
provided under 5 CFR 339.301 and 339.302. Second, we propose to add a 
new Sec.  752.604(h) to address applications for disability retirement 
and their effect on adverse actions. These two sections mirror the 
provisions currently provided in the regulations applicable to non-SES 
employees. Third, as a result of adding these new sections, we have 
redesignated the former Sec.  752.604(f) as Sec.  752.604(g), and added 
language to clarify procedural rights. Fourth, we propose to modify 
Sec.  752.606 Agency Records to specify the documentation that should 
be maintained in the agency's record, and we are proposing a similar 
modification to the provisions applicable to non-SES employees (Sec.  
752.406).

Amendments To Update Definitions Formatting

    The Federal Register Document Drafting Handbook recommends a 
particular format for CFR definitions sections. Accordingly, we take 
this opportunity to propose revising Sec. Sec.  752.201 and 752.402 by 
removing the letter designations and placing the terms in alphabetical 
order.

Amendments To Correct Statutory and Regulatory References

    Section 752.201 addresses actions excluded from coverage under 5 
U.S.C. chapter 75. Section 752.201(c)(2) excludes actions taken for 
national

[[Page 54077]]

security reasons but erroneously cites 5 U.S.C. 7531 as the authority 
under which an agency may take action. Section 7531 of title 5, U.S. 
Code, addresses the definition of ``agency.'' The correct citation is 5 
U.S.C. 7532, which describes suspensions and removals for national 
security reasons. Accordingly, we propose to correct the citation.
    In addition, section 752.201(c)(3) excluded actions taken under a 
provision of statute, other than one codified in title 5, U.S. Code, 
which excepts the action from subchapter I, chapter 75 of title 5, U.S. 
Code. In light of recent statutory amendments authorizing establishment 
of alternative personnel systems within title 5, U.S. Code, such as for 
the Department of Homeland Security and the Department of Defense, this 
exclusion is too narrow. We propose to modify this section to exclude 
actions excepted by law, regardless of whether such law is codified in 
title 5, U.S. Code. For the same reason, we propose to make the same 
modification in Sec.  752.401(b)(7).
    Section 752.203 describes procedures for actions taken under 5 
U.S.C. chapter 75. Section 752.203(f), ``Grievances,'' erroneously 
cites 5 U.S.C 7121(b)(3) as governing representation for an employee in 
an exclusive bargaining unit. Section 7121(b)(3) was removed when the 
law was amended in 1997. The correct citation is 5 U.S.C. 
7121(b)(1)(C). This correction also applies to Sec.  752.405(b). 
Accordingly, we propose to correct these citations.
    Section 752.401(b) sets forth actions excluded from coverage under 
5 U.S.C. chapter 75. Section 752.401(b)(1) excludes actions ``imposed 
by the Merit Systems Protection Board,'' and it erroneously cites 5 
U.S.C. 1206 as the authority under which the Board may take actions. 
Instead, 5 U.S.C. 1206 addresses the annual reporting requirement for 
the MSPB. The correct citation is 5 U.S.C. 1215. Accordingly, we 
propose to correct the citation.
    The current Sec.  752.401(c)(3) references covered employees in the 
Postal Rate Commission. The Postal Accountability and Enhancement Act 
(Pub. L. 109-435) which was signed into law on December 20, 2006, 
changed the name of the Postal Rate Commission to the Postal Regulatory 
Commission. We propose to reflect the current name in the regulations 
at paragraph (c)(3) and in paragraph (d)(9) of section 752.401.
    Section 752.401(d) describes employees excluded from coverage under 
5 U.S.C. chapter 75. Section 752.401(d)(5) excludes technicians in the 
National Guard from coverage, and it erroneously cites 32 U.S.C. 709(b) 
as the authority for the exclusion. The correct citation is 32 U.S.C. 
709(a). Similarly, Sec.  752.401(d)(8) excludes employees of the 
Veterans Health Administration (Department of Veterans Affairs) from 
coverage and it erroneously cites 5 U.S.C. 7401(3) as an exception to 
the exclusion. Section 7401(3) does not exist. The correct citation is 
38 U.S.C. 7401(3). Accordingly, we propose to correct these citations. 
Finally, Sec.  752.401(d)(9) excludes nonpreference eligibles in 
specified Department of Defense intelligence components or activities. 
This exclusion was based on 5 U.S.C. 7511(b)(8) which was amended in 
1996 by Public Law 104-201 to modify the reference to title 10, U.S. 
Code. We propose to amend Sec.  752.401(d)(9) to reflect the current 
statutory provision.
    Section 752.404 explains the procedures for actions taken under 5 
U.S.C. chapter 75. Section 752.404(b)(1) makes reference to a 
prohibition against releasing certain medical information to an 
employee. That prohibition no longer exists. Accordingly, we propose to 
remove this language. For the same reason we propose to make the same 
modification in Sec.  752.604(b). The requirement in Sec. Sec.  
752.404(b)(1) and 752.604(b) that an employee be informed of his or her 
right to review the material relied on to support the action is 
retained. Section 752.404(c)(3) addresses medical documentation 
submitted as a part of the employee's answer and erroneously cites 5 
CFR 339.102 for the definition of medical documentation. Section 
339.102 states the purpose and effect of acquiring medical 
documentation. Instead, Sec.  339.104 defines ``medical documentation'' 
and is the correct cite. Similarly, Sec.  752.404(h) addresses 
applications for disability retirement and erroneously cites Sec.  
831.501(d), which does not exist. The correct citation is Sec.  
831.1204(e).
    In addition, 5 CFR 752.404(h) erroneously cites Sec.  831.1203 as 
providing the basis under which agencies shall file an application for 
disability retirement on behalf of an employee. Section 831.1203 
describes the basic requirements for disability retirement. The correct 
citation is Sec.  831.1205, which addresses agency-filed disability 
retirement applications. Accordingly, we propose to correct these 
citations.
    Section 752.601 addresses coverage under 5 U.S.C. chapter 75. 
Section 752.601(a)(2) excludes actions taken under other authorities in 
title 5, United States Code, and erroneously cites 5 U.S.C. 1206(g) as 
one of the exclusions. This section, however, does not exist. The 
correct citation is 5 U.S.C. 1215. Section 1215 describes disciplinary 
actions imposed by the MSPB. Accordingly, we propose to correct this 
citation.

Amendment To Remove Subparts A, C, and E

    In an effort to streamline and make more readable our regulations 
at 5 CFR part 752, OPM proposes to remove three superfluous subparts. 
Subparts A, C, and E merely reprint the sections of the United States 
Code that are the basis of the regulations found at 5 CFR part 752, 
subparts B, D, and F. OPM proposes to remove this material and reserve 
subparts A, C, and E.

Amendments to Adverse Action Procedures

    Section 752.404 sets forth the procedures to be followed for 
adverse actions under 5 U.S.C. chapter 75. Revising the regulations to 
make them more comprehensible, OPM proposes to delete redundant 
sections and change the placement of some information to make it more 
clear and accessible to agencies and employees.
    In addition, we propose to modify Sec.  752.406, Agency Records, to 
clearly identify the documentation that should be maintained in the 
agency's record consistent with the law. An identical modification is 
proposed for Sec. Sec.  752.203 and 752.606.

Amendments To Adopt Regulatory Language

    In addition to the above substantive changes, OPM proposes to 
rewrite the regulations in 5 CFR part 752 to replace most instances of 
the word ``shall'' with appropriate regulatory equivalents, such as 
``must'' or ``will.'' This is undertaken in an effort to differentiate 
regulatory from legislative language. In no case do these modifications 
change the meaning or intent of the regulation.

Amendments To Adopt Consistent Language for Similar Provisions

    Similar regulatory provisions were stated somewhat differently 
throughout the various sections of the regulations (e.g., subparts B, 
D, and F). Where applicable, we have proposed to utilize consistent 
language for similar regulatory requirements without altering the 
intent of the regulations.

Public Participation

    OPM invites interested persons to participate in this proposed 
rulemaking by submitting written comments, data, or views.
    Before finalizing these proposed amendments, we will consider all

[[Page 54078]]

comments received on or before the closing date for comments. We will 
consider comments filed late if it is possible to do so without 
incurring expense or delay. We may change these proposed amendments in 
light of the comments we receive.

E.O. 12866, Regulatory Review

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 12866.

Regulatory Flexibility Act

    OPM has determined these amendments will not have a significant 
economic impact on a substantial number of small entities because they 
will apply only to Federal agencies and employees.

List of Subjects in 5 CFR Part 752

    Administrative practice and procedure, Government employees.

Office of Personnel Management.
Michael W. Hager,
Acting Director.
    Accordingly, OPM proposes to revise part 752 of title 5, Code of 
Federal Regulations, as follows:

PART 752--ADVERSE ACTIONS

Subpart A--[Removed and Reserved]
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
Sec.
752.201 Coverage.
752.202 Standard for action.
752.203 Procedures.
Subpart C--[Removed and Reserved]
Subpart D--Regulatory Requirements for Removal, Suspension for More 
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or 
Less
Sec.
752.401 Coverage.
752.402 Definitions.
752.403 Standard for action.
752.404 Procedures.
752.405 Appeal and grievance rights.
752.406 Agency records.
Subpart E--[Removed and Reserved]
Subpart F--Regulatory Requirements for Taking Adverse Actions Under the 
Senior Executive Service
Sec.
752.601 Coverage.
752.602 Definitions.
752.603 Standard for action.
752.604 Procedures.
752.605 Appeal rights.
752.606 Agency records.

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

Subpart A--[Removed and Reserved]

Subpart B--Regulatory Requirements for Suspension for 14 Days or 
Less


Sec.  752.201  Coverage.

    (a) Adverse actions covered. This subpart covers suspension for 14 
days or less.
    (b) Employees covered. This subpart covers:
    (1) An employee in the competitive service who has completed a 
probationary or trial period;
    (2) An employee in the competitive service serving in an 
appointment which requires no probationary or trial period, and who has 
completed 1 year of current continuous employment in the same or 
similar positions under other than a temporary appointment limited to 1 
year or less;
    (3) An employee with competitive status who occupies a position 
under Schedule B of part 213 of this chapter;
    (4) An employee who was in the competitive service at the time his 
or her position was first listed under Schedule A, B, or C of the 
excepted service and still occupies that position;
    (5) An employee of the Department of Veterans Affairs appointed 
under section 7401(3) of title 38, United States Code; and
    (6) An employee of the Government Printing Office.
    (c) Exclusions. This subpart does not apply to a suspension for 14 
days or less:
    (1) Of an administrative law judge under 5 U.S.C. 7521;
    (2) Taken for national security reasons under 5 U.S.C. 7532;
    (3) Taken under any other provision of law which excepts the action 
from subchapter I, chapter 75, of title 5, U.S. Code;
    (4) Of a reemployed annuitant; or
    (5) Of a National Guard Technician.
    (d) Definitions. In this subpart--
    Current continuous employment means a period of employment 
immediately preceding a suspension action without a break in Federal 
civilian employment of a workday.
    Day means a calendar day.
    Similar positions means positions in which the duties performed are 
similar in nature and character and require substantially the same or 
similar qualifications, so that the incumbent could be interchanged 
between the positions without significant training or undue 
interruption to the work.
    Suspension means the placing of an employee, for disciplinary 
reasons, in a temporary status without duties and pay.


Sec.  752.202  Standard for action.

    (a) An agency may take action under this subpart for such cause as 
will promote the efficiency of the service as set forth in 5 U.S.C. 
7503(a).
    (b) An agency may not take a suspension against an employee on the 
basis of any reason prohibited by 5 U.S.C. 2302.


Sec.  752.203  Procedures.

    (a) Statutory entitlements. An employee under this subpart whose 
suspension is proposed under this subpart is entitled to the procedures 
provided in 5 U.S.C. 7503(b).
    (b) Notice of proposed action. The notice must state the specific 
reason(s) for the proposed action, and inform the employee of his or 
her right to review the material which is relied on to support the 
reasons for action given in the notice.
    (c) Employee's answer. The employee must be given a reasonable 
time, but not less than 24 hours, to answer orally and in writing and 
to furnish affidavits and other documentary evidence in support of the 
answer.
    (d) Representation. An employee covered by this subpart is entitled 
to be represented by an attorney or other representative. An agency may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from his or her official position 
would give rise to unreasonable costs or whose priority work 
assignments preclude his or her release.
    (e) Agency decision. (1) In arriving at its decision, the agency 
will consider only the reasons specified in the notice of proposed 
action and any answer of the employee or his or her representative, or 
both, made to a designated official.
    (2) The agency must specify in writing the reason(s) for the 
decision and advise the employee of any grievance rights under 
paragraph (f) of this section. The agency must deliver the notice of 
decision to the employee on or before the effective date of the action.
    (f) Grievances. The employee may file a grievance through an agency 
administrative grievance system (if applicable) or, if the suspension 
falls within the coverage of an applicable negotiated grievance 
procedure, an employee in an exclusive bargaining unit may file a 
grievance only under that procedure. Sections 7114(a)(5) and 
7121(b)(1)(C) of title 5, U.S. Code, and the terms of any collective 
bargaining agreement, govern representation for employees in an 
exclusive bargaining

[[Page 54079]]

unit who grieve a suspension under this subpart through the negotiated 
grievance procedure.
    (g) Agency records. The agency must maintain copies of, and will 
furnish to the Merit Systems Protection Board and to the employee upon 
their request, the following documents:
    (1) Notice of the proposed action;
    (2) Employee's written reply, if any;
    (3) Summary of the employee's oral reply, if any;
    (4) Notice of decision; and
    (5) Any order effecting the suspension, together with any 
supporting material.

Subpart C--[Removed and Reserved]

Subpart D--Regulatory Requirements for Removal, Suspension for More 
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or 
Less


Sec.  752.401  Coverage.

    (a) Adverse actions covered. This subpart applies to the following 
actions:
    (1) Removals;
    (2) Suspensions for more than 14 days, including indefinite 
suspensions;
    (3) Reductions in grade;
    (4) Reductions in pay; and
    (5) Furloughs of 30 days or less.
    (b) Actions excluded. This subpart does not apply to:
    (1) An action imposed by the Merit Systems Protection Board under 
the authority of 5 U.S.C. 1215;
    (2) The reduction in grade of a supervisor or manager who has not 
completed the probationary period under 5 U.S.C. 3321(a)(2) if such a 
reduction is to the grade held immediately before becoming a supervisor 
or manager;
    (3) A reduction-in-force action under 5 U.S.C. 3502;
    (4) A reduction in grade or removal under 5 U.S.C. 4303;
    (5) An action against an administrative law judge under 5 U.S.C. 
7521;
    (6) A suspension or removal under 5 U.S.C. 7532;
    (7) Actions taken under any other provision of law which excepts 
the action from subchapter II of chapter 75 of title 5, United States 
Code;
    (8) Action that entitles an employee to grade retention under part 
536 of this chapter, and an action to terminate this entitlement;
    (9) A voluntary action by the employee;
    (10) Action taken or directed by the Office of Personnel Management 
under part 731 of this chapter;
    (11) Termination of appointment on the expiration date specified as 
a basic condition of employment at the time the appointment was made;
    (12) Action that terminates a temporary or term promotion and 
returns the employee to the position from which temporarily promoted, 
or to a different position of equivalent grade and pay, if the agency 
informed the employee that it was to be of limited duration;
    (13) Cancellation of a promotion to a position not classified prior 
to the promotion;
    (14) Placement of an employee serving on an intermittent or 
seasonal basis in a temporary nonduty, nonpay status in accordance with 
conditions established at the time of appointment; or
    (15) Reduction of an employee's rate of basic pay from a rate that 
is contrary to law or regulation, including a reduction necessary to 
comply with the amendments made by Public Law 108-411, regarding pay-
setting under the General Schedule and Federal Wage System and 
regulations implementing those amendments.
    (c) Employees covered. This subpart covers:
    (1) A career or career conditional employee in the competitive 
service who is not serving a probationary or trial period;
    (2) An employee in the competitive service who has completed 1 year 
of current continuous service under other than a temporary appointment 
limited to 1 year or less;
    (3) An employee in the excepted service who is a preference 
eligible in an Executive agency as defined at section 105 of title 5, 
United States Code, the U.S. Postal Service, or the Postal Regulatory 
Commission and who has completed 1 year of current continuous service 
in the same or similar positions;
    (4) A Postal Service employee covered by Public Law 100-90 who has 
completed 1 year of current continuous service in the same or similar 
positions and who is either a supervisory or management employee or an 
employee engaged in personnel work in other than a purely 
nonconfidential clerical capacity;
    (5) An employee in the excepted service who is a nonpreference 
eligible in an Executive agency as defined at section 105 of title, 5, 
United States Code, and who has completed 2 years of current continuous 
service in the same or similar positions under other than a temporary 
appointment limited to 2 years or less;
    (6) An employee with competitive status who occupies a position in 
Schedule B of part 213 of this chapter;
    (7) An employee who was in the competitive service at the time his 
or her position was first listed under Schedule A, B, or C of the 
excepted service and who still occupies that position;
    (8) An employee of the Department of Veterans Affairs appointed 
under section 7401(3) of title 38, United States Code; and
    (9) An employee of the Government Printing Office.
    (d) Employees excluded. This subpart does not apply to:
    (1) An employee whose appointment is made by and with the advice 
and consent of the Senate;
    (2) An employee whose position has been determined to be of a 
confidential, policy-determining, policy-making, or policy-advocating 
character by the President for a position that the President has 
excepted from the competitive service; the Office of Personnel 
Management for a position that the Office has excepted from the 
competitive service (Schedule C); or the President or the head of an 
agency for a position excepted from the competitive service by statute;
    (3) A Presidential appointee;
    (4) A reemployed annuitant;
    (5) A technician in the National Guard described in section 
8337(h)(1) of title 5, United States Code, who is employed under 
section 709(a) of title 32, United States Code;
    (6) A Foreign Service member as described in section 103 of the 
Foreign Service Act of 1980;
    (7) An employee of the Central Intelligence Agency or the 
Government Accountability Office;
    (8) An employee of the Veterans Health Administration (Department 
of Veterans Affairs) in a position which has been excluded from the 
competitive service by or under a provision of title 38, United States 
Code, unless the employee was appointed to the position under section 
7401(3) of title 38, United States Code;
    (9) A nonpreference eligible employee with the U.S. Postal Service, 
the Postal Regulatory Commission, the Panama Canal Commission, the 
Tennessee Valley Authority, the Federal Bureau of Investigation, the 
National Security Agency, the Defense Intelligence Agency, or any other 
intelligence component of the Department of Defense (as defined in 
section 1614 of title 10, United States Code), or an intelligence 
activity of a military department covered under subchapter I of chapter 
83 of title 10, United States Code;
    (10) An employee described in section 5102(c)(11) of title 5, 
United States

[[Page 54080]]

Code, who is an alien or noncitizen occupying a position outside the 
United States;
    (11) A nonpreference eligible employee serving a probationary or 
trial period under an initial appointment in the excepted service 
pending conversion to the competitive service, unless he or she meets 
the requirements of paragraph (c)(5) of this section;
    (12) An employee whose agency or position has been excluded from 
the appointing provisions of title 5, United States Code, by separate 
statutory authority in the absence of any provision to place the 
employee within the coverage of chapter 75 of title 5, United States 
Code; and
    (13) An employee in the competitive service serving a probationary 
or trial period, unless he or she meets the requirements of paragraph 
(c)(2) of this section.


Sec.  752.402  Definitions.

    Current continuous employment means a period of employment or 
service immediately preceding an adverse action without a break in 
Federal civilian employment of a workday.
    Day means a calendar day.
    Furlough means the placing of an employee in a temporary status 
without duties and pay because of lack of work or funds or other 
nondisciplinary reasons.
    Grade means a level of classification under a position 
classification system.
    Indefinite suspension means the placing of an employee in a 
temporary status without duties and pay pending investigation, inquiry, 
or further agency action. The indefinite suspension continues for an 
indeterminate period of time and ends with the occurrence of the 
pending conditions set forth in the notice of action which may include 
the completion of any subsequent administrative action.
    Pay means the rate of basic pay fixed by law or administrative 
action for the position held by the employee, that is, the rate of pay 
before any deductions and exclusive of additional pay of any kind.
    Similar positions means positions in which the duties performed are 
similar in nature and character and require substantially the same or 
similar qualifications, so that the incumbent could be interchanged 
between the positions without significant training or undue 
interruption to the work.
    Suspension means the placing of an employee, for disciplinary 
reasons, in a temporary status without duties and pay for more than 14 
days.


Sec.  752.403  Standard for action.

    (a) An agency may take an adverse action, including a performance-
based adverse action or an indefinite suspension, under this subpart 
only for such cause as will promote the efficiency of the service.
    (b) An agency may not take an adverse action against an employee on 
the basis of any reason prohibited by 5 U.S.C. 2302.
    (c) An agency may indefinitely suspend an employee, without 
invoking the crime provision in Sec.  752.404(d)(1) of this part when, 
for example--
    (1) The employee's fitness-for-duty examination or determination is 
pending; or
    (2) The employee is under investigation for serious misconduct 
that, if proven to be true, would warrant removal, such as when the 
employee is alleged to have engaged in conduct posing a significant, 
ongoing risk to:
    (i) The life, health or safety of self or others;
    (ii) Government or public property including, but not limited to, 
information technology systems;
    (iii) The effective accomplishment of the agency's operations;
    (iv) National security; or
    (v) Privacy interests.


Sec.  752.404  Procedures.

    (a) Statutory entitlements. An employee against whom action is 
proposed under this subpart is entitled to the procedures provided in 5 
U.S.C. 7513(b).
    (b) Notice of proposed action. (1) An employee against whom an 
action, including an indefinite suspension, is proposed is entitled to 
at least 30 days' advance written notice unless there is an exception 
pursuant to Sec.  752.404(d) of this part. The notice must state the 
specific reason(s) for the proposed action, and inform the employee of 
his or her right to review the material which is relied on to support 
the reasons for action given in the notice.
    (2) When some but not all employees in a given competitive level 
are being furloughed, the notice of proposed action must state the 
basis for selecting a particular employee for furlough, as well as the 
reasons for the furlough.
    (3) Under ordinary circumstances, an employee whose removal or 
suspension, including indefinite suspension, has been proposed will 
remain in a duty status in his or her regular position during the 
advance notice period. In those rare circumstances where the agency 
determines that the employee's continued presence in the workplace 
during the notice period may pose a threat to the employee or others, 
result in loss of or damage to Government property, or otherwise 
jeopardize legitimate Government interests, the agency may elect one or 
a combination of the following alternatives:
    (i) Assigning the employee to duties where he or she is no longer a 
threat to safety, the agency mission, or to Government property;
    (ii) Allowing the employee to take leave, or carrying him or her in 
an appropriate leave status (annual, sick, leave without pay, or 
absence without leave) if the employee has absented himself or herself 
from the worksite without requesting leave;
    (iii) Curtailing the notice period when the agency can invoke the 
provisions of Sec.  752.404(d)(1) of this part; or
    (iv) Placing the employee in a paid, nonduty status for such time 
as is necessary to effect the action.
    (c) Employee's answer. (1) An employee may answer orally and in 
writing except as provided in paragraph (c)(2) of this section. The 
agency must give the employee a reasonable amount of official time to 
review the material relied on to support its proposed action, to 
prepare an answer orally and in writing, and to secure affidavits, if 
the employee is in an active duty status. The agency may require the 
employee to furnish any answer to the proposed action, and affidavits 
and other documentary evidence in support of the answer, within such 
time as would be reasonable, but not less than 7 days.
    (2) The agency will designate an official to hear the employee's 
oral answer who has authority either to make or recommend a final 
decision on the proposed adverse action. The right to answer orally in 
person does not include the right to a formal hearing with examination 
of witnesses unless the agency provides for such hearing in its 
regulations. Under 5 U.S.C. 7513(c), the agency may, in its 
regulations, provide a hearing in place of or in addition to the 
opportunity for written and oral answer.
    (3) If the employee wishes the agency to consider any medical 
condition which may contribute to a conduct, performance, or leave 
problem, the employee must be given a reasonable time to furnish 
medical documentation (as defined in Sec.  339.104 of this chapter) of 
the condition. Whenever possible, the employee will supply such 
documentation within the time limits allowed for an answer.
    (d) Exceptions. (1) Section 7513(b) of title 5, U.S. Code, 
authorizes an exception to the 30 days' advance written notice when the 
agency has reasonable cause to believe that the employee has committed 
a crime for

[[Page 54081]]

which a sentence of imprisonment may be imposed and is proposing a 
removal or suspension, including indefinite suspension. This notice 
exception is commonly referred to as the ``crime provision.'' This 
provision may be invoked even in the absence of judicial action.
    (2) The advance written notice and opportunity to answer are not 
required for furlough without pay due to unforeseeable circumstances, 
such as sudden breakdowns in equipment, acts of God, or sudden 
emergencies requiring immediate curtailment of activities.
    (e) Representation. Section 7513(b)(3) of title 5, U.S. Code, 
provides that an employee covered by this part is entitled to be 
represented by an attorney or other representative. An agency may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from his or her official position 
would give rise to unreasonable costs or whose priority work 
assignments preclude his or her release.
    (f) Agency review of medical information. When medical information 
is supplied by the employee pursuant to paragraph (c)(3) of this 
section, the agency may, if authorized, require a medical examination 
under the criteria of Sec.  339.301, or otherwise, at its option, offer 
a medical examination in accordance with the criteria of Sec.  339.302. 
If the employee has the requisite years of service under the Civil 
Service Retirement System or the Federal Employees Retirement System, 
the agency must provide information concerning disability retirement. 
The agency must be aware of the affirmative obligations of the 
provisions of 29 CFR 1614.203, which require reasonable accommodation 
of a qualified individual with a disability.
    (g) Agency decision. (1) In arriving at its decision, the agency 
will consider only the reasons specified in the notice of proposed 
action and any answer of the employee or his or her representative, or 
both, made to a designated official and any medical documentation 
reviewed under paragraph (f) of this section.
    (2) The notice must specify in writing the reasons for the decision 
and advise the employee of any appeal or grievance rights under Sec.  
752.405 of this part. The agency must deliver the notice of decision to 
the employee on or before the effective date of the action.
    (h) Applications for disability retirement. Section 831.1204(e) of 
this chapter provides that an employee's application for disability 
retirement need not delay any other appropriate personnel action. 
Section 831.1205 and section 844.202 of this chapter set forth the 
basis under which an agency must file an application for disability 
retirement on behalf of an employee.


Sec.  752.405  Appeal and grievance rights.

    (a) Appeal rights. Under the provisions of 5 U.S.C. 7513(d), an 
employee against whom an action is taken under this subpart is entitled 
to appeal to the Merit Systems Protection Board.
    (b) Grievance rights. As provided at 5 U.S.C. 7121(e)(1), if a 
matter covered by this subpart falls within the coverage of an 
applicable negotiated grievance procedure, an employee may elect to 
file a grievance under that procedure or appeal to the Merit Systems 
Protection Board under 5 U.S.C. 7701, but not both. Sections 7114(a)(5) 
and 7121(b)(1)(C) of title 5, U.S. Code, and the terms of an applicable 
collective bargaining agreement, govern representation for employees in 
an exclusive bargaining unit who grieve a matter under this subpart 
through the negotiated grievance procedure.


Sec.  752.406  Agency records.

    The agency must maintain copies of, and will furnish to the Merit 
Systems Protection Board and to the employee upon their request, the 
following documents:
    (1) Notice of the proposed action;
    (2) Employee's written reply, if any;
    (3) Summary of the employee's oral reply, if any;
    (4) Agency notice of decision; and
    (5) Any order effecting the action, together with any supporting 
material.

Subpart E--[Removed and Reserved]

Subpart F--Regulatory Requirements for Taking Adverse Action Under 
the Senior Executive Service


Sec.  752.601  Coverage.

    (a) Adverse actions covered. This subpart applies to suspensions 
for more than 14 days, including indefinite suspensions for more than 
14 days, and removals from the civil service as set forth in 5 U.S.C. 
7542.
    (b) Actions excluded. (1) An agency may not take a suspension 
action of 14 days or less.
    (2) This subpart does not apply to actions taken under 5 U.S.C. 
1215, 3592, 3595, or 7532.
    (c) Employees covered. This subpart covers the following 
appointees:
    (1) A career appointee--
    (i) Who has completed the probationary period in the Senior 
Executive Service;
    (ii) Who is not required to serve a probationary period in the 
Senior Executive Service; or
    (iii) Who was covered under 5 U.S.C. 7511 immediately before 
appointment to the Senior Executive Service.
    (2) A limited term or limited emergency appointee--
    (i) Who received the limited appointment without a break in service 
in the same agency as the one in which the employee held a career or 
career-conditional appointment (or an appointment of equivalent tenure 
as determined by the Office of Personnel Management) in a permanent 
civil service position outside the Senior Executive Service; and
    (ii) Who was covered under 5 U.S.C. 7511 immediately before 
appointment to the Senior Executive Service.
    (d) Employees excluded. This subpart does not cover an appointee 
who is serving as a reemployed annuitant.


Sec.  752.602  Definitions.

    In this subpart--
    Career appointee, limited term appointee, and limited emergency 
appointee have the meaning given in 5 U.S.C. 3132(a).
    Day means calendar day.
    Suspension has the meaning given in 5 U.S.C. 7501(2).


Sec.  752.603  Standard for action.

    (a) An agency may take an adverse action under this subpart only 
for reasons of misconduct, neglect of duty, malfeasance, or failure to 
accept a directed reassignment or to accompany a position in a transfer 
of function.
    (b) An agency may not take an adverse action under this subpart on 
the basis of any reason prohibited by 5 U.S.C. 2302.


Sec.  752.604  Procedures.

    (a) Statutory entitlements. An appointee against whom action is 
proposed under this subpart is entitled to the procedures provided in 5 
U.S.C. 7543(b).
    (b) Notice of proposed action. (1) An appointee against whom an 
action is proposed is entitled to at least 30 days' advance written 
notice unless there is an exception pursuant to Sec.  752.604(d) of 
this part. The notice must state the specific reason(s) for the 
proposed action, and inform the appointee of his or her right to review 
the material that is relied on to support the reasons for action given 
in the notice.
    (2) Under ordinary circumstances, an appointee whose removal has 
been proposed will remain in a duty status in his or her regular 
position during the advance notice period. In those rare circumstances 
where the agency

[[Page 54082]]

determines that the appointee's continued presence in the work place 
during the notice period may pose a threat to the appointee or others, 
result in loss of or damage to Government property, or otherwise 
jeopardize legitimate Government interests, the agency may elect one or 
a combination of the following alternatives:
    (i) Assigning the appointee to duties where he or she is no longer 
a threat to safety, the agency mission, or Government property;
    (ii) Allowing the appointee to take leave, or carrying him or her 
in an appropriate leave status (annual, sick, leave without pay, or 
absence without leave) if the appointee has absented himself or herself 
from the worksite without requesting leave;
    (iii) Curtailing the notice period when the agency can invoke the 
provisions of paragraph (d) of this section; or
    (iv) Placing the employee in a paid, nonduty status for such time 
as is necessary to effect the action.
    (c) Appointee's answer. (1) The appointee may answer orally and in 
writing except as provided in Sec.  752.604(c)(2) of this part. The 
agency must give the appointee a reasonable amount of official time to 
review the material relied on to support its proposed action, to 
prepare an answer orally and in writing, and to secure affidavits, if 
the appointee is in an active duty status. The agency may require the 
appointee to furnish any answer to the proposed action, and affidavits 
and other documentary evidence in support of the answer, within such 
time as would be reasonable, but not less than 7 days.
    (2) The agency will designate an official to hear the appointee's 
oral answer who has authority either to make or to recommend a final 
decision on the proposed adverse action. The right to answer orally in 
person does not include the right to a formal hearing with examination 
of witnesses unless the agency provides for such hearing in its 
regulations. Under 5 U.S.C. 7543(c), the agency may in its regulations 
provide a hearing in place of or in addition to the opportunity for 
written and oral answer.
    (3) If the appointee wishes the agency to consider any medical 
condition that may have affected the basis for the adverse action, the 
appointee must be given reasonable time to furnish medical 
documentation (as defined in Sec.  339.104 of this chapter) of the 
condition. Whenever possible, the appointee will supply such 
documentation within the time limits allowed for an answer.
    (d) Exception. Section 7543(b)(1) of title 5, U.S. Code, authorizes 
an exception to the 30 days' advance written notice when the agency has 
reasonable cause to believe that the employee has committed a crime for 
which a sentence of imprisonment may be imposed and is proposing a 
removal or suspension, including indefinite suspension. This notice 
exception is commonly referred to as the ``crime provision.'' This 
provision may be invoked even in the absence of judicial action.
    (e) Representation. Section 7543(b)(3) of title 5, U.S. Code, 
provides that an appointee covered by this part is entitled to be 
represented by an attorney or other representative. An agency may 
disallow as an appointee's representative an individual whose 
activities as representative would cause a conflict of interest or 
position, or an employee of the agency whose release from his or her 
official position would give rise to unreasonable costs or whose 
priority work assignments preclude his or her release.
    (f) Agency review of medical information. When medical information 
is supplied by the appointee pursuant to paragraph (c)(3) of this 
section, the agency may, if authorized, require a medical examination 
under the criteria of Sec.  339.301, or otherwise, at its option, offer 
a medical examination in accordance with the criteria of Sec.  339.302. 
If the appointee has the requisite years of service under the Civil 
Service Retirement System or the Federal Employees Retirement System, 
the agency must provide information concerning disability retirement. 
The agency must be aware of the affirmative obligations of the 
provisions of 29 CFR 1614.203, which require reasonable accommodation 
of a qualified individual with a disability.
    (g) Agency decision. (1) In arriving at its decision, the agency 
will consider only the reasons specified in the notice of proposed 
action and any answer of the appointee or the appointee's 
representative, or both, made to a designated official and any medical 
documentation reviewed under paragraph (f) of this section.
    (2) The notice must specify in writing the reasons for the decision 
and advise the appointee of any appeal or grievance rights under Sec.  
752.605 of this part. The agency must deliver the notice of decision to 
the appointee on or before the effective date of the action.
    (h) Applications for disability retirement. Section 831.1204(e) of 
this chapter provides that an appointee's application for disability 
retirement need not delay any other appropriate personnel action. 
Section 831.1205 and section 844.202 of this chapter set forth the 
basis under which an agency must file an application for disability 
retirement on behalf of an appointee.


Sec.  752.605  Appeal rights.

    (a) Under 5 U.S.C. 7543(d), a career appointee against whom an 
action is taken under this subpart is entitled to appeal to the Merit 
Systems Protection Board.
    (b) A limited term or limited emergency appointee who is covered 
under Sec.  752.601(c)(2) also may appeal an action taken under this 
subpart to the Merit Systems Protection Board.


Sec.  752.606  Agency records.

    The agency must maintain copies of, and will furnish to the Merit 
Systems Protection Board and to the employee upon his or her request, 
the following documents:
    (1) Notice of the proposed action;
    (2) Employee's written reply, if any;
    (3) Summary of the employee's oral reply, if any;
    (4) Agency notice of decision; and
    (5) Any order effecting the action, together with any supporting 
material.

[FR Doc. E8-21523 Filed 9-17-08; 8:45 am]
BILLING CODE 6325-39-P


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