# 91 FR 40444: Promoting Employee Accountability > Federal · Regulations · In force URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2026-13445 ## Section - **Citation:** 91 FR 40444 - **Heading:** Promoting Employee Accountability - **Jurisdiction:** Federal - **Kind:** Regulations - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Federal Register / Vol. 91 / 91 FR 40444 ## Text ognize the interactions between the proposed changes to each of their regulations. To that end, OPM and MSPB are publishing these proposals in a joint notice of proposed rulemaking and welcome comment on those interactions and related impacts. After consideration of comments, the agencies may issue a joint final rule or each agency may finalize its respective proposals in separate final rules. I. Previous Attempts To Promote Accountability of the Federal Workforce One of the major purposes of the Civil Service Reform Act of 1978 (CSRA) was to “preserve the ability of federal managers to maintain an effective and efficient Government.” Cornelius v. Nutt, 472 U.S. 648, 662 (1985) (internal formatting omitted). “In order to achieve this purpose, one of the `central tasks' of the [CSRA] was to [a]llow civil servants to be able to be hired and fired more easily, but for the right reasons.' ” Id. (quoting S.Rep. No. 95-969, p. 4 (1978), U.S.C. Cong. & Admin. News 1978, p. 2726). However, contrary to Congress's objectives that the CSRA would “give agencies greater ability to remove or discipline expeditiously employees who engage in misconduct, or whose work performance is unacceptable,” id. (internal quotation marks omitted), reports and surveys consistently document that the Federal government struggles to effectively address widespread performance and conduct issues in the Federal workforce. During his first administration, President Trump prioritized federal employee accountability by issuing E.O. 13839, “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles;” 2 E.O. 13839 recognized that implementation of Merit System Principles has fallen short of their ideals of promoting high levels of performance and correcting poor performance and misconduct. 3 Among many reforms to reestablish these Merit System Principles, President Trump sought changes to agencies' use of performance improvement plans to promote greater accountability us final rule placed restrictions and limitations on when agencies could offer performance assistance to struggling employees. OPM also explained that it declined to modify its proposed changes to adverse action procedures under Part 752 because they reflected consistency with law while providing agencies with the necessary tools and flexibility to address unacceptable performance and misconduct. OPM also rebutted concerns that it failed to cite to data or evidence to support its change in policy, arguing that a change in administration is a sufficient basis for revising its regulations. OPM also argued that the final rule adopted during the first Trump administration lacked sufficient reliance interests since less than three-months lapsed between the final rule and the issuance of E.O. 14003. Finally, in explaining why it decided to adopt its rescission of its limitations on clean record settlements, OPM stated that it “deem[ed] impracticable, unrealistic, and unhelpful because it absolutely prohibits agencies from altering or removing information about performance or misconduct as a condition to resolve or settle a complaint or challenge to a personnel action, even where doing so furthers the best interests of an effective and efficient Government and the interests, voluntarily expressed, of both parties to personnel litigation.” 7 7 87 FR 67774. Shortly after taking the oath of office on January 20, 2025, President Trump revoked E.O. 14003 and restored the policies of E.O. 13839. 8 President Trump made it a priority of his Administration to ensure that the federal civilian workforce is accountable to the American people. See, e.g., E.O. 14171, 90 FR 8625 (Jan. 31, 2025) (“A critical aspect of this executive function is the responsibility to maintain professionalism and accountability within the civil service.”) evoked E.O. 14003 and restored the policies of E.O. 13839. 8 President Trump made it a priority of his Administration to ensure that the federal civilian workforce is accountable to the American people. See, e.g., E.O. 14171, 90 FR 8625 (Jan. 31, 2025) (“A critical aspect of this executive function is the responsibility to maintain professionalism and accountability within the civil service.”). The need to promote accountability within the federal workforce comes at a critical time to ensure that the federal government meets the needs of the American people while agencies seek to eliminate waste and find efficiencies to deliver on their missions. To accomplish the President's vision for the federal workforce, OPM finds it necessary to amend its regulations issued during the Biden Administration and return to the regulations finalized during the first Trump Administration. 8 90 FR 8237 (Jan. 28, 2025). Note that section 6 of E.O. 14171 directed agencies to reverse changes to agency policies pertaining to disciplinary actions and unacceptable performance effectuated under E.O. 14003. That order in turn had required agencies to reverse changes to such policies effectuated under E.O. 13839. Consequently, E.O. 14171 on net directed agencies to return to the disciplinary and unacceptable performance policies implemented pursuant to E.O. 13839 and reversed under E.O. 14003. II. Reinvigorating Merit System Principles President Trump made it a priority of his Administration to ensure that the federal civilian workforce is accountable to the American taxpayer. See, e.g., E.O. 14171, 90 FR 8625 (Jan. 31, 2025) (“A critical aspect of this executive function is the responsibility to maintain professionalism and accountability within the civil service.”). The need to promote accountability within the federal workforce comes at a critical time to ensure that the federal government meets the needs of the American people while agencies seek to eliminate waste and find efficiencies to deliver on their missions (“A critical aspect of this executive function is the responsibility to maintain professionalism and accountability within the civil service.”). The need to promote accountability within the federal workforce comes at a critical time to ensure that the federal government meets the needs of the American people while agencies seek to eliminate waste and find efficiencies to deliver on their missions. In establishing the Merit System Principles that underpin the federal government, Congress intended to require a professional workforce designed to be used efficiently and effectively, where employees are retained based on performance or released from service; and, where high performance and achievement are demonstrated, agencies provide incentives and recognition for employee achievement. See 5 U.S.C. 2301(b)(3), (5)-(6). Congress also intended for federal employees to uphold exemplary standards of integrity and demonstrate a commitment to the public interest. 5 U.S.C. 2301(b)(4). Over an extended period, numerous studies have documented that agencies face serious challenges holding federal employees accountable for poor performance and misconduct. While the CSRA “was passed, in part, to make it easier for managers to remove poor performers from the Federal workplace. Experience . . . shows that this goal has not been achieved.” 9 The Government Accountability Office (GAO) reported in 1990 that “[a]bout half of the supervisors [it surveyed] said they had experienced difficulty in implementing the process for dealing with poor performers . . . [and] cited the significant amount of calendar time” the process may require, among other cumbersome reasons d changes first identified in E.O. 13839 into its regulations, as well as other revisions discussed below, as a necessary step toward ensuring accountability in the federal workforce. These proposed changes align with President Trump's vision for restoring merit to the workforce, promoting stewardship of taxpayers' money, and facilitating agencies' ability to deliver on their missions. While E.O. 13839 is not currently in effect, President Trump directed agencies to rescind regulations and other policies implemented pursuant to E.O. 14003 that rescinded or reversed policies issued under E.O. 13839. 16 This directive applies to OPM's November 10, 2022, final rule. As stated in the 2022 final rule, OPM finds that “a change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of its regulations and programs.” 17 Further and as discussed in greater detail below, even if E.O. 14171 had not directed restoration of E.O. 13839 policies, OPM independently believes these changes are necessary to promote greater employee accountability. 16 See E.O. 14171, section 6. 17 See 87 FR 67767 (cleaned up). III. Retiring the Douglas Factors One of Congress's primary purposes in enacting 5 U.S.C. 7701, establishing the MSPB's appellate jurisdiction, was “to give agencies greater ability to remove or discipline expeditiously employees who engage in misconduct, or whose work performance is unacceptable.” Cornelius v. Nutt, 472 U.S. 648, 662-63 (1985). This principal objective, however, has been frustrated by the perceived requirement to consider the 12 Douglas factors in every adverse action case—a requirement that is not mandated by statute. Nagel v. Dep't of Health & Hum. Servs., 707 F.2d 1384, 1386 (Fed. Cir. 1983). Since the Board's decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) establishing 12 factors for assessing the reasonableness of an agency's chosen penalty for adverse actions taken under 5 U.S.C deral supervisors to consider each of the 12 Douglas factors in every case, has demonstrated that another method is needed. See Douglas, 5 M.S.P.R. at 306 (1981) (cautioning against a “mechanistic” or “formulaic” weighing of the Douglas factors in every case). 18 The requirement that an adverse action promote the “efficiency of the service” originated with the Lloyd-La Follette Act, ch. 389, sec. 6, 37 Stat. 539 (1912). Further, MSPB does not view consideration of the Douglas factors in every adverse action case as necessary to uphold merit principles. On the contrary, it is concerned that the perceived requirement to consider each of the 12 Douglas factors in taking an action under 5 U.S.C. 7513 may undermine merit principles, particularly Merit System Principle 4 (“All employees should maintain high standards of integrity, conduct, and concern for the public interest”) and Merit System Principle 6 (“Employees should be retained on the basis of adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards”). See 5 U.S.C. 2301. MSPB therefore proposes to amend its regulations at 5 CFR part 1201 regarding its review of the agency's choice of penalty to make clear that it will no longer apply the 12 Douglas factors but, instead, will consider the penalty in each case under the totality of the circumstances. MSPB also proposes to codify existing case law regarding how it determines whether to sustain or mitigate penalties, consistent with Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). IV. Proposed Amendments a. 5 CFR Part 412 Supervisory, Management, and Executive Development Part 412 applies to all incumbents of (and candidates for) supervisory, managerial, and executive positions in the General Schedule (GS), the Senior Executive Service (SES), or equivalent pay systems that are also covered by 5 CFR part 410 ith Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). IV. Proposed Amendments a. 5 CFR Part 412 Supervisory, Management, and Executive Development Part 412 applies to all incumbents of (and candidates for) supervisory, managerial, and executive positions in the General Schedule (GS), the Senior Executive Service (SES), or equivalent pay systems that are also covered by 5 CFR part 410. Among some of the most common refrains that supervisors, managers, and executives report is the lack of training on effectively and efficiently managing their workforces and aligning their work units to the broader strategic goals of the agencies. 19 19 U.S. Government Accountability Office, “2020 Federal Managers Survey: Results on Government Performance and Management Issues,” July 27, 2021, available at https://files.gao.gov/special.pubs/gao-21-537sp/resultsall.htm. The revisions to 412.202 proposed in this rule are intended to ensure agencies train and develop these individuals so that they may become more effective managers, improve their employees' performance without needing to take performance-based or adverse actions, and become better prepared to take any such action to address poor performance or misconduct. § 412.202 Systematic Training and Development of Supervisors, Managers, and Executives While current regulation requires agencies to establish leadership development plans, programs, and strategies, provide periodic training to ensure quality managers, and to assist employees transitioning from non-supervisory employee to manager, or from manager to executive, the current requirements lack rigor and specificity. This proposed rule intends to improve the quality of such policies and programs. Namely, under the proposed rule, agencies would be required to design and implement training and development programs for supervisors, managers, and executives with improved focus on promoting high levels of performance and accountability and align with OPM guidance e current requirements lack rigor and specificity. This proposed rule intends to improve the quality of such policies and programs. Namely, under the proposed rule, agencies would be required to design and implement training and development programs for supervisors, managers, and executives with improved focus on promoting high levels of performance and accountability and align with OPM guidance. The proposed rule also reduces the interval for training to supervisory, managerial, and executive positions from once every three years to annually, to ensure such personnel are well-versed in the use of actions, options, and strategies to oversee and manage the productivity of their workforces. The proposed rule modifies four existing subjects and adds eight new ones agencies must incorporate into their annual trainings for supervisors, managers, and executives under 5 CFR 412.202(b). Among the new subjects, agencies will be required to provide training on: the procedures for holding employees accountable for unacceptable performance; effective use of probationary and trial periods, awards, bonuses, and other forms of employee recognition; and addressing reports of hostile work environment, retaliation, or harassment. Additional and qualitatively-improved supervisor training is important to ensure supervisors, managers, and executives are appropriately equipped to build the high-performance culture essential to individual and organizational success as President Trump has directed. 20 For example, GAO's 2020 Federal Managers Survey found that a plurality of managers self-reported they have not been provided trainings to help accomplish basic workforce management tasks including but not limited to conducting strategic planning, setting performance goals, or using program performance to inform future decision-making. 21 Further, as it relates to the authorities of chapter 43 and 75 specifically, GAO reports supervisors may suffer from a lack of “basic understanding of the processes under chapter 43 and 75; and . . pervisors of the Department of War to complete a training program once every three years on authorities and topics detailed under that specific Section. The plain reading of the statute sets a floor—not a mandate—for supervisors to meet. Notwithstanding the provisions of 5 U.S.C. 9902(d)(2) or similar statute, OPM may establish training requirements under 5 U.S.C. 4118. As applicable here, 5 U.S.C. 4103 directs each agency to establish training programs in accordance with the regulations promulgated by OPM under 5 U.S.C. 4118; and 5 U.S.C. 4103(a)(1). This directive, housed in 5 U.S.C. chapter 41, is in part the underlying predicate authority for 5 CFR 412.202. See 5 CFR part 412. b. 5 CFR Part 432—Performance-Based Reduction in Grade and Removal Actions Part 432 applies to reduction in grade and removal of covered employees based on performance at the unacceptable level. Congress enacted 5 U.S.C. chapter 43, in part, to create a simple, dedicated, though not exclusive, process for agencies to use in taking adverse actions based on unacceptable performance. Since that time, however, chapter 43 has not worked as Congress intended. Specifically, interpretations of chapter 43 that are not statutorily required have hindered agencies from taking effective action against poor performers and sustaining those actions on appeal. The proposed rule is intended to clarify the requirements in 5 U.S.C. chapter 43. The proposed amendments to 5 CFR part 432 should be construed to be read in concert with related provisions of Federal law ( e.g., 5 U.S.C. 6384 and 29 U.S.C. 791(f)) as well as OPM's proposed rulemaking modifying part 430 of this subchapter. Finally, OPM notes that 5 U.S.C. 2301(b)(2) provides that employees should receive fair and equitable treatment without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. All personnel actions must meet this statutory requirement agency The proposed rule also prohibits the use of taxpayer-funded union time under 5 U.S.C. 7131(d) for a Federal employee serving as a representative of an employee during the procedures established under subparts B and D of part 752. OPM believes that American taxpayers should not pay for the representation of Federal employees charged with conduct detrimental to the efficiency of the service. As detailed in the Taxpayer-Funded Union Time Usage in the Federal Government: Fiscal Year 2024, taxpayers subsidize labor union representatives at a total compensation rate of $64.05 per hour to represent bargaining unit employees or at a total annual compensation cost of more than $207 million. 23 In Fiscal Year 2019, the total annual compensation cost was slightly below $135 million. OPM, thus, finds it entirely appropriate and necessary to reduce these growing costs by ending the general subsidization of employee opposition to proposed removals. Employees may represent themselves in such proceedings or bring in outside counsel. But agencies should not be required to subsidize employee opposition to removal actions. to shift these costs away from taxpayers to employees. This prohibition is also consistent with the policies of E.O. 13837 and two other OPM-proposed rulemakings. If adopted in the final rule, the regulation would prevent agencies from agreeing to a proposal or provision in a collective bargaining agreement or authorizing the use of taxpayer-funded union time under section 7131(d) for the purposes of representing employees during proceedings established under subparts B and D. Where agencies have agreed to provide such time in a collective bargaining agreement before any such final rule, this prohibition would apply at the expiration of the term of that agreement. 23 https://www.opm.gov/about-us/reports-publications/agency-reports/fiscal-year-2024-taxpayer-funded-union-time-usage-in-the-federal-government/. To align with 5 U.S.C tablished under subparts B and D. Where agencies have agreed to provide such time in a collective bargaining agreement before any such final rule, this prohibition would apply at the expiration of the term of that agreement. 23 https://www.opm.gov/about-us/reports-publications/agency-reports/fiscal-year-2024-taxpayer-funded-union-time-usage-in-the-federal-government/. To align with 5 U.S.C. 4303(c)(1) and to promote efficiency, the proposed rule directs agencies to make their final written decision within 30 days after the expiration of the advance notice period but encourages an agency to make its final written decision as soon as practicable. The proposal empowers the deciding official, in his or her sole and exclusive discretion, to mitigate the proposed action only where doing so is consistent with the mission of the agency. § 432.108 Settlement Agreements Under E.O. 13839, President Trump prohibited agencies from agreeing to erase, remove, alter, or withhold from another Federal agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an adverse action. Such agreements or provisions thereof have traditionally been referred to as “clean record” settlements or become a part of agreements described as “last chance agreements.” 24 This proposed rule is intended to promote the high standards of integrity, transparency, and accountability within the Federal workforce by requiring agencies to maintain personnel records that reflect complete information and preventing the alteration of information contained in those records in connection with a formal or informal complaint or adverse action. These limitations pertain to the exchange of information among Federal agencies and do not extend to external employers ency, and accountability within the Federal workforce by requiring agencies to maintain personnel records that reflect complete information and preventing the alteration of information contained in those records in connection with a formal or informal complaint or adverse action. These limitations pertain to the exchange of information among Federal agencies and do not extend to external employers. Thus, agencies may agree to, for example, a provision in a settlement agreement that would provide a “neutral reference” 25 to a non-Federal agency employer. This requirement would also ensure that those records are preserved so that agencies can make appropriate and informed decisions regarding an employee's qualification, suitability or fitness, and eligibility for access to classified information as applicable to future employment. 24 These types of agreements call for an agency to hold a proposed action in abeyance for a period of time, typically one or two years, subject to an employee's good behavior. If the employee does not engage in any misconduct during this time, the agency would, as a condition of the agreement, mitigate or rescind the proposed action including removing evidence of the misconduct giving rise to the proposed action. Such agreements would be prohibited under this proposed rule. 25 Agencies sometimes agree as part of a settlement agreement to provide a neutral reference to prospective employers. The terms of a typical neutral reference provide that an agency will only confirm the dates of employment, salary history, and title of an employee to a prospective employer conducting a reference check. These requirements should not be construed to prevent agencies from correcting records of an action taken by the agency illegally or in error. In such cases, an agency has the authority—unilaterally or by agreement—to modify an employee's personnel file to remove inaccurate information or the record of an erroneous or illegal action mployee to a prospective employer conducting a reference check. These requirements should not be construed to prevent agencies from correcting records of an action taken by the agency illegally or in error. In such cases, an agency has the authority—unilaterally or by agreement—to modify an employee's personnel file to remove inaccurate information or the record of an erroneous or illegal action. Specifically, the proposed rule states that the requirement would not prevent agencies from taking corrective action should it come to light, including during or after the issuance of an adverse personnel action, that information contained in a personnel record is inaccurate or documents an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee's personnel file to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal or a complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. In all events, however, the agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. Documents subject to withdrawal or modification could include, for example, an SF-50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. Finally, to the extent that an employee's personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee's personnel file or other agency files n SF-50 issuing a disciplinary or performance-based action, a decision memorandum accompanying such action, or an employee performance appraisal. Finally, to the extent that an employee's personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee's personnel file or other agency files. Under the proposed rule, if persuasive evidence emerges before a final agency decision that questions the validity of an adverse personnel action or the agency's ability to defend it in litigation, the agency may cancel or vacate the action. Additional information can emerge at any point in the process before the agency makes its final decision, including during an employee's response period. To the extent an employee's personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency would have the authority to remove that action from the employee's personnel file or other agency files. However, the requirements would continue to apply to any accurate information about the employee's performance or conduct which comes to light prior to issuance of a final agency decision on an adverse action. Should an agency cancel an action or proposed action and remove it from an employee's personnel file, the agency may need to retain the removed documentation to comply with other obligations such as litigation holds, suitability background investigations, and national security clearance background investigations. c. 5 CFR Part 715—Nondisciplinary Separations, Demotions, and Furloughs § 715.201 Applicability The proposed language in this section removes the term “requested” to accommodate the proposed changes to 715.203. § 715.203 Abandonment The proposed language in this section establishes a clear standard for agencies to use in determining whether an employee abandons his or her position tions. c. 5 CFR Part 715—Nondisciplinary Separations, Demotions, and Furloughs § 715.201 Applicability The proposed language in this section removes the term “requested” to accommodate the proposed changes to 715.203. § 715.203 Abandonment The proposed language in this section establishes a clear standard for agencies to use in determining whether an employee abandons his or her position. An employee deemed to have abandoned his position is not entitled to the statutory procedures under subparts D and F of Part 752 in the separation process. An employee who does not report for duty, or fails to return from leave or furlough of 30 days or less, for a period of 10 consecutive calendar days or longer without submitting a resignation is considered to have voluntarily abandoned their position. The D.C. Circuit has observed that the abandonment doctrine aligns with 5 U.S.C. 7512, which delineates the categories of adverse actions subject to MSPB review and specifically excludes abandonment. The abandonment doctrine is recognized in MSPB decisions, judicial decisions, and OPM's Guide to Processing Personnel Actions. 26 26 McLane v. Burgum, No. 23-5205, 2025 WL 817423, at *2 (D.C. Cir. Mar. 14, 2025); see also Carroll v. Dep't of Interior, 2014 WL 6791369 (M.S.P.B. Dec. 3, 2014); Off. of Personnel Mgmt., Guide to Processing Personnel Actions (2017), Ch. 35 at 1, Ch. 31 at 25. OPM is convinced that it would benefit agency HR professionals if the abandonment doctrine were officially included in its regulations. OPM believes this proposal would clearly define the time required to establish abandonment, offering a regulatory standard where case law is unclear. OPM based its determination that 10 calendar days is reasonable on the Civil Service Commission's prior rule from the Federal Personnel Manual. 27 27 See FPM Chapter 715, subchapter 3-2 (July 1969). d 5 U.S.C. 7503(a). Although the standard for action under this subpart is unchanged, the proposed rule introduces three additional requirements to be considered when determining the appropriate penalty pursuant to this subpart. First, the proposed rule clarifies that an agency is not required to use progressive discipline under this subpart. This change mirrors the same policy articulated in E.O. 13839 which stated that supervisors and managers should not use progressive discipline and that each instance of conduct should be penalized based on the facts and circumstances. Second, OPM proposes to prohibit agencies from establishing or using tables of penalties or similar policies that prescribe mandatory or recommended disciplines. Certain agencies create penalty tables to help supervisors determine what discipline might best apply in specific cases. The creation and use of a table of penalties is neither required by statute, case law, or OPM regulation; nor does OPM provide written guidance on this topic. The applicable standard, “to promote the efficiency of the service,” is broad and flexible enough to encompass all occurrences that may occasion an adverse action. Thus, agencies can address misconduct appropriately without a table of penalties, and with sufficient flexibility to determine the appropriate discipline for each instance of misconduct. Tables of penalties may also create significant drawbacks to the viability of a particular action and to effective management. By establishing a range of penalties for an offense, tables of penalties restrict management's discretion to adjust disciplines according to the specific facts and circumstances of each case by eliminating certain options along the continuum mployee's opportunity to respond. While decisions rendered after this deadline are still valid, OPM views it necessary to establish this time limit for agencies to measure their performance in effectively addressing conduct detrimental to the efficiency of the service. The proposed § 752.203(f) authorizes employees to file an administrative grievance concerning an action taken under this subpart. It also proposes to prohibit bargaining unit employees or labor organizations on behalf of the bargaining unit employees from filing a negotiated grievance procedure contesting short-term suspensions taken under this subpart unless the agency and OPM agree that the negotiated grievance procedure does not impair the effective use of actions taken under this subpart. If either the agency or OPM subsequently determines that the negotiated grievance procedure impairs the effective use of actions under this subpart either may revoke their previous determination. OPM views these changes as necessary to prevent negotiated grievance procedures from creating significant delays and imposing significant expenses when agencies utilize short-term suspensions. Such delays and costs disincentivize supervisors and managers from carrying out relatively minor disciplinary actions. Congress intended suspensions of 14 days or less to be less administratively burdensome than adverse actions. The proposed amendments permit continued grievance arbitration of such actions, but only where the agency and OPM find the use of grievance procedures does not impair their use as a disciplinary tool. The proposed language in § 752.203(h) establishes the same requirements restricting settlement agreements that is detailed in the proposed rule changes at § 432.108, Settlement agreements. See prior discussion about §§ 432.108 and 752.104 for additional context ated previously, OPM is proposing to adopt the same changes proposed under § 752.202 and § 752.203(a) under § 752.403. The proposed § 752.403(a) adopts the same limitations found at § 752.203(a) on supplementing the procedures used by agencies in taking adverse actions under subpart D. The proposed § 752.403(c)-(e) add the same penalty determination standards proposed at § 752.202(c), (e), and (f). OPM is also proposing in § 752.403(b) to adopt the same standard in § 752.202(b) to clarify that agencies shall not take any action under subpart D prohibited by 5 U.S.C. 2302. Additionally, OPM proposes in § 752.403(d) to clarify that in assessing an appropriate penalty, agencies should focus on comparators in the same work unit, with the same supervisor, and who were subjected to the same standards governing discipline. OPM is adopting the approach articulated by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Miskill v. Social Security Administration, 863 F.3d 1379 (Fed. Cir. 2017), to guide agencies in identifying the appropriate comparators. The Federal Circuit held that an agency need only provide “proof that the proffered comparator was in the same work unit, with the same supervisor, and was subjected to the same standards governing discipline.” Miskill, 863 F.3d at 1384. A line of since-repudiated Board decisions functionally required supervisors to consider agency-wide comparators when assessing penalties for misconduct. 31 This both made removals for misconduct difficult and strongly discouraged agencies from showing leniency in appropriate circumstances, as a single incident of leniency anywhere in the agency could prevent it from removing any other employee for similar conduct. OPM accordingly proposes to regulatorily codify that the use of comparator employees is optional on the part of agencies; and, when used, appropriate comparators are those in the same work unit and with the same supervisor rom showing leniency in appropriate circumstances, as a single incident of leniency anywhere in the agency could prevent it from removing any other employee for similar conduct. OPM accordingly proposes to regulatorily codify that the use of comparator employees is optional on the part of agencies; and, when used, appropriate comparators are those in the same work unit and with the same supervisor. This approach reinforces the key principle that each case stands on its own factual and contextual footing. 31 See Lewis v. VA, 2010 MSPB 98 (2010); Woebcke v. DHS, 2010 MSPB 85 (2010); and Villada v. USPS, 2010 MSPB 232 (2010) (requiring agencies to look at agency-wide comparators when evaluating proposed discipline for misconduct). But see Singh v. USPS, 2022 MSPB 15 (2022) (abandoning the standard set out in Lewis and related cases). § 752.404 Procedures Section 752.404(b) discusses the requirements for a notice of proposed action issued under this subpart. Specifically, § 752.404(b)(1) provides that, to the extent an agency, in its sole and exclusive discretion deems practicable, agencies should limit written notice of adverse actions taken under this subpart to the 30 days prescribed in 5 U.S.C. 7513(b)(1). Any notice period greater than 30 days must be reported to OPM. OPM will use this information to evaluate whether agencies are (1) promoting a culture of high performance and accountability and (2) holding managers and human resources professionals accountable for efficient and effective human resources management. The proposed rule leaves unchanged the requirement that the notice must provide detailed information with respect to any right to appeal the action pursuant to Public Law 115-91 section 1097(b)(2)(A); specifically, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file gement. The proposed rule leaves unchanged the requirement that the notice must provide detailed information with respect to any right to appeal the action pursuant to Public Law 115-91 section 1097(b)(2)(A); specifically, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. This additional language implements the requirement in Public Law 115-91 section 1097(b)(2)(A), which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). OPM is proposing to modify § 752.404(b)(3) to remove language that it believes discourages supervisors from placing an employee on notice leave. The current regulation states that agencies ordinarily should not take employees they have proposed to suspend or remove out of the worksite and should instead generally keep them in a regular duty status. OPM believes the current regulation serves as a deterrent to supervisors and managers taking action under this subpart because it conveys a policy preference of discouraging use of the notice leave authority. According to MSPB, over 40% of supervisors “cited their discomfort” as a barrier to removing employees for misconduct. 32 GAO has also noted that “dislike of confrontation may deter supervisors from taking steps to address poor performance issues.” 33 Put simply, evidence supports that a supervisor is less likely to take an appropriate adverse action if faced with the prospect of being required to see the employee against whom the action is taken each day for as long as the process may take. These proposed changes, nonetheless, still require the agency to make the appropriate assessment under 5 U.S.C. 6329b(b)(2) and 5 CFR 630.1503(b) when placing an employee on notice leave. 32 Merit Sys. Prot. Bd., “Remedying Unacceptable Employee Performance in the Federal Civil Service,” p required to see the employee against whom the action is taken each day for as long as the process may take. These proposed changes, nonetheless, still require the agency to make the appropriate assessment under 5 U.S.C. 6329b(b)(2) and 5 CFR 630.1503(b) when placing an employee on notice leave. 32 Merit Sys. Prot. Bd., “Remedying Unacceptable Employee Performance in the Federal Civil Service,” p. 6, June 18, 1995, available at https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf. 33 U.S. Government Accountability Office, “Issues Related to Poor Performers in the Workplace,” June 30, 2005, available at https://www.gao.gov/assets/a93353.html. Additionally, OPM is proposing changes to § 752.404(c)(1) similar to its proposed changes at § 752.203(c). The proposed change under this subpart would narrow the window for employees to respond to a proposed adverse action to a 7-10 calendar day window. OPM is also proposing to enable agencies to offer a limited extension of this time period to allow an employee to consider a settlement or other offer from the agency, as well as allow an unlimited extension in cases in which additional time is necessary for compliance with a statute, regulation, or where doing so is clearly in the government's interests. Finally, the proposed rule at § 752.404(g) discusses the requirements for an agency decision issued under this subpart. Specifically, the proposed rule at § 752.404(g)(3) includes new language that, to the extent practicable, an agency should issue the decision on a proposed removal under this subpart within 10 calendar days of the conclusion of the employee's opportunity. However, an agency that exceeds this time limit is still authorized to take an action under this subpart. These proposed changes facilitate timely resolution of adverse actions while preserving employee rights uding these limits for SES would likely produce no valid comparators as most SES members are the only executives within a work unit. Additionally, the proposed rule adds the same paragraph (f) proposed at § 752.403 as paragraph (f) at § 752.603 which states that a suspension or a reduction in pay or grade should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require that an employee have previously been suspended or reduced in pay or grade before a proposing official may propose removal. § 752.604 Procedures § 752.604(b) discusses the requirements for a notice of proposed action issued under this subpart. OPM proposes revising the language in this subpart to be consistent with the advance notice period for general schedule employees. Specifically, § 752.604(b)(1) provides that, to the extent an agency, in its sole and exclusive discretion deems practicable, agencies should limit written notice of adverse actions taken under this subpart to the 30 days prescribed in 5 U.S.C. 7543(b)(1). Any notice period greater than 30 days must be reported to OPM. The proposed rule also retains existing language that the notice must provide detailed information with respect to any right to appeal the action pursuant to Public Law 115-91 section 1097(b)(2)(A); specifically, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. This additional language implements the requirement within Public Law 115-91 section 1097(b)(2)(A), which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). Finally, the proposed rule at § 752.604(g) discusses the requirements for an agency decision issued under this subpart des to file. This additional language implements the requirement within Public Law 115-91 section 1097(b)(2)(A), which mandates that information on whistleblower appeal rights be included in any notice provided to an employee under 5 U.S.C. 7503(b)(1), 7513(b)(1), or 7543(b)(1). Finally, the proposed rule at § 752.604(g) discusses the requirements for an agency decision issued under this subpart. Specifically, the proposed rule at § 752.604(g)(3) includes new language that, to the extent practicable, an agency should issue the decision on a proposed removal under this subpart within 30 calendar days of the conclusion of the employee's opportunity. § 752.607 Settlement Agreements The proposed language in this section establishes the same requirement that is detailed in the proposed rule changes at §§ 432.108, 752.203 and 752.407. Please see prior discussion regarding §§ 432.108 and 752.104 for additional context. e. § 1201.56 Burden and Degree of Proof The MSPB proposes to amend its regulations to modify the 12-factor test used to assess penalty determinations, as initially established in its decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), and replace it with a new test for assessing whether an agency's chosen penalty under chapter 75 is reasonable. Under the proposed 5 CFR 1201.56(b)(3), MSPB will evaluate whether an agency's penalty is within the tolerable limits of reasonableness in light of the totality of the circumstances. MSPB will make this determination on a case-by-case basis; no particular set of factors must be considered in every case. In proposing this departure from the 12-factor Douglas test, MSPB acknowledges that Douglas has long been a cornerstone of federal employment law. However, over the ensuing decades, agencies and, occasionally, MSPB, have applied Douglas in a rigid, mechanistic way that the original decision never contemplated or prescribed ase basis; no particular set of factors must be considered in every case. In proposing this departure from the 12-factor Douglas test, MSPB acknowledges that Douglas has long been a cornerstone of federal employment law. However, over the ensuing decades, agencies and, occasionally, MSPB, have applied Douglas in a rigid, mechanistic way that the original decision never contemplated or prescribed. For the reasons set forth in this proposed rule, and in conjunction with OPM's streamlining of performance management policy, the Board proposes to correct this rigid application and reaffirm the Board's commitment to adjudicating disciplinary action appeals under a more flexible standard in conformance with its statutory authority. Additionally, MSPB proposes to codify existing case law regarding how the Board determines whether to sustain or mitigate penalties. Consistent with Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999) (hereinafter “ Devall” ), if MSPB sustains all charges by the agency and determines that the agency's penalty is reasonable, it will sustain the agency's action. If MSPB sustains all the charges but determines the penalty is not reasonable, it may mitigate the penalty to the maximum reasonable penalty. If MSPB sustains fewer than all of the agency's charges, MSPB may mitigate the agency's penalty to the maximum reasonable penalty so long as the agency did not indicate either in its final decision, or during proceedings before MSPB, that it desired that a lesser penalty be imposed if the Board did not sustain all of its charges. If an agency so indicated, MSPB may impose a lesser penalty the agency indicated it would have imposed or give the agency an opportunity to institute a lesser penalty. If an agency did not indicate that it desired a lesser penalty be imposed if MSPB did not sustain all its charges, MSPB may mitigate the agency's penalty to the maximum reasonable penalty or give the agency an opportunity to institute a lesser penalty. 34 34 Devall, 178 F.3d at 1260 enalty the agency indicated it would have imposed or give the agency an opportunity to institute a lesser penalty. If an agency did not indicate that it desired a lesser penalty be imposed if MSPB did not sustain all its charges, MSPB may mitigate the agency's penalty to the maximum reasonable penalty or give the agency an opportunity to institute a lesser penalty. 34 34 Devall, 178 F.3d at 1260. Legal Standards Governing Penalty Review Under Statute and Regulation Congress has directed that an agency may take an adverse action “only for such cause as will promote the efficiency of the service.” 35 In addition, the statute requires that the employee receive procedural rights—notice, an opportunity to respond, representation, and a written decision. 36 35 5 U.S.C. 7513(a). 36 5 U.S.C. 7513(b). When an employee appeals a chapter 75 action, the Board adjudicates the appeal under 5 U.S.C. 7701. The agency bears the burden of proof, and the Board must sustain the agency action only if supported by the applicable evidentiary standard. 37 Specifically, for actions under chapter 75, the agency must prove its charge and its penalty by a preponderance of the evidence and for actions under chapter 43, by substantial evidence. 38 An appellant may prevail by establishing that the agency has committed harmful procedural error in arriving at its decision, the agency's decision was based on a prohibited personnel practice, or the agency's decision was contrary to law. 39 37 5 U.S.C. 7701(c)(1); 5 CFR 1201.56(b). 38 5 CFR 1201.56(b)(1)(ii). 39 5 CFR 1201.56(c). Regarding the penalty imposed, nothing in the governing statutes or regulations mandates the use of any particular set of enumerated factors. The statutory command is that the action must be reasonable and “promote the efficiency of the service,” and the Board must evaluate the agency's justification on the record as a whole 5 CFR 1201.56(b). 38 5 CFR 1201.56(b)(1)(ii). 39 5 CFR 1201.56(c). Regarding the penalty imposed, nothing in the governing statutes or regulations mandates the use of any particular set of enumerated factors. The statutory command is that the action must be reasonable and “promote the efficiency of the service,” and the Board must evaluate the agency's justification on the record as a whole. The Douglas Decision and the Emergence of the Twelve Factors In Douglas, the Board confronted the question of how to assess the reasonableness of penalties selected by agencies under chapter 75. The Board held that it possessed the authority—previously exercised by the Civil Service Commission—to mitigate penalties in appropriate circumstances. 40 It then summarized prior decisions into a nonexhaustive list of twelve relevant considerations, now commonly called the Douglas factors. 40 The Board's proposal to overrule the Douglas test will not alter its holding regarding its mitigation authority, which the Federal Circuit has also recognized. Devall, 178 F.3d at 1256. This nonexhaustive list of Douglas factors included: (1) the nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; (2) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (3) the employee's past disciplinary record; (4) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; (5) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties; (6) consistency of the penalty with those imposed upon other employees for the same or similar offenses g length of service, performance on the job, ability to get along with fellow workers, and dependability; (5) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties; (6) consistency of the penalty with those imposed upon other employees for the same or similar offenses; (7) consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the reputation of the agency; (9) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question; (10) potential for the employee's rehabilitation; (11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment or bad faith, malice or provocation on the part of others involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. 41 These Douglas factors quickly became circulated throughout agency policies, OPM guidance, and Board case law. 41 Douglas, 5 M.S.P.R. at 305. From the outset, Douglas cautioned that not all factors apply in every case and that the list should not supplant the statutory inquiry. Nonetheless, although nothing in Douglas or subsequent case law 42 so required, the factors became the framework around which agencies structured penalty determinations and the manner in which appellants and advocates litigated penalty issues. The Board has observed that application of Douglas, primarily by agencies but at times also by MSPB, has gradually become overly formalistic and rigid, at times divorced from the statutory standard. Agencies regularly rely on standardized “ Douglas worksheets” as if they were legally compulsory on a checklist of factors rather than the reasonableness inquiry. The Board concludes that a return to a simpler, more flexible, statute-focused inquiry is required to remain faithful to Congress's directives. For all these reasons, the Board proposes to reconsider Douglas and its progeny to the extent they require a factor-by-factor penalty analysis in appeals arising under 5 U.S.C. chapter 75. Going forward, the Board proposes to assess the reasonableness of an agency's penalty under a totality-of-the- circumstances standard, consistent with the statutory command that discipline be “for such cause as will promote the efficiency of the service.” Board Deference to an Agency's Choice of Penalty Douglas and countless other decisions since have recognized that the Board must give due weight to the agency's primary discretion in maintaining employee discipline and efficiency, acknowledging that the Board's function is not to displace management's responsibility, but to ensure that managerial judgment has been properly exercised. 43 In other words, an agency's choice of penalty is generally entitled to deference. 43 E.g., Thomas v. Dep't of the Army, 2022 MSPB 35, at 6 (2022); Douglas, 5 M.S.P.R. at 302. That deference is not unbounded, however. The Federal Circuit explained in Devall that the Board's degree of deference to an agency's penalty depends on whether the Board sustains all of the agency's charges or only some of them. 44 Devall evaluated the Board's and OPM's relative statutory authorities, and its formulation binds both agencies. Accordingly, the Board proposes to codify the Devall standard in its penalty review regulation, so all parties, and the Board's administrative judges, understand how the Board will exercise its penalty review authority. 44 178 F.3d at 1260 is rule would prohibit such requirements for Part 752 performance-based actions. Agencies should strictly construe the exceptions established under this rule as just that-exceptions. OPM will monitor agencies' use of these exceptions to ensure they do not `swallow the rule' and undermine the executive branch's agenda of promoting high levels of employee accountability. V. Regulatory Analysis 1. Statement of Need This rule is needed to improve performance, accountability, and transparency within the federal workforce. Without streamlined processes for holding employees accountable, agencies will continue to suffer from segments of their workforces that detract from their maximum potential in delivering on their critical missions. Moreover, current regulations do not empower agency leaders, supervisors, and managers to hold employees accountable. As discussed in the preamble, regulations and agency policies unnecessarily create impediments that frustrate supervisors and managers attempting to hold employees accountable. Holding employees accountable for unacceptable performance or misconduct has become too difficult without reform. 49 In a 2016 study conducted by MSPB, federal employees expressed skepticism that their agencies successfully addressed performance and conduct issues. One in four employees “agreed that management addressed poor performances effectively,” while two in five “agreed that their agency retains its best performers.” 50 One agency recently reported how difficult it is to remove employees for poor performance and misconduct, citing, for example, one situation where it took an entire year to effectuate a removal for poor performance. 51 The result is a federal workplace filled with poorly performing employees and a frustrated workforce. From Fiscal Years 2019-2025, agencies terminated or removed 2,996 employees on average 52 , or about 0.15% of the federal workforce period afforded during a performance improvement plan to demonstrate acceptable performance to 30 calendar days. It may also result in increased penalties for actions taken under part 752. The proposed changes will also preclude agencies and employees from engaging in settlement agreements that obscure, modify, and remove from an employee's personnel files documented poor performance or misconduct. Such information would, therefore, be available to hiring officials seeking information on past performance or misconduct when making a hiring decision. This will improve the quality of agency hiring. Agency leaders, supervisors, and managers will benefit from having greater flexibility and streamlined processes for holding employees accountable. OPM also acknowledges that the prohibition of clean record settlement agreements will make it more difficult for agencies to persuade employees to voluntarily quit and, thus, further complicate or delay resolution of an action. The proposed regulations also require, to the extent practicable, that leaders, supervisors, and managers render decisions on a proposed removal within 30 calendar days and, therefore, require them to devote more time to such decision making. Relatedly, agencies whose personnel are subject to these proposed changes will be required to update their internal disciplinary policies and procedures. Agencies will also need to monitor internal processing of proposed actions under subparts D and F and report to OPM where it provides more than 30 days' advance written notice to employees and members of the Senior Executive Service, respectively. Labor unions, too, will see impacts to their collective bargaining agreements. If a final rule is adopted with the proposed changes, any change in the regulation that does not conflict with a collective bargaining agreement will be immediately enforceable eport to OPM where it provides more than 30 days' advance written notice to employees and members of the Senior Executive Service, respectively. Labor unions, too, will see impacts to their collective bargaining agreements. If a final rule is adopted with the proposed changes, any change in the regulation that does not conflict with a collective bargaining agreement will be immediately enforceable. For those collective bargaining agreements that conflict with any change, the government-wide regulation will become enforceable upon the expiration of the term of the agreement. 3. Costs One-Time Costs The rule would affect the operations of more than 80 Federal agencies, ranging from cabinet-level departments to small independent agencies. The cost analysis to update policies and procedures assumes an average salary rate of Federal employees performing this work at the 2026 rate for a GS-14, step 5, from the Washington, DC, locality pay table ($163,104 annual locality rate and $78.15 hourly locality rate). OPM assumes the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $156.30 per hour. OPM estimates that it will take 100 hours of work by employees with an average hourly cost of $156.30 per hour, or approximately $1.25 million. Recurring Costs The rule would likely result in an increase in the number of actions taken against employees under parts 432 and 752. OPM estimates that the number of such actions will rise by 20% based on an analysis of OPM data as well as annual reporting from the MSPB. As noted above, agencies terminate or remove 2,996 employees each year. During the last full fiscal year of President Trump's first term when the policies and requirements of E.O. 13839 were in place, 2,574 employees were terminated or removed for discipline or performance in Fiscal Year 2020 under procedures governed by OPM regulations. 55 In Fiscal Year 2021, that number fell by 4.4% to 2,434 ort_1800131.pdf (MSPB 2020); MSPB, “Annual Report for FY 2022,” April 18, 2023, available at https://www.mspb.gov/about/annual_reports/MSPB_FY_2022_Annual_Report_2022671.pdf (MSPB 2022). 59 MSPB 2020 at p. 12. 60 MSPB 2022 at p. 11. OPM recognizes that the effects from the workforce reductions beginning on January 20, 2025, may reduce the total number of actions taken under these regulations. However, based on the latest publicly available, full fiscal year data from OPM and the MSPB's annual report, 61 OPM estimates that agencies will take an additional 599 terminations or removals governed by these regulations and the MSPB will issue an additional 366 initial decisions due to this rulemaking. 61 The MSPB annual report for FY 2024 reported 1,832 initial decisions across the four categories relevant to this rulemaking. MSPB, “Annual Report for FY 2024,” June 24, 2025, available at https://www.mspb.gov/about/annual_reports/MSPB_FY_2024_Annual_Report.pdf. In determining the additional costs to agencies in processing 599 terminations or removals governed by these regulations, OPM assumes that each action will require one first-level supervisor, one second-level supervisor, and one human resources subject matter expert, to execute an action, each paid at the rate in 2026 for GS-15, step 5, from the Washington, DC, locality pay table ($191,850 annual locality rate and $91.93 hourly locality rate). OPM assumes that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $183.86. We estimate that each action requires one first-level supervisor, one second-level supervisor, and one human resources subject matter expert to perform 24, 16, and 36 hours of work, respectively. Thus, each action costs approximately $13,973.36 or $8.37 million each year Prot. Bd., “Annual Report for FY 2024,” p. 9, June 24, 2025, available at https://www.mspb.gov/about/annual_reports/MSPB_FY_2024_Annual_Report.pdf. Across these three Fiscal Years, the number of PFRs filed rose to more than double from Fiscal Years 2016 to 2024. The proportion of PFRs involving matters potentially impacted by the changes proposed in this rule were 75%, 72%, and 64%, respectively. OPM anticipates the number of PFRs adjudicated at the Board will rise consistent with the expected number of initial appeals. OPM estimates that the number of PFRs involving adverse actions, performance-based actions, individual right of actions, and USERRA will rise by 205 to 1,575, or 15% from Fiscal Year 2024 levels, as a result of this rulemaking. To determine the additional costs to the MSPB for adjudicating an additional 205 PFRs, MSPB assumes that each PFR requires the Chairman and two Members of the Board paid at the 2026 rate of Executive Schedule Levels III ($168,400, $80.69 hourly rate) and IV ($158,500, $75.95 hourly rate), 65 respectively; and one attorney paid at the rate in 2026 for a GS-15, step 5, from the Washington, DC, locality pay table ($191,850 annual locality rate and $91.93 hourly locality rate). We assume that the total dollar value of labor, which includes wages, benefits, and overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $161.38 for the Chairman, $151.90 for the two Members, and $183.86 for the attorney. We estimate that each PFR requires 2 hours each for the Chairman and two Members, and 8 hours for the attorney to adjudicate each PFR. Based on these assumptions, we estimate the cost for the MSPB to adjudicate each additional PFR at $2,401.24, or approximately $492,254.20 per year for 205 PFRs. 65 These positions are subject to the pay freeze imposed under the Consolidated Appropriations Act of 2026 (Pub. L. 119-75, Feb. 3, 2026). See OPM, Updated Guidance—Pay Freeze for Certain Senior Political Officials, CPM 2026-06, Feb ons would fail to address many of the substantive issues addressed herein which will empower supervisors to best manage and hold their employees accountable. 76 Government Accountability Office, “Federal Workforce: Improved Supervision and Better Use of Probationary Periods Are Needed to Address Substandard Employee Performance,” GAO-15-191, (Feb. 2015). https://www.gao.gov/assets/gao-15-191.pdf. A second alternative to this rulemaking would be to repeal the relevant portions of parts 412, 432, and 752 proposed to be revised without replacing them. This is suboptimal for several reasons. As it relates to § 412.202, the principles of good governance mandate that supervisors be adequately equipped via training and other professional development programs to execute their responsibilities to the best of their ability. While some supervisors may be equipped to do so without regular training, OPM believes these would be the exception, not the rule. 77 77 See Government Accountability Office, “2020 Federal Managers Survey: Results on Government Performance and Management Issues,” GAO-21-537SP, (July 27, 2021). https://files.gao.gov/special.pubs/gao-21-537sp/resultsall.htm. Repealing the prescribed regulations for parts 432 and 752 would also create more issues than doing so would solve. First, without providing clear processes and guidance to supervisors and employees, attempts to remove underperforming personnel or those who have committed misconduct would be mired in conflicting and litigious interpretations of the relevant portions of statute. In an attempt to avoid this inevitability, Congress presupposed that OPM would issue regulations to provide additional clarity and specificity to the provisions of the relevant statutory authorizations—and at times directed it to do so. 78 78 See, e.g., 5 U.S.C. 4303(b)(2) (“An agency may extend the notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management.”); 5 U.S.C eliance on current regulations; (2) the timeframe over which such reliance occurred; (3) the financial, operational, economic, or other costs that would result from the changes under the proposed rule; and (4) any factors that may have caused regulated parties to anticipate that a regulatory change of this nature was forthcoming, thereby potentially limiting the reasonableness of any such reliance. In addition, the MSPB requests comments on whether it should adopt in the final rule the totality of the circumstances rule as proposed or retain all or some of the Douglas factors. Commenters should include as part of their response a discussion of why any specific individual Douglas factor should or should not be retained. Lastly, OPM and MSPB request comments on whether any reliance interests identified by commenters in response to the previous questions could be adequately addressed through transitional, phase-in, grandfathering, or other provisions or accommodations, and, if so, what specifically should OPM or MSPB adopt in a final rule? VII. Procedural Issues and Regulatory Review 1. Severability OPM and MSPB propose that, if any of the provisions of this proposed rule as finalized is held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, it shall be severable from its respective section(s) and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other dissimilar circumstances. In enforcing civil service protections and merit system principles, OPM and MSPB will comply with all applicable legal requirements. 2 s terms, or as applied to any person or circumstance, it shall be severable from its respective section(s) and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other dissimilar circumstances. In enforcing civil service protections and merit system principles, OPM and MSPB will comply with all applicable legal requirements. 2. Regulatory Review OPM and MSPB have examined the impact of this rule as required by E.O.s 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for rules that have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rulemaking does not reach that threshold but has otherwise been designated as a “significant regulatory action” under section 3(f) of E.O. 12866. This rulemaking is not expected to be an E.O. 14192 regulatory action because it imposes no more than de minimis costs. 3. Regulatory Flexibility Act The Director of OPM and Chairman of the MSPB certify that this regulation will not have a significant impact on a substantial number of small entities because it applies only to Federal agencies and employees. 4. Federalism This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O pay or a removal. Except as provided for in § 432.105(c), an agency is not permitted to provide an additional opportunity to demonstrate acceptable performance or similar informal period prior to or in addition to the opportunity period provided under paragraph (b) of this section. 6. Revise § 432.105 to read as follows: § 432.105 Proposing and taking action based on unacceptable performance. (a) Once an employee has been afforded a reasonable opportunity to demonstrate acceptable performance pursuant to § 432.104 of this part, an agency must propose a removal action if the employee's performance during or following the opportunity to demonstrate acceptable performance is unacceptable in one or more of the critical elements for which the employee was afforded an opportunity to demonstrate acceptable performance. Agencies may satisfy the requirement to provide assistance before or during the opportunity period. (b) A proposed action may be based on instances of unacceptable performance which occur within a 1-year period ending on the date of the notice of proposed action. (c) If an employee has performed acceptably for 1 year from the beginning of an opportunity to demonstrate acceptable performance (in the critical element(s) for which the employee was afforded an opportunity to demonstrate acceptable performance), and the employee's performance again becomes unacceptable, the agency shall afford the employee an additional opportunity to demonstrate acceptable performance before determining whether to propose a removal under this part. (d) An employee whose removal is proposed under this part is entitled to: (1) Advance notice. employee was afforded an opportunity to demonstrate acceptable performance), and the employee's performance again becomes unacceptable, the agency shall afford the employee an additional opportunity to demonstrate acceptable performance before determining whether to propose a removal under this part. (d) An employee whose removal is proposed under this part is entitled to: (1) Advance notice. (i) The agency shall notify the employee of the proposed removal action which, subject to the agency's sole and exclusive discretion to mitigate or cease the proposed removal, should take effect 30 calendar days thereafter, and such notice shall identify both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee's position involved in each instance of unacceptable performance. (ii) An agency, in its sole and exclusive discretion, may extend the advance notice period for a period not to exceed 30 days under regulations prescribed by the head of the agency necessary for compliance with law, rule, or regulation, or where necessary to ensure mission effectiveness. An agency may extend this notice period further without prior OPM approval where necessary to comply with a stay ordered by a member of the Merit Systems Protection Board under 5 U.S.C. 1214(b)(1)(A) or (B), or to consider information gathered as part of a medical examination as described in (d)(2)(ii) of this section. (iii) If an agency believes that an extension of the advance notice period is necessary for another reason, it must request and obtain prior approval for such extension from the Office of Personnel Management by emailing employeeaccountability@opm.gov with a letter signed by the agency's Chief Human Capital Officer (or equivalent) stating the reasons for requesting an extension. f this section. (iii) If an agency believes that an extension of the advance notice period is necessary for another reason, it must request and obtain prior approval for such extension from the Office of Personnel Management by emailing employeeaccountability@opm.gov with a letter signed by the agency's Chief Human Capital Officer (or equivalent) stating the reasons for requesting an extension. (2) Opportunity to answer. The agency shall afford the employee a reasonable time, but not less than 7 calendar days or more than 10 calendar days from the date of the agency's notice of proposed action to answer the agency's notice of proposed removal action orally and in writing. (i) The agency may, in its sole and exclusive discretion, grant the employee an extension of no more than 10 calendar days to answer an agency's notice of proposed removal action in order to consider any settlement or other offer from an agency to terminate employment, provided that additional time beyond 10 days may be provided if doing so is necessary to comply with law, rule, or regulation, or where doing so is clearly in the government's interests. (ii) As part of any answer to a proposed action, the employee must raise any medical issues (including illness or incapacitation) or disabilities that have precluded the employee's ability to perform acceptably. Failure to raise such medical issues constitutes waiver of the ability to do so before any decision is effected, except where prohibited by statute. In the event an employee raises a medical issue, the employee must furnish medical documentation (as defined in § 339.104 of this chapter) of the condition for the agency's consideration. If warranted, the agency shall require or offer a medical examination in accordance with the procedures of part 339 of this chapter. The examination may occur after the employee submits his or her answer and any information gathered through an examination is to be considered furnished as part of the answer n (as defined in § 339.104 of this chapter) of the condition for the agency's consideration. If warranted, the agency shall require or offer a medical examination in accordance with the procedures of part 339 of this chapter. The examination may occur after the employee submits his or her answer and any information gathered through an examination is to be considered furnished as part of the answer. The agency shall be aware of the affirmative obligations of 29 CFR 1630.14. If the employee who raises a medical condition has the requisite number of years of service under the Civil Service Retirement System or the Federal Employees Retirement System, the agency shall provide information concerning application for disability retirement. As provided at § 831.501(d) of this chapter, an employee's application for disability retirement shall not preclude or delay any other appropriate agency decision or personnel action. (3) Representation. An employee may select a representative of his or her choice to assist in the preparation and presentation of the answer under paragraph (d)(2) of this section, provided that the employee submits his or her designation in writing. If the selected representative is a Federal employee, the representative may not perform such representational functions while in a duty status (including while on official time authorized under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred while performing such representational function. The agency proposing the action may, in its sole and exclusive discretion, disallow an employee's choice of representative when the representative is an employee of the agency and his or her activities as a representative would cause a conflict of interest or position; that employee cannot be released from his or her official duties because of the priority needs of the Government; or that employee's release would give rise to unreasonable costs to the Government. etion, disallow an employee's choice of representative when the representative is an employee of the agency and his or her activities as a representative would cause a conflict of interest or position; that employee cannot be released from his or her official duties because of the priority needs of the Government; or that employee's release would give rise to unreasonable costs to the Government. (4) Final written decision. The agency shall make its final decision within 30 days after expiration of the advance notice period but should make its final decision as quickly as practicable. Unless proposed by the head of the agency, such written decision shall be concurred in by an employee who is in a higher position than the person who proposed the removal action. In arriving at its decision, the agency shall consider any answer of the employee or his or her representative furnished in response to the agency's proposal. The higher level official or agency head, in their sole and exclusive discretion, may mitigate or rescind a proposed removal action only when doing so is consistent with the mission of the agency. A decision to reduce in grade or remove an employee for unacceptable performance may be based only on those instances of unacceptable performance that occurred during the 1-year period ending on the date of issuance of the advance notice of proposed action under paragraph (d)(1) (i) of this section. The agency shall issue written notice of its decision to the employee at or before the time the action will be effective. Such notice shall specify the instances of unacceptable performance by the employee on which the action is based and shall inform the employee of any applicable appeal and grievance rights. s performance leading up to that proposed action or separation from Federal service. (d) Notwithstanding the provisions in paragraphs (b) and (c), an agency must retain the documentation removed from an employee's personnel file as needed to comply with other obligations, including but not limited to litigation holds, suitability background investigations, and security clearance investigations. (e) Nothing in this section restricts an agency's ability to withhold information about an employee's performance or conduct from an employer that is not an Executive agency as defined under 5 U.S.C. 105 as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an action taken under this part. PART 715—NONDISCIPLINARY SEPARATIONS, DEMOTIONS, AND FURLOUGHS 8. Amend § 715.201 to read as follows: § 715.201 Applicability. This subpart applies to voluntary separations of employees in the executive departments and independent establishments of the Federal Government, including Government-owned or controlled corporations, and in those portions of the legislative and judicial branches of the Federal Government and the government of the District of Columbia having positions in the competitive service. 9. Add a new § 715.203 to read as follows: § 715.203 Abandonment. When an employee fails to report for duty (or to return from leave or from furlough of 30 days or less) for a period of 10 consecutive calendar days or more, and does not submit a resignation, an employee voluntarily abandons his or her position. An employee who voluntarily abandons his or her position may be separated without regard to the provisions of part 752 of this chapter. Authorized leave does not constitute a failure to report for duty under this section. PART 752—ADVERSE ACTIONS 10. The authority citation for part 752 continues to read as follows: Authority: 5 U.S.C. 6329b, 7504, 7514, 7515, and 7543; Sec. 1097, Pub. L. 115-91, 131 Stat. 1617 (5 U.S.C dons his or her position may be separated without regard to the provisions of part 752 of this chapter. Authorized leave does not constitute a failure to report for duty under this section. PART 752—ADVERSE ACTIONS 10. The authority citation for part 752 continues to read as follows: Authority: 5 U.S.C. 6329b, 7504, 7514, 7515, and 7543; Sec. 1097, Pub. L. 115-91, 131 Stat. 1617 (5 U.S.C. 7503 note). Subpart A—Discipline of Supervisors Based on Retaliation Against Whistleblowers 11. Add § 752.104 to read as follows: § 752.104 Settlement agreements. (a) Agreements to alter official personnel records. An agency must not agree to erase, remove, alter, or withhold from another agency any information about a civilian employee's performance or conduct in that employee's official personnel records, including an employee's Official Personnel Folder and Employee Performance File, as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an action taken under this subpart. (b) Corrective action based on discovery of agency error. Notwithstanding paragraph (a), an agency may take corrective action, including during or after the issuance of action taken under this subpart, if the agency determines the information contained in a personnel record is not accurate or documents an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally or by agreement, to modify an employee's personnel file to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. The agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. d of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. The agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. (c) Corrective action based on persuasive information prior to final agency action. An agency may cancel or withdraw a proposed action taken under this subpart prior to the issuance of a final agency decision when persuasive evidence casts doubt on the validity of the action or the ability of the agency to sustain the action in litigation. To the extent an employee's personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency must remove that action from the employee's personnel file or other agency files; however, paragraph (a) applies to any accurate information about the employee's performance or conduct leading up to that proposed action or separation from Federal service. (d) Notwithstanding the provisions in paragraphs (b) and (c), an agency must retain the documentation removed from an employee's personnel file as needed to comply with other obligations, including but not limited to litigation holds, suitability background investigations, and security clearance investigations. so through collective bargaining, to prescribe mandatory or recommended disciplinary penalties. (e) A suspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require that an employee have previously been suspended or demoted before a proposing official may propose removal, except as may be appropriate under applicable facts. (f) An agency's exceeding of the timelines set forth in this subpart is not grounds for mitigating or overturning an action under this subpart. 13. Revise § 752.203 to read as follows: § 752.203 Procedures. (a) Statutory entitlements. An employee covered under this subpart whose suspension is proposed under this subpart is entitled to the procedures provided in 5 U.S.C. 7503(b). Unless required by law, agencies must not apply any other procedures established by agency regulation or policy, or through collective bargaining authorized under 5 U.S.C. chapter 71, when taking an action under this subpart. (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. The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. elied on to support the reasons for action given in the notice. The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. (c) Employee's answer. The employee must be given a reasonable time, but not less than one business day or more than five business days, to answer orally and in writing and to secure and furnish affidavits and other documentary evidence in support of the answer. The agency may, in its sole and exclusive discretion, grant the employee an extension of no more than five calendar days to answer an agency's proposed action or to consider any settlement or other offer from an agency to terminate employment, unless additional time is necessary for compliance with law, rule, or regulation, or where doing so is clearly in the government's interests. (d) Representation. An employee covered by this subpart is entitled to be represented by an attorney or other representative. An employee must submit his or her designation in writing related to the specific answer. If the selected representative is a Federal employee, the representative may not perform such representational functions while in a duty status (including while on official time under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred while performing such representational function submit his or her designation in writing related to the specific answer. If the selected representative is a Federal employee, the representative may not perform such representational functions while in a duty status (including while on official time under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred while performing such representational function. The agency proposing the action may, in its sole and exclusive discretion, disallow an employee's choice of representative when the representative is an employee of the agency and his or her activities as a representative would cause a conflict of interest or position; that employee cannot be released from his or her official duties because of the priority needs of the Government; or that employee's release would give rise to unreasonable costs to the Government. (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. (3) An agency should issue the decision on a proposed action under this subpart as soon as practicable, which should be no later than 5 business days of the conclusion of the employee's opportunity to respond under paragraph (c) of this section. An agency's exceeding of the timelines set forth in this subpart is not grounds for mitigating or overturning an action. effective date of the action. (3) An agency should issue the decision on a proposed action under this subpart as soon as practicable, which should be no later than 5 business days of the conclusion of the employee's opportunity to respond under paragraph (c) of this section. An agency's exceeding of the timelines set forth in this subpart is not grounds for mitigating or overturning an action. (f) Grievances. (1) The employee may file a grievance through an agency administrative grievance system if authorized by agency policy. Except as provided in paragraph (2), a suspension under this subpart may not be challenged through a grievance procedure negotiated under 5 U.S.C. 7121. (2) Notwithstanding paragraph (1), a suspension under this subpart of an employee in a particular agency or subdivision thereof or bargaining unit may be subjected to the coverage of a grievance procedure negotiated pursuant to 5 U.S.C. 7121, only if the agency head or, if designated by the agency head, the agency's Chief Human Capital Officer, has determined that the applicability of such grievance procedure will not impair the effective use of actions covered by this subpart and the Office of Personnel Management concurs in that assessment. Either the agency head or the Office of Personnel Management may, in their sole and exclusive discretion, revoke such determination at any time and such revocation shall become immediately effective. Where negotiated grievances are authorized, employees may file grievances only under that procedure and not under an agency's administrative grievance procedure. Sections 7114(a)(5) and 7121(b)(1)(C) of title 5, U.S. Code, and the terms of any collective bargaining agreement, will govern representation for employees in a bargaining unit who grieve a suspension under this subpart through the negotiated grievance procedure. or. In such cases, an agency has the authority, unilaterally or by agreement, to modify an employee's personnel file to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. The agency must ensure that it removes only information that the agency has determined to be inaccurate or to reflect an action taken illegally or in error. (3) If an agency determines, prior to the issuance of a final agency decision on an action taken under this subpart, the validity of the action or the ability of the agency to sustain the action in litigation is in question due to persuasive evidence, an agency may cancel or withdraw the proposed action. To the extent an employee's personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency may remove that action from the employee's personnel file or other agency files; however, paragraph (h)(1) applies to any accurate information about the employee's performance or conduct leading up to that proposed action or separation from Federal service. (4) Nothing in this section restricts an agency's ability to withhold information about an employee's performance or conduct from an employer that is not an Executive agency as defined under 5 U.S.C. 105 as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an action taken under this subpart. n from Federal service. (4) Nothing in this section restricts an agency's ability to withhold information about an employee's performance or conduct from an employer that is not an Executive agency as defined under 5 U.S.C. 105 as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an action taken under this subpart. (i) Retaining personnel records. Notwithstanding paragraph (h), an agency must retain the documentation removed from an employee's personnel file as needed to comply with other obligations, including but not limited to litigation holds, suitability background investigations, and security clearance investigations. Subpart D—Regulatory Requirements for Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or Less 14. Amend § 752.401 by adding paragraph (b)(18) and revising paragraph (d)(2) to read as follows: § 752.401 Coverage. (b) * * * (18) Termination of an employee who fails to complete a probationary or trial period under part 11 of this chapter. (d) * * * (2) An employee whose position is in Schedules C, G, or Policy/Career; 15. Revise § 752.403 to read as follows: § 752.403 Standard for action and penalty determination. (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. Unless required by law, agencies must not apply any other procedures established by agency regulation or policy, or through collective bargaining authorized under 5 U.S.C. chapter 71, when taking an action under this subpart. (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. use as will promote the efficiency of the service. Unless required by law, agencies must not apply any other procedures established by agency regulation or policy, or through collective bargaining authorized under 5 U.S.C. chapter 71, when taking an action under this subpart. (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 is not required to use progressive discipline before taking an action under this subpart. The penalty for an instance of misconduct must be tailored to the facts and circumstances. A proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official. Penalty decisions are subject to appellate or other review procedures prescribed in law. (d) Employees should be treated impartially. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time. An agency may, but is not required to, consider appropriate comparators as the agency evaluates a potential adverse action. In such cases appropriate comparators are individuals in the same work unit, with the same supervisor, and who were subjected to the same standards governing discipline. (e) Unless required by law, an agency must not establish or use an existing table of penalties or similar policy, nor agree to do so through collective bargaining, to prescribe mandatory or recommended disciplinary penalties for an action taken under this subpart. are individuals in the same work unit, with the same supervisor, and who were subjected to the same standards governing discipline. (e) Unless required by law, an agency must not establish or use an existing table of penalties or similar policy, nor agree to do so through collective bargaining, to prescribe mandatory or recommended disciplinary penalties for an action taken under this subpart. (f) A suspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require that an employee have previously been suspended or demoted before a proposing official may propose removal, except as may be appropriate under applicable facts. 16. Amend § 752.404 by revising paragraphs (b)(1), (b)(3) introductory text, and (c)(1), and adding paragraph (g)(3) to read as follows: § 752.404 Procedures. (b) * * * (1) An employee against whom an action is proposed is entitled to 30 calendar days' advance written notice unless there is an exception pursuant to paragraph (d) of this section. Advance notices of greater than 30 days must be reported to the Office of Personnel Management. The notice to an employee must state the specific reason(s) for the proposed action and inform the employee of his or her right to review the material which is relied on to support the reasons for action given in the notice. The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. (2) * * * support the reasons for action given in the notice. The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file. (2) * * * (3) An employee whose removal or suspension, including indefinite suspension, has been proposed may remain in a duty status in his or her regular position during the advance notice period. 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: (c) * * * (1) An employee may answer orally and in writing except as provided in paragraph (c)(2) of this section. An employee must be given a reasonable time, but not less than 7 calendar days or more than 10 calendar days, to review the material relied upon to support the proposed action, prepare an answer orally and in writing, and to secure and furnish affidavits and other documentary evidence in support of the answer. The agency may, in its sole and exclusive discretion, grant the employee an extension of no more than 10 calendar days in order to answer an agency's proposed action or to consider any settlement or other offer from an agency to terminate employment, unless additional time is necessary for compliance with law, rule, or regulation, or where doing so is clearly in the government's interests. If the employee remains in an active duty status, the agency must give the employee a reasonable amount of official time (to be determined in the sole and exclusive discretion of the agency) to engage in the activities described under this paragraph. the issuance of an action taken under this subpart, if the agency determines the information contained in a personnel record is not accurate or documents an action taken by the agency illegally or in error. In such cases, an agency has the authority, unilaterally or by agreement, to modify an employee's personnel file to remove inaccurate information or the record of an erroneous or illegal action. An agency may take such action even if an appeal/complaint has been filed relating to the information that the agency determines to be inaccurate or to reflect an action taken illegally or in error. The agency must ensure that it removes only information that the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error. (c) Corrective action based on persuasive information prior to final agency action. If an agency determines, prior to the issuance of a final agency decision on an action taken under this subpart, the validity of the action or the ability of the agency to sustain the action in litigation is in question due to persuasive evidence, an agency may cancel or withdraw the proposed action. To the extent an employee's personnel file or other agency records contain a proposed action that is subsequently cancelled, an agency may remove that action from the employee's personnel file or other agency files; however, paragraph (a) applies to any accurate information about the employee's performance or conduct leading up to that proposed action or separation from Federal service. (d) Notwithstanding the provisions in paragraphs (b) and (c), an agency must retain the documentation removed from an employee's personnel file as needed to comply with other obligations, including but not limited to litigation holds, suitability background investigations, and security clearance investigations. ce or conduct leading up to that proposed action or separation from Federal service. (d) Notwithstanding the provisions in paragraphs (b) and (c), an agency must retain the documentation removed from an employee's personnel file as needed to comply with other obligations, including but not limited to litigation holds, suitability background investigations, and security clearance investigations. (e) Nothing in this section restricts an agency's ability to withhold information about an employee's performance or conduct from an employer that is not an Executive agency as defined under 5 U.S.C. 105 as part of, or as a condition to, resolving a formal or informal complaint by the employee or settling an administrative challenge to an action taken under this subpart. Subpart F—Regulatory Requirements for Taking Adverse Actions Under the Senior Executive Service 18. Amend § 752.603 by revising the section heading and adding paragraphs (c) through (f) to read as follows: § 752.603 Standard for action and penalty determination. (c) An agency is not required to use progressive discipline under this subpart. The penalty for an instance of misconduct must be tailored to the facts and circumstances. A proposed penalty is in the sole and exclusive discretion of a proposing official, and a penalty decision is in the sole and exclusive discretion of the deciding official. Penalty decisions are subject to appellate or other review procedures prescribed in law. (d) Employees should be treated impartially. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time. An agency may consider appropriate comparators as the agency evaluates a potential adverse action. (e) Unless required by law, an agency must not establish or use an existing table of penalties or similar policy to prescribe mandatory or recommended disciplinary penalties for an action taken under this subpart. necessarily justify similar discipline of a different employee at a different time. An agency may consider appropriate comparators as the agency evaluates a potential adverse action. (e) Unless required by law, an agency must not establish or use an existing table of penalties or similar policy to prescribe mandatory or recommended disciplinary penalties for an action taken under this subpart. (f) A suspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require that an employee have previously been suspended or demoted before a proposing official may propose removal, except as may be appropriate under applicable facts. 19. Amend § 752.604 by revising paragraphs (b)(1), (b)(2) introductory text, and (c)(1) and adding paragraph (g)(3) to read as follows: § 752.604 Procedures. (b) * * * (1) An appointee against whom an action is proposed is entitled to 30 days' advance written notice unless there is an exception pursuant to paragraph (d) of this section. However, to the extent an agency, in its sole and exclusive discretion, deems practicable, the agency should limit a written notice of an adverse action to the 30 days prescribed in 5 U.S.C. 7543(b)(1). Advance notices of greater than 30 days must be reported to the Office of Personnel Management. The notice to an appointee must state the specific reason(s) for the proposed action and inform the appointee of his or her right to review the material that is relied on to support the reasons for action given in the notice. The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the forums in which the appointee may file an appeal, and any limitations on the rights of the appointee that would apply because of the forum in which the appointee decides to file. ed on to support the reasons for action given in the notice. The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Public Law 115-91, the forums in which the appointee may file an appeal, and any limitations on the rights of the appointee that would apply because of the forum in which the appointee decides to file. (2) An appointee whose removal or suspension, including indefinite suspension, has been proposed may remain in a duty status in his or her regular position during the advance notice period. Where the agency determines that the appointee's continued presence in the workplace 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: (c) * * * (1) An appointee may answer orally and in writing except as provided in paragraph (c)(2) of this section. An appointee must be given a reasonable time, but not less than 7 calendar days or more than 10 calendar days, to review the material relied upon to support the proposed action, prepare an answer orally and in writing, and to secure and furnish affidavits and other documentary evidence in support of the answer. The agency may, in its sole and exclusive discretion, grant the appointee an extension of no more than 10 calendar days to answer an agency's proposed action in order to consider any settlement or other offer from an agency to terminate employment, unless additional time is necessary for compliance with law, rule, or regulation, or where doing so is clearly in the government's interests. If the appointee remains in active duty status, the agency must give the appointee a reasonable amount of official time (to be determined in the sole and exclusive discretion of the agency) to engage in the activities described under this paragraph. ## Nearby sections - [91 FR 205 Airworthiness Directives; General Atomics AeroTec Systems GmbH (Type Certificate Previously Held by RUAG Aerospace Services GmbH) Airplanes](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2025-24233.md) - [91 FR 457 Airworthiness Directives; Gulfstream Aerospace LP Airplanes](https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2026-00119.md) - [91 FR 633 Special Conditions: ZeroAvia, Inc. 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Check the current official text before relying on it. Not legal advice.