65940 Federal Register / Vol. 85, No. 201 / Friday, October 16, 2020 / Rules and Regulations OFFICE OF PERSONNEL Management Agenda relating to the and, if necessary, removing poor MANAGEMENT Workforce for the 21st Century. performers and employees who commit At the time revisions to these misconduct. Notably, M–17–22 directed 5 CFR Parts 315, 432 and 752 regulations were proposed, there were agencies to ensure that managers have RIN 3206–AN60 judicially imposed limitations on the tools and support they need to implementing certain other portions of manage performance and conduct Probation on Initial Appointment to a Executive Order 13839. These revised effectively to achieve high-quality Competitive Position, Performance- regulations were not intended to results for the American people. Based Reduction in Grade and implement portions of the Executive Agencies were recently reminded of Removal Actions and Adverse Actions Order that were previously enjoined these important requirements in OPM when OPM initially proposed them. As guidance issued on September 25, 2019 AGENCY: Office of Personnel the previously enjoined portions of the and entitled: Maximization of Employee Management. Executive Order are now fully effective Performance Management and ACTION: Final rule. and binding on executive agencies, Engagement by Streamlining Agency OPM anticipates proposing additional Performance and Dismissal Policies and SUMMARY: The Office of Personnel revisions to regulations, pursuant to the Procedures. Management (OPM) is issuing final Administrative Procedures Act’s notice- E.O. 13839’s purpose is based on the regulations governing probation on and-comment process, consistent with merit system principles’ call for holding initial appointment to a competitive the President’s expressed policy goals. Federal employees accountable for position, performance-based reduction performance and conduct. The The Case for Action in grade and removal actions, and applicable merit system principles state adverse actions. The final rule will With the issuance of Executive Order that employees should maintain high effect a revision of OPM’s regulations to (E.O.) 13839 on May 25, 2018, President standards of integrity, conduct, and make procedures relating to these Trump set a new direction for concern for the public interest, and that subjects more efficient and effective. promoting efficient and effective use of the Federal workforce should be used The final rule also amends the the Federal workforce—reinforcing that efficiently and effectively. 5 U.S.C. regulations to incorporate statutory Federal employees should be both 2301(b)(4)—(b)(6). The merit system changes and technical revisions. rewarded and held accountable for principles further state that employees DATES: Effective November 16, 2020. performance and conduct. Merit system should be retained based on the principles provide a framework for FOR FURTHER INFORMATION CONTACT: adequacy of their performance, employee conduct that is aligned with Timothy Curry by email at employee inadequate performance should be the broader responsibility Federal corrected, and employees should be [email protected] or by government employees assume when telephone at (202) 606–2930. separated who cannot or will not they take the oath to preserve and improve their performance to meet SUPPLEMENTARY INFORMATION: The Office defend the Constitution and accept the required standards. Id. E.O. 13839 states of Personnel Management (OPM) is duties and obligations of their positions. that implementation of America’s civil issuing revised regulations governing In keeping with merit system principles, service laws has fallen far short of these probation on initial appointment to a the President’s Management Agenda ideals. It cited the Federal Employee competitive position; performance- (PMA) recognizes that Federal Viewpoint Survey which has based reduction in grade and removal employees underpin nearly all the consistently found that less than one- actions; and adverse actions under operations of the Government, ensuring third of Federal employees believe that statutory authority vested in it by the smooth functioning of our the Government deals with poor Congress in 5 U.S.C. 3321, 4305, 4315, democracy. The Federal personnel performers effectively. E.O. 13839 also 7504, 7514 and 7543. The regulations system needs to keep pace with finds that failure to address assist agencies in carrying out, changing workplace needs and carry out unacceptable performance and consistent with law, certain of the its core functions in a manner that more misconduct undermines morale, President’s directives to the Executive effectively upholds the public trust. burdens good performers with subpar Branch pursuant to Executive Order Finally, the PMA calls for agencies to colleagues, and inhibits the ability of 13839 that were not subject to establish processes that help agencies executive agencies to accomplish their judicially-imposed limitations at the retain top employees and efficiently missions. time of the proposed rule, and update terminate or remove those who fail to On September 17, 2019, OPM issued current procedures to make them more perform or to uphold the public’s trust. proposed regulations governing efficient and effective. The revised Prior to establishment of the current probation on initial appointment to a regulations update current regulatory PMA, the Office of Management and competitive position, performance- language, commensurate with statutory Budget (OMB) issued a memorandum to based reduction in grade and removal changes. They also clarify procedures agencies on April 12, 2017 entitled ‘‘M– actions, and adverse actions (84 FR and requirements to support managers 17–22—Comprehensive Plan for 48794, September 17, 2019). The in addressing unacceptable performance Reforming the Federal Government and proposed regulations were revising and promoting employee accountability Reducing the Federal Civilian OPM’s regulations to make procedures for performance-based reduction-in- Workforce.’’ M–17–22 called on relating to these subjects more efficient grade, removal actions and adverse agencies to take near-term actions to and effective. The proposed regulations actions while recognizing employee ensure that the workforce they hire and were also amending the regulations to rights and protections. The revised retain is as effective as possible. OMB incorporate other statutory changes and regulations support agencies in called on agencies to determine whether technical revisions. After consideration implementing their plans to maximize aspects of their current policies and of public comments on the proposed employee performance, as required by practices present barriers to hiring and regulations, OPM is now issuing these Office of Management and Budget retaining the workforce necessary to revised regulations to implement certain (OMB) M–17–22 (April 12, 2017), and to execute their missions as well as requirements of E.O. 13839 as well as to fulfill elements of the President’s appropriately managing the workforce fulfill the vision of the PMA and the VerDate Sep<11>2014 20:11 Oct 15, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\16OCR2.SGM 16OCR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 201 / Friday, October 16, 2020 / Rules and Regulations 65941 objectives of M–17–22. These revisions their components and compile one expressed support for providing not only will support agency efforts in consolidated report for submission to notifications to supervisors about implementing E.O. 13839 and M–17–22, OPM using the form attached to the probationary periods ending but and pursuing the PMA, but also will guidance memo. Forms must be requested clarification on how the facilitate the ability of agencies to submitted electronically to OPM via process should be implemented. deliver on their mission and provide email at employeeaccountability@ Additionally, included among the good service to the American people. opm.gov generally no later than 60 days comments of Federal agencies were Ultimately, these changes support following the conclusion of each fiscal concerns regarding: The consequence of President Trump’s goal of effective year. In lieu of outlining the data supervisors not taking affirmative steps stewardship of taxpayers’ money by our collection requirements in OPM to retain employees before the end of a government. regulations, OPM will issue reminders probation period; the non-delegation of this requirement annually and Data Collection of Adverse Actions from the head of the agency to provide periodic guidance consistent adjudicate retaliation claims, as well as Section 6 of E.O. 13839 outlines with the requirements of E.O. 13839. whether such ‘‘decisions could be certain types of data for agencies to Public Comments perceived to be politically motivated collect and report to OPM as of fiscal resulting in claims of whistleblower year 2018. To enhance public In response to the proposed rule, retaliation’’; and whether agencies may accountability of agencies, OPM will OPM received 1,198 comments during satisfy the requirement to provide collect and, consistent with applicable the 30-day public comment period from assistance before or during the law, publish the information received a wide variety of individuals, including opportunity period without placing from agencies aggregated at a level current and retired Federal employees, agencies at risk of acting contrary to necessary