[Federal Register Volume 73, Number 73 (Tuesday, April 15, 2008)]
[Rules and Regulations]
[Pages 20149-20159]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-7964]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 73 / Tuesday, April 15, 2008 / Rules
and Regulations
[[Page 20149]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN 3206-AL08
Suitability
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: In support of its mission to ensure the Federal Government has
an effective civilian workforce, the Office of Personnel Management
(OPM) is issuing final regulations governing Federal employment
suitability. The final regulations authorize agencies to debar from
employment for up to three years those found unsuitable, extend the
suitability process to those applying for or who are in positions that
can be non-competitively converted to the competitive service, provide
additional procedural protections for those found unsuitable for
Federal employment, and clarify the scope of authority for the Merit
Systems Protection Board (MSPB) to review actions taken under the
regulations. The changes also make the regulations more readable.
DATES: Effective Date: The rule is effective June 16, 2008.
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2930; by FAX at (202) 606-2613; or by e-mail at CWRAP@opm.gov.
SUPPLEMENTARY INFORMATION:
Introduction
On January 18, 2007, OPM published at 72 FR 2203 (2007) proposed
amendments to the regulations in part 731 of title 5, Code of Federal
Regulations (CFR), to modify and more precisely define and clarify the
regulations' coverage, the procedural requirements for taking
suitability actions, the respective authorities of OPM and agencies,
and Merit Systems Protection Board (MSPB or Board) review of
suitability actions. OPM also proposed various revisions to make the
regulations more readable. The public comment period on the proposed
amendments ended on March 19, 2007. OPM received comments from five
Federal agencies or departments and from three unions. Of the agency
comments, three were received from security offices, two from human
resources offices, and one from a legal office. OPM has carefully
considered the comments received.
Coverage
OPM proposed to amend the regulations to provide that part 731 also
applies to persons who can be noncompetitively converted to the
competitive service because of service in their excepted service
positions. OPM noted that the expansion of the regulation's scope to
include suitability determinations of persons applying for, entering,
or employed in the excepted service when that appointment can lead to
their noncompetitive conversion to the competitive service is
consistent with OPM's suitability authority. The process for employing
this limited group of persons in the competitive service is a
continuous one, beginning with initial appointment to the excepted
service and ending in (noncompetitive) conversion to the competitive
service. Because these persons can (and most do) enter into the
competitive service as a result of their excepted service appointment,
albeit through a longer process than others appointed directly, they
should be treated in the same manner as those appointed directly,
including the same review of their suitability for employment. Already,
under part 302 of this chapter, persons in the excepted service are
subject to investigation and disqualifying factors similar to those
found in part 731. OPM believes that procedural protections should be
extended to this limited group of persons in the excepted service.
One commenter had doubts about OPM's statutory authority to extend
suitability to persons in the excepted service, notwithstanding OPM's
statement that to do so would be consistent with OPM's suitability
authority. OPM has carefully reviewed its authority under statute and
Executive Order (E.O.) and again has concluded it does have the
required authority.
Under rules II and V of E.O. 10577, as amended, OPM has the
authority to regulate standards of fitness for entry in the competitive
service, to investigate suitability for the competitive service, and to
establish investigative requirements for competitive service
appointments. Section 1103(a)(5)(A) of title 5, U.S. Code, requires OPM
to execute, administer, and enforce these rules. The law does not
contemplate that the suitability standards and other requirements for
appointment to a competitive service position would not apply because
of the means by which an applicant initially enters service.
While the positions at issue here do not begin in the competitive
service, they end up in the competitive service if converted. The
triggering events for this method of entering the competitive service
are the persons' appointments to the excepted service. Because of the
continuity of this method, from appointments in the excepted service to
conversions to the competitive service, OPM concludes that OPM's
suitability authority applies to these persons and applies as soon as
they are appointed to the excepted service position. Accordingly, there
is no requirement that the positions must have been converted before
the incumbents are subject to investigation and determinations as to
fitness for Federal employment. Thus, OPM declines to adopt a
commenter's recommendation that the regulations be revised to state
that suitability determinations for persons in these positions can only
take place upon ``application to a competitive appointment'' or when
the conversion is ``imminent.''
Several commenters asked for examples of positions in the excepted
service from which persons may be noncompetitively converted to the
competitive service. While this is not a complete list of positions,
some are under the Federal Career Intern Program, the Veterans
Recruitment Appointment Program, the Student Career Experience Program,
and the Presidential Management Fellows Program.
One commenter asked what authority would permit the removal of an
excepted service employee for suitability reasons such as misconduct
[[Page 20150]]
prior to appointment. As we stated in our proposed rule, the revised
regulations clarify that they apply to persons who can be
noncompetitively converted to service because of employment in an
excepted service position. The purpose of these positions is to lead to
a competitive appointment and, therefore, should be treated in the same
way for suitability purposes as those who are appointed directly into
the competitive service.
One commenter wondered what the advantage would be of having an
excepted service position if it is covered by the suitability rules.
OPM's proposal identified just a limited category of excepted service
employees that would be covered by part 731, i.e., those whose excepted
service appointment can lead to their noncompetitive conversion to the
competitive service. All other excepted service positions are not
covered by the suitability rules. However, other excepted service
positions are subject to qualification standards which may include
disqualifying factors under 5 CFR part 302. At any rate, most persons
in excepted service positions already have other employee protections,
whether or not they are covered by suitability rules.
OPM proposed to add definitions of suitability action and
suitability determination to Sec. 731.101 to help the reader better
understand the coverage of part 731. One commenter suggested that the
definition of ``suitability action'' be reworded so that it would be
parallel to the definition of ``suitability determination'' and thus
clarify the distinction between the two. OPM notes that the
construction of the definitions differs because the processes differ.
One (suitability actions) concerns the type of actions taken, such as
debarment or removal, once a person is determined to be unsuitable and
the other (suitability determinations) concerns the process of
initially deciding whether a person is suitable. OPM believes that its
initial proposed language better draws that distinction and the
suggestion is not adopted.
OPM proposed at Sec. 731.104(c) that persons in intermittent,
seasonal, per diem and temporary positions, with less than 180 days
aggregate service, are not subject to the investigative requirements of
part 731. With respect to seasonal employees, one commenter wondered
whether the 180 days aggregate service meant 180 days per year or an
aggregate of 180 days in all their employment. OPM's response is that
the 180 days means 180 days per year. OPM has modified Sec. 731.104(c)
accordingly. OPM also has modified the punctuation in this section to
clarify that the phrase ``with less than 180 days aggregate service per
year'' applies to each of the types of positions noted: intermittent,
seasonal, per diem and temporary positions.
Another commenter expressed concern that the rule would allow such
persons access to facilities and information without investigation for
six months because agencies would not be able to investigate them under
the revised rule. That was not the intent. Rather, OPM's intent is to
more fully identify those types of positions for which incumbents are
not subject to investigation as mandated by part 731. As the proposed
rule states, an agency ``must conduct such checks as it deems
appropriate to ensure the suitability of the person.'' To accomplish
such checks, some agencies may choose to investigate these persons in
the same manner as it would those actually covered by part 731, but
they are not required to do so. The checks required by Sec. 731.104(c)
need not rise to the level required for an investigation under part
731. Likewise, the coverage requirements for suitability purposes of
these persons do not prevent agencies from conducting other pre-
employment checks, such as an investigation for eligibility for an
identity credential under Homeland Security Presidential Directive
No.12--a concern expressed by another commenter. Moreover, E.O. 10450
authorizes investigations for all civilian officers and employees,
including, under some circumstances, those in intermittent, temporary,
or seasonal positions. Finally, as explained in the proposed
regulations, OPM believes this change is necessary to maintain
consistency between this part, which concerns suitability, and part 732
of this chapter, which governs positions of national security.
OPM also proposed to clarify the definition of material in Sec.
731.101 by saying that a statement may be material whether or not OPM
or an agency relies upon it. OPM noted that the added language was not
intended to change, but rather to reinforce, the meaning of the current
definition in that a ``material'' statement does not actually have to
influence or affect an official decision by OPM or an agency. This is
not a new concept since the former regulations at Sec. 731.105(c)
stated: ``A statement may be a material statement even if an agency
does not rely upon it.''
Two commenters recommended that the definition be modified. One of
these commenters stated that the proposed definition would undercut the
commonly accepted legal meaning of ``material'' by setting the
threshold for what may be material too low. The other commenter
suggested that the definition be modified to state that, in order for
it to be material, a statement must ``likely'' influence a decision
rather than just be ``capable of'' influencing a decision. OPM believes
that in many cases, a statement that is capable of influencing a
decision is also likely to be relied on by OPM or an agency. However,
as OPM explained in the proposed rule, a ``material'' statement ``does
not actually have to influence or affect an official decision by OPM or
an agency.'' In some situations, such as those involving false
experience or educational claims, whether the experience or education
was likely to influence a decision on the person's eligibility for
employment may have no relationship to the materiality of the false
statement, i.e., whether the false statement is capable of influencing,
affects, or has a natural tendency to affect, an official decision even
if OPM or an agency does not rely upon it. In such situations, OPM
would be concerned with the individual's lack of honesty in the
employment process. Accordingly, OPM has not adopted the suggestions.
Another commenter wondered how the definition of ``material''
relates to the statement in the proposed rule's supplementary
information discussion that ``Factors not relied upon by OPM or
agencies in individual cases may not be considered by MSPB.'' OPM notes
that this statement referred to the specific suitability factors
provided in Sec. 731.202(b) and the additional considerations provided
in Sec. 731.202(c), not statements that may or may not be material
under the definition of this part and may or may not be used by the
agency or OPM.
While there is no statutory right to appeal actions taken under the
procedures set forth in part 731, OPM has provided for such appeals by
regulation. This appeal right does not extend to any other employment
action that an agency takes outside of the procedures set forth in part
731. In this regard, OPM proposed changes to the regulations that would
reaffirm and clarify that there is no right to appeal an agency's
decision to object to or request to pass over an employment candidate
under part 332 of this chapter, regardless of the basis for the
agency's request, including an applicant's fitness or character as
discussed in OPM's Delegated Examining Operations Handbook. OPM also
proposed changes that would clarify that an agency's reason(s) for not
hiring someone is not an appropriate basis to determine whether a
person may appeal the agency's action as a suitability action. OPM also
proposed a concurrent change
[[Page 20151]]
that would remove ``denial of appointment'' as a suitability action
under this part. In other words, non-selection for a position is not an
appealable suitability action.
While one commenter thought the proposed changes concerning
objections and pass overs cleared up much confusion, other commenters
thought the changes could be clearer. One commenter noted that
objections and pass overs may be different from suitability
determinations, but that permitting an agency to ``label'' its action
as one or the other elevates ``form over substance.'' The commenter
believed this would allow agencies to make de facto suitability
determinations without following procedural requirements. The commenter
recommended that agencies not be allowed to ``label'' their actions.
OPM declines to limit agencies' authority in this manner. Agencies
typically identify the authority under which they take actions and this
in turn informs MSPB of the appropriate review authority, if any, to be
used in the event those actions are appealed. A common example occurs
when agencies identify the authority for or ``label'' the actions taken
under 5 U.S.C. chapters 43 and 75. Performance-based actions may be
taken under either authority, but agencies choose which authority to
use and MSPB then knows which review standard to apply.
Another commenter recommended that, instead of ``pass over of a
preference eligible,'' the regulations refer to ``pass over of an
applicant.'' OPM is not adopting this recommendation because it would
conflict with statutory and regulatory language describing pass overs.
Upon closer examination of the regulation referred to by the commenter
(5 CFR 332.406), it is apparent that the proposed rule at part 731
could be modified to refer precisely to pass over requests and
objections. That is, part 332 discusses objections to eligibles and
pass overs of preference eligibles as two categories of actions.
Therefore, OPM has clarified the regulations to refer to ``objections
to eligibles'' in Sec. Sec. 731.101(a) and 731.203(b) rather than
simply ``objections.'' The same commenter also recommended that the
reference to decisions by OPM concerning pass over requests be changed
to reflect agency delegated authority by referring to decisions by OPM
and agencies. OPM agrees this change would properly describe who makes
these types of decisions and has modified Sec. 731.101(a) accordingly.
Finally, another commenter stated it was their understanding that OPM's
current position is that ``objections/pass overs may be based either on
qualifications or suitability--and that non-selections for suitability
reasons are NOT suitability actions and are not covered by Part 731.''
OPM confirms those understandings.
One commenter stated that OPM should eliminate employees and
appointees who have successfully completed twelve months of Federal
service from coverage of the suitability regulations. The commenter
stated that this change would eliminate the ``collision'' between OPM
suitability regulations and the statutes that govern employees who have
completed their probationary periods. The commenter also argued that
this change would preserve agencies' discretion to take adverse actions
and avoid the hardship when OPM initiates action to remove a long-term
employee for suitability reasons when the agency may want to keep that
employee. OPM declines to make these changes to the regulations for a
number of reasons. As an initial matter, there is no collision of
employee rights upon completion of a probationary period and OPM's
suitability regulations. Suitability actions for persons who have
become employees as defined by this part can be initiated only by OPM,
and the bases for judging a person unsuitable and removing that person
after the first year of employment are limited to material intentional
false statement, deception or fraud in examination or appointment;
refusal to furnish testimony; or a statutory or regulatory bar to
employment. The commenter's recommendation would eliminate OPM's
ability to take appropriate suitability actions merely because the
individual has been employed for 12 months. However, mere completion of
12 months of service cannot shield a person from the consequences of,
for example, making material, intentional false statements in order to
obtain a position with the Federal Government. This would undermine the
integrity of the Federal employment process.
Procedures
A number of commenters expressed support for the proposed
additional procedural protections for persons who may be subject to an
unfavorable suitability determination or action. One commenter asked
what role a representative would have under these protections. OPM
expects the role would be similar to that of a representative in other
administrative actions, i.e., that a properly-designated representative
would have the authority to act on behalf of the person he or she
represents, including corresponding on behalf of the person and being
responsible for meeting deadlines.
A commenter suggested that representatives designated under the
regulations be allowed reasonable official time to review materials and
prepare responses to proposed actions. While the regulations do not
require the grant of official time, they do not preclude the agency
from authorizing official time for a representative. This is consistent
with other OPM Governmentwide regulations, at 5 CFR parts 432 and 752,
that also do not provide official time for representatives. Therefore,
the suggestion to include an official time provision for
representatives in the regulations is not adopted.
Authorities
The final rule permits an agency to debar from employment with that
agency any person it finds unsuitable for up to three years, as opposed
to a period of one year as provided in the current regulations. While
OPM changed this rule to give agencies the same flexibility when
deciding the appropriate length of debarment as OPM, one commenter
suggested that objective criteria be published as to when debarment
would be appropriate beyond one year. OPM intends to provide this type
of information as part of its guidance issuances referenced in Sec.
731.102(c).
The same commenter also suggested that criteria and examples be
given of when it would be appropriate to impose an additional debarment
period. An additional debarment period, that is, a new debarment action
based on a new suitability determination, may be warranted where there
is a strong nexus between the reasons for the suitability determination
and the agency mission or position duties. For example, an additional
debarment period might be appropriate where a person convicted of
embezzlement continues to apply for fiduciary positions and does not
report the conviction on the relevant questionnaire; where a person
guilty of sexual crimes applies for positions dealing with the public
where contact with children reasonably is expected; where an arsonist
applies for firefighter positions; and where those with lengthy
criminal histories want to work in law enforcement positions. Again,
OPM intends to provide such information as part of its guidance
referenced in Sec. 731.102(c). Another commenter asked how long an
additional debarment period can be. An additional debarment period can
be imposed only if an agency makes a new suitability determination.
[[Page 20152]]
If it again finds the person unsuitable, the new debarment period could
be imposed for up to three years. One commenter expressed concern that
an agency may improperly implement its debarment authority; however,
the rule at Sec. 731.103(f) calls for the revocation of an agency's
delegation of suitability authority if its actions fail to conform to
this rule or any of OPM's guidance.
In response to the comments on additional debarment periods, OPM
has revised the language in sections 731.204(b) and 731.205(b) of the
final rule to state more clearly that upon expiration of a debarment
period, if the person formerly debarred again becomes subject to OPM's
or an agency's suitability jurisdiction, e.g., by applying for a
position in the competitive service, a new suitability determination
must be made under 5 CFR part 731 before an additional period of
debarment can be imposed.
In Sec. 731.103(g), OPM proposed to eliminate the requirement that
agencies with delegated authority seek prior approval from OPM before
taking action under other authorities, such as part 315, part 359, or
part 752 of this chapter, in cases involving evidence of material,
intentional false statement in examination or appointment, or deception
or fraud in examination or appointment; or refusal to furnish
testimony. While agencies would still be required to notify OPM if they
have taken, or plan to take, such action (and could have their
delegated authority withdrawn under Sec. 731.103(f) for failure to
conform to this part or OPM issuances), one commenter suggested that
oversight of agencies' use of this authority should be mandated and
that the results of oversight be made public. Under its statutory
oversight mandate, OPM will continue to conduct reviews of agency
suitability programs and agency use of delegated authority, including
whether agencies are properly using their delegated authority under
this section. Reports on such reviews are provided to the agency
reviewed so that necessary corrective actions may be taken.
One commenter wondered why an agency under Sec. 731.103(g) would
be required to notify OPM if it has already taken or plans to take such
an action under other authorities. The answer is that OPM may determine
it appropriate to debar that person from all Federal employment even
though the agency has taken action to remove the person under other
authority if the person, for example, provided material, intentional
false statements in connection with the employment process. To further
clarify the scope of the reporting requirement, OPM is providing at
Sec. 731.103(g), that agencies are required to report to OPM only in
cases involving material, intentional false statement in examination or
appointment, or deception or fraud in examination or appointment; or
refusal to furnish testimony as required by Sec. 5.4 of this title.
Also, corresponding changes referring back to Sec. 731.103(g) are
being inserted into Sec. Sec. 731.105(e) and 731.203(f) for the same
reason.
This commenter also suggested that proposed Sec. 731.103(c) be
modified to state more clearly that agencies exercising their delegated
authority must do so in accordance with OPM regulations and issuances.
The commenter stated that following OPM issuances would ``increase
government wide uniformity and consistency in making suitability
determinations and taking suitability actions.'' OPM agrees and has
modified this section in the final rule accordingly.
OPM proposed modifications to Sec. 731.202 to clarify that OPM or
agencies with delegated authority to make suitability determinations
and take suitability actions have the authority to rely on the
additional suitability considerations contained in paragraph (c) of
Sec. 731.202 at their sole discretion. Factors not relied upon by OPM
or agencies in individual cases could not be considered by MSPB. One
commenter believed that this limitation of MSPB's review ``further
erodes the concept of mitigation'' and ``precludes the Board from a
full and fair review of OPM and/or agency action.'' OPM strongly
disagrees. Under the suitability regulations, MSPB has no authority to
mitigate an agency's action in the same way it does not have authority
to mitigate performance-based actions taken under chapter 43 of title 5
of the United States Code. In such cases, MSPB can only affirm or
reverse the agency's action. With regard to the fullness and fairness
of MSPB's review, the regulations are intended to insure a full and
fair review by explicitly stating in the final regulations that MSPB
must review each specification and each charge in all suitability
appeals.
However, OPM has revised section 731.202(c) of the final rule to
state that OPM or an agency ``must'' consider ``any'' of the additional
considerations to the extent OPM or the relevant agency, in its sole
discretion, deems ``any'' of them pertinent to the individual case.
This is to state more clearly that an agency need not consider all of
the additional considerations, but must consider those that it deems
pertinent. As the MSPB's review is limited to the agency's
determination, however, the MSPB cannot consider, as aggravating or
mitigating factors, additional considerations that the agency did not
deem pertinent.
OPM proposed to clarify in paragraph (d) of Sec. 731.103 that
agencies may choose to begin preliminary suitability reviews for all
applicants at any time during the hiring process. One commenter
concurred with the proposal, stating that the ability to begin
suitability reviews in the early stages of the recruitment process
would facilitate that agency's ability to make timely selections.
Another commenter said that this is a change from OPM guidance in 1994
that the suitability process be initiated late in the recruitment
process. In more recent guidance, however, OPM stated that agencies may
begin the process ``at any time during the hiring process'' (see OPM
Memorandum for Chief Human Capital Officers entitled ``Initiating
Suitability Determinations'' and dated May 9, 2005). The regulations
codify the most recent OPM guidance.
Merit Systems Protection Board Review
In the proposed rule, OPM discussed the basis for concluding that
the procedures an agency decides to use to take an action, e.g.,
objecting to an eligible under 5 CFR part 332 or taking a suitability
action under this part, determine whether an agency's action may be
appealed. The Board recognized this clear distinction in Vislisel v.
OPM, 29 M.S.P.R. 679 (1986) when it observed that a sustained objection
is an agency-initiated procedure separate and apart from a suitability
determination under part 731. Id. at 682. In Edwards v. Department of
Justice, 87 M.S.P.R. 518 (2001), the Board abandoned its approach in
Vislisel, holding that, in deciding whether an action was an appealable
suitability determination, ``what matters is the substance of the
action, not the form.'' Id. at 522. OPM noted that this is an incorrect
reading of the authority that OPM conferred upon the Board and proposed
to adjust the suitability regulations accordingly. Consequently, OPM
concluded that, when adjudicating an appeal of an agency action, the
Board must assess the agency's action under the procedures elected by
the agency and may not hold the agency to standards relating to a legal
authority that the agency did not invoke. The Board may not create an
appeal right where neither Congress nor OPM has expressly granted it.
King v. Jerome, 42 F.3d 1371, 1374 (Fed. Cir. 1994). OPM proposed
changes to the regulations to reflect this conclusion.
One commenter stated that OPM's proposed changes would
administratively overrule Edwards and
[[Page 20153]]
that change would be tampering with what is now settled MSPB precedent.
While agreeing that the proposed change would overrule Edwards, OPM is
not ``tampering'' with MSPB precedent. Rather, OPM is correcting case
law that is clearly erroneous and well beyond the intent of Congress--
which is that MSPB's jurisdiction is limited to actions appealable
under ``any law, rule, or regulation'' as provided by 5 U.S.C. 7701(a).
OPM strongly disagrees that this stands on its head the decision in
Lovshin v. Navy, 767 F.2d, 8326 (Fed. Cir. 1985), which provides an
agency may choose whether to use 5 U.S.C. chapter 43 or 5 U.S.C.
chapter 75 to take a performance-based action. Just as in Lovshin, when
the choice is between using suitability authority or some other
authority, whatever action taken under the chosen authority is subject
to review.
Another commenter agreed with the notion that MSPB cannot hold an
agency to standards relating to a legal authority the agency did not
invoke and concluded that an agency's action ``should rise or fall on
how that agency characterizes the action, not how MSPB could
characterize the agency's action.'' OPM agrees and notes that this is
precisely our rationale for clarifying the authority of MSPB.
Finally, OPM strongly disagrees with one commenter's claim that OPM
is ``setting up a system that it and agencies will be free to
manipulate without a check by MSPB.'' OPM has carefully structured a
system that protects the rights of persons by providing for MSPB review
of agency actions. Whatever action an agency chooses to take, there is
a process for ensuring the rights of those affected are protected.
OPM proposed to eliminate the provision under the current
regulations that requires MSPB to remand a case to OPM or an agency if
fewer than all the charges in an appeal are sustained. While one
commenter concurred, stating that eliminating the remand would be
important, several other commenters objected to the proposal, stating,
among other things, that the change would be capricious, and that it
and other changes proposed would transform MSPB into a ``rubber stamp''
without meaningful review authority. Several commenters were concerned
that eliminating the remand and requiring MSPB to sustain only one
charge in order to uphold an agency's suitability action might preclude
MSPB from considering, or at least not obligate MSPB to consider, all
charges and specifications once one charge is sustained and might lead
to multiple proceedings. One commenter suggested that the regulations
require MSPB to consider all charges and specifications. Another
commenter noted that, in 2000, when OPM first proposed that an agency's
suitability action must be affirmed by MSPB even if some of the charges
are not sustained, OPM ``answered its critics by also providing for
remands by MSPB.''
OPM carefully considered these comments and concluded that some
changes to the final regulations at Sec. 731.501 are appropriate. For
example, while OPM would expect MSPB to review all matters raised in
any appeal before it, we have modified the final rule to state
explicitly that MSPB must review all charges and all specifications in
each appeal. In addition and upon further reflection, OPM concludes
that the remand process can be retained in a manner that would help
eliminate confusion under the current regulations. Accordingly, OPM has
modified the final rule so that remand decisions, as suggested by a
commenter, are held in abeyance pending a final decision by MSPB or the
courts as appropriate. This should help eliminate the current confusion
about when a person can file a petition for review of an initial
decision by MSPB and eliminates the current confusion generated when an
agency is simultaneously reviewing a case on remand while MSPB is
considering a petition for review. The expected reduction in confusion
and the assurance that all charges and specifications will be
considered should help encourage confidence in the appeal process.
Readability
Commenters supported the changes in the regulations intended to
make them more readable, with one commenter stating that the proposed
changes do not appear to affect the substance of the regulations. OPM
determined however that one proposed change did affect the substance of
the regulations with respect to periodic reinvestigations.
Specifically, in the proposed regulation, OPM inadvertently deleted
section 731.106(d), which provided that agencies relying on authorities
such as the Computer Security Act and OMB Circular A-130 Revised may
require employees in certain public trust positions to undergo periodic
reinvestigation. Accordingly, that section has been reinserted into
this final regulation. Sections 731.106(d) and (e) have been
redesignated as sections 731.106(e) and (f).
Miscellaneous Comments
One commenter wanted to know how OPM would notify agencies about
persons debarred by OPM. In that commenter's experience, the agency had
never been notified about any debarment in the last ten years. The
process for notifying agencies is beyond the scope of this rule and
will not be addressed further.
One commenter believes that, because the proposed regulations state
that OPM or an agency with delegated authority cannot take a
suitability action against a person who is not covered by the
regulations, the regulations imply that an agency may take a
suitability action against any person who is covered and may do so at
any time. That is an incorrect inference. While OPM can take a
suitability action against a person who is an applicant, appointee, or
employee, as those terms are defined in this part, an agency may take a
suitability action only against an applicant or appointee. An agency
may not take a suitability action against an employee. Moreover, the
basis on which OPM may take a suitability action against an employee is
limited to charges of material, intentional false statement or
deception or fraud in examination or appointment; refusal to furnish
testimony as required by Sec. 5.4 of this title; or statutory or
regulatory bar.
One commenter discussed establishing an internal agency process for
interfacing with OPM concerning that agency's actions, particularly
debarment actions. Agencies' internal processes are outside the scope
of the proposed amendments to the regulations and are not further
addressed here.
A commenter stated that a person who is a member of a collective
bargaining unit covered by a valid collective bargaining agreement
should have the discretion to file a grievance under the parties'
negotiated grievance procedure or to appeal to MSPB. This commenter
also believes that the scope of review ought to extend to the
``propriety of the agency's action.'' These topics are outside the
scope of the proposed regulations and therefore have not been
considered.
Another commenter requested a number of revisions to the proposed
rule in order to avoid inconsistencies with laws enforced by the Equal
Employment Opportunity Commission (EEOC). The commenter believes
certain proposed changes to the rules provide agencies with the sole
discretion over whether and how to consider a person's misconduct in
ways that could conflict with Title VII of the Civil Rights Act of
1964. The commenter also believes that agencies' authority to debar
persons for three years at a time as proposed could
[[Page 20154]]
conflict with section 501 of the Rehabilitation Act.
With regard to the Title VII concern, the commenter stated that to
the extent a suitability determination could be made solely based on a
person's conviction or arrest record, it would violate settled law
under Title VII disallowing a categorical bar from employment of all
individuals with arrest or conviction records, because such a bar has a
disparate impact on certain classes of people. OPM notes that the
suitability rules do not provide for categorical bars from employment
on the basis of a conviction or arrest record. The specific factors
listed in the regulations, such as criminal or dishonest conduct, are
to be considered in conjunction with any of the additional
considerations the agency deems pertinent, and in light of the standard
in Sec. 731.201 that the action cannot be taken unless it will
``protect the integrity or promote the efficiency of the service.''
Further, as discussed previously, a negative suitability determination
can only be made in accordance with the procedural requirements of the
suitability rules, including affording a person the right to answer any
charges. Finally, if the person is determined to be unsuitable, he or
she may seek administrative review by MSPB and ultimately judicial
review. As with any appeal to the Board, the person may raise
affirmative defenses, including allegations that the action appealed is
discriminatory. OPM disagrees with the suggestion that the Board would
be prevented from considering affirmative defenses like these simply
because an agency would not be required under the proposed rule to link
a determination of unsuitability with a particular position in the
Government.
With regard to the Rehabilitation Act (Act), the commenter stated
that agencies using alcohol abuse and the illegal use of drugs in
making suitability determinations would have to do so in accordance
with the Act. For example, if the person has the disability of
alcoholism (as opposed to simply abusing alcohol), the Act would have
to be followed. The commenter also states that, under the proposed
rule, if a person were debarred for a period of three years for alcohol
abuse or illegal use of drugs, he or she would be prevented, in
violation of the Act, from demonstrating later that he or she can
perform the essential duties of a position with or without reasonable
accommodation. OPM notes that current alcohol abusers and illegal drug
users are not covered by the Rehabilitation Act. See 29 U.S.C.
705(20)(c). OPM also notes that the regulation does not prevent a
debarred person from claiming that he or she later has become suitable
upon conclusion of the debarment period. To the extent the commenter is
suggesting that the Rehabilitation Act requires a shortening of the
debarment period for persons who may later become covered individuals,
OPM disagrees. The debarment penalty is imposed based on the
contemporaneous conduct of the person at the time of the negative
suitability determination, not because of any disability of the person.
However, as noted above, OPM has revised the language in sections
731.204(b) and 731.205(b) of the final rule to clarify that upon
expiration of a debarment period, if the person formerly debarred again
becomes subject to OPM's or an agency's suitability jurisdiction, e.g.,
by applying for a position in the competitive service, a new
suitability determination must be made under 5 CFR part 731 before an
additional period of debarment can be imposed. OPM has further revised
section 731.202(b)(5) of the final rule to clarify that alcohol abuse
of a nature and duration that suggests that the applicant or appointee
would be prevented from performing the duties of the position in
question, or would constitute a direct threat to the property or safety
of the applicant or appointee or others, can only be the basis of a
negative suitability determination in the absence of ``evidence of
substantial rehabilitation.''
The commenter suggested a number of changes to the suitability
factors provided at Sec. 731.202(b) as a means to avoid what the
commenter viewed as inconsistencies with laws enforced by EEOC. These
factors have been in effect for many years and have resulted in a
legally-sound and uniform body of case law governing the application of
the factors Governmentwide. OPM does not wish to undermine that case
law by changing these factors. Therefore, with the exception of the
revision to section 731.202(b)(5) noted above, OPM is not revising the
specific factors in section 731.202(b).
Other suggested changes, including the limitation of agency
debarment authority to one year, are also not adopted. While not
adopting the suggestions, OPM strongly emphasizes to agencies that any
actions taken under OPM's suitability rules must be taken in accordance
with applicable laws, including those enforced by the EEOC.
Technical Amendments
OPM has made technical amendments to the Authorities for this part
by deleting the following citations: ``5 U.S.C. 7701'' and ``E.O.
12731, 3 CFR, 1990 Comp., p. 306.'' These are deleted since they do not
provide legal bases for 5 CFR part 731. OPM has also inserted ``as
amended'' following the citation to E.O. 10577. OPM also moved the
language defining ``covered position'' in section 731.101(a) to
``Definitions'' in section 731.101(b) for easy reference. Finally, in
section 731.105(a), OPM deleted the citation to paragraph (a) of
section 731.104 because the correct reference is to all of section
731.104.
Executive Order 12866, Regulatory Review
The Office of Management and Budget has reviewed the final rule in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have significant economic
impact on a substantial number of small entities because they will
affect Federal agencies, employees, and applicants only.
List of Subjects in 5 CFR Part 731
Administrative practices and procedures, Government employees.
Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly, OPM is revising 5 CFR part 731 to read as follows:
PART 731--SUITABILITY
Subpart A--Scope
Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies.
731.104 Appointments subject to investigation.
731.105 Authority to take suitability actions.
731.106 Designation of public trust positions and investigative
requirements.
Subpart B--Suitability Determinations and Actions
731.201 Standard.
731.202 Criteria for making suitability determinations.
731.203 Suitability actions by OPM and other agencies.
731.204 Debarment by OPM.
731.205 Debarment by agencies.
Subpart C--OPM Suitability Action Procedures
731.301 Scope.
731.302 Notice of proposed action.
731.303 Answer.
731.304 Decision.
Subpart D--Agency Suitability Action Procedures
731.401 Scope.
[[Page 20155]]
731.402 Notice of proposed action.
731.403 Answer.
731.404 Decision.
Subpart E--Appeal to the Merit Systems Protection Board
731.501 Appeal to the Merit Systems Protection Board.
Subpart F--Savings Provision
731.601 Savings provision.
Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218, as amended, 5 CFR, parts 1, 2 and 5.
Subpart A--Scope
Sec. 731.101 Purpose.
(a) The purpose of this part is to establish criteria and
procedures for making determinations of suitability and for taking
suitability actions regarding employment in covered positions (as
defined in paragraph (b) of this section) pursuant to 5 U.S.C. 3301,
E.O. 10577 (3 CFR, 1954-1958 Comp., p. 218), as amended, and 5 CFR 1.1,
2.1(a) and 5.2. Section 3301 of title 5, United States Code, directs
consideration of ``age, health, character, knowledge, and ability for
the employment sought.'' E.O. 10577 (codified in relevant part at 5 CFR
1.1, 2.1(a) and 5.2) directs OPM to examine ``suitability'' for
competitive Federal employment. This part concerns only determinations
of ``suitability,'' that is, those determinations based on a person's
character or conduct that may have an impact on the integrity or
efficiency of the service. Determinations made and actions taken under
this part are distinct from objections to eligibles or pass overs of
preference eligibles, and OPM's and agencies' decisions on such
requests, made under 5 U.S.C. 3318 and 5 CFR 332.406, as well as
determinations of eligibility for assignment to, or retention in,
sensitive national security positions made under E.O. 10450 (3 CFR,
1949-1953 Comp., p. 936), E.O. 12968, or similar authorities.
(b) Definitions. In this part:
Applicant means a person who is being considered or has been
considered for employment.
Appointee means a person who has entered on duty and is in the
first year of a subject-to-investigation appointment (as defined in
Sec. 731.104).
Covered position means a position in the competitive service, a
position in the excepted service where the incumbent can be
noncompetitively converted to the competitive service, and a career
appointment to a position in the Senior Executive Service.
Days means calendar days unless otherwise specified in this part.
Employee means a person who has completed the first year of a
subject-to-investigation appointment.
Material means, in reference to a statement, one that is capable of
influencing, affects, or has a natural tendency to affect, an official
decision even if OPM or an agency does not rely upon it.
Suitability action means an outcome described in Sec. 731.203 and
may be taken only by OPM or an agency with delegated authority under
the procedures in subparts C and D of this part.
Suitability determination means a decision by OPM or an agency with
delegated authority that a person is suitable or is not suitable for
employment in covered positions in the Federal Government or a specific
Federal agency.
Sec. 731.102 Implementation.
(a) An investigation conducted for the purpose of determining
suitability under this part may not be used for any other purpose
except as provided in a Privacy Act system of records notice published
by the agency conducting the investigation.
(b) Under OMB Circular No. A-130 Revised, issued November 20, 2000,
agencies are to implement and maintain a program to ensure that
adequate protection is provided for all automated information systems.
Agency personnel screening programs may be based on procedures
developed by OPM. The Computer Security Act of 1987 (Pub. L. 100-235)
provides additional requirements for Federal automated information
systems.
(c) OPM may set forth policies, procedures, criteria, standards,
quality control procedures, and supplementary guidance for the
implementation of this part in OPM issuances.
Sec. 731.103 Delegation to agencies.
(a) Subject to the limitations and requirements of paragraphs (f)
and (g) of this section, OPM delegates to the heads of agencies
authority for making suitability determinations and taking suitability
actions (including limited, agency-specific debarments under Sec.
731.205) in cases involving applicants for and appointees to covered
positions in the agency.
(b) When an agency, acting under delegated authority from OPM,
determines that a Governmentwide debarment by OPM under Sec.
731.204(a) may be an appropriate action, it must refer the case to OPM
for debarment consideration. Agencies must make these referrals prior
to any proposed suitability action, but only after sufficient
resolution of the suitability issue(s), through subject contact or
investigation, to determine if a Governmentwide debarment appears
warranted.
(c) Agencies exercising authority under this part by delegation
from OPM must adhere to OPM requirements as stated in this part and
OPM's issuances described in Sec. 731.102(c). Agencies must also
implement policies and maintain records demonstrating that they employ
reasonable methods to ensure adherence to these OPM issuances.
(d) Agencies may begin to determine an applicant's suitability at
any time during the hiring process. Because suitability issues may not
arise until late in the application/appointment process, it is
generally more practical and cost-effective to first ensure that the
applicant is eligible for the position, deemed by OPM or a Delegated
Examining Unit to be among the best qualified, and/or within reach of
selection. However, in certain circumstances, such as filling law
enforcement positions, an agency may choose to initiate a preliminary
suitability review at the time of application. Whether or not a person
is likely to be eligible for selection, OPM must be informed in all
cases where there is evidence of material, intentional false
statements, or deception or fraud in examination or appointment, and
OPM will take a suitability action where warranted.
(e) When an agency, exercising authority under this part by
delegation from OPM, makes a suitability determination or changes a
tentative favorable placement decision to an unfavorable decision,
based on an OPM report of investigation or upon an investigation
conducted pursuant to OPM-delegated authority, the agency must:
(1) Ensure that the records used in making the determination are
accurate, relevant, timely, and complete to the extent reasonably
necessary to ensure fairness to the person in any determination;
(2) Ensure that all applicable administrative procedural
requirements provided by law, the regulations in this part, and OPM
issuances as described in Sec. 731.102(c) have been observed;
(3) Consider all available information in reaching its final
decision on a suitability determination or suitability action, except
information furnished by a non-corroborated confidential source, which
may be used only for limited purposes, such as information used to
develop a lead or in interrogatories to a subject, if the identity of
the source is not compromised in any way; and
(4) Keep any record of the agency suitability determination or
action as
[[Page 20156]]
required by OPM issuances as described in Sec. 731.102(c).
(f) OPM may revoke an agency's delegation to make suitability
determinations and take suitability actions under this part if an
agency fails to conform to this part or OPM issuances as described in
Sec. 731.102(c).
(g) OPM retains jurisdiction to make final determinations and take
actions in all suitability cases where there is evidence that there has
been a material, intentional false statement, or deception or fraud in
examination or appointment. OPM also retains jurisdiction over all
suitability cases involving a refusal to furnish testimony as required
by Sec. 5.4 of this chapter. Agencies must refer these cases to OPM
for suitability determinations and suitability actions under this
authority. Although no prior approval is needed, notification to OPM is
required if the agency wants to take, or has taken, action under its
own authority (5 CFR part 315, 5 CFR part 359, or 5 CFR part 752) in
cases involving material, intentional false statement in examination or
appointment, or deception or fraud in examination or appointment; or
refusal to furnish testimony as required by Sec. 5.4 of this title. In
addition, paragraph (a) of this section notwithstanding, OPM may, in
its discretion, exercise its jurisdiction under this part in any case
it deems necessary.
Sec. 731.104 Appointments subject to investigation.
(a) To establish a person's suitability for employment,
appointments to covered positions identified in Sec. 731.101 require
the person to undergo an investigation by OPM or by an agency with
delegated authority from OPM to conduct investigations. Certain
appointments do not require investigation. Except when required because
of position risk level (high, moderate, or low) changes, a person in a
covered position, who has undergone a suitability investigation, need
not undergo another one simply because the person has been:
(1) Promoted;
(2) Demoted;
(3) Reassigned;
(4) Converted from career-conditional to career tenure;
(5) Appointed or converted to an appointment in a covered position
if the person has been serving continuously with the agency for at
least 1 year in one or more positions under an appointment subject to
investigation; or
(6) Transferred, provided the person has served continuously for at
least 1 year in a position subject to investigation.
(b)(1) Either OPM or an agency with delegated suitability authority
may investigate and take a suitability action against an applicant,
appointee, or employee in accordance with Sec. 731.105. There is no
time limit on the authority of OPM or an agency with delegated
suitability authority to conduct the required investigation of an
applicant who has been appointed to a position. An employee does not
have to serve a new probationary or trial period merely because his or
her appointment is subject to investigation under this section. An
employee's probationary or trial period is not extended because his or
her appointment is subject to investigation under this section.
(2) The subject to investigation condition also does not eliminate
the need to conduct investigations required under Sec. 731.106 for
public trust positions when the required investigation commensurate
with the risk level of the position has not yet been conducted.
(3) Suitability determinations must be made for all appointments
that are subject to investigation.
(c) Positions that are intermittent, seasonal, per diem, or
temporary, not to exceed an aggregate of 180 days per year in either a
single continuous appointment or series of appointments, do not require
a background investigation as described in Sec. 731.106(c)(1). The
employing agency, however, must conduct such checks as it deems
appropriate to ensure the suitability of the person.
Sec. 731.105 Authority to take suitability actions.
(a) Neither OPM nor an agency acting under delegated authority may
take a suitability action in connection with any application for, or
appointment to, a position that is not subject to investigation or
check under Sec. 731.104.
(b) OPM may take a suitability action under this part against an
applicant or appointee based on any of the criteria of Sec. 731.202;
(c) Except as limited by Sec. 731.103(g), an agency, exercising
delegated authority, may take a suitability action under this part
against an applicant or appointee based on the criteria of Sec.
731.202;
(d) OPM may take a suitability action under this part against an
employee based on the criteria of Sec. 731.202(b)(3), (4), or (8).
(e) An agency may not take a suitability action against an
employee. Nothing in this part precludes an agency from taking an
adverse action against an employee under the procedures and standards
of part 752 of this chapter or terminating a probationary employee
under the procedures of part 315 or part 359 of this chapter. An agency
must notify OPM to the extent required in Sec. 731.103(g) if it wants
to take, or has taken, action under these authorities.
Sec. 731.106 Designation of public trust positions and investigative
requirements.
(a) Risk designation. Agency heads must designate every covered
position within the agency at a high, moderate, or low risk level as
determined by the position's potential for adverse impact to the
efficiency or integrity of the service. OPM will provide an example of
a risk designation system for agency use in an OPM issuance as
described in Sec. 731.102(c).
(b) Public Trust positions. Positions at the high or moderate risk
levels would normally be designated as ``Public Trust'' positions. Such
positions may involve policy making, major program responsibility,
public safety and health, law enforcement duties, fiduciary
responsibilities or other duties demanding a significant degree of
public trust, and positions involving access to or operation or control
of financial records, with a significant risk for causing damage or
realizing personal gain.
(c) Investigative requirements.
(1) Persons receiving an appointment made subject to investigation
under this part must undergo a background investigation. OPM is
authorized to establish minimum investigative requirements correlating
to risk levels. Investigations should be initiated before appointment
but no later than 14 calendar days after placement in the position.
(2) All positions subject to investigation under this part must
also receive a sensitivity designation of Special-Sensitive, Critical-
Sensitive, or Noncritical-Sensitive, when appropriate. This designation
is complementary to the risk designation, and may have an effect on the
position's investigative requirement. Sections 732.201 and 732.202 of
this chapter detail the various sensitivity levels and investigation
types. Detailed procedures for determining investigative requirements
for all positions based upon risk and sensitivity will be established
in an OPM issuance as described in Sec. 731.102(c).
(3) If suitability issues develop prior to the required
investigation, OPM or the agency may conduct an investigation
sufficient to resolve the issues and support a suitability
determination or action, if warranted. If the person is appointed, the
minimum level of investigation must be conducted
[[Page 20157]]
as required by paragraph (c)(1) of this section.
(d) Suitability reinvestigations. Agencies, relying on authorities
such as the Computer Security Act of 1987 and OMB Circular No. A-130
Revised (issued November 20, 2000), may require incumbents of certain
public trust positions to undergo periodic reinvestigations. The
appropriate level of any reinvestigation will be determined by the
agency, but may be based on supplemental guidance provided by OPM.
(e) Risk level changes. If a person moves to a higher risk level
position, or if the risk level of his or her position itself is
changed, the person may remain in or encumber the position. Any upgrade
in the investigation required for the new risk level should be
initiated within 14 calendar days after the move or the new designation
is final.
(f) Completed investigations. Any suitability investigation
completed by an agency under provisions of paragraph (d) of this
section must result in a determination by the employing agency. The
subject's employment status (i.e., applicant, appointee, or employee as
defined in Sec. 731.101) will determine the applicable agency
authority and procedures to be followed in any action taken.
Subpart B--Suitability Determinations and Actions
Sec. 731.201 Standard.
The standard for a suitability action defined in Sec. 731.203 and
taken against an applicant, appointee, or employee is that the action
will protect the integrity or promote the efficiency of the service.
Sec. 731.202 Criteria for making suitability determinations.
(a) General. OPM, or an agency to which OPM has delegated
authority, must base its suitability determination on the presence or
absence of one or more of the specific factors (charges) in paragraph
(b) of this section.
(b) Specific factors. In determining whether a person is suitable
for Federal employment, only the following factors will be considered a
basis for finding a person unsuitable and taking a suitability action:
(1) Misconduct or negligence in employment;
(2) Criminal or dishonest conduct;
(3) Material, intentional false statement, or deception or fraud in
examination or appointment;
(4) Refusal to furnish testimony as required by Sec. 5.4 of this
chapter;
(5) Alcohol abuse, without evidence of substantial rehabilitation,
of a nature and duration that suggests that the applicant or appointee
would be prevented from performing the duties of the position in
question, or would constitute a direct threat to the property or safety
of the applicant or appointee or others;
(6) Illegal use of narcotics, drugs, or other controlled substances
without evidence of substantial rehabilitation;
(7) Knowing and willful engagement in acts or activities designed
to overthrow the U.S. Government by force; and
(8) Any statutory or regulatory bar which prevents the lawful
employment of the person involved in the position in question.
(c) Additional considerations. OPM and agencies must consider any
of the following additional considerations to the extent OPM or the
relevant agency, in its sole discretion, deems any of them pertinent to
the individual case:
(1) The nature of the position for which the person is applying or
in which the person is employed;
(2) The nature and seriousness of the conduct;
(3) The circumstances surrounding the conduct;
(4) The recency of the conduct;
(5) The age of the person involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
Sec. 731.203 Suitability actions by OPM and other agencies.
(a) For purposes of this part, a suitability action is one or more
of the following:
(1) Cancellation of eligibility;
(2) Removal;
(3) Cancellation of reinstatement eligibility; and
(4) Debarment.
(b) A non-selection, or cancellation of eligibility for a specific
position based on an objection to an eligible or pass over of a
preference eligible under 5 CFR 332.406, is not a suitability action
even if it is based on reasons set forth in Sec. 731.202.
(c) A suitability action may be taken against an applicant or an
appointee when OPM or an agency exercising delegated authority under
this part finds that the applicant or appointee is unsuitable for the
reasons cited in Sec. 731.202, subject to the agency limitations of
Sec. 731.103(g).
(d) OPM may require that an appointee or an employee be removed on
the basis of a material, intentional false statement, deception or
fraud in examination or appointment; refusal to furnish testimony as
required by Sec. 5.4 of this chapter; or a statutory or regulatory bar
which prevents the person's lawful employment.
(e) OPM may cancel any reinstatement eligibility obtained as a
result of a material, intentional false statement, deception or fraud
in examination or appointment.
(f) An action to remove an appointee or employee for suitability
reasons under this part is not an action under part 315, 359, or 752 of
this chapter. Where behavior covered by this part may also form the
basis for an action under parts 315, 359, or 752 of this chapter, an
agency may take the action under part 315, 359, or 752 of this chapter,
as appropriate, instead of under this part. An agency must notify OPM
to the extent required in Sec. 731.103(g) if it wants to take, or has
taken, action under these authorities.
(g) Agencies do not need approval from OPM before taking
unfavorable suitability actions. However, they are required to report
to OPM all unfavorable suitability actions taken under this part within
30 days after they take the action. Also, all actions based on an OPM
investigation must be reported to OPM as soon as possible and in no
event later than 90 days after receipt of the final report of
investigation.
Sec. 731.204 Debarment by OPM.
(a) When OPM finds a person unsuitable for any reason listed in
Sec. 731.202, OPM, in its discretion, may, for a period of not more
than 3 years from the date of the unfavorable suitability
determination, deny that person examination for, and appointment to,
covered positions.
(b) OPM may impose an additional period of debarment following the
expiration of a period of OPM or agency debarment, but only after the
person again becomes an applicant, appointee, or employee subject to
OPM's suitability jurisdiction, and his or her suitability is
determined in accordance with the procedures of this part. An
additional debarment period may be based in whole or in part on the
same conduct on which the previous suitability action was based, when
warranted, or new conduct.
(c) OPM, in its sole discretion, determines the duration of any
period of debarment imposed under this section.
Sec. 731.205 Debarment by agencies.
(a) Subject to the provisions of Sec. 731.103, when an agency
finds an applicant or appointee unsuitable based upon reasons listed in
Sec. 731.202, the
[[Page 20158]]
agency may, for a period of not more than 3 years from the date of the
unfavorable suitability determination, deny that person examination
for, and appointment to, either all, or specific covered, positions
within that agency.
(b) The agency may impose an additional period of debarment
following the expiration of a period of OPM or agency debarment, but
only after the person again becomes an applicant or appointee subject
to the agency's suitability jurisdiction, and his or her suitability is
determined in accordance with the procedures of this part. An
additional debarment period may be based in whole or in part on the
same conduct on which the previous suitability action was based, when
warranted, or new conduct.
(c) The agency, in its sole discretion, determines the duration of
any period of debarment imposed under this section.
(d) The agency is responsible for enforcing the period of debarment
and taking appropriate action if a person applies for, or is
inappropriately appointed to, a position at that agency during the
debarment period. This responsibility does not limit OPM's authority to
exercise jurisdiction itself and take any action OPM deems appropriate.
Subpart C--OPM Suitability Action Procedures
Sec. 731.301 Scope.
This subpart covers OPM-initiated suitability actions against an
applicant, appointee, or employee.
Sec. 731.302 Notice of proposed action.
(a) OPM will notify the applicant, appointee, or employee
(hereinafter, the ``respondent'') in writing of the proposed action,
the charges against the respondent, and the availability of review,
upon request, of the materials relied upon. The notice will set forth
the specific reasons for the proposed action and state that the
respondent has the right to answer the notice in writing. The notice
will further inform the respondent of the time limit for the answer as
well as the address to which an answer must be made.
(b) The notice will inform the respondent that he or she may be
represented by a representative of the respondent's choice and that if
the respondent wishes to have such a representative, the respondent
must designate the representative in writing.
(c) OPM will serve the notice of proposed action upon the
respondent by mail or hand delivery no less than 30 days prior to the
effective date of the proposed action to the respondent's last known
residence or duty station.
(d) If the respondent encumbers a position covered by this part on
the date the notice is served, the respondent is entitled to be
retained in a pay status during the notice period.
(e) OPM will send a copy of the notice to any employing agency that
is involved.
Sec. 731.303 Answer.
(a) Respondent's answer. A respondent may answer the charges in
writing and furnish documentation and/or affidavits in support of the
answer. To be timely, a written answer must be submitted no more than
30 days after the date of the notice of proposed action.
(b) Agency's answer. An employing agency may also answer the notice
of proposed action. The time limit for filing such an answer is 30 days
from the date of the notice. In reaching a decision, OPM will consider
any answer the agency makes.
Sec. 731.304 Decision.
The decision regarding the final suitability action will be in
writing, be dated, and inform the respondent of the reasons for the
decision and that an unfavorable decision may be appealed in accordance
with subpart E of this part. OPM will also notify the respondent's
employing agency of its decision. If the decision requires removal, the
employing agency must remove the appointee or employee from the rolls
within 5 work days of receipt of OPM's final decision.
Subpart D--Agency Suitability Action Procedures
Sec. 731.401 Scope.
This subpart covers agency-initiated suitability actions against an
applicant or appointee.
Sec. 731.402 Notice of proposed action.
(a) The agency must notify the applicant or appointee (hereinafter,
the ``respondent'') in writing of the proposed action, the charges
against the respondent, and the availability for review, upon request,
of the materials relied upon. The notice must set forth the specific
reasons for the proposed action and state that the respondent has the
right to answer the notice in writing. The notice must further inform
the respondent of the time limit for the answer as well as the address
to which such answer must be delivered.
(b) The notice must inform the respondent that he or she may be
represented by a representative of the respondent's choice and that if
the respondent wishes to have such a representative, the respondent
must designate the representative in writing.
(c) The agency must serve the notice of proposed action upon the
respondent by mail or hand delivery no less than 30 days prior to the
effective date of the proposed action to the respondent's last known
residence or duty station.
(d) If the respondent is employed in a position covered by this
part on the date the notice is served, the respondent is entitled to be
retained in a pay status during the notice period.
Sec. 731.403 Answer.
A respondent may answer the charges in writing and furnish
documentation and/or affidavits in support of the answer. To be timely,
a written answer must be submitted no more than 30 days after the date
of the notice of proposed action.
Sec. 731.404 Decision.
The decision regarding the final action must be in writing, be
dated, and inform the respondent of the reasons for the decision and
that an unfavorable decision may be appealed in accordance with subpart
E of this part. If the decision requires removal, the employing agency
must remove the appointee from the rolls within 5 work days of the
agency's decision.
Subpart E--Appeal to the Merit Systems Protection Board
Sec. 731.501 Appeal to the Merit Systems Protection Board.
(a) Appeal to the Merit Systems Protection Board. When OPM or an
agency acting under delegated authority under this part takes a
suitability action against a person, that person may appeal the action
to the Merit Systems Protection Board (hereinafter ``Board'').
(b) Decisions by the Merit Systems Protection Board.
(1) If the Board finds that one or more of the charges brought by
OPM or an agency against the person is supported by a preponderance of
the evidence, regardless of whether all specifications are sustained,
it must affirm the suitability determination. The Board must consider
the record as a whole and make a finding on each charge and
specification in making its decision.
(2) If the Board sustains fewer than all the charges, the Board
must remand the case to OPM or the agency to determine whether the
suitability action taken is appropriate based on the sustained
charge(s). However, the agency must hold in abeyance a decision on
remand until the person has exhausted all rights to seek review of the
Board's decision, including court review.
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(3) Once review is final, OPM or an agency will determine whether
the action taken is appropriate based on the sustained charges and this
determination will be final without any further appeal to the Board.
(c) Appeal procedures. The procedures for filing an appeal with the
Board are found at part 1201 of this title.
Subpart F--Savings Provision
Sec. 731.601 Savings provision.
No provision of the regulations in this part is to be applied in
such a way as to affect any administrative proceeding pending on June
16, 2008. An administrative proceeding is deemed to be pending from the
date of the agency or OPM ``notice of proposed action'' described in
Sec. Sec. 731.302 and 731.402.
[FR Doc. E8-7964 Filed 4-14-08; 8:45 am]
BILLING CODE 6326-39-P