[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Proposed Rules]
[Pages 2203-2209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-592]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 /
Proposed Rules
[[Page 2203]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN: 3206-AL08
Suitability
AGENCY: Office of Personnel Management.
ACTION: Proposed 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 proposing to amend its regulations governing Federal
employment suitability. The proposed regulations would: 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 or Board) to
review actions taken under the regulations. OPM is also proposing
changes to make the regulations more readable.
DATES: Comments must be received on or before March 19, 2007.
ADDRESSES: Send or deliver written comments to Ana A. Mazzi, Deputy
Associate Director for Workforce Relations and Accountability Policy,
Office of Personnel Management, 1900 E Street NW., Room 7H28,
Washington, DC 20415; by FAX to 202-606-2613; or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2930; by FAX at (202) 606-2613; or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: OPM proposes to amend 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 proposes
various revisions to make the regulations more readable.
Coverage
OPM proposes to amend Sec. Sec. 731.101, 731.103, 731.104,
731.106, 731.204, and 731.206 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. The
regulations currently cover only persons in the competitive service and
the Senior Executive Service. 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
such 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 investigations
and disqualifying factors similar to those found in part 731 (but
without procedural protections). OPM proposes to refer to positions in
the competitive service, positions in the excepted service as described
in this paragraph, and positions in the Senior Executive Service
collectively throughout part 731 as ``covered positions.''
OPM proposes to add definitions of suitability action and
suitability determination to Sec. 731.101 to help the reader better
understand the coverage of part 731.
OPM also proposes 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 this part as stated in
current Sec. 731.104. 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 proposes 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. The added language is 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.
In addition, OPM proposes to amend paragraph (a) of Sec. 731.101
to state explicitly that suitability determinations are separate and
distinct from objections or passover requests concerning preference
eligibles (and OPM decisions on those requests) made according to the
provisions of Sec. 3318 of title 5, United States Code (U.S.C.), and 5
CFR 332.406. Paragraph (b) of Sec. 731.203 is likewise modified to
state clearly that objections and passover issues are not covered by
part 731 even if a non-selection for a Federal position is based on a
reason provided in Sec. 731.202. OPM also proposes to remove ``denial
of appointment'' as a suitability action, as currently defined in Sec.
731.203. Altogether, these proposed changes confirm that a non-
selection for a specific position based on reasons set forth in this
part is not a suitability action and that an agency objection to or
request to pass over a preference eligible applicant for consideration
for a particular position is not a suitability action.
Procedures
OPM is proposing to clarify in Sec. 731.106 the level of
investigation OPM or the agency may conduct when suitability issues are
developed prior to a required investigation. OPM or the agency may
conduct the level of investigation sufficient to resolve the issues and
to support a suitability action. If the individual is later appointed,
the minimum level of investigation must be conducted consistent with
the requirements in Sec. 731.106.
OPM is also proposing two changes that provide additional
procedural protections for persons who may be
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subject to an unfavorable suitability determination or action. First,
when an agency makes a decision under part 731, or changes a tentative
favorable placement decision to an unfavorable decision based on an OPM
report of investigation or upon an agency investigation conducted under
OPM-delegated authority, OPM would require that the agency notify the
person of the specific reasons for the decision and give the person the
opportunity to explain or refute the information. The current
regulations do not require agencies to provide this notice and
opportunity to respond.
Second, OPM is proposing to clarify that when an agency proposes to
find a person unsuitable, the person may elect to have a representative
of the person's choice as long as he or she makes a written designation
of representation. Persons subject to investigation under part 732 of
this chapter currently have this opportunity, and OPM believes that it
is appropriate to extend this option to persons subject to
investigation under part 731 as well.
OPM is proposing to amend Sec. 731.303 to discontinue the current
practice of allowing only employees to give oral answers to proposed
suitability actions by OPM. This would simplify and streamline the
suitability process with OPM's procedures mirroring those used by
agencies with delegated authority. This will ensure that all persons
are guaranteed the same rights to answer proposed suitability actions
regardless of their status as applicants, appointees, or employees
under the rule.
Authorities
OPM is proposing to expand the debarment authority that an agency
currently possesses. Specifically, OPM proposes to permit 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. OPM is proposing this change to give
agencies the same flexibility when deciding the appropriate length of
debarment that OPM has. In addition, OPM is clarifying the regulations
to indicate more clearly that an agency or OPM, when warranted, may
make a subsequent suitability determination and impose an additional
debarment period for the same conduct on which a previous suitability
action was based. Simply put, a negative suitability action does not
wipe the slate clean. It is an adjudication concerning an individual's
suitability for Federal service during a particular time period, not
expiation for wrongdoing. Thus, an additional debarment period may be
appropriate where the conduct was of a heinous nature, where the
conduct represents a pattern of misconduct, or where a nexus exists
between the conduct and the responsibilities associated with the
current position. An agency or OPM making determinations in these
circumstances would follow all procedural requirements of Part 731,
including affording the affected persons the right to answer the agency
or OPM and to appeal any negative suitability determinations to the
Merit Systems Protection Board.
In Sec. 731.103, OPM is proposing 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. Agencies, however,
would still be required to notify OPM if they have taken, or plan to
take, such action.
OPM is proposing 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 may not be considered by the MSPB.
Finally, OPM is proposing in paragraph (c) of Sec. 731.103 that
agencies must exercise their delegated authorities in accordance with
OPM regulations and issuances concerning procedures, policy guidance,
criteria, standards, supplemental guidance, and quality control
procedures established by OPM. OPM is also proposing 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.
Merit Systems Protection Board Review
There is no statutory right to appeal a negative suitability
determination. OPM, however, accorded applicants, appointees, and
employees the right to appeal a negative suitability action taken by
OPM, or an agency with delegated authority from OPM, under the
procedures set forth in this part. This right of appeal applies only to
an action taken under the procedures set forth in part 731. It does not
extend to any other employment action that an agency takes outside of
the procedures set forth in part 731 unless Congress or OPM has
explicitly accorded a right of redress. In other words, what is not
covered by part 731 may not be reviewed by the MSPB. For example, OPM
has provided no right to appeal an agency's decision to object to or
request to pass over a candidate under part 332 of this chapter,
regardless of the basis for the agency's request. That is, even if an
agency objects to or requests to pass over an applicant based upon an
applicant's fitness or character, the applicant does not have a right
of appeal under part 731. Likewise, 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. Rather, the procedures an agency
decides to use 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). There, the Board 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. This is an
incorrect reading of the authority that OPM conferred upon the Board.
It is well-settled that the Board possesses jurisdiction only to
the extent that Congress or OPM specifically confers jurisdiction upon
it by statute and regulation. Moreover, an agency is free to utilize
any applicable statutory or regulatory mechanism available if it wishes
to take an employment action against an applicant, appointee, or
employee. For example, an agency that is dissatisfied with an
employee's performance may elect to take action under chapter 43 or 75
of title 5, United States Code, or under part 315 or 359 of this
chapter of OPM's regulations if the person is serving a probationary
period. Although the action an agency elects to use is based on the
individual's poor performance, the agency is not limited to the
procedures contained in chapter 43. Lovshin v. Department of the Navy,
767 F.2d 826 (Fed. Cir. 1985). An agency may elect the statutory or
regulatory scheme under which it takes an action, and it is bound to
follow the procedures and standards of proof found in the scheme it
chooses to use. Similarly, 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
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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).
These proposed regulations reaffirm and clarify that there is a
distinction between objections or passovers and suitability actions and
that OPM has not authorized an appeal to MSPB for objections or
passovers.
Finally, while continuing to authorize suitability appeals, OPM is
proposing to clarify the scope of jurisdiction conferred on MSPB. The
proposed rule would eliminate the requirement that MSPB remand a case
to OPM or an agency if fewer than all the charges are sustained and
replace it with a requirement that the Board affirm the suitability
determination and the suitability action when one or more charges are
sustained. The specter of two simultaneous reviews in the same case by
MSPB and OPM or an agency has led to confusion and uncertainty about
the relationship of the two reviews, e.g., whether one takes precedence
over the other and whether the outcome of one moots the review of the
other. The proposed rule eliminates that confusion.
Readability
In addition to the above substantive changes, OPM proposes to
rewrite the regulations in part 731 to make them more readable. Under
this rewriting effort, OPM is proposing a number of grammatical and
stylistic changes to the regulations to clarify their intended meaning.
One example applied throughout the regulations, is a proposal to use
``person'' consistently (instead of ``individual'') to describe those
affected by the regulations. Another example is that the word ``shall''
is replaced in most cases by the word ``must'' to clearly state
requirements. The current regulations use the terms interchangeably.
OPM also is proposing to highlight the words ``applicant,''
``appointee,'' and ``employee'' to emphasize their unique meanings when
applied at various locations in the regulations.
Executive Order 12866, Regulatory Review
The Office of Management and Budget has reviewed the proposed 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.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
Accordingly, OPM is proposing to revise 5 CFR part 731 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.
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, 7701; E.O. 10577, 3 CFR,
1954-1958 Comp., p. 218; E.O. 12731, 3 CFR, 1990 Comp., p.306., 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 positions in the
competitive service, in positions in the excepted service where the
incumbents can be noncompetitively converted to the competitive
service, and under career appointments to positions in the Senior
Executive Service (hereinafter in this part, these three types of
positions are referred to collectively as ``covered positions'')
pursuant to 5 U.S.C. 3301, E.O. 10577 (3 CFR, 1954-1958 Comp., p. 218)
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 or passover requests
concerning preference eligibles, and OPM's 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 1st
year of a subject to investigation appointment (as defined in Sec.
731.103).
Days mean 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 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
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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 paragraph (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 implement policies and maintain records demonstrating
that they employ reasonable methods to ensure adherence to OPM
issuances as described in Sec. 731.102(c).
(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 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 adjudication for suitability action 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 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 in either a single
continuous appointment or series of appointments, do not require
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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 under
Sec. 731.104(a)(1) through (6).
(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. Agencies
must notify OPM 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 as required by
paragraph (c)(1) of this section.
(d) 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.
(e) Completed investigations. Any suitability investigation
completed by an agency under provisions of paragraph (d) of this
section must result in a suitability 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 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 may consider the
following additional considerations to the extent OPM or the relevant
agency, in their sole discretion, deems 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 an action
resulting in 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
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on an objection or passover of a preference eligible under 5 CFR
332.406 is not a suitability action even if the non-selection 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 752, 359, or 315 of
this chapter. Where behavior covered by this part may also form the
basis for a part 752, 359, or 315 of this chapter action, agencies may
take the action under part 315, 359, or 752 of this chapter, as
appropriate, instead of under this part. Agencies must notify OPM 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) Upon the expiration of a period of debarment, OPM may
redetermine a person's suitability for appointment in accordance with
the procedures of this part. An additional debarment period may be
imposed for the same conduct on which the previous suitability action
was based, when warranted.
(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 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) Upon the expiration of a period of agency debarment, the agency
may redetermine a person's suitability for appointment at that agency
in accordance with the procedures of this part. An additional debarment
period may be imposed for the same conduct on which the previous
suitability action was based, when warranted.
(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.
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(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''). If the
Board finds that at least one 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 and the suitability action.
(b) 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 [DATE
OF THE EFFECTIVE DATE OF THE FINAL RULE]. 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. E7-592 Filed 1-17-07; 8:45 am]
BILLING CODE 6326-39-P