[Federal Register Volume 65, Number 250 (Thursday, December 28, 2000)]
[Rules and Regulations]
[Pages 82239-82246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-33114]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 65, No. 250 / Thursday, December 28, 2000 /
Rules and Regulations
[[Page 82239]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN 3206-AC19
Suitability
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
changes to the rule on personnel suitability which OPM previously
issued as a proposed rule for comments. OPM received and considered
public comments. This rule addresses the significant concerns expressed
and incorporates some of the suggestions received.
DATES: January 29, 2001.
FOR FURTHER INFORMATION CONTACT: Thomas DelPozzo, (724) 794-5612.
SUPPLEMENTARY INFORMATION: OPM promulgated the proposed final
suitability regulations with a request for comments in Federal
Register, Vol. 64, No. 18, p. 4336. Comments were received from 13
sources, including Federal agencies, individuals, and a labor
organization. The following summarizes the principal comments and
suggestions received and actions that were taken.
Part 731
Non-Specific General Comments
An agency commenter suggested that OPM cross-reference 5 CFR
339.201, which authorizes OPM to disqualify an applicant based on
mental or physical unfitness. We conclude that a revision to Part 731
in the manner suggested is unnecessary. We will cross-reference Part
339 and include some clarification of this issue in our supplemental
guidance.
An agency suggested that OPM establish a time limit for
investigation and/or adjudication of suitability cases to ensure
completion a minimum of 90-120 days before expiration of the
probationary period.
Certain time frames to ensure timely processing are already in the
regulations (for example, section 731.106 provides that investigations
should be initiated before appointment or, at most, within 14 calendar
days of placement in the position). The variances that are a natural
part of investigation and adjudication make it difficult to require
specific time limits. Agencies can manage adjudicative time frames in a
number of ways, such as by dealing with applicant suitability issues
prior to appointment; by investigating prior to appointment; by
submitting required case papers for investigation, completed properly,
within required time frames; by requesting the appropriate
investigation service timeliness levels to ensure completion of the
investigation in time to take the adjudicative action before the end of
the probationary period; and by processing adjudicative actions more
efficiently.
Section 731.101 Purpose
A commenter recommended that the definition of ``material,
intentional false statement'' be altered to define the term
``material'' rather than the term ``material, intentional false
statement'' since the proposed definition did not include definitions
for ``intentional'' and ``false.'' We agreed to the suggested wording
with a slight modification.
One commenter suggested that the proposed definition of ``material,
intentional false statement'' is excessively broad and vague in that
virtually any statement would meet this definition. The commenter
suggested that it was objectionable for OPM to state that reliance on a
false statement is irrelevant to the test of materiality.
OPM disagrees. Virtually the same definition of materiality has
been enunciated by the Supreme Court in other contexts. See e.g.,
United States v. Gaudin, 515 U.S. 506 (1995). Clearly, the Supreme
Court did not create and apply a test for materiality that was
unlawfully vague. Further, it is entirely appropriate that actions be
taken against falsifiers whether or not they succeed in their attempts
to deceive. OPM's suitability program seeks to deter applicants from
falsifying statements to gain an advantage in the appointment process,
as well as to detect applicants who falsify.
Section 731.102 Implementation
Two commenters suggested agencies be afforded up to one year to
implement an adjudication program to re-assess position designation,
develop internal operating procedures, and undergo comprehensive
training. We agreed to give agencies up to one year to modify their
existing suitability adjudication program to accommodate the increased
delegation of applicant suitability authority. Thus, although agencies
must implement the new regulations now, OPM will continue to accept
applicant suitability referrals, under our current procedures, for up
to a year from the effective date of the new regulations. Additionally,
OPM will provide supplemental guidance and suitability training to
assist agencies.
Section 731.103 Delegation to Agencies
An agency asked whether agencies to which OPM previously had
delegated authority will now be required to refer any cases involving
falsification to OPM for adjudication. If so, the agency commented that
this would be an additional burden.
OPM's policy concerning material falsification cases has not
changed. In supplemental guidance issued in 1991 with our current
regulations, OPM policy stated, ``OPM is responsible for adjudicating
all cases (applicants, eligibles, appointees, and employees) involving
material, intentional false statement, deception, or fraud in
examination or appointment.'' Additionally, as stated in a 1995 Federal
Investigations Notice (FIN 95-1), ``All agencies, including those with
delegated suitability adjudication authority, should refer any
competitive service applicant situation where there is evidence of
intentional false statement or deception or fraud in examination or
appointment process, to the same office (OPM, Federal Investigations
Processing Center, Suitability Adjudications Branch).''
In employee cases (a person who has completed the first year of a
subject to investigation appointment), this policy applies only to
fraud in the examination or appointment process for a ``subject to
investigation'' appointment. Our basis for maintaining adjudicative
control in
[[Page 82240]]
these cases is basically two-fold: (1) A violation of the merit system
has occurred that affects the integrity of the competitive appointment
process; and (2) OPM's action can include debarment for up to three
years.
A commenter objected to any use of confidential sources. The
comment suggests that the proposed regulation would permit the
unlimited use of corroborated confidential sources. The comment
suggests that reliance on information provided by confidential sources
would be contrary to due process principles.
The comment mischaracterized the intent and effect of the proposed
regulations. Section 731.203(e) [now in 731.302(a) and 731.402]
specifically provided that before a final suitability action is taken,
an agency or OPM must provide for review, upon request, all materials
relied upon in taking the action. Under the regulations, the deciding
official, in taking his or her action, must consider all information
made available to him or her except information furnished by
confidential sources themselves. This satisfies all due process
concerns. Any improperly-considered information will be subject to the
statutory harmful error rule in any appeal challenging the action.
Of course, the deciding official may rely on any information,
including similar or identical information, from any other source. This
includes (a) non-confidential sources that are located through
information provided by confidential sources or (b) information from a
non-confidential source that corroborates information initially
provided by a confidential source, as long as the material relied upon
is made available under section available.
Upon reflection, we recognize that the reference in the last
sentence of the regulation, which uses the phrase ``such information,''
is ambiguous and confusing. Inasmuch as this sentence was intended to
summarize the entire regulation, we believe it to be redundant, and we
are deleting it to eliminate any ambiguity.
A commenter believes delegation will have a workload impact on
agencies, and supplemental guidance and training from OPM will be
required. Although there will be an impact on agencies, we do not
believe the impact will be that significant, since OPM will continue to
adjudicate material, intentional falsification cases, and cases where a
general extended debarment is warranted. The major agency impact occurs
in the suitability examining process, i.e., reviewing application
material and deciding the appropriate action to take. The actions most
commonly taken would be to favorably adjudicate the applicant's
suitability, or refer to OPM for adjudication if warranted. OPM will
also issue supplemental guidance, offer adjudicative products, provide
assistance through training, and allow agencies up to a year to train
personnel and develop processes to handle their new applicant
suitability responsibilities.
An agency asked what skill level would be required for agency
personnel assigned to adjudication responsibilities and whether the GS-
1800 series was appropriate, as the agency was concerned about limited
resources. OPM is not requiring a particular job series to handle this
work; however, agencies will need to assess the inherent
responsibilities associated with adjudication when determining who will
do the work. They will have to ensure employees are properly trained
and qualified to do the work.
731.104 Appointments Subject to Investigation and 731.105 Jurisdiction
One commenter suggested that OPM confused rather than clarified the
length of time that employees, applicants, and appointees would be
subject to investigation by deleting section 731.301(b). The commenter
believes that the substitute language in sections 731.104 and 105 may
accomplish the same purpose in a more complicated fashion--barring the
removal of an employee as unsuitable after a year in the position based
on information truthfully set forth in the application.
In the supplementary material accompanying the proposed
regulations, we explained that the one-year period applies only to the
time period during which OPM or an agency may take a suitability action
against an applicant or appointee. It is not a time limitation on an
OPM or an agency suitability investigation of an individual. However,
our efforts to clarify and simplify the regulatory language have not
succeeded. The text of the regulation, as opposed to the explanation in
the supplementary material, remains somewhat unclear.
Therefore, we have again modified the language of section 731.104
to conform more clearly to the purpose we have articulated as follows:
The right of OPM or an agency with delegated authority to
conduct a suitability investigation has no time limit even though in
some cases, enumerated in section 104, OPM or an agency with delegated
authority is not required to conduct a suitability investigation.
OPM's authority to take a suitability action for fraud in
examination or appointment also has no time limit.
An agency with delegated suitability authority may not
take a suitability action of any kind against an ``employee'' as
defined in 5 CFR 731.101 of the regulations.
For suitability action purposes, an agency that has discerned
evidence of material, intentional false statement or deception or fraud
in examination or appointment may refer evidence to OPM for possible
action.
We have also modified the title of section 731.105 to read
``Authority to take suitability actions'' instead of ``Jurisdiction''
to clarify that this regulation concerns only authority to take
suitability actions and has nothing to do with an agency or OPM's
authority to conduct investigations.
Commenters felt this section needed clarification to eliminate the
perception that if the investigation is not conducted within the first
year, it can never be conducted. To address this concern we added
language to 731.104(b) and also modified 731.106(c).
An agency requested further clarification of this section to avoid
the interpretation that agencies are restricted from conducting
investigations on transfers for individuals serving continuously for
less than one year.
The agency misreads the regulation. A transfer is not subject to
investigation unless investigation is required by a change in risk
level or because an investigation required by law did not occur.
Therefore, we have not changed the proposed regulation.
A commenter requested that we clarify whether investigation and
negative suitability action are permitted when an individual moves from
a position that is not subject to investigation to one with a higher
risk designation. We revised 731.106(e) to require an investigation at
the appropriate level when an individual moves to a position with a
higher risk designation. We also added a new section, 731.106(f), to
explain that how these investigations are adjudicated depends on the
person's employment status.
Section 731.105 Jurisdiction
One commenter found the language in 731.105(d) regarding the
authority for agency actions on employees unclear. Another suggested
adding specific clarifying language, and that reference to ``efficiency
of the service'' be deleted since all 752 actions, by definition, must
promote the efficiency of the service.
[[Page 82241]]
We agreed to clarify the language, which could be interpreted as
intermingling adverse actions and suitability actions. The minor
changes in the language ensure that readers understand that suitability
actions and adverse actions arise under different authorities and that
adverse actions are to be taken under the substantive standards of part
752, as well as its procedures. Although an agency may take an adverse
action based upon conduct that would also form the basis for a
suitability action, part 752 standards and jurisprudence govern an
adverse action rather than the substantive standards set forth in part
731.
Section 731.106 Designation of Public Trust Positions and
Investigative Requirements
One commenter stated that OPM has significantly broadened the
definition of a public trust position. The commenter conceded that the
differences between the proposed regulation and existing regulations
are subtle. The commenter asserts that this subtle modification will
encourage agencies to indulge in what is deemed their natural
tendencies to exaggerate the sensitivity of positions.
There is no indication that this change will create a significant
increase in the number of investigations conducted. Further, we reject
the unsupported assertion that agencies are naturally impelled to
exaggerate the sensitivity of positions. Rather, agencies are entitled
to a presumption of good faith, and OPM expects that they will not
abuse any authority arising from these regulations. Of course, agency
implementation of any OPM regulation is subject to periodic OPM
oversight.
A suggestion to simplify designation to coincide with the three
investigative forms (SF85, SF85P, and SF86), eliminate the levels of
public trust and the requirement that agencies evaluate all their
positions to determine risk levels and decide which of the positions
meet public trust definitions, was not adopted. In the comments we
previously received to the proposed regulations published in the
Federal Register on January 5, 1996, a number of agencies expressed
concern that OPM had eliminated risk level designations and left too
much agency discretion in determining what constituted ``Public Trust''
positions.
We agreed and made appropriate revisions. We also believe agencies
should look closely at all their positions to determine the level of
risk involved, and since public trust responsibilities vary in their
impact on the integrity or on the efficiency of the service,
investigative requirements should also vary commensurate with the risk
level. Furthermore, public trust and national security need to be
appropriately considered in tandem when evaluating position
responsibilities and investigative levels. A national security case
(SF-86) where an individual only needs a secret clearance (relatively
low level of investigation) might also be a high risk public trust
position (higher level of investigation). A person in a low risk public
trust position (low level investigation) might require access to top
secret information (high level investigation).
One commenter stated that the proposed regulations imply that where
there is no existing authority for agencies to conduct periodic
investigations of public trust employees, agencies may grant themselves
this authority by promulgating their own regulations. The comment
describes this as inconsistent with the position that OPM took in its
1996 proposed regulations, namely, that there was no statutory
authority for agencies to conduct reinvestigations.
There is no inconsistency. Read in its entirety, the supplementary
material accompanying the 1996 proposed regulations makes clear that
OPM does not possess statutory authority to require that
reinvestigations be conducted unless employees occupy positions
affecting national security. The 1999 proposed regulations clarify that
agencies may possess their own authority to require periodic
reinvestigations for employees occupying certain public trust
positions. These final regulations do not purport to create any
additional authority for agencies to conduct this type of
reinvestigation.
Two commenters found ``731.106(e) Risk level changes'' language
confusing. We agreed and changed the wording.
Sections 731.201 Standard and 731.202 Criteria
One commenter suggested that the revised language in section
731.201 represents a significant change in the suitability standard and
that the ``integrity and efficiency'' language was too vague and gave
deciding officials too much discretion. The commenter suggested that
deletion of language in section 731.202 would mean there is no
limitation on criminal misconduct deemed to be unsuitable. The
commenter suggested not revising the existing regulation.
The comment is not accepted. The revised regulation is designed
primarily to be a rewording and reordering of the regulation in order
to place affected applicants and employees on even clearer notice of
the suitability standards.
The current efficiency of the service language might inadvertently
lead some to believe that efficiency and effectiveness are limited to
their dictionary definitions, namely, the capacity to produce desired
results with a minimum expenditure of energy, time or money, or the
ability to produce results. In fact, the efficiency of the service
standard as used by OPM in a suitability context always has been a
broader concept that involves, among other things, the integrity of the
competitive examination system. To give one example, decisional law
correctly recognizes when an applicant obtains an appointment through
falsifying an application, he or she is unsuitable and may be removed
from his or her position even if he or she efficiently carries out
tasks in the job he or she has obtained. McCreary v. OPM, 27 M.S.P.R.
459 (1985); DeAngelis v. OPM, 28 M.S.P.R. 456 (1985). Adding the word
integrity makes it even clearer that integrity and honest conduct
always have been an important part of the existing efficiency of the
service standard.
The revised standard is not vague. Indeed, it is somewhat more
specific than the existing efficiency of the service standard. The
courts have upheld similar language against legal challenges of
constitutional vagueness, for example, in Arnett v. Kennedy, 416 U.S.
134 (1974); see also Meehan v. Macy, 392 F.2d 822 (D.C. Cir. 1968).
The suggestion that the revised regulations recognize no limit on
the type of misconduct or criminal misconduct that will justify a
suitability action is incorrect. The additional considerations set
forth in section 731.202(c) make clear that a suitability determination
may be made after considering the nature of the position, the nature
and seriousness of the conduct and the circumstances surrounding the
conduct, among other things.
An agency asked whether the specific factor at 731.201(b)(4)
``Refusal to furnish testimony as required by Sec. 5.4 of this
chapter'' referred to section 5.4 of 731. It does not. The proposed
regulation as written was confusing. Federal regulations are organized
by Title in the Code of Federal Regulation rather than by ``chapters.''
Therefore, we have modified the proposed regulation by substituting
the word ``title'' for ``chapter'' to clarify that this provision
refers to section 5.4 of title 5, Code of Federal Regulations, one of
the Civil Service Rules.
[[Page 82242]]
The same agency suggested that we add, in accordance with section
5.4, that this suitability factor also pertains to the requirement to
provide forms, releases, answers to questions of investigators, and
security adjudicators, among others. We have not adopted this
suggestion. Although section 5.4 does list other requirements, the
suitability factor is limited to the requirement in section 5.4 to
provide testimony when required by OPM. We decline to expand the scope
of the disqualifying factor.
Section 731.203 Actions by OPM and Other Agencies
One commenter suggested that there appeared to be a conflict
between the procedures set forth in section 731.203(e) and those at
subpart C of the regulations.
OPM did not intend a conflict between the two provisions. Section
203(e) was intended to provide general procedures for both agencies and
OPM to follow when taking a suitability action. Subpart C was designed
to provide the specific procedures OPM was to follow when taking an
action.
We acknowledge this could cause some confusion. Therefore, we have
eliminated the subsection on general procedures and have substituted a
subpart D that applies when agencies take an action.
Because we have expanded agencies' authority in the areas of
debarment and applicant adjudication, we decided to set forth several
of the procedures applicable to them with greater specificity. We have
modified both the regulatory provisions applying to OPM and agencies to
make clear that whenever OPM or an agency takes an action, a written
notice must be provided of the specific reasons for the action, a
written response must be permitted, and notice must be provided of the
time limit for the response and appeal rights.
Still, to give agencies a bit more flexibility, we have retained
some differences in the provisions. We have not set forth a specific
time limit for agency notice. Rather, we clarified that reasonable
notice must be afforded. For OPM actions, we have retained a 30-day
notice period. Of course, if an action is appealed, the harmful error
rule at 5 U.S.C. Sec. 7701(c)(2)(A) applies both to agency and OPM
actions.
For clarity, we have added subsection 731.203(a) defining the term
``action'' for suitability purposes.
Two commenters questioned whether 731.203(f) [now 731.203(e)]
represents an additional reporting requirement since agencies are
already required to report actions on OPM investigations via INV form
79A, Report of Adjudicative Action on OPM Personnel Investigations.
This section does contain a new reporting requirement. All negative
adjudications based on delegated 5 CFR 731 authority must now be
reported to OPM, even when those actions are not based on an OPM
conducted investigation. This is necessary to permit OPM to adequately
oversee the suitability adjudication responsibilities we have delegated
to agencies. A new form is being created for this purpose, but agencies
will not need to provide a duplicate report if the action is based on
an OPM investigation and they are already reporting the action on the
INV form 79A.
Section 731.204 Debarment by OPM
An agency requested that agencies be given the ability to appeal an
OPM-imposed debarment when the position is critical and difficult to
fill and there are no other suitable applicants. We made no change
since agencies already have the right to respond to an OPM proposed
action under section 731.303(b), and may provide evidence upon request
in any MSPB appeal.
Section 731.205 Debarment by Agencies
An agency welcomed the opportunity to bar unsuitable employees.
Another found the agency debarment language unclear. We believe the
language satisfactory, and made no change. The language in this section
states that agencies may impose a period of debarment of ``no more
than'' one year, and that the agency has sole discretion to determine
length of debarment ``under this section.'' It is within their
discretion to determine the duration of the bar, up to the maximum
period of one year.
Section 731.302 Notice of Proposed Action
A commenter objected to the provision ``shall be entitled to be
retained in a pay status during the notice period'' because the
individual may be involved in misconduct apart from the reasons for the
suitability action which would warrant an agency action.
We have retained the proposed language. But, we emphasize that this
provision does not preclude an agency from taking any other appropriate
action during the suitability action notice period. Appropriate actions
may include an adverse action under chapter 75 U.S. Code or a
termination under part 315, title 5, Code of Federal Regulations.
Section 731.303 Answer
One commenter suggested the agency be permitted to determine the
time and place of an oral response. Another suggested that reference to
agency actions should be added to paragraph (a). No change was made
since this section now only applies to OPM. Furthermore, only OPM, not
agencies, may take action against ``employees'' under 731. The
reference to the oral response here applies only to employees.
Section 731.304 Decision
A commenter felt the agency should have discretion to allow the
employee to remain in an active duty status pending results of an
appeal. We made no change for several reasons. OPM directs removal
primarily in cases involving fraud in the application or appointment
process, and an individual generally should not retain a position
obtained fraudulently. Further, OPM gives agencies an opportunity to
comment and express their views before OPM takes the action.
Section 731.401 Appeal to the Merit Systems Protection Board
One commenter stated that section 731.401 (now 731.501) should make
clear that the Board lacks the authority to reverse a removal action,
as well as lacking the authority to modify a debarment period, when it
affirms a determination of unsuitability. It noted correctly that under
OPM regulation, an agency could remove the employee and not impose a
debarment. OPM has adopted this suggestion, which is entirely in
keeping with OPM's intent to clarify that once the Board has found that
any of the charges of unsuitability is supported by preponderance of
the evidence, it lacks authority to modify the action taken.
Another commenter took issue with OPM's section 731.401 (now
731.501), asserting that, in the past, the courts have rejected OPM's
attempts to limit the Board's authority to hear appeals.
The comment does not acknowledge the difference between an appeal
right to the Board granted by Congress, such as an adverse action
appeal under Chapter 75, title 5, United States Code, which OPM may not
limit, and one granted solely by OPM through regulation. The comment
also does not recognize that when Congress or OPM authorizes the Board
to hear a particular kind of appeal, the Board's grant of authority is
limited by the terms of the statute or OPM regulation and its
underlying intent.
The Board's authority to decide matters is strictly limited to
those
[[Page 82243]]
agency decisions placed within its jurisdiction by law or regulation.
See, for example, King v. Jerome, 42 F.3d 1371 (Fed. Cir. 1994). An OPM
suitability action is not taken under the same authority as an adverse
action. Unlike adverse action appeals, suitability appeals to MSPB are
not created by an act of Congress but by OPM regulations under
substantive standards promulgated by OPM in Part 731. These standards
need not be the same as those in Chapter 75, just as those contained in
Chapter 43, title 5, United States Code pertaining to performance-based
actions are not the same as those in Chapter 75. Lisiecki v. Merit
Systems Protection Board, 769 F.2d 1558 (Fed. Cir. 1985).
The new regulation seeks to demarcate the differences between
suitability actions and adverse actions so that no one will confuse
them in the future. Specifically, the regulation is designed to clarify
that the Board's role in reviewing OPM or agency unsuitability
decisions always has been a limited one. The Board may determine only
whether a charge of unsuitability is sustained by a preponderance of
the evidence in accordance with the substantive standard set forth in
section 731.202.
In addition, the proposed regulation provides OPM or the agency
with an additional opportunity to amend the action taken if the Board
sustains fewer than all of the suitability charges, something that the
existing regulations do not provide for. Therefore, rather than
limiting the Board's authority, as the comment suggests, the new
regulation allows the agency or OPM to review the action taken after
taking into account only the charges that the Board sustained.
Regulatory Flexibility Act
I certify that this rule will not have significant economic impact
on a substantial number of small entities because it affects only
Federal applicants, employees and agencies.
List of Subjects in 5 CFR Part 731
Administrative practice and procedure, Government employees.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, the Office of Personnel Management revises 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
731.201 Standard.
731.202 Criteria.
731.203 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, part 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 for employment in
positions in the competitive service and for career appointment in the
Senior Executive Service (hereinafter in this part, ``competitive
service'') pursuant to 5 U.S.C. 3301 and Executive Order 10577 (3 CFR,
1954-1958 Comp., p. 218). Section 3301 of title 5, United States Code,
directs consideration of ``age, health, character, knowledge, and
ability for the employment sought.'' Executive Order 10577 directs OPM
to examine ``suitability'' for competitive Federal employment. This
part concerns only determinations of ``suitability'' based on an
individual's character or conduct that may have an impact on the
integrity or efficiency of the service. Determinations made under this
part are distinct from determinations of eligibility for assignment to,
or retention in, sensitive national security positions made under
Executive Order 10450 (3 CFR, 1949-1953 Comp., p. 936), Executive Order
12968, or similar authorities.
(b) Definitions. In this part:
Applicant. A person being considered for employment.
Appointee. 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).
Employee. A person who has completed the first year of a subject to
investigation appointment.
Material. A ``material'' statement is one that is capable of
influencing, or has a natural tendency to affect, an official decision.
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 February 8, 1996,
the Director of OPM is to establish policies for Federal personnel
associated with the design, operation, or use of Federal automated
information systems. Agencies are to implement and maintain a program
to ensure that adequate protection is provided for all automated
information systems. Agency programs should be consistent with
government-wide policies and procedures issued by OPM. The Computer
Security Act of 1987 (Public Law 100-235) provides additional
requirements for Federal automated information systems.
(c) Policies, procedures, criteria, and guidance for the
implementation of this part shall be set forth in OPM issuances. OPM
may revoke an agency's delegation to adjudicate suitability under this
part if an agency fails to conform to OPM issuances.
Sec. 731.103 Delegation to agencies.
(a) OPM delegates to the heads of agencies limited authority for
adjudicating suitability in cases involving applicants for and
appointees to competitive service positions in the agency (including
limited, agency-specific debarment authority under Sec. 731.205). OPM
retains jurisdiction in all competitive service cases involving
evidence of material, intentional false statement or deception or fraud
in examination or appointment. Agencies must refer these cases to OPM
for adjudication, or contact OPM for prior approval if the agency wants
to take action under its own authority (5 CFR
[[Page 82244]]
part 315 or 5 CFR part 752). Also, this delegation does not include
cases involving refusal to furnish testimony as required by Sec. 5.4 of
this chapter, title, or passover requests involving preference
eligibles who are 30 percent or more compensably disabled which must be
referred to OPM for adjudication, as provided under Civil Service
Reform Act of 1978, Public Law 95-454, 92 Stat. 1111 et seq. (Codified
as amended in scattered sections of 5 U.S.C.)
(b) Any adjudication by an agency acting under delegated authority
from OPM which indicates that an extended general, across agency lines,
debarment by OPM under Sec. 731.204(a) may be an appropriate action
should be referred to OPM for debarment consideration if not favorably
adjudicated by the agency. Referral should be made prior to any
proposed action, but after sufficient resolution of the suitability
issue(s) through subject contact or investigation to determine if an
extended general debarment period appears warranted.
(c) Agencies exercising authority under this part by delegation
from OPM must show by policies and records that reasonable methods are
used to ensure adherence to regulations, standards, and quality control
procedures established by OPM.
(d) Before making any applicant suitability determination, the
agency should first ensure the applicant is eligible for the position,
among the best qualified, and/or within reach of selection. Because
suitability issues may not be disclosed until late in the application/
appointment process, only the best qualified should require a
suitability determination, with appropriate procedures followed and
appeal rights provided, if suitability issues would form the only basis
for elimination from further consideration.
(e) When an agency, exercising authority under this part by
delegation from OPM, makes an adjudicative decision under this part, 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
should:
(1) Ensure that the records used in making the decision are
accurate, relevant, timely, and complete to the extent reasonably
necessary to ensure fairness to the individual in any determination;
(2) Ensure that all applicable administrative procedural
requirements provided by law, the regulations in this part, and OPM
policy guidance have been observed;
(3) Consider all available information in reaching its final
decision, except information furnished by a non-corroborated
confidential source. Information furnished by a non-corroborated
confidential source can only be used for limited purposes, such as lead
information 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 action as required by OPM in its
supplemental guidance.
(f) Paragraph (a) of this section notwithstanding, OPM may exercise
its jurisdiction under this part in any case when it, in its
discretion, deems necessary.
(g) Any applicant or appointee who is found unsuitable by any
agency acting under delegated authority from OPM under this part may
appeal the adverse suitability decision to the Merit Systems Protection
Board under the Board's regulations.
Sec. 731.104 Appointments subject to investigation.
(a) To establish a person's suitability for employment,
appointments to positions in the competitive service 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 risk level
changes, a person in the competitive service 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 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; and
(6) Transferred, provided the individual has served continuously
for at least 1 year in a position subject to investigation.
(b)(1) 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 an investigation of an applicant who
has been appointed to a position.
(2) 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.
(3) The subject to investigation condition also does not eliminate
the need to conduct investigations required under Sec. 731.106 for
public trust positions.
Sec. 731.105 Authority to take suitability actions.
(a) OPM may take a suitability action under this part against an
applicant or appointee based on any of the criteria of Sec. 731.202;
(b) 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 subject to the agency limitations
prescribed in Sec. 731.103;
(c) OPM may take a suitability action under this part against an
employee only in cases involving material, intentional false statement
or deception or fraud in examination or appointment, or refusal to
furnish testimony as required by Sec. 5.4 of this title, or statutory
or regulatory bar. A statement may be a material statement even if an
agency does not rely upon it.
(d) An agency may not take a suitability action against an employee
under this part. Nothing in this part precludes, or is intended to
preclude, an agency from taking an adverse action against an employee
under the procedures and standards of part 752 of this title or
terminating a probationary employee under the procedures of part 315 of
this title.
Sec. 731.106 Designation of public trust positions and investigative
requirements.
(a) Risk designation. Agency heads shall designate every
competitive service 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 and integrity of the service. OPM will provide
an example of a risk designation system for agency use in supplemental
guidance.
(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
[[Page 82245]]
for causing damage or realizing personal gain.
(c) Investigative requirements. Persons receiving an appointment
made subject to investigation under this part must undergo a background
investigation. Minimum investigative requirements correlating to risk
levels will be established in supplemental guidance provided by OPM.
Investigations should be initiated before appointment or, at most,
within 14 calendar days of placement in the position.
(d) Suitability reinvestigations. Agencies, relying on authorities
such as the Computer Security Act of 1987 and OMB Circular No. A-130
Revised (issued February 8, 1996), 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 an individual experiences a change in
position risk level (moves to a higher risk level position, or the risk
level of the position itself is changed) the individual may encumber or
remain in the position. Any upgrade investigation required for the new
risk level should be initiated within 14 calendar days after the move
or the new designation is final.
(f) Any suitability investigation completed by an agency under
provisions of paragraphs (d) or (e) of this section must be adjudicated
by the employing agency. The subject's employment status will determine
the applicable agency authority and procedures to be followed in any
action taken.
Subpart B--Suitability Determinations
Sec. 731.201 Standard.
Subject to subpart A of this part, an applicant, appointee, or
employee may be denied Federal employment or removed from a position
only when the action will protect the integrity or promote the
efficiency of the service.
Sec. 731.202 Criteria.
(a) General. In determining whether its action will protect the
integrity or promote the efficiency of the service, OPM, or an agency
to which OPM has delegated authority, shall make its determination on
the basis of the specific factors in paragraph (b) of this section,
with appropriate consideration given to the additional considerations
outlined in paragraph (c) of this section.
(b) Specific factors. When making a determination under paragraph
(a) of this section, the following may be considered a basis for
finding an individual unsuitable:
(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
title;
(5) Alcohol abuse of a nature and duration which 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 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;
(8) Any statutory or regulatory bar which prevents the lawful
employment of the person involved in the position in question.
(c) Additional considerations. In making a determination under
paragraphs (a) and (b) of this section, OPM and agencies shall consider
the following additional considerations to the extent they deem 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 Actions by OPM and other agencies.
(a) List of actions. For purposes of this part, an action is one or
more of the following:
(1) Cancellation of eligibility;
(2) Denial of appointment;
(3) Removal;
(4) Cancellation of reinstatement eligibility;
(5) Debarment.
(b) An applicant's eligibility may be cancelled, an applicant may
be denied employment, or an appointee may be removed 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(a).
(c) OPM may require that an employee be removed on the basis of a
material, intentional false statement, or deception or fraud in
examination or appointment; or refusal to furnish testimony; or a
statutory or regulatory bar. OPM may also cancel any reinstatement
eligibility obtained as a result of false statement, deception or fraud
in the examination or appointment process.
(d) An action to remove an appointee or employee for suitability
reasons under this part is not an action under parts 752 or 315 of this
title. Where behavior covered by this part may also form the basis for
a part 752 or 315 action, agencies may use part 315 or 752, as
appropriate, instead of this part.
(e) Agencies are required to report to OPM all unfavorable
adjudicative actions taken under this part, and all actions based on an
OPM 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 deny that person examination
for, and appointment to, a competitive service position for a period of
not more than 3 years from the date of determination of unsuitability.
(b) On expiration of a period of debarment, OPM or an agency may
redetermine a person's suitability for appointment in accordance with
the procedures of this part.
(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 for reasons listed in
Sec. 731.202, the agency may deny that person examination for, and
appointment to, all, or specific,, positions within the agency for a
period of not more than 1 year from the date of determination of
unsuitability.
(b) On expiration of a period of agency debarment, the agency may
redetermine a person's suitability for appointment by the agency, in
accordance with the procedures of this part.
(c) The agency is responsible for enforcing the period of debarment
and taking appropriate action should the individual apply or be
inappropriately appointed during the debarment period. This does not
limit OPM's ability to exercise jurisdiction and take an action if it
deems appropriate.
[[Page 82246]]
(d) The agency, in its sole discretion, determines the duration of
any period of debarment imposed under this section.
Subpart C--OPM Suitability Action Procedures
Sec. 731.301 Scope.
(a) Coverage. This subpart sets forth the procedures to be followed
when OPM proposes to take, or instructs an agency to take, a final
suitability action against an applicant, appointee or employee.
(b) Definition. In this subpart, days means calendar days.
Sec. 731.302 Notice of proposed action.
(a) OPM shall notify the applicant, appointee, or employee
(hereinafter, the ``respondent'') in writing of the proposed action and
of the charges against the respondent (including the availability for
review, upon request, of the materials relied upon). The notice shall
state the specific reasons for the proposed action and that the
respondent has the right to answer the notice in writing. If the
respondent is an employee, the notice shall further state that the
employee may also make an oral answer, as specified in Sec. 731.303(a).
The notice shall further inform the respondent of the time limits for
response as well as the address to which such response should be made.
(b) The notice of proposed action shall be served upon the
respondent by being mailed or hand delivered to the respondent's last
known residence, and/or duty station, no less than 30 days prior to the
effective date of the proposed action. If the respondent is employed in
the competitive service on the date the notice is served, the
respondent shall be entitled to be retained in a pay status during the
notice period.
(c) OPM shall send a copy of this 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
response. A respondent who is an employee may also answer orally. The
respondent may be represented by a representative of the respondent's
choice, and such representative shall be designated in writing. To be
timely, a written answer shall be made no more than 30 days after the
date of the notice of proposed action. In the event an employee
requests to make an oral answer, the request must be made within this
30 day time frame, and OPM shall determine the time and place thereof,
and shall consider any answer the respondent makes in reaching a
decision.
(b) Agency's answer. An employing agency may also answer the notice
of proposed action. The time limit for filing an answer is 30 days from
the date of the notice. OPM shall consider any answer the agency makes
in reaching a decision.
Sec. 731.304 Decision.
The decision shall be in writing, dated, and inform the respondent
of the reasons for the decision. The employing agency shall remove the
appointee or employee from the rolls within 5 work days of receipt of
OPM's final decision. The respondent shall also be informed that an
adverse decision can be appealed in accordance with subpart DE of this
part. OPM shall also notify the respondent's employing agency of its
decision.
Subpart D--Agency Suitability Action Procedures
Sec. 731.401 Scope.
(a) Coverage. This subpart sets forth the procedures to be followed
when an agency proposes to take a final suitability action against an
applicant or appointee.
(b) Definition. In this subpart, days mean calendar days.
Sec. 731.402 Notice of proposed action.
The agency shall provide the applicant or appointee (hereinafter,
the ``respondent'') reasonable notice in writing of the proposed action
and of the charges against the respondent (including the availability
for review, upon request, of the materials relied upon). The notice
shall state the specific reasons for the proposed action, and that the
respondent has the right to answer the notice in writing. The notice
shall inform the respondent of the time limits for response as well as
the address to which such response should be made. If the respondent is
employed in the competitive service on the date the notice is served,
the respondent shall be 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 response.
Sec. 731.404 Decision.
The decision shall be in writing, dated, and inform the respondent
of the reasons for the decision. The respondent shall also be informed
that an adverse decision can be appealed in accordance with subpart E
of this part. The employing agency shall remove an appointee from the
rolls within 5 work days of their final 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. An individual who
has been found unsuitable for employment may appeal the determination
to the Merit Systems Protection Board. If the Board finds that one or
more charges are supported by a preponderance of the evidence, it shall
affirm the determination. If the Board sustains fewer than all the
charges, the Board shall remand the case to OPM or the agency to
determine whether the action taken is still appropriate based on the
sustained charge(s). This determination of whether the action taken is
appropriate shall be final without any further appeal to the Board.
(b) Appeal procedures. The procedures for filing an appeal with the
Board are found at part 1201 of this chapter.
Subpart F--Savings Provision
Sec. 731.601 Savings provision.
No provision of the regulations in this part shall be applied in
such a way as to affect any administrative proceeding pending on
January 29, 2001. An administrative proceeding is deemed to be pending
from the date of the agency or OPM ``notice of proposed action''
described in Sec. 731.402.
[FR Doc. 00-33114 Filed 12-27-00; 8:45 am]
BILLING CODE 6325-01-P