Suitability, Personnel Security and Related Programs, Investigations, and Suitability Disqualification Actions

SUMMARY: In April 1991, OPM published interim final regulations that

effected major changes in procedures governing background

investigations to determine suitability for competitive service

employment and eligibility for employment or retention in employment in

national security positions (56 FR 18650, April 23, 1991). The interim

regulations set forth separate criteria and procedures for security

clearances in national security cases and for suitability

determinations in cases not involving national security, and created

the OPM Review Panel, an intermediate appellate body for appeals from

OPM suitability decisions.

OPM has decided to revoke the section of the interim regulations

establishing the OPM Review Panel, based on comments received from the

public and experience acquired under the interim regulations during the

last three years. OPM has concluded, as several commenters predicted,

that the OPM Review Panel has not served a useful independent reviewing

function.

EFFECTIVE DATE: October 17, 1994.

FOR FURTHER INFORMATION CONTACT: PJohn J. Lafferty, Deputy Associate

Director for Investigations, (202) 376-3800.

SUPPLEMENTARY INFORMATION: OPM promulgated the current suitability and

personnel security regulations as an interim final rule with a request

for comments in April 1991. 56 FR 18650-18656 (April 23, 1991).

Comments were received from 16 sources, including individuals, Federal

agencies, Federal employee unions, and public interest organizations.

A number of commenters objected to creation of the OPM Review

Panel. One agency criticized the Panel on the ground that it would

create unnecessary delay in the appeal process and increase agency

operating costs by keeping appellants on the payroll for longer periods

of time. One public interest organization voiced concern that decisions

of the Panel might not be impartial, given the fact that Panel members

would be employed by OPM and their performances would be appraised by

OPM officials. A Federal employee union noted that, historically,

internal review boards tend to support decisions of the parent

organization.

OPM is now abolishing the Review Panel primarily because the Panel

has not accomplished its intended purpose. In creating the Panel, OPM

had hoped to decrease costs, provide appellants with a streamlined

resolution of their cases, and cut down on the number of appeals taken

in suitability cases to the Merit Systems Protection Board (MSPB).

Experience has shown, however, that a large number of appellants still

proceed with appeals after review by the Panel; thus, the original

purpose conceived for the Panel has not been realized. OPM has,

therefore, concluded that the OPM Review Panel does not provide a

useful independent reviewing function and should be abolished.

Prior to the creation of the Review Panel, individuals could appeal

OPM suitability decisions directly to the MSPB, and the appellants'

agencies had the option to suspend them or to retain them in a pay

status pending adjudication of the appeal. Under OPM's interim final

rule that established the Review Panel, appellants were retained in a

pay status while their appeals were pending with the Panel, but, if the

Panel affirmed OPM's decision, the appellants' agencies were directed

to remove the appellants within five days of receipt of the Panel's

decision by the agency. With the elimination of the Review Panel as

announced herein, OPM has determined that appellants' pay status will

be the same as it was prior to creation of the Panel. Therefore, the

appellants' employing agencies will have the option to suspend the

appellants or to retain them in an active pay status pending

adjudication of the appeal to the MSPB.

EO 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with EO 12866.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

relate to internal personnel matters within the Federal Government.

List of Subjects in 5 CFR Part 731

Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.

James B. King,

Director.

Accordingly, OPM amends 5 CFR part 731 as follows:

PART 731--SUITABILITY

1. The Authority for Part 731 continues to read as follows:

Authority: 5 U.S.C. 1302, 3301, 3302, 7301, 7701; E.O. 10577, 3

CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p.

306; E.O. 11491, 3 CFR, 1966-1970 Comp., p. 861.

2. Subpart E of Part 731 is revised to read as follows:

Subpart E--Appeal to the Merit Systems Protection Board

Sec. 731.501 Appeal to the Merit Systems Protection Board.

(a) An individual who has been found unsuitable for employment may

appeal the decision to the Merit Systems Protection Board (the Board).

An employee or appointee who appeals a removal directed by OPM shall

notify the employing agency of the appeal at the time it is filed.

(b) Appeal Procedures. The procedures for filing an appeal with the

Board are found at Part 1201 of Title 5, Code of Federal Regulations.

(c) Pay Status Pending Appeal. When an employee or appointee whom

OPM has determined to be unsuitable files an appeal to the Board, the

employing agency may either suspend the employee or appointee on the

day following the date on which the removal was to have been effected

pending adjudication of the appeal, or retain the employee or appointee

in an active duty status for the period, in which event the agency

shall so notify the employee or appointee. Part 752 of this chapter

does not apply to the suspension.

[FR Doc. 94-22918 Filed 9-15-94; 8:45 am]

BILLING CODE 6325-01-P