Suitability

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 731

RIN 3206-AC19

Suitability

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is proposing changes

to the rule on personnel suitability which OPM previously issued as a

proposed rule for comments. OPM has received and considered public

comments and is now publishing for comment proposed changes. The

proposed rule addresses many of the concerns expressed, incorporates

many of the suggestions received, and makes additional changes because

of policy revisions and the abolishment of the Federal Personnel Manual

(FPM). OPM will issue final regulations after review of the comments

received on this proposed rule.

DATES: Comments must be submitted on or before March 1, 1999.

ADDRESSES: Send written comments to: Richard A. Ferris, Associate

Director, Investigations Service, room 5416, U.S. Office of Personnel

Management, 1900 E Street, NW, Washington, DC 20415-4000, fax: 202-606-

2390, e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Thomas DelPozzo, (724) 794-5612.

SUPPLEMENTARY INFORMATION: OPM promulgated the proposed final

suitability regulations with a request for comments in the Federal

Register (61 FR 394, Jan. 5, 1996). Comments were received from 19

sources, including Federal agencies, individuals, and public interest

organizations. Because of changes made in certain parts of these rules,

we are seeking additional comments. Those who responded to the January

5, 1996, publication need not submit their comments again. Those

responses will continue to be considered. Additionally, when part 731

was previously published, proposed changes to parts 732 and 736 were

published at the same time. Those parts are still under consideration

and individuals who commented on those parts need not respond to this

publication. Those comments are still being considered. The following

summarizes the principal comments and suggestions received and proposed

actions to be taken, as well as information added because of the

abolishment of the FPM or changes made because of policy revisions.

Part 731

Organization

Some subparts and sections were moved, added or removed for

clarification purposes (only one section--Sec. 731.203--Due Process--

was removed, but the information was moved to Sec. 731.103), as

follows:

Subpart A--Scope

Sec.

731.101 Purpose.

731.102 Implementation.

731.103 Delegation to agencies.

731.104 Appointments subject to investigation.

731.105 Jurisdiction.

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--Suitability Action Procedures

731.301 Scope.

731.302 Notice of proposed action.

731.303 Answer.

731.304 Decision.

Subpart D--Appeal to the Merit Systems Protection Board

731.401 Appeal to the Merit Systems Protection Board.

Subpart E--Savings Provision

731.601 Savings provision.

Section 731.101 Purpose

Agencies asked a number of questions about when to apply the

regulations (i.e., Excepted Service employees with or without

intentional falsification, non-probationary employees, reinvestigated

employees, employees with investigations initiated or completed after

the first year). No changes were made in this section (Sec. 731.101

currently explains part 731 is used to make suitability determinations

for employment in positions in the competitive service or for career

appointment in the Senior Executive Service). However, clarifications

were added at various other points (e.g., Secs. 731.104 and 731.105

address investigation time frames, and Sec. 731.106 addresses

reinvestigations).

Language in the former Basic Federal Personnel Manual also stated

that ``Heads of agencies, at their discretion, may apply all or part of

these requirements (in part 731) for employment or continued employment

in positions outside the competitive service.'' This clarification will

be included in supplemental guidance.

In response to agencies' requests, some definitions were added.

Other definitions will be included in supplemental guidance.

Section 731.102 Implementation

With the increased delegation of responsibilities to agencies,

clarification was added to point out the consequences of not carrying

out responsibilities according to OPM regulations (i.e., revocation of

delegation).

Section 731.103 Delegation to Agencies

One commenter felt the regulations should incorporate the guidance

an agency will need to implement 5 CFR part 731, rather than issuing

separate guidance. Because the CFR is a general body of regulatory laws

governing practices and procedures, the detailed guidance/instructions

will be issued separately. This guidance will allow agencies

flexibility in carrying out the regulations and opportunity to develop

their own internal procedures. OPM intends to issue this supplemental

guidance as soon as possible after the regulations are finalized.

Comment was received from agencies regarding the hardship that

delegation of applicant and appointee suitability adjudication

authority would create from a staffing/training standpoint. Several

wondered if they could redelegate or contract out their suitability

adjudication responsibility. Although training may be needed, we

believe the staffing implications for

[[Page 4337]]

agencies will be negligible. OPM will continue to adjudicate material

falsification cases, and debarment cases when referred to OPM by an

agency, which should encompass most of the adverse adjudication

workload. The major benefit of delegating applicant suitability

authority to agencies is that they no longer will have to refer all

competitive examining applications with admitted suitability issues to

OPM for suitability review.

One agency indicated contracting out adjudication decisions is

currently prohibited. With OPM's Investigations Service privatization

effort, OPM has contracted much of its adjudicative case processing,

with close OPM oversight. However, OPM has retained all decision making

responsibility, which it views as an inherently governmental function.

Any agency contracting of OPM delegated suitability adjudication would

be subject to OPM approval to ensure the agency retains the

responsibility for all adjudicative decisions and develops a sufficient

oversight program.

Agencies' delegated suitability authority under part 731 procedures

is limited to applicant and appointee cases. Only OPM will adjudicate

employee cases under part 731 procedures, since OPM is retaining

authority for adjudicating material falsification cases, and material

falsification is the most commonly used suitability factor in employee

cases. An agency will have to use another authority such as part 752,

if appropriate, to take action against an employee for reasons that

could also form the basis for a part 731 suitability action. Agencies

may also take action under other authorities, if appropriate, in

appointee cases. Allowing agencies to use existing authorities, as

appropriate, will provide them with more flexibility--i.e., part 315 is

a more expedited procedure, and part 752 allows actions other than

removal (although no debarment actions may be included using these

authorities).

A few commenters opposed OPM's decision to retain jurisdiction over

falsification cases; they felt it was cumbersome and not necessary. It

was argued agencies are in a better position to adjudicate

falsification cases involving their employees than OPM, since OPM is

removed from and not familiar with the employee. However, it is

precisely for this reason that OPM has decided to retain this

authority. OPM will continue to adjudicate falsification cases across

agency lines, and then take the appropriate action (removal and

extended debarment from all competitive service positions) when an

appointment is obtained fraudulently. This also is consistent with

OPM's role in protecting the Merit System and reflects the position

that performance in a position obtained through fraud is irrelevant.

In agreement with agency comments that, because of law or

regulation they could not be delegated, OPM also retained jurisdiction

in ``refusal to furnish testimony'' cases, and those cases involving 30

percent or more Compensable Disability Preference veterans.

In Sec. 731.103(b) agencies are given the option of referring a

case with suitability issues to OPM when a general, across agency lines

debarment appears warranted, or adjudicating the case themselves. OPM

will require that agencies conduct a sufficient level of investigation

to resolve potentially serious suitability issues and determine if OPM

debarment is warranted. The agency will need to coordinate with OPM

before referring any cases. OPM will issue additional guidance to

agencies to show what issues would warrant referral, i.e., support a

general debarment or a nexus debarment from general classifications of

jobs across agency lines (e.g., all law enforcement positions). OPM

adjudication will be at OPM's discretion.

To respond to concerns about when a suitability determination is

needed, Sec. 731.103(d) was added. The guidance is consistent with OPM

Investigations Service's Federal Investigations Notice 95-1, issued

January 19, 1995, and available from OPM's Investigations Service,

which instructed agencies to determine qualifications and whether the

person was in reach of selection before considering suitability

matters.

The section previously entitled ``Due Process'' (Sec. 731.203) was

included in this section as paragraph (e) for clarification of

delegated responsibilities.

Some commenters wanted the regulations to authorize consideration

of confidential information when making a suitability determination.

Clarification was added to Sec. 731.103(e)(3) explaining the proper use

of confidential information in a suitability decision, i.e., the

confidential information can be used as lead information and in

interrogatories if the identity of the source is not compromised in any

way. Fairness requires that only non-confidential information be used

as a basis for an adverse action. Additionally, confidential

information cannot normally be disclosed in administrative or judicial

forums.

Commenters wanted to limit the appeal rights given to probationary

employees under part 731. If the agency takes an action under part 731,

it must follow the procedures and provide the appeal rights stated in

this part. Part 315, covering probationers, contains more limited

appeal rights and may also be used.

Sections 731.104 Appointments Subject to Investigation, and 731.105

Jurisdiction

Commenters suggested clarifying jurisdiction. The language in the

previous regulation dealing with jurisdiction discussed appointments

``subject to investigation,'' which was confusing, and created problems

for agencies. Commenters felt the 1 year subject to investigation

requirement was the time frame for initiating and completing

investigations. The 1 year period is used to determine jurisdiction

(OPM or the employing agency) and is not an investigative restriction.

We made revisions to part 731 to clarify this topic, adding definitions

under Sec. 731.101(b) and using separate sections to differentiate

between ``subject to investigation'' (Sec. 731.104) and

``jurisdiction'' (Sec. 731.105).

Section 731.106 Designation of Public Trust Positions and

Investigative Requirements

Commenters, fearing inconsistencies between agencies, recommended

retaining definitions for risk level designations. OPM has done so, and

will also issue a model agencies may use to determine risk in

supplemental guidance.

A commenter recommended adding to the definition of ``high risk

public trust'' any position that regularly involves access to

information concerning law enforcement, including criminal

investigations. ``Access to sensitive but unclassified information''

and ``law enforcement duties'' are already included in the definition;

agencies may also use the ``other duties demanding a high degree of

public trust'' category to meet their individual needs.

Some agencies felt they should be given authority to determine the

level of investigation needed for a particular position. OPM will

provide supplemental guidance which will include minimum standards for

government-wide consistency but allow some flexibility regarding

investigative requirements. Agencies will need to consider both the

level of public trust and position sensitivity to ensure the

appropriate level of investigation is conducted as required by parts

731 and 732.

OPM's reinvestigation requirement for public trust positions was

eliminated from the published proposed

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regulations. Commenters opposed this removal, believing

reinvestigations to be a necessary and valuable tool for their use in

ensuring the public trust. While OPM finds no explicit statutory

authority on which to base an OPM requirement that agencies conduct

public trust reinvestigations, agencies may rely on other appropriate

authority to require that certain positions be subject to periodic

reinvestigations. We reference some other authorities in this section.

Agencies may also promulgate their own regulations to require

reinvestigations for certain public trust positions if they have no

other existing authority.

Commenters requested clarification regarding reinvestigation

requirements when a person moves from a lower to higher risk position.

This was done in Sec. 731.106(e).

Section 731.201 Standard

Proposed regulation had added ``other appropriate actions'' as

being possible, in addition to removals, in suitability cases. One

agency wanted ``other appropriate actions'' identified. OPM decided to

remove this wording. OPM will be making debarment and removal decisions

only, and if agencies want to take other actions, such as a suspension,

there are other authorities they can use when appropriate (i.e., part

752).

The phrase ``protect the integrity * * * of the service'' was

added. This clarifies that an important facet of the suitability

standard is the integrity of the Merit System and fair and open

competition for positions.

A commenter felt Sec. 731.201 requires an adverse suitability

determination on every unsuccessful candidate and asked if ``federal

employment'' was used in the narrow or broadest sense. We added

clarifying and limiting language to subpart A, particularly at

Sec. 731.103(d), to address this concern. The ``Delegation Examining

Operations Handbook'' lists a number of reasons an eligible may be

eliminated from consideration. Suitability is only one of these

reasons. The Handbook also recommends suitability review be done in the

hiring phase. OPM will be issuing further clarification regarding the

suitability adjudication process in supplemental guidance.

Section 731.202 Criteria

Language was deleted from the general criteria of Sec. 731.202(a)

and from the suitability factors in Sec. 731.202(b)(1) and (2). Nexus

language is contained in Sec. 731.201.

Language was returned to Sec. 731.202(c) to give an adjudicative

agency discretion as to when to apply the additional considerations.

A commenter felt the additional consideration ``circumstances

surrounding the conduct'' covers the consideration of ``societal

conditions'' which could then be removed. This was not changed because

the factors address two separate areas of consideration that could

impact the final decision. Our supplemental guidance will elaborate on

all the additional considerations.

Section 731.203 Actions by OPM and Other Agencies

Sec. 731.203(a) was revised to eliminate confusion over ``subject

to investigation'' language and to be consistent with other similar

revisions.

OPM's authority to cancel reinstatement eligibility was added in

Sec. 731.203(b) to ensure OPM's authority to do so is clear and

contained in regulation and to further distinguish available OPM

actions from agency actions.

Wording was added to Sec. 731.203(c) so agencies will understand

they may use other authorities in lieu of an action under part 731.

We will clarify, in supplemental guidance, the procedures an agency

should follow when releasing a copy of the ``materials relied upon''

referred to in Sec. 731.203(e) when the action is based on an OPM

investigation.

Section 731.204 Debarment by OPM

OPM has revised the regulations and delegated authority to agencies

for limited debarments. This section distinguishes OPM's debarment

authority and procedures from those delegated to agencies, which are

addressed in Sec. 731.205.

Section 731.204(b) was revised to reflect OPM's authority to take a

subsequent debarment action after expiration of a prior period of

debarment, but eliminates the requirement that OPM redetermine every

debarred individual's suitability. This change also takes into

consideration that, with delegated applicant suitability authority,

agencies can adjudicate applicant cases when they have been previously

debarred by OPM and the debarment has expired. The agency may favorably

adjudicate at that point, refer for OPM review, or take their own

debarment action. Unless new issues are present, a new general

debarment action by OPM would normally not be warranted. The agency

will be alerted to prior OPM debarments if reported by the subject on

the OF 306 and/or SF 85P/86, or during the agency's Suitability/

Security Investigations Index (SII) check, and may use its delegated

suitability authority to determine if the person is suitable for the

specific position sought.

Section 731.205 Debarment by Agencies

Since agencies would be making agency nexus adverse suitability

decisions, OPM also delegates to them authority to take a limited

debarment action, for a period not to exceed one year, and only for

positions within that agency. This will prevent a person found

unsuitable by an agency from immediately refiling an application for

the same or other positions in the agency and ensure the agency does

not have to make multiple suitability determinations in connection with

the same individual.

Since agency debarment authority is limited to applicants or

appointees under part 731, the lack of agency authority to debar

employees should prompt agencies to request investigations and

adjudicate on a more timely basis when a person is first appointed.

Also, if an employee is removed by an agency under part 752 and

reapplies for a position in the agency, OPM or the agency may

adjudicate suitability under part 731 as a separate action.

The agency will be responsible for taking appropriate action if it

determines a person has applied or been appointed while under agency

debarment. ``Appropriate actions'' could include rating additional

applications ineligible, removing an appointee, or referring the matter

to OPM for general debarment.

Section 731.302 Notice of Proposed Action

A commenter said the notice fails to advise the individual of his

constitutional right to representation. The regulation does not prevent

an individual from retaining counsel to assist in preparing a response

to a proposed action if so desired, and specifically mentions

representation in Sec. 731.303. Also, if a person appeals a suitability

determination to MSPB, 5 CFR 1201.31 states the appellant may be

represented in any matter related to the appeal.

Commenters questioned the efficiency of the requirement that the

notice of proposed action be mailed to both the duty station and last

known address. We have changed the wording to allow OPM or the agency

to decide the most effective and efficient method of delivery, to

include mailings to both locations, if necessary, to ensure a timely

delivery.

[[Page 4339]]

Section 731.302(c) was added to show a requirement specific to OPM.

Section 731.303 Answer

Because only OPM will be adjudicating employee cases under part 731

procedures (where an opportunity for an oral response is provided), we

removed reference to the agency.

Section 731.304 Decision

Commenters questioned the need to retain an appointee or employee

30 days after OPM directs removal. We have eliminated this requirement.

We now require that the agency effect OPM's directed removal action

within 5 work days of receipt of our decision to allow agencies time to

process the removal action.

Section 731.401 Appeal to the Merit Systems Protection Board

A provision was added regarding MSPB modification of debarments. In

cases where the MSPB does not sustain all the reasons for an OPM or

agency debarment action and, as a result, determines the length of

debarment may be inappropriate, the case would be returned to OPM or

the agency to determine the debarment length warranted for the issues

sustained.

A commenter felt the agency option to either retain in a pay status

pending appeal of an OPM directed removal, or remove, would be based on

the level of agency support an appointee or employee enjoys, thereby

creating two disparate classes. This concern is eliminated by our

revision to Sec. 731.304.

Reference to an OPM directed suspension was inappropriate here, and

deleted, as discussed previously.

E.O. 12866, Regulatory Review

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

in accordance with E.O. 12866.

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 proposes to amend 5

CFR part 731 as follows:

Part 731 is revised to read as follows:

PART 731--SUITABILITY

Subpart A--Scope

Sec.

731.101 Purpose.

731.102 Implementation.

731.103 Delegation to agencies.

731.104 Appointments subject to investigation.

731.105 Jurisdiction.

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--Suitability Action Procedures 731.301 Scope.

731.302 Notice of proposed action.

731.303 Answer.

731.304 Decision.

Subpart D--Appeal to the Merit Systems Protection Board

731.401 Appeal to the Merit Systems Protection Board.

Subpart E--Savings Provision

731.501 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 E.O. 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.'' E.O. 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 impact 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 E.O. 10450 (3 CFR,

1949-1953 Comp., p. 936), E.O. 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, intentional false statement is one that is capable of

influencing, or has a natural tendency to affect, an official decision.

The test for materiality thus does not rest on whether an agency

actually relied on the false statement.

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 personnel security 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 security 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 (Pub. L. 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 issuances of the OPM.

Agencies exercising authority under this part by delegation from OPM

shall conform to such policies, procedures, criteria, and guidance.

Failure to do so may result in revocation by OPM of an agency's

delegation to adjudicate suitability under this part.

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 part 315 or 5 CFR part

752). Also, this delegation does not include cases

[[Page 4340]]

involving refusal to furnish testimony as required by Sec. 5.4 of this

chapter, 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 Pub. L. 95-454.

(b) Any adjudication by an agency acting under delegated authority

from OPM which indicates that a 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 a

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) Insure 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) Insure 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. An adverse suitability decision

may not be based on such information; 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) In order to establish an appointee's suitability for employment

in the competitive service, every appointment to a position in the

competitive service is subject to investigation by OPM, or an agency

conducting investigation under delegated authority from OPM, except:

(1) Promotions;

(2) Demotions;

(3) Reassignment;

(4) Conversion from career-conditional to career tenure;

(5) Appointment, or conversion to an appointment, involving an

employee of an agency who has been serving continuously with that

agency for at least 1 year in one or more positions under an

appointment subject to investigation; and

(6) Transfer, provided the individual has served continuously for

at least 1 year in a position subject to investigation.

(b) Appointments are subject to investigation to continue OPM's (or

a delegated agency's) jurisdiction to investigate the suitability of an

applicant after appointment, and to authorize OPM or an agency acting

under delegated authority to require removal when it finds the

appointee unsuitable for Federal employment. The subject to

investigation condition may not be construed as requiring an employee

to serve a new probationary or trial period or as extending the

probationary or trial period of an employee.

Sec. 731.105 Jurisdiction.

(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 chapter, or statutory

or regulatory bar.

(d) An agency may not take a suitability action against an employee

under this part; rather, it may take a suitability action against an

employee to promote the efficiency of the service under the authority

and following the procedures of part 752 of this chapter.

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 would 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 sensitive but unclassified information or financial records, with a

significant risk for causing damage or realizing personal gain.

(c) Investigative requirements. Persons receiving an appointment

made subject to investigation under this part shall undergo a

background investigation. Minimum investigative requirements

correlating to risk levels will be established in supplemental guidance

provided by OPM. Investigations must 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

[[Page 4341]]

based on supplemental guidance provided by OPM.

(e) Risk level changes. If the risk level of the position itself is

changed (e.g., the individual moves from a low risk to a moderate or

high risk position) the incumbent may remain in the position, but any

upgrade reinvestigation required by the agency for the new risk level

should be initiated within 14 calendar days after the new designation

is final.

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 which follow, 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 reasons 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

chapter;

(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) 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).

(b) 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.

(c) 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

chapter, but agencies may use their authority under and follow the

procedures of parts 752 or 315, as appropriate, in lieu of taking the

action under this part 731.

(d) When OPM instructs an agency to remove an appointee or employee

under this part, it shall notify the agency and the appointee or

employee of its decision in writing.

(e) Before OPM, or any agency having delegated authority from OPM

under this part, shall take a final suitability action against an

applicant, appointee, or employee under this part, the person against

whom the action is proposed shall be given notice of the proposed

action (including the availability for review, upon request, of the

materials relied upon), an opportunity to respond, notice of the final

decision on the action, and notice of rights of appeals.

(f) 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, competitive service 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.

(d) The agency, in its sole discretion, determines the duration of

any period of debarment imposed under this section.

Subpart C--Suitability Action Procedures

Sec. 731.301 Scope.

(a) Coverage. This subpart sets forth the procedures to be followed

when OPM or an agency having delegated authority from OPM, acting under

authority of this part, proposes to take or to instruct an agency to

take, a final suitability ineligibility action, including removal,

against an applicant, appointee or employee in the competitive service.

(b) Definition. In this subpart, days means calendar days.

Sec. 731.302 Notice of proposed action.

(a) OPM or the agency having delegated authority from OPM under

this part shall notify the applicant, appointee, or employee

(hereinafter, the ``respondent'') in writing of the

[[Page 4342]]

proposed action and of the charges against the respondent. The notice

shall state the reasons, specifically and in detail, for the proposed

action. The notice shall also state that the respondent has the right

to answer this 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) In an OPM action, 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. In actions proposed by OPM, the 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. In an OPM directed removal, the

employing agency shall remove the appointee or employee from the rolls

within 5 work days of receipt of OPM's final decision; removals taken

by an agency under this part should be effected within 5 work days of

their final decision to remove. The respondent shall also be informed

that an adverse decision can be appealed in accordance with subpart D

of this part. In OPM actions, OPM shall also notify the respondent's

employing agency of its decision.

Subpart D--Appeal to the Merit Systems Protection Board

Sec. 731.401 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 decision to the

Merit Systems Protection Board (the Board). However, the Board may not

modify a debarment period. If the Board finds that fewer than all of

the charges are supported by a preponderance of the evidence, and

affirms the determination of unsuitability, it shall remand the case to

OPM or the agency to determine whether the debarment period is still

appropriate based on the sustained charges. This subsequent

determination by OPM or the agency 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 Chapter II of this chapter.

Subpart E--Savings Provision

Sec. 731.501 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 (THE

EFFECTIVE DATE OF THE FINAL RULE). An administrative proceeding is

deemed to be pending from the date of the ``notice of proposed action''

described in Sec. 731.302.

[FR Doc. 99-1958 Filed 1-27-99; 8:45 am]

BILLING CODE 6325-01-P