[Federal Register Volume 73, Number 218 (Monday, November 10, 2008)]
[Rules and Regulations]
[Pages 66489-66493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26558]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN: 3206-AL38
Suitability
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: In order to limit duplication of efforts by applying
reciprocity where appropriate to the investigative and adjudicative
processes, the Office of Personnel Management (OPM) is modifying
regulations governing Federal employment suitability. The final
regulations establish the requirements for applying reciprocity to
Federal employment suitability determinations and investigations.
DATE: Effective Date: The rule is effective January 9, 2009.
FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202)
606-2930; by FAX at (202) 606-2613; or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
Introduction
On June 23, 2008, OPM published at 73 FR 35358 (2008) proposed
amendments to the regulations in part 731 of title 5, Code of Federal
Regulations (CFR), to require, with limited exceptions, the application
of reciprocity in any case where the person previously was investigated
at a level that meets or exceeds that required for the new position,
was determined suitable under 5 CFR part 731 or fit based on character
or conduct criteria equivalent to the suitability factors of 5 CFR
731.202, and meets continuous service requirements described in the
regulations. The public comment period on the proposed amendments ended
on August 22, 2008. OPM received comments from two Federal agencies or
departments, one union, and two individuals. OPM has carefully
considered the comments received. Subsequent to publication of the
proposed regulations, President George W. Bush signed Executive Order
13467 (June 30, 2008), which established a governance structure to
improve Executive branch policies and procedures regarding various
background investigations and adjudications. Section 2.1(c) of E.O.
13467 requires that except as otherwise authorized by law, background
investigations and adjudications shall be mutually and reciprocally
accepted by all agencies. The E.O. requires that, with respect to
suitability, agencies may not establish additional investigative or
adjudicative requirements without the approval of the Suitability
Executive Agent, and such approval shall be limited to circumstances
where additional requirements are necessary to address significant
needs unique to the agency involved or to protect national security.
Section 2.3(b) of the E.O. provides that the Director of the Office of
Personnel Management shall serve as the Suitability Executive Agent.
The exceptions to reciprocity provided in these regulations are
consistent with these provisions.
Reciprocity of Background Investigations
One commenter opposed accepting background checks on contractor
employees who have had their background investigations conducted by
their employing company. The commenter believes that the Federal
suitability process involves more scrutiny and a private company's
background checks may not involve the same extensive checks as does the
Federal suitability process. The proposed regulation only applies where
a Federal agency has previously determined the contract employee was
fit to perform work on the contract based on criteria equivalent to the
factors provided at 5 CFR 731.202. There is no requirement or
expectation
[[Page 66490]]
that reciprocity would be granted to investigations or fitness
determinations made by private companies on their own employees.
One commenter raised a concern regarding granting reciprocity to a
previous investigation and favorable suitability determination without
the ability to check whether the individual has performed any acts that
might exclude them from employment subsequent to this prior
investigation. This commenter raises the example of a person who is
arrested for criminal misconduct a year or two subsequent to an
investigation and favorable suitability determination by a Federal
agency. The commenter argues that when that person applies for
employment with a second agency, under the proposed regulations, unless
the second agency is aware of the intervening misconduct, it must grant
reciprocity to the earlier investigation and favorable suitability
determination. In response, we note that the proposed regulations do
not change the existing rules governing how the misconduct in the
example is identified and addressed. Both under current regulations at
5 CFR 731.104(a)(6) and proposed regulations at 5 CFR 731.104(a)(2),
the person in the example would not be subject to a new suitability
investigation. Absent a change in risk level, misconduct by an employee
subsequent to an investigation and favorable suitability determination
can and should be addressed under adverse action procedures provided at
5 CFR part 752. This is true regardless of whether the employee has
several years of service with the same agency or has recently
transferred to a new agency. There are a variety of ways in which such
misconduct can be identified and addressed, including by review of a
newly-obtained Declaration for Federal Employment, Optional Form 306.
A related question raised by the same commenter noted that while
under the proposed regulations a person will be subject to a new
investigation if ``an agency obtains new information that calls into
question the person's suitability,'' nowhere does the proposed
regulation define or explain how an agency ``obtains new information.''
There are a variety of ways by which new information might be obtained.
As explained in the supplementary materials to the proposed
regulations, new information might be obtained from a newly-executed
Declaration for Federal Employment, Optional Form 306. Other sources
include responses to questions raised during employment interviews or
during reference checks.
One commenter asked whether the intent of Sec. 731.104(d) is to
exclude public trust positions from the new reciprocity requirements.
This is not the intent of this section. This section has been modified
to clarify that the provisions in Sec. 731.104, setting out
limitations on when an appointment is subject to a new investigation,
do not negate agencies' ability to conduct reinvestigations for public
trust positions under other authority as described in Sec. 731.106.
Another commenter stated that there is no means to challenge a
decision by OPM or an agency that a new investigation or suitability
determination is required because a prior fitness determination was not
based on criteria substantially equivalent to the factors provided at 5
CFR 731.202. This commenter urged that such decision be subject to
review by the Merit Systems Protection Board (MSPB) or alternatively,
by OPM. OPM notes that any suitability action taken based on a new
investigation, such as removal, cancellation of eligibility, or
debarment, may be appealed to MSPB under Sec. 731.501. Furthermore,
creation of new appeal or review rights is outside the scope of this
regulation and will not be further addressed here.
Investigation Requirements for Position Risk Level Changes
One commenter pointed out that Sec. 731.106(c)(2) refers to
``investigative types'' in reference to 5 CFR 732.202 when that
regulation instead uses the term ``investigative requirements.'' We
have changed the language in Sec. 731.106(c)(2) to ``investigative
requirements'' to be consistent with 5 CFR part 732.
Another comment concerned the meaning of Sec. 731.106(e), which
provides when the risk level of a position is changed to a higher level
or an employee experiences a change to a position with a higher risk
level, he or she can remain in that position pending any upgrade in the
investigation required. The commenter stated that it was unclear
whether it is the original or new position in which the person could
remain. This section was modified in the proposed regulations to
clarify that the movement to the higher risk position is not limited to
promotion but may include reassignment or even demotion. The
modification does not otherwise change the meaning of the section.
Thus, as is the case under the current regulations, a person may remain
in his or her current position if the risk level for that position
changes to a higher level, and may encumber any new position to which
he or she moved even if that position has a higher risk level than his
or her previous position. In either case, any upgrade in investigation
required for the new risk level should be initiated within 14 calendar
days. If the results of the upgraded investigation warranted action
such as removal, that removal would be from the new higher risk level
position.
One commenter noted that the OPM issuances referenced in Sec.
731.106(c)(2) are limited to official use only and are not made
available to the public. This commenter stated that in the absence of
being able to review those issuances, it is impossible to provide
comments on Sec. 731.106(c)(2). The very limited modification proposed
in Sec. 731.106(c)(2) simply reflects the existing relationship
between position risk determination under part 731 and the position
sensitivity determinations made under 5 CFR part 732 when identifying
the appropriate level of investigation needed for a particular
position. It makes no substantive change in the regulatory requirement.
This commenter questioned the relationship between risk designation and
sensitivity designation and asked for an explanation of a position's
sensitivity designation on the nature and content of a suitability
investigation. They noted that in Executive Order 13467 (June 30,
2008), the President directed that investigative standards for security
clearance and suitability investigations be aligned, to the extent
possible. They expressed concern that an investigation designed to
determine a public trust employee's suitability may be inappropriately
broadened to include lines of investigation appropriate only in a
security investigation under part 732. As stated in current regulation
at Sec. 731.101(a), suitability determinations made under part 731 are
``distinct'' from determinations of eligibility for assignment to, or
retention in, sensitive national security positions. Although the
President has directed agencies to ensure that investigative standards
for security clearance and suitability investigations are aligned to
avoid duplicative steps, the purpose and basis of the two
determinations remain distinct and nothing in the proposed regulations
changes that distinction.
Reciprocity of Suitability Determinations
One commenter urged that a definition of ``core duties'' be
provided and stated that in the absence of a definition, each agency
would be required to define and ``codify'' the core duties for their
organization. Another commenter on this section recommended that OPM
define core duties to narrowly limit the exception provided at Sec.
731.202(d) and that OPM
[[Page 66491]]
review all agency definitions of their core duties and the types of
conduct alleged to be incompatible with those duties. Specifically,
they urged that any incompatibility with core duties generally be
limited to a statutory or regulatory bar such as the legal barrier to
the employment of a person with a record of domestic abuse in a gun-
carrying position.
Whether an individual's prior conduct is incompatible with the core
duties of a position is inherently a case-by-case determination focused
not only on the unique duties of the specific position, but also on the
specific nature of the prior conduct. Incompatibility is not limited to
instances where employment would violate a statutory or regulatory bar
but could extend to conduct which clearly is antithetical to the key
responsibilities of the new position. For example, prior conduct
involving financial fraud may be antithetical to the duties of a bank
examiner and, as discussed in the supplementary materials to the
proposed regulations, prior criminal misconduct may be antithetical to
the duties of a law enforcement official. Core duties will vary from
agency to agency and from position to position, and the identification
of core duties is properly within the discretion of individual
agencies. We do not believe that OPM review of agency identification of
core duties and incompatible conduct is appropriate. However, we agree
that a general definition of ``core duty'' would assure more consistent
application of the exception provided at Sec. 731.202(d). Accordingly,
we have added a definition of ``core duty.''
This commenter further recommended that an agency decision under
Sec. 731.202(d) that a person's investigative record on file shows
conduct that is incompatible with the core duties of the relevant
covered position be subject to review by the Merit Systems Protection
Board (MSPB) or, alternatively, by OPM. OPM notes that any action taken
based on a negative suitability determination, such as removal,
cancellation of eligibility, or debarment, may be appealed to the MSPB
under Sec. 731.501. Furthermore, creation of new appeal or review
rights is outside the scope of this regulation and will not be further
addressed here.
One commenter asked whether a suitability action must be based on
specific factors listed at Sec. 731.202 or whether such an action can
be based on criteria equivalent to those suitability factors. The
proposed regulations provide that reciprocity shall be granted a
previous investigation and favorable suitability determination based on
criteria equivalent to the suitability factors listed at Sec. 731.202
as long as the individual meets the continuous service requirement.
However, the requirement stated in Sec. 731.202(b) that any
suitability action must be based on the factors listed at Sec.
731.202(b) remains unchanged. This same commenter questioned the legal
justification for investigative inquiry into such matters as the
grounds for a person's divorce, personal finances, or foreign travel
and asks about the relationship of such matters to the factors listed
at Sec. 731.202(b). These questions will not be addressed here as they
concern the factors listed at Sec. 731.202(b) which are outside the
scope of the proposed regulation.
Reporting of Suitability Determinations
One commenter urged that a statement be added to the regulation to
make it clear that an agency will not be held to reciprocity if the
prior investigation was not reported to OPM. This same commenter also
raised questions about the nature and detail of investigative results
to be reported and also expressed concern regarding how quickly the new
agency would be able to obtain information regarding any prior
investigation, suitability determination, and suitability action. Even
if information regarding a prior investigation and adjudication has not
yet been reported to OPM, agencies must follow the reciprocity
requirements of these regulations. If the information regarding a prior
investigation and adjudication is not in OPM's database or is
insufficient to make a reciprocity decision, agencies should contact
the former or current employing agency to obtain the necessary
information to either grant or deny reciprocity consistent with these
regulations. If after contacting the former or current employing
agency, an agency is unable to determine the investigation on file is
at the appropriate level or confirm that the other requirements for
reciprocity apply, then necessarily no reciprocity may be granted. For
these reasons, we believe the recommended statement is neither
appropriate nor necessary.
Miscellaneous Comments
One commenter recommended changing the provisions governing appeals
of suitability actions to the Merit Systems Protection Board (MSPB).
They recommended that MSPB be authorized to issue summary judgment
without a hearing where the MSPB administrative judge finds there are
no material facts in dispute or genuine issues of credibility. We will
take this suggestion under advisement for future consideration but it
is outside the scope of the current proposed regulation and therefore
has not been considered.
Another commenter questioned whether an installation can pass over
a selected candidate and proceed to the next preferred candidate when
the results of the preliminary suitability determination reveal
disqualifying information. Nothing in the proposed regulations alters
agency obligations under law to follow proper pass over procedures.
One commenter urged that suitability standards ``currently under
development'' be issued prior to the implementation of these proposed
regulations. The suitability factors referenced in the proposed
regulations are at 5 CFR 731.202 and are not under development. This
same commenter also recommended that appropriate training be provided
to all deciding officials, in advance of the implementation of these
regulations, so as to ensure the consistency of determinations.
Agencies having delegated suitability adjudication authority have been
required to use the suitability factors for at least 20 years and
agency staff should be well trained in their application.
One commenter stated that language in the supplementary material to
the proposed regulations concerning coverage appears inconsistent with
the actual regulations. Specifically, the supplementary states that
``any proposed changes to these regulations apply only to persons that
are in, or in the process of moving into, the competitive service or
career Senior Executive Service'' and the regulatory language refers to
``covered positions,'' a term which is defined in the current
regulations (final regulations effective June 16, 2008). We agree that
there may be some confusion since, under the most recent final
regulations, the coverage of part 731 was modified to include certain
positions in the excepted service. To clarify, the proposed regulations
will apply to persons who are in, or in the process of moving to, a
covered position as defined at Sec. 731.101(b).
Technical Amendments
OPM has made a technical amendment to the Authorities for this part
to reflect the President's signing of Executive Order 13467 on June 30,
2008, which designates the OPM Director as Suitability Executive Agent.
[[Page 66492]]
Executive Order 12866, Regulatory Review
The Office of Management and Budget has reviewed the final rule in
accordance with Executive Order 12866.
Regulatory Flexibility Act
I certify that these regulations will not have significant economic
impact on a substantial number of small entities because they will
affect Federal agencies, employees, and applicants only.
E.O. 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
E.O. 12988--Civil Justice Reform
This regulation meets the applicable standard set forth in sections
3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private section, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization, and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 5 CFR Part 731
Administrative practices and procedures, Government employees.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
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Accordingly, OPM is amending 5 CFR part 731 as follows:
PART 731--SUITABILITY
Subpart A--Scope
0
1. The authority citation for part 731 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, E.O. 13467, 3
CFR, 1954-1958 Comp., p. 218, as amended, 5 CFR, parts 1, 2 and 5.
0
2. In Sec. 731.101, amend paragraph (b) by adding a new definition for
the term ``Core Duty'' to read as follows:
Sec. 731.101 Purpose.
* * * * *
(b) * * *
Core Duty means a continuing responsibility that is of particular
importance to the relevant covered position or the achievement of an
agency's mission.
* * * * *
0
3. In Sec. 731.104, revise paragraphs (a) and (b)(2) and add new
paragraphs (d) and (e) to read as follows:
Sec. 731.104 Appointments subject to investigation.
(a) To establish a person's suitability for employment,
appointments to covered positions identified in Sec. 731.101 require
the person to undergo an investigation by OPM or by an agency with
delegated authority from OPM to conduct investigations. However, except
as provided in paragraph (b)(2), an appointment will not be subject to
investigation when the person being appointed has undergone a
background investigation and the appointment involves:
(1) Appointment or conversion to an appointment in a covered
position if the person has been serving continuously with the agency
for at least 1 year in one or more covered positions subject to
investigation;
(2) Transfer to a covered position, provided the person has been
serving continuously for at least 1 year in a covered position subject
to investigation;
(3) Transfer or appointment from an excepted service position that
is not a covered position to a covered position, provided the person
has been serving continuously for at least 1 year in a position where
the person has been determined fit for appointment based on criteria
equivalent to the factors provided at 5 CFR 731.202; or
(4) Appointment to a covered position from a position as an
employee working as a Federal Government contract employee, provided
the person has been serving continuously for at least 1 year in a job
where a Federal agency determined the contract employee was fit to
perform work on the contract based on criteria equivalent to the
factors provided at 5 CFR 731.202.
* * * * *
(b) * * *
(2) An appointment to a covered position also will be subject to
investigation when:
(i) The covered position requires a higher level of investigation
than previously conducted for the person being appointed; or
(ii) An agency obtains new information in connection with the
person's appointment that calls into question the person's suitability
under Sec. 731.202;
(d) Reinvestigation requirements under Sec. 731.106 for public
trust positions are not affected by this section.
(e) For purposes of this section, ``criteria equivalent to the
factors provided at 5 CFR 731.202'' are criteria that provide adequate
assurance that the person to be appointed, converted to an appointment,
or transferred is suitable to be employed in a covered position, as
determined by OPM, in issuances under this regulation. A decision by
OPM, or by an agency applying guidance from OPM, that a prior fitness
determination was not based on criteria equivalent to the factors
provided at 5 CFR 731.202, and that a new investigation or adjudication
is necessary is not subject to review under section 731.501 of this
part.
0
4. In Sec. 731.106, revise paragraphs (c)(2) and (e) to read as
follows:
Sec. 731.106 Designation of public trust positions and investigative
requirements.
* * * * *
(c) * * *
(2) All positions subject to investigation under this part must
also receive a sensitivity designation of Special-Sensitive, Critical-
Sensitive, or Noncritical-Sensitive, when appropriate. This designation
is complementary to the risk designation, and may have an effect on the
position's investigative requirement. Sections 732.201 and 732.202 of
this chapter detail the various sensitivity levels and investigative
requirements. Procedures for determining investigative requirements for
all positions based upon risk and sensitivity will be published in OPM
issuances, as described in Sec. Sec. 731.102(c) and 732.201(b).
* * * * *
(e) Risk level changes. If an employee experiences a change to a
higher position risk level due to promotion, demotion, or reassignment,
or the risk
[[Page 66493]]
level of the employee's position is changed to a higher level, the
employee may remain in or encumber the position. Any upgrade in the
investigation required for the new risk level should be initiated
within 14 calendar days after the promotion, demotion, reassignment or
new designation of risk level is final.
* * * * *
Subpart B--Suitability Determinations and Actions
0
6. In Sec. 731.202, add a new paragraph (d) to read as follows:
Sec. 731.202 Criteria for making suitability determinations.
* * * * *
(d) Reciprocity. An agency cannot make a new determination under
this section for a person who has already been determined suitable or
fit based on character or conduct unless a new investigation is
required under Sec. 731.104 or Sec. 731.106, or no new investigation
is required but the investigative record on file for the person shows
conduct that is incompatible with the core duties of the relevant
covered position.
0
7. Add a new Sec. 731.206 to read as follows:
Sec. 731.206 Reporting requirements.
Agencies must report to OPM the level and result of each background
investigation, suitability determination, and suitability action taken
under this part, as required in OPM issuances.
[FR Doc. E8-26558 Filed 11-7-08; 8:45 am]
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