[Federal Register: November 3, 2009 (Volume 74, Number 211)]
[Proposed Rules]
[Page 56747-56748]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03no09-18]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 56747]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN 3206-AL90
Suitability
AGENCY: U.S. Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing
proposed regulations to assist agencies in carrying out new
requirements to reinvestigate individuals in public trust positions
under Executive Order 13488, Granting Reciprocity on Excepted Service
and Federal Contractor Employee Fitness and Reinvestigating Individuals
in Positions of Public Trust, to ensure their continued employment is
appropriate. This proposed rule would implement the suitability
reinvestigation provisions of E.O. 13488.
DATES: Comments must be received on or before January 4, 2010.
ADDRESSES: You may submit comments, identified by ``3206-AL90,'' using
either of the following methods: Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
All submissions received through the Portal must include the agency
name and docket number or Regulation Identifier Number (RIN) for this
rulemaking. All Mail: Ana Mazzi, Deputy Associate Director, Center for
Workforce Relations and Accountability Policy, U.S. Office of Personnel
Management, Room 7H28, 1900 E Street, NW., Washington, DC 20415-8200.
FOR FURTHER INFORMATION CONTACT: Lisa McGlasson, Senior Advisor, U.S.
Office of Personnel Management, Center for Workforce Relations and
Accountability Policy, 1900 E St., NW., Room 7H28, Washington, DC
20415-4000; fax to 202-606-2613; e-mail to CWRAP@opm.gov.
SUPPLEMENTARY INFORMATION:
Background
On January 16, 2009, President George W. Bush signed Executive
Order 13488, which provides that individuals in public trust positions
shall be subject to reinvestigation under standards determined by the
Director of the Office of Personnel Management (OPM) to ensure their
continued employment is appropriate. The order provides that the
standards issued by OPM shall include the frequency of
reinvestigations. E.O. 13488 is distinct from but complements E.O.
13467, concerning alignment, to the extent possible, of security and
suitability standards.
Public Trust Positions
Public trust positions are those covered by 5 CFR part 731 which an
agency head, under 5 CFR 731.106, has designated at a moderate or high
risk level, based on the position's potential for adverse impact on the
efficiency or integrity of the service. 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, or access to or
operation or control of financial records, with a significant risk for
causing damage or realizing personal gain. Designation of public trust
positions and their risk level is made by agencies following OPM
guidance and taking into account the specific duties of each position.
Frequency of Reinvestigations
While a reinvestigation typically will be more limited than the
initial investigation, that reinvestigation must occur frequently if
agencies are to carry out the purpose of the Executive order--to ensure
that continued employment of persons in public trust positions remains
appropriate. Accordingly, the proposed rule would require, at 5 CFR
731.106(d)(1), that a person occupying a public trust position be
reinvestigated at least once every five years. Contingent on future
investigative and resource capacities, OPM supplementary guidance will
adjust investigative frequencies within this 5-year period based on the
level of trust (i.e., either moderate or high risk) associated with a
person's position. We specifically solicit comment on whether a
periodic reinvestigation cycle of 5 or fewer years is appropriate,
considering the risk posed by employment in public trust positions, and
the availability of investigative and adjudicative resources. We will
consider comments on this proposed rule and consult with affected
agencies in developing supplemental guidance on investigative
frequency.
At 5 CFR 731.106(d)(2), the proposed rule would provide that an
investigation or reevaluation to determine a person's initial or
continued eligibility for access to classified information, which is
conducted at an equal or higher level than required for their public
trust reinvestigation, satisfies the 5-year reinvestigation requirement
for that person. The agency is not required to conduct an additional
investigation in such circumstances, and the completed security
clearance investigation restarts the 5-year schedule (or other schedule
as future guidance might require) for a new public trust
reinvestigation.
Assessments Resulting From Reinvestigations
The regulation at 5 CFR 731.106(f) would be modified to more
clearly reflect the broader authority and obligation of agencies to
make decisions following investigations. The current language provides
that a completed investigation must result in a ``determination'' by
the agency. As discussed below, an agency's decision on a
reinvestigation of an employee in a public trust position will rarely
be a suitability determination that results in a suitability action
under this part. Thus, the potentially misleading word
``determination'' would be replaced with the word ``assessment.''
As currently provided at 5 CFR 731.106(f), a person's employment
status will determine the applicable agency authority and procedures to
be followed in any action taken based on the results of the
reinvestigation. In most circumstances, the subject of a
reinvestigation will have been employed by their agency for more than
one year and, under those circumstances, only OPM could make a
suitability determination and take a suitability action under very
limited circumstances. As provided under 5 CFR 731.105(d), OPM could
take a suitability action based on (1) a material, intentional false
statement, or deception or fraud in examination or appointment; (2)
refusal to furnish testimony; or (3) a statutory or
[[Page 56748]]
regulatory bar that prevents the lawful employment of the person.
However, conduct that surfaces during a reinvestigation (for example,
off-duty criminal conduct) could form the basis for an adverse action
under 5 CFR part 752.
Consistent with the changes made to 5 CFR 731.106, the reporting
requirements under 5 CFR 731.206 would be modified to require agencies
to report any decisions and actions taken as a result of a background
investigation or reinvestigation. Here, the ``level'' of investigation
is replaced by the ``level or nature'' of the investigation as a
reporting obligation, to be consistent with E.O. 13488. The actual
information reported is unchanged. Section 731.206 of title 5, Code of
Federal Regulations, also would be clarified to reflect current
practice that agencies follow in reporting the completion dates of
background investigations. This is important, since the public trust
position reinvestigation schedule is tied to the completion date of a
relevant investigation.
Technical Amendment
OPM proposes a technical amendment to the Authorities for this part
to reflect the President's signing of Executive Order 13488 on January
16, 2009, which authorizes the Director of OPM to issue regulations and
guidance implementing the order.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the
regulations pertain only to Federal employees and agencies.
E.O. 12866, Regulatory Review
This proposed rule has been reviewed by the Office of Management
and Budget under Executive Order 12866.
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 section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, 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.
John Berry,
Director.
Accordingly, OPM proposes to amend part 731, title 5, Code of
Federal Regulations, as follows:
PART 731--SUITABILITY
Subpart A--Scope
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,
E.O. 13488, 3 CFR, 1954-1958 Comp., p. 218, as amended, 5 CFR, parts
1, 2 and 5.
2. In Sec. 731.106, revise paragraphs (d) and (f) to read as
follows:
Sec. 731.106 Designation of public trust positions and investigative
requirements.
* * * * *
(d) Reinvestigation requirements.
(1) Agencies must ensure that reinvestigations are conducted and an
assessment made regarding continued employment of persons occupying
public trust positions at least once every 5 years. The nature of these
reinvestigations and any additional requirements concerning their
frequency will be established in supplemental guidance issued by OPM.
(2) If, prior to the next required reinvestigation, a separate
investigation (or reevaluation) is conducted to determine a person's
eligibility (or continued eligibility) for access to classified
information or as a result of a change in risk level as provided in
Sec. 731.106(e), and that investigation is conducted at an equal or
higher level than is required for a public trust reinvestigation, a new
reinvestigation is not required. Such a completed investigation
restarts the cycle for a public trust reinvestigation for that person.
* * * * *
(f) Completed investigations. Any suitability investigation (or
reinvestigation) completed by an agency under paragraphs (d) and (e) of
this section must result in an assessment by the employing agency of
whether the findings of the investigation would justify an action
against the employee, under this part or under some other authority,
such as 5 CFR 752. Sec. 731.103 addresses whether an action is
available under this part, and whether the matter must be referred to
OPM for debarment consideration.
3. Revise Sec. 731.206 to read as follows:
Sec. 731.206 Reporting requirements.
Agencies must report to OPM the level or nature, result, and
completion date of each background investigation or reinvestigation,
each agency decision based on such investigation or reinvestigation,
and any personnel action taken based on such investigation or
reinvestigation, as required in OPM issuances.
[FR Doc. E9-26448 Filed 11-2-09; 8:45 am]
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