[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Proposed Rules]
[Pages 68222-68224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28054]
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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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Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 /
Proposed Rules
[[Page 68222]]
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. OPM also proposes to make a
technical revision to the authority citation to correct the citation
format.
DATES: Comments must be received on or before December 6, 2010.
ADDRESSES: You may submit comments, identified by RIN number ``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: Tom Wachter, Acting Deputy Associate Director,
Partnership & Labor Relations, U.S. Office of Personnel Management,
Room 7H28, 1900 E Street, NW., Washington, DC 20415-8200.
FOR FURTHER INFORMATION CONTACT: Julie Ohr, U.S. Office of Personnel
Management, Partnership & Labor Relations, 1900 E St., NW., Room 7H28,
Washington, DC 20415-4000; fax to 202-606-2613; e-mail to [email protected].
SUPPLEMENTARY INFORMATION:
Reopening of Comment Period for Proposed Rule
This proposed rule was published on November 3, 2009, at 74 FR
56747, with the comment period ending on January 4, 2010. Several
comments received from Federal agencies stated that the commenter was
unable to provide an informed recommendation related to the frequency
of reinvestigations without specific information regarding the scope of
such reinvestigation. This notice is intended to provide additional
information relative to the scope of reinvestigations for public trust
positions in order to allow for further comment as to reinvestigation
frequency. In addition, OPM is revising the text of the proposed rule
at 5 CFR 731.106(d)(2) to identify separate investigations that satisfy
the public trust reinvestigation requirement to resolve an interpretive
ambiguity, and is soliciting additional public comment on the revised
text. Both the comments received in response to OPM's November 3, 2009,
Federal Register notice, and the comments received in response to this
reopening notice related to the frequency of reinvestigation of public
trust positions, will be considered in the development of the final
rule. OPM is also using this opportunity to propose a technical
revision to the authority citation to correct the citation format.
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 5 years.
Currently, under 5 CFR 731.106(c)(2) and 732.201(a), each position
that is designated as a low-, moderate- or high-risk position must also
be designated as non-sensitive, noncritical-sensitive, critical-
sensitive, or special-sensitive based on the potential that the
occupant could materially adversely affect the national security.
Although it is possible that the types of investigations performed may
change to meet evolving needs, at the writing of this regulatory
notice, it is the intent of OPM to conduct reinvestigations for non-
sensitive, moderate-risk public trust positions using the NACLC
(National Agency Check with Local Agency Check and Credit Check), and
non-sensitive, high-risk public trust reinvestigations would be
conducted using the PRI (Periodic Reinvestigation). Both of these
reinvestigations will be conducted using the Questionnaire for Public
Trust Positions (SF-85P) Form. The reinvestigation may be expanded as
necessary based upon information discovered during the investigation.
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
[[Page 68223]]
are re-opening the comment period to 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 based on the investigative product used to conduct the
reinvestigations. We will consider comments on this proposed rule and
consult with affected agencies in developing supplemental guidance on
investigative frequency.
E.O. 13488 addresses reinvestigations of occupants of all public
trust positions, including those also designated as noncritical-
sensitive, critical-sensitive, or special-sensitive under 5 CFR part
732. Certain positions are already subject to national security
reinvestigation requirements under 5 CFR 732.203 or under E.O. 12968,
as amended. Requiring multiple reinvestigations for the same individual
at least every 5 years would be costly and inefficient, and would be
inconsistent with the policy expressed in E.O. 13467, which calls for
suitability and national security investigations to be aligned ``using
consistent standards to the extent possible'' and for ``each
successively higher level of investigation * * * [to] build upon, but
not duplicate, the ones below it.''
Accordingly, at 5 CFR 731.106(d)(2), the proposed rule would
provide that a national security investigation to determine a person's
initial or continued eligibility for access to classified information
or to hold a sensitive position also satisfies the 5-year public trust
reinvestigation requirement for that person, as long as it is conducted
at a level equal to or higher than the level required for his or her
public trust reinvestigation. The agency is not required to conduct an
additional public trust reinvestigation in such circumstances, and the
completed national security investigation restarts the 5-year schedule
(or other schedule as future guidance might require) for a new public
trust reinvestigation. Likewise, a suitability investigation based on a
change in risk level as provided in 5 CFR 731.106(e) is sufficient, if
conducted at the appropriate level, to satisfy the public trust
reinvestigation requirement.
The proposed rule published on November 3, 2009, stated that an
investigation for eligibility for access to classified national
security information may be sufficient to meet public trust
reinvestigation requirements, but did not state that an investigation
for employment in a sensitive national security position may also be
sufficient to meet public trust reinvestigation requirements. The text
of the proposed rule has been revised to clarify that both types of
national security investigations may be sufficient to meet public trust
reinvestigation requirements. Further, the November 3, 2009, proposed
rule stated that a ``reevaluation'' may be sufficient to meet public
trust reinvestigation requirements, without defining a
``reevaluation.'' The text of the proposed rule has been revised to
eliminate this ambiguous term. OPM is soliciting public comment on
these revisions to the text of the proposed rule, in addition to
soliciting public comment on the appropriate cycle for public trust
reinvestigations.
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 his or her 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 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. In this reopener, OPM also makes a
technical revision to the authority citation to correct the citation
format.
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
[[Page 68224]]
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.
U.S. 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
1. The authority citation for part 731 is revised to read as
follows:
Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218, as amended; E.O. 13467, 3 CFR, 2009 Comp., p.
198; E.O. 13488, 74 FR 4111; 5 CFR, parts 1, 2 and 5.
Subpart A--Scope
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 is conducted to determine a person's eligibility (or
continued eligibility) for access to classified information or to hold
a sensitive position, 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 public trust 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 part 752. Section 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. 2010-28054 Filed 11-4-10; 8:45 am]
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