Suitability, 66489-66493 [E8-26558]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 73, Number 218 (Monday, November 10, 2008)]
[Rules and Regulations]
[Pages 66489-66493]
From the Federal Register Online via the Government Printing 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 CWRAP@opm.gov.

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.

0
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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