Suitability, 56747-56748 [E9-26448]

Agencies

• Office of Personnel Management
• Personnel Management Office

[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Proposed Rules]
[Pages 56747-56748]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26448]


========================================================================
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. 74, No. 211 / Tuesday, November 3, 2009 / 
Proposed Rules

[[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: https://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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