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.

Proposed Rules Federal Register

2203 

Vol. 72, No. 11 

Thursday, January 18, 2007 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 731 

RIN: 3206–AL08 

Suitability 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: In support of its mission to 

ensure the Federal Government has an 

effective civilian workforce, the Office 

of Personnel Management (OPM) is 

proposing to amend its regulations 

governing Federal employment 

suitability. The proposed regulations 

would: authorize agencies to debar from 

employment for up to three years those 

found unsuitable, extend the suitability 

process to those applying for or who are 

in positions that can be noncompetitively converted to the 

competitive service, provide additional 

procedural protections for those found 

unsuitable for Federal employment, and 

clarify the scope of authority for the 

Merit Systems Protection Board (MSPB 

or Board) to review actions taken under 

the regulations. OPM is also proposing 

changes to make the regulations more 

readable. 

DATES: Comments must be received on 

or before March 19, 2007. 

ADDRESSES: Send or deliver written 

comments to Ana A. Mazzi, Deputy 

Associate Director for Workforce 

Relations and Accountability Policy, 

Office of Personnel Management, 1900 E 

Street NW., Room 7H28, Washington, 

DC 20415; by FAX to 202–606–2613; or 

by e-mail to CWRAP@opm.gov. 

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: OPM 

proposes to amend the regulations in 

part 731 of title 5, Code of Federal 

Regulations (CFR), to modify and more 

precisely define and clarify the 

regulations’ coverage, the procedural 

requirements for taking suitability 

actions, the respective authorities of 

OPM and agencies, and Merit Systems 

Protection Board (MSPB or Board) 

review of suitability actions. OPM also 

proposes various revisions to make the 

regulations more readable. 

Coverage 

OPM proposes to amend §§ 731.101, 

731.103, 731.104, 731.106, 731.204, and 

731.206 to provide that part 731 also 

applies to persons who can be 

noncompetitively converted to the 

competitive service because of service 

in their excepted service positions. The 

regulations currently cover only persons 

in the competitive service and the 

Senior Executive Service. Expansion of 

the regulation’s scope to include 

suitability determinations of persons 

applying for, entering or employed in, 

the excepted service when that 

appointment can lead to their 

noncompetitive conversion to the 

competitive service is consistent with 

OPM’s suitability authority. The process 

for employing such persons in the 

competitive service is a continuous one 

beginning with initial appointment to 

the excepted service and ending in 

(noncompetitive) conversion to the 

competitive service. Because these 

persons can (and most do) enter into the 

competitive service as a result of their 

excepted service appointment, albeit 

through a longer process than others 

appointed directly, they should be 

treated in the same manner as those 

appointed directly, including the same 

review of their suitability for 

employment. Already, under part 302 of 

this chapter, persons in the excepted 

service are subject to investigations and 

disqualifying factors similar to those 

found in part 731 (but without 

procedural protections). OPM proposes 

to refer to positions in the competitive 

service, positions in the excepted 

service as described in this paragraph, 

and positions in the Senior Executive 

Service collectively throughout part 731 

as ‘‘covered positions.’’ 

OPM proposes to add definitions of 

suitability action and suitability 

determination to § 731.101 to help the 

reader better understand the coverage of 

part 731. 

OPM also proposes that persons in 

intermittent, seasonal, per diem and 

temporary positions, with less than 180 

days aggregate service, are not subject to 

the investigative requirements of this 

part as stated in current § 731.104. OPM 

believes this change is necessary to 

maintain consistency between this part, 

which concerns suitability, and part 732 

of this chapter, which governs positions 

of national security. OPM also proposes 

to clarify the definition of material in 

§ 731.101 by saying that a statement 

may be material whether or not OPM or 

an agency relies upon it. The added 

language is not intended to change, but 

rather to reinforce, the meaning of the 

current definition in that a ‘‘material’’ 

statement does not actually have to 

influence or affect an official decision 

by OPM or an agency. 

In addition, OPM proposes to amend 

paragraph (a) of § 731.101 to state 

explicitly that suitability determinations 

are separate and distinct from objections 

or passover requests concerning 

preference eligibles (and OPM decisions 

on those requests) made according to 

the provisions of § 3318 of title 5, 

United States Code (U.S.C.), and 5 CFR 

332.406. Paragraph (b) of § 731.203 is 

likewise modified to state clearly that 

objections and passover issues are not 

covered by part 731 even if a nonselection for a Federal position is based 

on a reason provided in § 731.202. OPM 

also proposes to remove ‘‘denial of 

appointment’’ as a suitability action, as 

currently defined in § 731.203. 

Altogether, these proposed changes 

confirm that a non-selection for a 

specific position based on reasons set 

forth in this part is not a suitability 

action and that an agency objection to 

or request to pass over a preference 

eligible applicant for consideration for a 

particular position is not a suitability 

action. 

Procedures 

OPM is proposing to clarify in 

§ 731.106 the level of investigation OPM 

or the agency may conduct when 

suitability issues are developed prior to 

a required investigation. OPM or the 

agency may conduct the level of 

investigation sufficient to resolve the 

issues and to support a suitability 

action. If the individual is later 

appointed, the minimum level of 

investigation must be conducted 

consistent with the requirements in 

§ 731.106. 

OPM is also proposing two changes 

that provide additional procedural 

protections for persons who may be 


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subject to an unfavorable suitability 

determination or action. First, when an 

agency makes a decision under part 731, 

or changes a tentative favorable 

placement decision to an unfavorable 

decision based on an OPM report of 

investigation or upon an agency 

investigation conducted under OPMdelegated authority, OPM would require 

that the agency notify the person of the 

specific reasons for the decision and 

give the person the opportunity to 

explain or refute the information. The 

current regulations do not require 

agencies to provide this notice and 

opportunity to respond. 

Second, OPM is proposing to clarify 

that when an agency proposes to find a 

person unsuitable, the person may elect 

to have a representative of the person’s 

choice as long as he or she makes a 

written designation of representation. 

Persons subject to investigation under 

part 732 of this chapter currently have 

this opportunity, and OPM believes that 

it is appropriate to extend this option to 

persons subject to investigation under 

part 731 as well. 

OPM is proposing to amend § 731.303 

to discontinue the current practice of 

allowing only employees to give oral 

answers to proposed suitability actions 

by OPM. This would simplify and 

streamline the suitability process with 

OPM’s procedures mirroring those used 

by agencies with delegated authority. 

This will ensure that all persons are 

guaranteed the same rights to answer 

proposed suitability actions regardless 

of their status as applicants, appointees, 

or employees under the rule. 

Authorities 

OPM is proposing to expand the 

debarment authority that an agency 

currently possesses. Specifically, OPM 

proposes to permit an agency to debar 

from employment with that agency any 

person it finds unsuitable for up to three 

years, as opposed to a period of one year 

as provided in the current regulations. 

OPM is proposing this change to give 

agencies the same flexibility when 

deciding the appropriate length of 

debarment that OPM has. In addition, 

OPM is clarifying the regulations to 

indicate more clearly that an agency or 

OPM, when warranted, may make a 

subsequent suitability determination 

and impose an additional debarment 

period for the same conduct on which 

a previous suitability action was based. 

Simply put, a negative suitability action 

does not wipe the slate clean. It is an 

adjudication concerning an individual’s 

suitability for Federal service during a 

particular time period, not expiation for 

wrongdoing. Thus, an additional 

debarment period may be appropriate 

where the conduct was of a heinous 

nature, where the conduct represents a 

pattern of misconduct, or where a nexus 

exists between the conduct and the 

responsibilities associated with the 

current position. An agency or OPM 

making determinations in these 

circumstances would follow all 

procedural requirements of Part 731, 

including affording the affected persons 

the right to answer the agency or OPM 

and to appeal any negative suitability 

determinations to the Merit Systems 

Protection Board. 

In § 731.103, OPM is proposing to 

eliminate the requirement that agencies 

with delegated authority seek prior 

approval from OPM before taking action 

under other authorities, such as part 

315, part 359, or part 752 of this 

chapter, in cases involving evidence of 

material, intentional false statement in 

examination or appointment, or 

deception or fraud in examination or 

appointment. Agencies, however, would 

still be required to notify OPM if they 

have taken, or plan to take, such action. 

OPM is proposing modifications to 

§ 731.202 to clarify that OPM or 

agencies with delegated authority to 

make suitability determinations and 

take suitability actions have the 

authority to rely on the additional 

suitability considerations contained in 

paragraph (c) of § 731.202 at their sole 

discretion. Factors not relied upon by 

OPM or agencies in individual cases 

may not be considered by the MSPB. 

Finally, OPM is proposing in 

paragraph (c) of § 731.103 that agencies 

must exercise their delegated authorities 

in accordance with OPM regulations 

and issuances concerning procedures, 

policy guidance, criteria, standards, 

supplemental guidance, and quality 

control procedures established by OPM. 

OPM is also proposing to clarify in 

paragraph (d) of § 731.103 that agencies 

may choose to begin preliminary 

suitability reviews for all applicants at 

any time during the hiring process. 

Merit Systems Protection Board Review 

There is no statutory right to appeal 

a negative suitability determination. 

OPM, however, accorded applicants, 

appointees, and employees the right to 

appeal a negative suitability action 

taken by OPM, or an agency with 

delegated authority from OPM, under 

the procedures set forth in this part. 

This right of appeal applies only to an 

action taken under the procedures set 

forth in part 731. It does not extend to 

any other employment action that an 

agency takes outside of the procedures 

set forth in part 731 unless Congress or 

OPM has explicitly accorded a right of 

redress. In other words, what is not 

covered by part 731 may not be 

reviewed by the MSPB. For example, 

OPM has provided no right to appeal an 

agency’s decision to object to or request 

to pass over a candidate under part 332 

of this chapter, regardless of the basis 

for the agency’s request. That is, even if 

an agency objects to or requests to pass 

over an applicant based upon an 

applicant’s fitness or character, the 

applicant does not have a right of appeal 

under part 731. Likewise, an agency’s 

reason(s) for not hiring someone is not 

an appropriate basis to determine 

whether a person may appeal the 

agency’s action. Rather, the procedures 

an agency decides to use determine 

whether an agency’s action may be 

appealed. 

The Board recognized this clear 

distinction in Vislisel v. OPM, 29 

M.S.P.R. 679 (1986). There, the Board 

observed that a sustained objection is an 

agency-initiated procedure separate and 

apart from a suitability determination 

under part 731. Id. at 682. In Edwards 

v. Department of Justice, 87 M.S.P.R. 

518 (2001), the Board abandoned its 

approach in Vislisel, holding that, in 

deciding whether an action was an 

appealable suitability determination, 

‘‘what matters is the substance of the 

action, not the form.’’ Id. at 522. This is 

an incorrect reading of the authority that 

OPM conferred upon the Board. 

It is well-settled that the Board 

possesses jurisdiction only to the extent 

that Congress or OPM specifically 

confers jurisdiction upon it by statute 

and regulation. Moreover, an agency is 

free to utilize any applicable statutory or 

regulatory mechanism available if it 

wishes to take an employment action 

against an applicant, appointee, or 

employee. For example, an agency that 

is dissatisfied with an employee’s 

performance may elect to take action 

under chapter 43 or 75 of title 5, United 

States Code, or under part 315 or 359 of 

this chapter of OPM’s regulations if the 

person is serving a probationary period. 

Although the action an agency elects to 

use is based on the individual’s poor 

performance, the agency is not limited 

to the procedures contained in chapter 

43. Lovshin v. Department of the Navy, 

767 F.2d 826 (Fed. Cir. 1985). An 

agency may elect the statutory or 

regulatory scheme under which it takes 

an action, and it is bound to follow the 

procedures and standards of proof 

found in the scheme it chooses to use. 

Similarly, when adjudicating an appeal 

of an agency action, the Board must 

assess the agency’s action under the 

procedures elected by the agency and 

may not hold the agency to standards 

relating to a legal authority that the 

agency did not invoke. The Board may 


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not create an appeal right where neither 

Congress nor OPM has expressly 

granted it. King v. Jerome, 42 F.3d 1371, 

1374 (Fed. Cir. 1994). 

These proposed regulations reaffirm 

and clarify that there is a distinction 

between objections or passovers and 

suitability actions and that OPM has not 

authorized an appeal to MSPB for 

objections or passovers. 

Finally, while continuing to authorize 

suitability appeals, OPM is proposing to 

clarify the scope of jurisdiction 

conferred on MSPB. The proposed rule 

would eliminate the requirement that 

MSPB remand a case to OPM or an 

agency if fewer than all the charges are 

sustained and replace it with a 

requirement that the Board affirm the 

suitability determination and the 

suitability action when one or more 

charges are sustained. The specter of 

two simultaneous reviews in the same 

case by MSPB and OPM or an agency 

has led to confusion and uncertainty 

about the relationship of the two 

reviews, e.g., whether one takes 

precedence over the other and whether 

the outcome of one moots the review of 

the other. The proposed rule eliminates 

that confusion. 

Readability 

In addition to the above substantive 

changes, OPM proposes to rewrite the 

regulations in part 731 to make them 

more readable. Under this rewriting 

effort, OPM is proposing a number of 

grammatical and stylistic changes to the 

regulations to clarify their intended 

meaning. One example applied 

throughout the regulations, is a proposal 

to use ‘‘person’’ consistently (instead of 

‘‘individual’’) to describe those affected 

by the regulations. Another example is 

that the word ‘‘shall’’ is replaced in 

most cases by the word ‘‘must’’ to 

clearly state requirements. The current 

regulations use the terms 

interchangeably. OPM also is proposing 

to highlight the words ‘‘applicant,’’

‘‘appointee,’’ and ‘‘employee’’ to 

emphasize their unique meanings when 

applied at various locations in the 

regulations. 

Executive Order 12866, Regulatory 

Review 

The Office of Management and Budget 

has reviewed the proposed 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. 

List of Subjects in 5 CFR Part 731 

Administrative practices and 

procedures, Government employees. 

U.S. Office of Personnel Management. 

Linda M. Springer, 

Director. 

Accordingly, OPM is proposing to 

revise 5 CFR part 731 as follows: 

PART 731—SUITABILITY 

Subpart A—Scope 

Sec. 

731.101 Purpose. 

731.102 Implementation. 

731.103 Delegation to agencies. 

731.104 Appointments subject to 

investigation. 

731.105 Authority to take suitability 

actions. 

731.106 Designation of public trust 

positions and investigative requirements. 

Subpart B—Suitability Determinations and 

Actions 

731.201 Standard. 

731.202 Criteria for making suitability 

determinations. 

731.203 Suitability actions by OPM and 

other agencies. 

731.204 Debarment by OPM. 

731.205 Debarment by agencies. 

Subpart C—OPM Suitability Action 

Procedures 

731.301 Scope. 

731.302 Notice of proposed action. 

731.303 Answer. 

731.304 Decision. 

Subpart D—Agency Suitability Action 

Procedures 

731.401 Scope. 

731.402 Notice of proposed action. 

731.403 Answer. 

731.404 Decision. 

Subpart E—Appeal to the Merit Systems 

Protection Board 

731.501 Appeal to the Merit Systems 

Protection Board. 

Subpart F—Savings Provision 

731.601 Savings provision. 

Authority: 5 U.S.C. 1302, 3301, 7301, 7701; 

E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218; 

E.O. 12731, 3 CFR, 1990 Comp., p.306., 5 

CFR, parts 1, 2 and 5. 

Subpart A—Scope 

§ 731.101 Purpose. 

(a) The purpose of this part is to 

establish criteria and procedures for 

making determinations of suitability 

and for taking suitability actions 

regarding employment in positions in 

the competitive service, in positions in 

the excepted service where the 

incumbents can be noncompetitively 

converted to the competitive service, 

and under career appointments to 

positions in the Senior Executive 

Service (hereinafter in this part, these 

three types of positions are referred to 

collectively as ‘‘covered positions’’) 

pursuant to 5 U.S.C. 3301, E.O. 10577 (3 

CFR, 1954–1958 Comp., p. 218) and 5 

CFR 1.1, 2.1(a) and 5.2. Section 3301 of 

title 5, United States Code, directs 

consideration of ‘‘age, health, character, 

knowledge, and ability for the 

employment sought.’’ E.O. 10577 

(codified in relevant part at 5 CFR 1.1, 

2.1(a) and 5.2) directs OPM to examine 

‘‘suitability’’ for competitive Federal 

employment. This part concerns only 

determinations of ‘‘suitability,’’ that is, 

those determinations based on a 

person’s character or conduct that may 

have an impact on the integrity or 

efficiency of the service. Determinations 

made and actions taken under this part 

are distinct from objections or passover 

requests concerning preference eligibles, 

and OPM’s decisions on such requests, 

made under 5 U.S.C. 3318 and 5 CFR 

332.406, as well as determinations of 

eligibility for assignment to, or retention 

in, sensitive national security positions 

made under E.O. 10450 (3 CFR, 1949–

1953 Comp., p. 936), E.O. 12968, or 

similar authorities. 

(b) Definitions. In this part: 

Applicant means a person who is 

being considered or has been considered 

for employment. 

Appointee means a person who has 

entered on duty and is in the 1st year 

of a subject to investigation 

appointment (as defined in § 731.103). 

Days mean calendar days unless 

otherwise specified in this part. 

Employee means a person who has 

completed the first year of a subject to 

investigation appointment. 

Material means, in reference to a 

statement, one that is capable of 

influencing, affects, or has a natural 

tendency to affect, an official decision 

even if OPM or an agency does not rely 

upon it. 

Suitability action means an outcome 

described in § 731.203 and may be taken 

only by OPM or an agency with 

delegated authority under the 

procedures in subparts C and D of this 

part. 

Suitability determination means a 

decision by OPM or an agency with 

delegated authority that a person is 

suitable or is not suitable for 

employment in the Federal Government 

or a specific Federal agency. 

§ 731.102 Implementation. 

(a) An investigation conducted for the 

purpose of determining suitability 

under this part may not be used for any 

other purpose except as provided in a 

Privacy Act system of records notice 


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published by the agency conducting the 

investigation. 

(b) Under OMB Circular No. A–130 

Revised, issued November 20, 2000, 

agencies are to implement and maintain 

a program to ensure that adequate 

protection is provided for all automated 

information systems. Agency personnel 

screening programs may be based on 

procedures developed by OPM. The 

Computer Security Act of 1987 (Pub. L. 

100–235) provides additional 

requirements for Federal automated 

information systems. 

(c) OPM may set forth policies, 

procedures, criteria, standards, quality 

control procedures, and supplementary 

guidance for the implementation of this 

part in OPM issuances. 

§ 731.103 Delegation to agencies. 

(a) Subject to the limitations and 

requirements of paragraph (g) of this 

section, OPM delegates to the heads of 

agencies authority for making suitability 

determinations and taking suitability 

actions (including limited, agencyspecific debarments under § 731.205) in 

cases involving applicants for and 

appointees to covered positions in the 

agency. 

(b) When an agency, acting under 

delegated authority from OPM, 

determines that a Governmentwide 

debarment by OPM under § 731.204(a) 

may be an appropriate action, it must 

refer the case to OPM for debarment 

consideration. Agencies must make 

these referrals prior to any proposed 

suitability action, but only after 

sufficient resolution of the suitability 

issue(s), through subject contact or 

investigation, to determine if a 

Governmentwide debarment appears 

warranted. 

(c) Agencies exercising authority 

under this part by delegation from OPM 

must implement policies and maintain 

records demonstrating that they employ 

reasonable methods to ensure adherence 

to OPM issuances as described in 

§ 731.102(c). 

(d) Agencies may begin to determine 

an applicant’s suitability at any time 

during the hiring process. Because 

suitability issues may not arise until late 

in the application/appointment process, 

it is generally more practical and cost 

effective to first ensure that the 

applicant is eligible for the position, 

deemed by OPM or a Delegated 

Examining Unit to be among the best 

qualified, and/or within reach of 

selection. However, in certain 

circumstances, such as filling law 

enforcement positions, an agency may 

choose to initiate a preliminary 

suitability review at the time of 

application. Whether or not a person is 

likely to be eligible for selection, OPM 

must be informed in all cases where 

there is evidence of material, intentional 

false statements, or deception or fraud 

in examination or appointment and 

OPM will take a suitability action where 

warranted. 

(e) When an agency, exercising 

authority under this part by delegation 

from OPM, makes a suitability 

determination or changes a tentative 

favorable placement decision to an 

unfavorable decision, based on an OPM 

report of investigation or upon an 

investigation conducted pursuant to 

OPM-delegated authority, the agency 

must: 

(1) Ensure that the records used in 

making the determination are accurate, 

relevant, timely, and complete to the 

extent reasonably necessary to ensure 

fairness to the person in any 

determination; 

(2) Ensure that all applicable 

administrative procedural requirements 

provided by law, the regulations in this 

part, and OPM issuances as described in 

§ 731.102(c) have been observed; 

(3) Consider all available information 

in reaching its final decision on a 

suitability determination or suitability 

action, except information furnished by 

a non-corroborated confidential source, 

which may be used only for limited 

purposes, such as information used to 

develop a lead or in interrogatories to a 

subject, if the identity of the source is 

not compromised in any way; and 

(4) Keep any record of the agency 

suitability determination or action as 

required by OPM issuances as described 

in § 731.102(c). 

(f) OPM may revoke an agency’s 

delegation to make suitability 

determinations and take suitability 

actions under this part if an agency fails 

to conform to this part or OPM 

issuances as described in § 731.102(c). 

(g) OPM retains jurisdiction to make 

final determinations and take actions in 

all suitability cases where there is 

evidence that there has been a material, 

intentional false statement, or deception 

or fraud in examination or appointment. 

OPM also retains jurisdiction over all 

suitability cases involving a refusal to 

furnish testimony as required by § 5.4 of 

this chapter. Agencies must refer these 

cases to OPM for adjudication for 

suitability action under this authority. 

Although no prior approval is needed, 

notification to OPM is required if the 

agency wants to take, or has taken, 

action under its own authority (5 CFR 

part 315, 5 CFR part 359, or 5 CFR part 

752). In addition, paragraph (a) of this 

section notwithstanding, OPM may, in 

its discretion, exercise its jurisdiction 

under this part in any case it deems 

necessary. 

§ 731.104 Appointments subject to 

investigation. 

(a) To establish a person’s suitability 

for employment, appointments to 

covered positions identified in 

§ 731.101 require the person to undergo 

an investigation by OPM or by an 

agency with delegated authority from 

OPM to conduct investigations. Certain 

appointments do not require 

investigation. Except when required 

because of position risk level (high, 

moderate, or low) changes, a person in 

a covered position, who has undergone 

a suitability investigation, need not 

undergo another one simply because the 

person has been: 

(1) Promoted; 

(2) Demoted; 

(3) Reassigned; 

(4) Converted from career-conditional 

to career tenure; 

(5) Appointed or converted 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 positions under an appointment 

subject to investigation; or 

(6) Transferred, provided the person 

has served continuously for at least 1 

year in a position subject to 

investigation. 

(b) (1) Either OPM or an agency with 

delegated suitability authority may 

investigate and take a suitability action 

against an applicant, appointee, or 

employee in accordance with § 731.105. 

There is no time limit on the authority 

of OPM or an agency with delegated 

suitability authority to conduct the 

required investigation of an applicant 

who has been appointed to a position. 

An employee does not have to serve a 

new probationary or trial period merely 

because his or her appointment is 

subject to investigation under this 

section. An employee’s probationary or 

trial period is not extended because his 

or her appointment is subject to 

investigation under this section. 

(2) The subject to investigation 

condition also does not eliminate the 

need to conduct investigations required 

under § 731.106 for public trust 

positions when the required 

investigation commensurate with the 

risk level of the position has not yet 

been conducted. 

(3) Suitability determinations must be 

made for all appointments that are 

subject to investigation. 

(c) Positions that are intermittent, 

seasonal, per diem, or temporary, not to 

exceed an aggregate of 180 days in 

either a single continuous appointment 

or series of appointments, do not require 


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a background investigation as described 

in § 731.106(c)(1). The employing 

agency, however, must conduct such 

checks as it deems appropriate to ensure 

the suitability of the person. 

§ 731.105 Authority to take suitability 

actions. 

(a) Neither OPM nor an agency acting 

under delegated authority may take a 

suitability action in connection with 

any application for, or appointment to, 

a position that is not subject to 

investigation under § 731.104(a)(1) 

through (6). 

(b) OPM may take a suitability action 

under this part against an applicant or 

appointee based on any of the criteria of 

§ 731.202; 

(c) Except as limited by § 731.103(g), 

an agency, exercising delegated 

authority, may take a suitability action 

under this part against an applicant or 

appointee based on the criteria of 

§ 731.202; 

(d) OPM may take a suitability action 

under this part against an employee 

based on the criteria of § 731.202(b)(3), 

(4), or (8). 

(e) An agency may not take a 

suitability action against an employee. 

Nothing in this part precludes an agency 

from taking an adverse action against an 

employee under the procedures and 

standards of part 752 of this chapter or 

terminating a probationary employee 

under the procedures of part 315 or part 

359 of this chapter. Agencies must 

notify OPM if it wants to take, or has 

taken, action under these authorities. 

§ 731.106 Designation of public trust 

positions and investigative requirements. 

(a) Risk Designation. Agency heads 

must designate every covered position 

within the agency at a high, moderate, 

or low risk level as determined by the 

position’s potential for adverse impact 

to the efficiency or integrity of the 

service. OPM will provide an example 

of a risk designation system for agency 

use in an OPM issuance as described in 

§ 731.102(c). 

(b) Public Trust Positions. Positions at 

the high or moderate risk levels would 

normally be designated as ‘‘Public 

Trust’’ positions. 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, and positions involving 

access to or operation or control of 

financial records, with a significant risk 

for causing damage or realizing personal 

gain. 

(c) Investigative requirements. 

(1) Persons receiving an appointment 

made subject to investigation under this 

part must undergo a background 

investigation. OPM is authorized to 

establish minimum investigative 

requirements correlating to risk levels. 

Investigations should be initiated before 

appointment but no later than 14 

calendar days after placement in the 

position. 

(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 

investigation types. Detailed procedures 

for determining investigative 

requirements for all positions based 

upon risk and sensitivity will be 

established in an OPM issuance as 

described in § 731.102(c). 

(3) If suitability issues develop prior 

to the required investigation, OPM or 

the agency may conduct an 

investigation sufficient to resolve the 

issues and support a suitability 

determination or action, if warranted. If 

the person is appointed, the minimum 

level of investigation must be conducted 

as required by paragraph (c)(1) of this 

section. 

(d) Risk level changes. If a person 

moves to a higher risk level position, or 

if the risk level of his or her position 

itself is changed, the person 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 move 

or the new designation is final. 

(e) Completed investigations. Any 

suitability investigation completed by 

an agency under provisions of 

paragraph (d) of this section must result 

in a suitability determination by the 

employing agency. The subject’s 

employment status (i.e., applicant, 

appointee, or employee as defined in 

§ 731.101) will determine the applicable 

agency authority and procedures to be 

followed in any action taken. 

Subpart B—Suitability Determinations 

and Actions 

§ 731.201 Standard. 

The standard for a suitability action 

defined in § 731.203 and taken against 

an applicant, appointee, or employee is 

that the action will protect the integrity 

or promote the efficiency of the service. 

§ 731.202 Criteria for making suitability 

determinations. 

(a) General. OPM, or an agency to 

which OPM has delegated authority, 

must base its suitability determination 

on the presence or absence of one or 

more of the specific factors (charges) in 

paragraph (b) of this section. 

(b) Specific factors. In determining 

whether a person is suitable for Federal 

employment, only the following factors 

will be considered a basis for finding a 

person unsuitable and taking a 

suitability action: 

(1) Misconduct or negligence in 

employment; 

(2) Criminal or dishonest conduct; 

(3) Material, intentional false 

statement, or deception or fraud in 

examination or appointment; 

(4) Refusal to furnish testimony as 

required by § 5.4 of this chapter; 

(5) Alcohol abuse of a nature and 

duration that suggests that the applicant 

or appointee would be prevented from 

performing the duties of the position in 

question, or would constitute a direct 

threat to the property or safety of the 

applicant or appointee or others; 

(6) Illegal use of narcotics, drugs, or 

other controlled substances, without 

evidence of substantial rehabilitation; 

(7) Knowing and willful engagement 

in acts or activities designed to 

overthrow the U.S. Government by 

force; and 

(8) Any statutory or regulatory bar 

which prevents the lawful employment 

of the person involved in the position in 

question. 

(c) Additional considerations. OPM 

and agencies may consider the 

following additional considerations to 

the extent OPM or the relevant agency, 

in their sole discretion, deems them 

pertinent to the individual case: 

(1) The nature of the position for 

which the person is applying or in 

which the person is employed; 

(2) The nature and seriousness of the 

conduct; 

(3) The circumstances surrounding 

the conduct; 

(4) The recency of the conduct; 

(5) The age of the person involved at 

the time of the conduct; 

(6) Contributing societal conditions; 

and 

(7) The absence or presence of 

rehabilitation or efforts toward 

rehabilitation. 

§ 731.203 Suitability actions by OPM and 

other agencies. 

(a) For purposes of this part, a 

suitability action is an action resulting 

in one or more of the following: 

(1) Cancellation of eligibility; 

(2) Removal; 

(3) Cancellation of reinstatement 

eligibility; and 

(4) Debarment. 

(b) A non-selection or cancellation of 

eligibility for a specific position based 


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on an objection or passover of a 

preference eligible under 5 CFR 332.406 

is not a suitability action even if the 

non-selection is based on reasons set 

forth in § 731.202. 

(c) A suitability action may be taken 

against an applicant or an appointee 

when OPM or an agency exercising 

delegated authority under this part finds 

that the applicant or appointee is 

unsuitable for the reasons cited in 

§ 731.202, subject to the agency 

limitations of § 731.103(g). 

(d) OPM may require that an 

appointee or an employee be removed 

on the basis of a material, intentional 

false statement, deception or fraud in 

examination or appointment; refusal to 

furnish testimony as required by § 5.4 of 

this chapter; or a statutory or regulatory 

bar which prevents the person’s lawful 

employment. 

(e) OPM may cancel any 

reinstatement eligibility obtained as a 

result of a material, intentional false 

statement, deception or fraud in 

examination or appointment. 

(f) An action to remove an appointee 

or employee for suitability reasons 

under this part is not an action under 

part 752, 359, or 315 of this chapter. 

Where behavior covered by this part 

may also form the basis for a part 752, 

359, or 315 of this chapter action, 

agencies may take the action under part 

315, 359, or 752 of this chapter, as 

appropriate, instead of under this part. 

Agencies must notify OPM if it wants to 

take, or has taken, action under these 

authorities. 

(g) Agencies do not need approval 

from OPM before taking unfavorable 

suitability actions. However, they are 

required to report to OPM all 

unfavorable suitability actions taken 

under this part within 30 days after they 

take the action. Also, all actions based 

on an OPM investigation must be 

reported to OPM as soon as possible and 

in no event later than 90 days after 

receipt of the final report of 

investigation. 

§ 731.204 Debarment by OPM. 

(a) When OPM finds a person 

unsuitable for any reason listed in 

§ 731.202, OPM, in its discretion, may, 

for a period of not more than 3 years 

from the date of the unfavorable 

suitability determination, deny that 

person examination for, and 

appointment to, covered positions. 

(b) Upon the expiration of a period of 

debarment, OPM may redetermine a 

person’s suitability for appointment in 

accordance with the procedures of this 

part. An additional debarment period 

may be imposed for the same conduct 

on which the previous suitability action 

was based, when warranted. 

(c) OPM, in its sole discretion, 

determines the duration of any period of 

debarment imposed under this section. 

§ 731.205 Debarment by agencies. 

(a) Subject to the provisions of 

§ 731.103, when an agency finds an 

applicant or appointee unsuitable based 

upon reasons listed in § 731.202, the 

agency may, for a period of not more 

than 3 years from the date of the 

unfavorable suitability determination, 

deny that person examination for, and 

appointment to, either all or specific 

covered positions within that agency. 

(b) Upon the expiration of a period of 

agency debarment, the agency may 

redetermine a person’s suitability for 

appointment at that agency in 

accordance with the procedures of this 

part. An additional debarment period 

may be imposed for the same conduct 

on which the previous suitability action 

was based, when warranted. 

(c) The agency, in its sole discretion, 

determines the duration of any period of 

debarment imposed under this section. 

(d) The agency is responsible for 

enforcing the period of debarment and 

taking appropriate action if a person 

applies for, or is inappropriately 

appointed to, a position at that agency 

during the debarment period. This 

responsibility does not limit OPM’s 

authority to exercise jurisdiction itself 

and take any action OPM deems 

appropriate. 

Subpart C—OPM Suitability Action 

Procedures 

§ 731.301 Scope. 

This subpart covers OPM-initiated 

suitability actions against an applicant, 

appointee, or employee. 

§ 731.302 Notice of proposed action. 

(a) OPM will notify the applicant, 

appointee, or employee (hereinafter, the 

‘‘respondent’’) in writing of the 

proposed action, the charges against the 

respondent, and the availability of 

review, upon request, of the materials 

relied upon. The notice will set forth the 

specific reasons for the proposed action 

and state that the respondent has the 

right to answer the notice in writing. 

The notice will further inform the 

respondent of the time limit for the 

answer as well as the address to which 

an answer must be made. 

(b) The notice will inform the 

respondent that he or she may be 

represented by a representative of the 

respondent’s choice and that if the 

respondent wishes to have such a 

representative, the respondent must 

designate the representative in writing. 

(c) OPM will serve the notice of 

proposed action upon the respondent by 

mail or hand delivery no less than 30 

days prior to the effective date of the 

proposed action to the respondent’s last 

known residence or duty station. 

(d) If the respondent encumbers a 

position covered by this part on the date 

the notice is served, the respondent is 

entitled to be retained in a pay status 

during the notice period. 

(e) OPM will send a copy of the notice 

to any employing agency that is 

involved. 

§ 731.303 Answer. 

(a) Respondent’s answer. A 

respondent may answer the charges in 

writing and furnish documentation and/ 

or affidavits in support of the answer. 

To be timely, a written answer must be 

submitted no more than 30 days after 

the date of the notice of proposed 

action. 

(b) Agency’s answer. An employing 

agency may also answer the notice of 

proposed action. The time limit for 

filing such an answer is 30 days from 

the date of the notice. In reaching a 

decision, OPM will consider any answer 

the agency makes. 

§ 731.304 Decision. 

The decision regarding the final 

suitability action will be in writing, be 

dated, and inform the respondent of the 

reasons for the decision and that an 

unfavorable decision may be appealed 

in accordance with subpart E of this 

part. OPM will also notify the 

respondent’s employing agency of its 

decision. If the decision requires 

removal, the employing agency must 

remove the appointee or employee from 

the rolls within 5 work days of receipt 

of OPM’s final decision. 

Subpart D—Agency Suitability Action 

Procedures 

§ 731.401 Scope. 

This subpart covers agency-initiated 

suitability actions against an applicant 

or appointee. 

§ 731.402 Notice of proposed action. 

(a) The agency must notify the 

applicant or appointee (hereinafter, the 

‘‘respondent’’) in writing of the 

proposed action, the charges against the 

respondent, and the availability for 

review, upon request, of the materials 

relied upon. The notice must set forth 

the specific reasons for the proposed 

action and state that the respondent has 

the right to answer the notice in writing. 

The notice must further inform the 

respondent of the time limit for the 

answer as well as the address to which 

such answer must be delivered. 


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(b) The notice must inform the 

respondent that he or she may be 

represented by a representative of the 

respondent’s choice and that if the 

respondent wishes to have such a 

representative, the respondent must 

designate the representative in writing. 

(c) The agency must serve the notice 

of proposed action upon the respondent 

by mail or hand delivery no less than 30 

days prior to the effective date of the 

proposed action to the respondent’s last 

known residence or duty station. 

(d) If the respondent is employed in 

a position covered by this part on the 

date the notice is served, the respondent 

is entitled to be retained in a pay status 

during the notice period. 

§ 731.403 Answer. 

A respondent may answer the charges 

in writing and furnish documentation 

and/or affidavits in support of the 

answer. To be timely, a written answer 

must be submitted no more than 30 days 

after the date of the notice of proposed 

action. 

§ 731.404 Decision. 

The decision regarding the final 

action must be in writing, be dated, and 

inform the respondent of the reasons for 

the decision and that an unfavorable 

decision may be appealed in accordance 

with subpart E of this part. If the 

decision requires removal, the 

employing agency must remove the 

appointee from the rolls within 5 work 

days of the agency’s decision. 

Subpart E—Appeal to the Merit 

Systems Protection Board 

§ 731.501 Appeal to the Merit Systems 

Protection Board. 

(a) Appeal to the Merit Systems 

Protection Board. When OPM or an 

agency acting under delegated authority 

under this part takes a suitability action 

against a person, that person may appeal 

the action to the Merit Systems 

Protection Board (hereinafter ‘‘Board’’). 

If the Board finds that at least one of the 

charges brought by OPM or an agency 

against the person is supported by a 

preponderance of the evidence, 

regardless of whether all specifications 

are sustained, it must affirm the 

suitability determination and the 

suitability action. 

(b) Appeal procedures. The 

procedures for filing an appeal with the 

Board are found at part 1201 of this title. 

Subpart F—Savings Provision 

§ 731.601 Savings provision. 

No provision of the regulations in this 

part is to be applied in such a way as 

to affect any administrative proceeding 

pending on [DATE OF THE EFFECTIVE 

DATE OF THE FINAL RULE]. An 

administrative proceeding is deemed to 

be pending from the date of the agency 

or OPM ‘‘notice of proposed action’’

described in §§ 731.302 and 731.402. 

[FR Doc. E7–592 Filed 1–17–07; 8:45 am] 

BILLING CODE 6326–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

6 CFR Part 5 

[Docket Number DHS–2007–0003] 

Privacy Act of 1974: Implementation of 

Exemptions; Redress and Response 

Records System 

AGENCY: Privacy Office, Office of the 

Secretary, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security is amending its regulations to 

exempt portions of a new system of 

records from certain provisions of the 

Privacy Act. Specifically, the 

Department proposes to exempt 

portions of the Redress and Response 

Records System from one or more 

provisions of the Privacy Act because of 

criminal, civil and administrative 

enforcement requirements. 

DATES: Comments must be received on 

or before February 20, 2007. 

ADDRESSES: You may submit comments, 

identified by Docket Number DHS–

2007–0003 by one of the following 

methods: 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Facsimile: 866–466–5370. 

• Mail: Hugo Teufel III, Chief Privacy 

Officer, Privacy Office, Department of 

Homeland Security, Washington, DC 

20528. 

FOR FURTHER INFORMATION CONTACT: 

Hugo Teufel III, Chief Privacy Officer, 

Privacy Office, Department of Homeland 

Security, Washington, DC 20528; 

telephone 571–227–3813; facsimile: 

866–466–5370. 

SUPPLEMENTARY INFORMATION:

Background 

The Department of Homeland 

Security (DHS), elsewhere in this 

edition of the Federal Register, 

published a Privacy Act system of 

records notice describing records in the 

DHS Redress and Response Records 

System. This system maintains records 

for the DHS Traveler Redress Inquiry 

Program (TRIP), which is the traveler 

redress mechanism being established by 

DHS in connection with the RiceChertoff Initiative, as well as in 

accordance with other policy and law. 

DHS TRIP will facilitate the public’s 

ability to provide appropriate 

information to DHS for redress requests 

when they believe they have been 

denied entry, refused boarding for 

transportation, or identified for 

additional screening by DHS 

components or programs at their 

operational locations. Such locations 

include airports, seaports, train stations 

and land borders. DHS TRIP will create 

a cohesive process to address these 

redress requests across DHS. 

DHS TRIP will serve as a mechanism 

to share redress-related information and 

facilitate communication of redress 

results across DHS components. It will 

also facilitate efficient adjudication of 

redress requests. Once the information 

intake is complete, DHS TRIP will 

facilitate the transfer of or access to this 

information for the DHS components or 

other agencies redress process, which 

will address the redress request. 

This system contains records 

pertaining to various categories of 

individuals, including: individuals 

seeking redress or individuals on whose 

behalf redress is sought from DHS; 

individuals applying for redress on 

behalf of another individual; and DHS 

employees and contractors assigned to 

interact with the redress process. 

No exemption shall be asserted with 

respect to information submitted by and 

collected from individuals or their 

representatives in the course of any 

redress process associated with this 

System of Records. 

This system, however, may contain 

records or information recompiled from 

or created from information contained 

in other systems of records, which are 

exempt from certain provisions of the 

Privacy Act. For these records or 

information only, in accordance with 5 

U.S.C. 552a (j)(2), (k)(1), (k)(2), and 

(k)(5), DHS will also claim the original 

exemptions for these records or 

information from subsections (c)(3) and 

(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), 

(4)(G) through (I), (5), and (8); (f), and (g) 

of the Privacy Act of 1974, as amended, 

as necessary and appropriate to protect 

such information. Moreover, DHS will 

add these exemptions to Appendix C to 

6 CFR Part 5, DHS Systems of Records 

Exempt from the Privacy Act. Such 

exempt records or information may be 

law enforcement or national security 

investigation records, law enforcement 

activity and encounter records, or 

terrorist screening records. 


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