[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Proposed Rules]
[Pages 2203-2209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-592]


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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. 72, No. 11 / Thursday, January 18, 2007 / 
Proposed Rules

[[Page 2203]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 731

RIN: 3206-AL08


Suitability

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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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 non-competitively 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 
<a href="/cdn-cgi/l/email-protection#8bc8dcd9cadbcbe4fbe6a5ece4fd"><span class="__cf_email__" data-cfemail="7b382c293a2b3b140b16551c140d">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202) 
606-2930; by FAX at (202) 606-2613; or by e-mail at <a href="/cdn-cgi/l/email-protection#541703061504143b24397a333b22"><span class="__cf_email__" data-cfemail="2e6d797c6f7e6e415e4300494158">[email protected]</span></a>.

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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  3318 of title 5, United States Code (U.S.C.), and 5 
CFR 332.406. Paragraph (b) of Sec.  731.203 is likewise modified to 
state clearly that objections and passover issues are not covered by 
part 731 even if a non-selection for a Federal position is based on a 
reason provided in Sec.  731.202. OPM also proposes to remove ``denial 
of appointment'' as a suitability action, as currently defined in Sec.  
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 Sec.  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 Sec.  731.106.
    OPM is also proposing two changes that provide additional 
procedural protections for persons who may be

[[Page 2204]]

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 
OPM-delegated 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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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

[[Page 2205]]

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


Sec.  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 Sec.  
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 Sec.  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.


Sec.  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

[[Page 2206]]

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.


Sec.  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, agency-specific debarments under Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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.


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. 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 Sec.  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 Sec.  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

[[Page 2207]]

a background investigation as described in Sec.  731.106(c)(1). The 
employing agency, however, must conduct such checks as it deems 
appropriate to ensure the suitability of the person.


Sec.  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 
Sec.  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 Sec.  731.202;
    (c) Except as limited by Sec.  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 Sec.  
731.202;
    (d) OPM may take a suitability action under this part against an 
employee based on the criteria of Sec.  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.


Sec.  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 Sec.  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 Sec.  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 Sec.  731.101) will determine the applicable 
agency authority and procedures to be followed in any action taken.

Subpart B--Suitability Determinations and Actions


Sec.  731.201  Standard.

    The standard for a suitability action defined in Sec.  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.


Sec.  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 Sec.  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.


Sec.  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

[[Page 2208]]

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 Sec.  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 Sec.  731.202, subject to the agency limitations of 
Sec.  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 Sec.  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.


Sec.  731.204  Debarment by OPM.

    (a) When OPM finds a person unsuitable for any reason listed in 
Sec.  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.


Sec.  731.205  Debarment by agencies.

    (a) Subject to the provisions of Sec.  731.103, when an agency 
finds an applicant or appointee unsuitable based upon reasons listed in 
Sec.  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


Sec.  731.301  Scope.

    This subpart covers OPM-initiated suitability actions against an 
applicant, appointee, or employee.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  731.401  Scope.

    This subpart covers agency-initiated suitability actions against an 
applicant or appointee.


Sec.  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.

[[Page 2209]]

    (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.


Sec.  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.


Sec.  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


Sec.  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


Sec.  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 Sec. Sec.  731.302 and 731.402.

 [FR Doc. E7-592 Filed 1-17-07; 8:45 am]
BILLING CODE 6326-39-P


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