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

68222 

Vol. 75, No. 214 

Friday, November 5, 2010 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR PART 731 

RIN 3206–AL90 

Suitability 

AGENCY: U.S. Office of Personnel 

Management. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Office of Personnel 

Management (OPM) is issuing proposed 

regulations to assist agencies in carrying 

out new requirements to reinvestigate 

individuals in public trust positions 

under Executive Order 13488, Granting 

Reciprocity on Excepted Service and 

Federal Contractor Employee Fitness 

and Reinvestigating Individuals in 

Positions of Public Trust, to ensure their 

continued employment is appropriate. 

This proposed rule would implement 

the suitability reinvestigation provisions 

of E.O. 13488. OPM also proposes to 

make a technical revision to the 

authority citation to correct the citation 

format. 

DATES: Comments must be received on 

or before December 6, 2010. 

ADDRESSES: You may submit comments, 

identified by RIN number ‘‘3206–AL90,’’ 

using either of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

All submissions received through the 

Portal must include the agency name 

and docket number or Regulation 

Identifier Number (RIN) for this 

rulemaking. 

All Mail: Tom Wachter, Acting 

Deputy Associate Director, Partnership 

& Labor Relations, U.S. Office of 

Personnel Management, Room 7H28, 

1900 E Street, NW., Washington, DC 

20415–8200. 

FOR FURTHER INFORMATION CONTACT: Julie 

Ohr, U.S. Office of Personnel 

Management, Partnership & Labor 

Relations, 1900 E St., NW., Room 7H28, 

Washington, DC 20415–4000; fax to 

202–606–2613; e-mail to PLR@opm.gov. 

SUPPLEMENTARY INFORMATION: 

Reopening of Comment Period for 

Proposed Rule 

This proposed rule was published on 

November 3, 2009, at 74 FR 56747, with 

the comment period ending on January 

4, 2010. Several comments received 

from Federal agencies stated that the 

commenter was unable to provide an 

informed recommendation related to the 

frequency of reinvestigations without 

specific information regarding the scope 

of such reinvestigation. This notice is 

intended to provide additional 

information relative to the scope of 

reinvestigations for public trust 

positions in order to allow for further 

comment as to reinvestigation 

frequency. In addition, OPM is revising 

the text of the proposed rule at 5 CFR 

731.106(d)(2) to identify separate 

investigations that satisfy the public 

trust reinvestigation requirement to 

resolve an interpretive ambiguity, and is 

soliciting additional public comment on 

the revised text. Both the comments 

received in response to OPM’s 

November 3, 2009, Federal Register 

notice, and the comments received in 

response to this reopening notice related 

to the frequency of reinvestigation of 

public trust positions, will be 

considered in the development of the 

final rule. OPM is also using this 

opportunity to propose a technical 

revision to the authority citation to 

correct the citation format. 

Background 

On January 16, 2009, President George 

W. Bush signed Executive Order 13488, 

which provides that individuals in 

public trust positions shall be subject to 

reinvestigation under standards 

determined by the Director of the Office 

of Personnel Management (OPM) to 

ensure their continued employment is 

appropriate. The order provides that the 

standards issued by OPM shall include 

the frequency of reinvestigations. E.O. 

13488 is distinct from but complements 

E.O. 13467, concerning alignment, to 

the extent possible, of security and 

suitability standards. 

Public Trust Positions 

Public trust positions are those 

covered by 5 CFR part 731 which an 

agency head, under 5 CFR 731.106, has 

designated at a moderate or high risk 

level, based on the position’s potential 

for adverse impact on the efficiency or 

integrity of the service. Such positions 

may involve policy making, major 

program responsibility, public safety 

and health, law enforcement duties, 

fiduciary responsibilities, or other 

duties demanding a significant degree of 

public trust, or access to or operation or 

control of financial records, with a 

significant risk for causing damage or 

realizing personal gain. Designation of 

public trust positions and their risk 

level is made by agencies following 

OPM guidance and taking into account 

the specific duties of each position. 

Frequency of Reinvestigations 

While a reinvestigation typically will 

be more limited than the initial 

investigation, that reinvestigation must 

occur frequently if agencies are to carry 

out the purpose of the Executive order— 

to ensure that continued employment of 

persons in public trust positions 

remains appropriate. Accordingly, the 

proposed rule would require, at 5 CFR 

731.106(d)(1), that a person occupying a 

public trust position be reinvestigated at 

least once every 5 years. 

Currently, under 5 CFR 731.106(c)(2) 

and 732.201(a), each position that is 

designated as a low-, moderate- or highrisk position must also be designated as 

non-sensitive, noncritical-sensitive, 

critical-sensitive, or special-sensitive 

based on the potential that the occupant 

could materially adversely affect the 

national security. Although it is possible 

that the types of investigations 

performed may change to meet evolving 

needs, at the writing of this regulatory 

notice, it is the intent of OPM to 

conduct reinvestigations for nonsensitive, moderate-risk public trust 

positions using the NACLC (National 

Agency Check with Local Agency Check 

and Credit Check), and non-sensitive, 

high-risk public trust reinvestigations 

would be conducted using the PRI 

(Periodic Reinvestigation). Both of these 

reinvestigations will be conducted using 

the Questionnaire for Public Trust 

Positions (SF–85P) Form. The 

reinvestigation may be expanded as 

necessary based upon information 

discovered during the investigation. 

Contingent on future investigative and 

resource capacities, OPM 

supplementary guidance will adjust 

investigative frequencies within this 

5-year period based on the level of trust 

(i.e., either moderate or high risk) 

associated with a person’s position. We 

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Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Proposed Rules 68223 

are re-opening the comment period to 

specifically solicit comment on whether 

a periodic reinvestigation cycle of 5 or 

fewer years is appropriate, considering 

the risk posed by employment in public 

trust positions, and the availability of 

investigative and adjudicative resources 

based on the investigative product used 

to conduct the reinvestigations. We will 

consider comments on this proposed 

rule and consult with affected agencies 

in developing supplemental guidance 

on investigative frequency. 

E.O. 13488 addresses reinvestigations 

of occupants of all public trust 

positions, including those also 

designated as noncritical-sensitive, 

critical-sensitive, or special-sensitive 

under 5 CFR part 732. Certain positions 

are already subject to national security 

reinvestigation requirements under 

5 CFR 732.203 or under E.O. 12968, as 

amended. Requiring multiple 

reinvestigations for the same individual 

at least every 5 years would be costly 

and inefficient, and would be 

inconsistent with the policy expressed 

in E.O. 13467, which calls for suitability 

and national security investigations to 

be aligned ‘‘using consistent standards 

to the extent possible’’ and for ‘‘each 

successively higher level of 

investigation * * * [to] build upon, but 

not duplicate, the ones below it.’’ 

Accordingly, at 5 CFR 731.106(d)(2), 

the proposed rule would provide that a 

national security investigation to 

determine a person’s initial or 

continued eligibility for access to 

classified information or to hold a 

sensitive position also satisfies the 5- 

year public trust reinvestigation 

requirement for that person, as long as 

it is conducted at a level equal to or 

higher than the level required for his or 

her public trust reinvestigation. The 

agency is not required to conduct an 

additional public trust reinvestigation in 

such circumstances, and the completed 

national security investigation restarts 

the 5-year schedule (or other schedule 

as future guidance might require) for a 

new public trust reinvestigation. 

Likewise, a suitability investigation 

based on a change in risk level as 

provided in 5 CFR 731.106(e) is 

sufficient, if conducted at the 

appropriate level, to satisfy the public 

trust reinvestigation requirement. 

The proposed rule published on 

November 3, 2009, stated that an 

investigation for eligibility for access to 

classified national security information 

may be sufficient to meet public trust 

reinvestigation requirements, but did 

not state that an investigation for 

employment in a sensitive national 

security position may also be sufficient 

to meet public trust reinvestigation 

requirements. The text of the proposed 

rule has been revised to clarify that both 

types of national security investigations 

may be sufficient to meet public trust 

reinvestigation requirements. Further, 

the November 3, 2009, proposed rule 

stated that a ‘‘reevaluation’’ may be 

sufficient to meet public trust 

reinvestigation requirements, without 

defining a ‘‘reevaluation.’’ The text of the 

proposed rule has been revised to 

eliminate this ambiguous term. OPM is 

soliciting public comment on these 

revisions to the text of the proposed 

rule, in addition to soliciting public 

comment on the appropriate cycle for 

public trust reinvestigations. 

Assessments Resulting From 

Reinvestigations 

The regulation at 5 CFR 731.106(f) 

would be modified to more clearly 

reflect the broader authority and 

obligation of agencies to make decisions 

following investigations. The current 

language provides that a completed 

investigation must result in a 

‘‘determination’’ by the agency. As 

discussed below, an agency’s decision 

on a reinvestigation of an employee in 

a public trust position will rarely be a 

suitability determination that results in 

a suitability action under this part. 

Thus, the potentially misleading word 

‘‘determination’’ would be replaced with 

the word ‘‘assessment.’’ 

As currently provided at 5 CFR 

731.106(f), a person’s employment 

status will determine the applicable 

agency authority and procedures to be 

followed in any action taken based on 

the results of the reinvestigation. In 

most circumstances, the subject of a 

reinvestigation will have been employed 

by his or her agency for more than one 

year and, under those circumstances, 

only OPM could make a suitability 

determination and take a suitability 

action under very limited 

circumstances. As provided under 

5 CFR 731.105(d), OPM could take a 

suitability action based on (1) a 

material, intentional false statement, or 

deception or fraud in examination or 

appointment; (2) refusal to furnish 

testimony, or (3) a statutory or 

regulatory bar that prevents the lawful 

employment of the person. However, 

conduct that surfaces during a 

reinvestigation (for example, off-duty 

criminal conduct) could form the basis 

for an adverse action under 5 CFR part 

752. 

Consistent with the changes made to 

5 CFR 731.106, the reporting 

requirements under 5 CFR 731.206 

would be modified to require agencies 

to report any decisions and actions 

taken as a result of a background 

investigation or reinvestigation. Here, 

the ‘‘level’’ of investigation is replaced 

by the ‘‘level or nature’’ of the 

investigation as a reporting obligation, 

to be consistent with E.O. 13488. The 

actual information reported is 

unchanged. Section 731.206 of title 5, 

Code of Federal Regulations, also would 

be clarified to reflect current practice 

that agencies follow in reporting the 

completion dates of background 

investigations. This is important, since 

the public trust position reinvestigation 

schedule is tied to the completion date 

of a relevant investigation. 

Technical Amendment 

OPM proposes a technical 

amendment to the Authorities for this 

part to reflect the President’s signing of 

Executive Order 13488 on January 16, 

2009, which authorizes the Director of 

OPM to issue regulations and guidance 

implementing the order. In this 

reopener, OPM also makes a technical 

revision to the authority citation to 

correct the citation format. 

Regulatory Flexibility Act 

I certify that this regulation will not 

have a significant economic impact on 

a substantial number of small entities 

because the regulations pertain only to 

Federal employees and agencies. 

E.O. 12866, Regulatory Review 

This proposed rule has been reviewed 

by the Office of Management and 

Budget under Executive Order 12866. 

E.O. 13132 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rule does not 

have sufficient federalism implications 

to warrant preparation of a Federalism 

Assessment. 

E.O. 12988—Civil Justice Reform 

This regulation meets the applicable 

standard set forth in section 3(a) and 

(b)(2) of Executive Order 12988. 

Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

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68224 Federal Register / Vol. 75, No. 214 / Friday, November 5, 2010 / Proposed Rules 

of the Unfunded Mandates Reform Act 

of 1995. 

Congressional Review Act 

This action pertains to agency 

management, personnel and 

organization and does not substantially 

affect the rights or obligations of nonagency parties and, accordingly, is not 

a ‘‘rule’’ as that term is used by the 

Congressional Review Act (Subtitle E of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA)). Therefore, the reporting 

requirement of 5 U.S.C. 801 does not 

apply. 

List of Subjects in 5 CFR Part 731 

Administrative practices and 

procedures, Government employees. 

U.S. Office of Personnel Management. 

John Berry, 

Director. 

Accordingly, OPM proposes to amend 

part 731, title 5, Code of Federal 

Regulations, as follows: 

PART 731—SUITABILITY 

1. The authority citation for part 731 

is revised to read as follows: 

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

10577, 3 CFR, 1954–1958 Comp., p. 218, as 

amended; E.O. 13467, 3 CFR, 2009 Comp., 

p. 198; E.O. 13488, 74 FR 4111; 5 CFR, parts 

1, 2 and 5. 

Subpart A—Scope 

2. In § 731.106, revise paragraphs (d) 

and (f) to read as follows: 

§ 731.106 Designation of public trust 

positions and investigative requirements. 

* * * * * 

(d) Reinvestigation requirements. 

(1) Agencies must ensure that 

reinvestigations are conducted and an 

assessment made regarding continued 

employment of persons occupying 

public trust positions at least once every 

5 years. The nature of these 

reinvestigations and any additional 

requirements concerning their 

frequency will be established in 

supplemental guidance issued by OPM. 

(2) If, prior to the next required 

reinvestigation, a separate investigation 

is conducted to determine a person’s 

eligibility (or continued eligibility) for 

access to classified information or to 

hold a sensitive position, or as a result 

of a change in risk level as provided in 

§ 731.106(e), and that investigation is 

conducted at an equal or higher level 

than is required for a public trust 

reinvestigation, a new public trust 

reinvestigation is not required. Such a 

completed investigation restarts the 

cycle for a public trust reinvestigation 

for that person. 

* * * * * 

(f) Completed investigations. Any 

suitability investigation (or 

reinvestigation) completed by an agency 

under paragraphs (d) and (e) of this 

section must result in an assessment by 

the employing agency of whether the 

findings of the investigation would 

justify an action against the employee, 

under this part or under some other 

authority, such as 5 CFR part 752. 

Section 731.103 addresses whether an 

action is available under this part, and 

whether the matter must be referred to 

OPM for debarment consideration. 

3. Revise § 731.206 to read as follows: 

§ 731.206 Reporting requirements. 

Agencies must report to OPM the 

level or nature, result, and completion 

date of each background investigation or 

reinvestigation, each agency decision 

based on such investigation or 

reinvestigation, and any personnel 

action taken based on such investigation 

or reinvestigation, as required in OPM 

issuances. 

[FR Doc. 2010–28054 Filed 11–4–10; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Parts 5 and 119 

[Docket No. FAA–2009–0671; Notice No. 

10–15] 

RIN 2120–AJ86 

Safety Management Systems for Part 

121 Certificate Holders 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to require 

each certificate holder operating under 

14 CFR part 121 to develop and 

implement a safety management system 

(SMS) to improve the safety of their 

aviation related activities. A safety 

management system is a comprehensive, 

process-oriented approach to managing 

safety throughout an organization. An 

SMS includes an organization-wide 

safety policy; formal methods for 

identifying hazards, controlling, and 

continually assessing risk; and 

promotion of a safety culture. SMS 

stresses not only compliance with 

technical standards but increased 

emphasis on the overall safety 

performance of the organization. 

DATES: Send your comments on or 

before February 3, 2011. 

ADDRESSES: You may send comments 

identified by Docket Number FAA– 

2009–0671 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30, U.S Department of 

Transportation, 1200 New Jersey 

Avenue, SE., West Building Ground 

Floor, Room W12–140, Washington, DC 

20590–0001. 

• Fax: Fax comments to Docket 

Operations at (202) 493–2251. 

• Hand Delivery: Bring comments to 

Docket Operations in Room W12–140 of 

the West Building (Ground Floor) at 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. For more information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

Web site, anyone can find and read the 

comments received into any of our 

dockets, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78), or you may visit http:// 

DocketsInfo.dot.gov. 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

or to Docket Operations in Room W12– 

140 of the West Building Ground Floor 

at 1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Scott Van Buren, Chief System Engineer 

for Aviation Safety, Office of Accident 

Investigation and Prevention (AVP), 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone: (202) 

494–8417; facsimile: (202) 267–3992; 

e-mail: scott.vanburen@faa.gov. For 

legal questions, contact Anne Bechdolt, 

Regulations Division, Office of the Chief 

Counsel, Federal Aviation 

Administration, 800 Independence 

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