[Federal Register: June 23, 2008 (Volume 73, Number 121)]
[Proposed Rules]               
[Page 35358-35361]
                        

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 731

RIN 3206-AL38

 
Suitability

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: This proposed rule is one of a number of initiatives the U.S. 
Office of Personnel Management (OPM) has undertaken to simplify and 
streamline the system of Federal Government investigative and 
adjudicative processes to make them more efficient and as equitable as 
possible. A key objective of these initiatives is to limit duplication 
of efforts by applying reciprocity where appropriate to those 
processes. This proposed rule would establish the requirements for 
applying reciprocity to Federal employment suitability determinations 
and investigations.

DATES: Comments must be received on or before August 22, 2008.

ADDRESSES: Send or deliver written comments to Ana A. Mazzi, Deputy 
Associate Director for Workforce Relations and Accountability Policy, 
U.S. Office of Personnel Management, Room 7H28, 1900 E Street, NW., 
Washington, DC 20415; by FAX at (202) 606-2613; or by e-mail at 
[email protected]

FOR FURTHER INFORMATION CONTACT: Gary D. Wahlert by telephone at (202) 
606-2930; by FAX at (202) 606-2613; or by e-mail at [email protected]

SUPPLEMENTARY INFORMATION:

Authorities

    Under statutory authorities, 5 U.S.C. 1302, 3301, and 7301; 
Executive Order 10577, 3 CFR, 1945-1958 Comp., p. 218, as amended; 5 
CFR, parts 1, 2 and 5; and related authorities, OPM is assigned the 
responsibility for ensuring that employees in the competitive service 
and members of the career Senior Executive Service (and such other 
employees as may be designated by the President) are suitable for 
Federal employment. OPM's regulations at 5 CFR part 731 describe the 
policies and procedures for ensuring these responsibilities are met, 
including the delegation of suitability authority to departments and 
agencies. Thus, any proposed changes to these regulations apply only to 
persons who are in, or in the process of moving into, the competitive 
service or career Senior Executive Service.

Reciprocity of Background Investigations

    Under OPM's current regulations at 5 CFR 731.104, a new background 
investigation to determine suitability of a current Federal employee in 
a covered position (e.g., competitive service or career SES position) 
is not required, except when there has been a change in the employee's 
public trust risk level or there is a need for reinvestigation under 
law, rule, or regulation. Specifically, no new investigation is 
required when a person has been promoted, demoted, reassigned, 
converted from career-conditional to career tenure, or appointed or 
converted to an appointment if the person has been serving continuously 
with the department or agency for at least 1 year in one or more 
positions subject to investigation. An investigation is also not 
required when a person is transferred from another department or 
agency, provided the person has served continuously for at least 1 year 
in a position subject to investigation. While the current regulation 
does not require a new investigation in these circumstances, 
departments and agencies may choose to conduct an investigation and 
determine a person's suitability where it is not required.
    Additional suitability investigations not required by law, rule, or 
regulation are unnecessary and contribute to inefficiencies in the 
Federal Government's hiring process. Therefore, OPM is proposing to 
amend 5 CFR 731.104 to prohibit additional or duplicative 
investigations on a person, with some limited exceptions.
    Under the changes contemplated, the operative rule would be that, 
in any case where the person previously was investigated at a level 
that meets or exceeds that required for the new position, was 
determined suitable under 5 CFR 731 or fit based on character or 
conduct criteria equivalent to the suitability factors of 5 CFR 
731.202, and meets continuous service requirements described in the 
regulations, reciprocity would be required. The proposed changes would 
require the application of reciprocity of investigations in many cases 
where a person is appointed or converted to a covered position, or 
transfers to a covered position, after serving in another covered 
position. It also would require reciprocity in many cases where a 
person moves to a covered position from a position in the excepted 
service that is not a covered position under this part, or from a 
position as a Federal Government contract employee. In cases where an 
investigation of the level described had been conducted, the gaining 
department or agency could not, with the narrow exceptions discussed 
below, conduct a new investigation on that person.
    A new investigation is required, however, if the reciprocity 
requirements described above are not met. Other circumstances when an 
investigation might be required occur when a department or agency 
obtains new information during the hiring process when a person is 
transferred to a covered position from another department or agency, or 
appointed to a covered position from Federal Government contractor 
employment. In those cases where the new information calls into 
question the person's suitability under section 731.202, an

[[Page 35359]]

investigation would be required. New information might be obtained, for 
example, from a newly-executed Declaration for Federal Employment, 
Optional Form 306.
    Criteria based on character or conduct that are equivalent to the 
suitability factors under 5 CFR 731.202 would include the 
disqualification factors provided at 5 CFR 302.203 or similar authority 
regarding excepted service employees, the additional credentialing 
standards provided in OPM's January 18, 2008, memorandum entitled, 
``Interim Credentialing Standards for Issuing Personal Identity 
Verification Cards Under HSPD-12,'' and subsequent iterations of these 
factors or standards issued by OPM from time to time.

Investigation Requirements for Position Risk Level Changes

    OPM proposes to remove from section 731.104, ``Appointments subject 
to investigation,'' personnel actions, such as promotion, demotion and 
reassignments, that are not appointments. Concurrently, proposed 
modifications to section 731.106 would identify the investigative 
requirements when an employee experiences a change to higher position 
risk level due to promotion, demotion, or reassignment (actions that 
were previously described in section 731.104). In such cases, any 
required investigative upgrade would be initiated within 14 calendar 
days after an action such as a promotion is final. Section 731.106 also 
would be modified to reflect the relationship of position risk 
determinations under this part with position sensitivity determinations 
under 5 CFR part 732 when identifying the appropriate level of 
investigation needed for a particular position. As stated in section 
731.106, guidance is provided in OPM issuances for agencies to use in 
exercising their delegated suitability authority under the regulations. 
Finally, a new paragraph (d) would be added to section 731.104 to 
provide that the investigation and reinvestigation requirements for 
public trust positions under section 731.106 are unaffected.

Reciprocity of Suitability Determinations

    Under 5 CFR part 731, subpart B, departments and agencies are 
authorized to make determinations about whether a person is suitable 
for Federal employment. The regulation, however, does not address 
circumstances when a person has already been determined suitable by OPM 
or an agency. Like redundant investigations, unnecessary or duplicative 
suitability determinations contribute to inefficiencies in the Federal 
Government's hiring process. Therefore, consistent with our efforts to 
eliminate additional and duplicative investigations, OPM is proposing 
to amend 5 CFR 731.202 to eliminate authority to make a new suitability 
determination, with some exceptions, on a person already found suitable 
or fit for employment based on character or conduct.
    The general rule would be that if a new investigation for a person 
is not required under 5 CFR 731.104 or 5 CFR 731.106, as modified, an 
agency would not be able to make a new suitability determination for a 
person who has already been the subject of such a determination, with 
limited exceptions. An example of when reinvestigation might be 
required, and thus when a new suitability determination could be made, 
occurs when the person is promoted to a position with a higher risk 
level.
    Another example of when a new suitability determination would be 
required occurs when there is information in a person's investigative 
record on file that shows he or she engaged in conduct that is 
incompatible with the core duties of the relevant covered position to 
which the person is applying or transferring. The information may not 
have established a basis to determine the person was unsuitable for the 
former position but would be an appropriate basis for an agency to make 
a new suitability determination. For example, the new position in 
question may be in law enforcement where conduct of a criminal nature 
is incompatible with core duties of the new position. In such a 
circumstance, even though the person had previously been determined 
suitable for a non-law enforcement position, the proposed reciprocity 
rules would not apply and the department or agency would make a new 
suitability determination based on the existing investigative record.
    When an investigation and new suitability determination are 
required, the person also could be subject to a suitability action if 
the agency or OPM were to find him or her unsuitable. This could occur 
when an appointment to a covered position requiring an investigation 
involves a person transferring from a covered position with another 
agency, transferring from a non-covered excepted service position, or 
being appointed following service to the Federal Government as an 
employee of a Federal contractor. In each case, the person may meet the 
definition of an ``applicant'' or ``appointee'' as defined at 5 CFR 
731.101 and thus potentially subject to a suitability action. A 
suitability action could be taken only if the agency or OPM followed 
the procedures of this part and found that person unsuitable. These 
circumstances are described in the proposed changes to this part at 
section 731.104(a)(2), (3), and (4).
    None of the proposed changes to this part would affect OPM's 
discretion to exercise its independent authority as it deems 
appropriate to make suitability determinations or take suitability 
actions.

Reporting of Suitability Determinations

    In order for departments and agencies to decide whether a new 
investigation or suitability determination is required for a person or 
whether the proposed reciprocity policy applies, a repository for 
suitability information is needed. The Clearance Verification System 
(CVS) was developed by OPM and is currently maintained by OPM to 
provide information about investigations and security clearances for 
individuals. OPM is expanding the scope of CVS to include information 
about suitability determinations. To ensure that CVS contains the 
necessary information to support reciprocity of suitability 
determinations in the Federal Government, OPM is proposing at 5 CFR 
731.206 that departments and agencies report to OPM the level and 
result of each investigation conducted, the suitability determination 
made, and any suitability action taken for any person for whom a 
suitability determination is required. The reporting requirements would 
be described in OPM issuances.

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.

[[Page 35360]]

E.O. 12988--Civil Justice Reform

    This regulation meets the applicable standard set forth in sections 
3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights of 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 5 CFR Part 731

    Administrative practices and procedures, Government employees.

U.S. Office of Personnel Management.
Linda M. Springer,
Director.

    Accordingly, OPM proposes to amend part 731, title 5, Code of 
Federal Regulations, as follows:

PART 731--SUITABILITY

Subpart A--Scope

    1. The authority citation for part 731 continues to read as 
follows:

    Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218, as amended, 5 CFR, parts 1, 2 and 5.

    2. In Sec.  731.104, revise paragraphs (a) introductory text and 
(a)(1) through (a) (4) and (b)(2) and add paragraphs (d) and (e) to 
read as follows:


Sec.  731.104  Appointments subject to investigation.

    (a) To establish a person's suitability for employment, 
appointments to covered positions identified in Sec.  731.101 require 
the person to undergo an investigation by OPM or by an agency with 
delegated authority from OPM to conduct investigations. However, except 
as provided in paragraph (b)(2), an appointment will not be subject to 
investigation when the person being appointed has undergone a 
background investigation and the appointment involves:
    (1) Appointment or conversion to an appointment in a covered 
position if the person has been serving continuously with the agency 
for at least 1 year in one or more covered positions subject to 
investigation and has received a favorably adjudicated background 
investigation;
    (2) Transfer to a covered position, provided the person has been 
serving continuously for at least 1 year in a covered position subject 
to investigation and has received a favorably adjudicated background 
investigation;
    (3) Transfer or appointment from an excepted service position that 
is not a covered position to a covered position, provided the person 
has been serving continuously for at least 1 year in a position where 
the person has been determined fit for appointment based on criteria 
equivalent to the factors provided at 5 CFR 731.202; or
    (4) Appointment to a covered position from a position as an 
employee working as a Federal Government contract employee, provided 
the person has been serving continuously for at least 1 year in a job 
where a Federal agency determined the contract employee was fit to 
perform work on the contract based on criteria equivalent to the 
factors provided at 5 CFR 731.202.
* * * * *
    (b) * * *
    (2) An appointment to a covered position also will be subject to 
investigation when:
    (i) The covered position requires a higher level of investigation 
than previously conducted for the person being appointed; or
    (ii) An agency obtains new information in connection with the 
person's appointment that calls into question the person's suitability 
under Sec.  731.202;
* * * * *
    (d) Investigation and reinvestigation requirements under Sec.  
731.106 for public trust positions are not affected by this section.
    (e) For purposes of this section, ``criteria equivalent to the 
factors provided at 5 CFR 731.202'' are criteria that provide adequate 
assurance that the person to be appointed, converted to an appointment, 
or transferred is suitable to be employed in a covered position, as 
determined by OPM, in issuances under this regulation. A decision by 
OPM, or by an agency applying guidance from OPM, that a prior fitness 
determination was not based on criteria equivalent to the factors 
provided at 5 CFR 731.202, and that a new investigation or adjudication 
is necessary is not subject to review under section 731.501 of this 
part.
    3. In Sec.  731.106, revise paragraphs (c)(2) and (e) to read as 
follows:


Sec.  731.106  Designation of public trust positions and investigative 
requirements.

* * * * *
    (c) * * *
    (1) * * *
    (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. Procedures for determining investigative requirements for all 
positions based upon risk and sensitivity will be published in OPM 
issuances, as described in Sec. Sec.  731.102(c) and 732.201(b).
* * * * *
    (e) Risk level changes. If an employee experiences a change to a 
higher position risk level due to promotion, demotion, or reassignment, 
or the risk level of the employee's position is changed to a higher 
level, the employee may remain in or encumber the position. Any upgrade 
in the investigation required for the new risk level should be 
initiated within 14 calendar days after the promotion, demotion, 
reassignment or new designation of risk level is final.
* * * * *

Subpart B--Suitability Determinations

    4. In Sec.  731.202, add a new paragraph (d) to read as follows:


Sec.  731.202  Criteria.

* * * * *
    (d) Reciprocity. An agency cannot make a new determination under 
this section for a person who has already been determined suitable or 
fit based on character or conduct unless a new investigation is 
required under Sec.  731.104 or Sec.  731.106, or no new investigation 
is required but the investigative record on file for the person shows 
conduct that is incompatible with the core duties of the relevant 
covered position.
    5. Add a new Sec.  731.206 to read as follows:


Sec.  731.206  Reporting requirements.

    Agencies must report to OPM the level and result of each background

[[Page 35361]]

investigation, suitability determination, and suitability action taken 
under this part, as required in OPM issuances.

[FR Doc. E8-13990 Filed 6-20-08; 8:45 am]

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