Federal Register: November 3, 2009 (Volume 74, Number 211)
DOCID: fr03no09-18 FR Doc E9-26448
OFFICE OF PERSONNEL MANAGEMENT
Personnel Management Office
CFR Citation: 5 CFR Part 731
RIN ID: RIN 3206-AL90
NOTICE: PROPOSED RULES
DOCID: fr03no09-18
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY:
Suitability
DATES: Comments must be received on or before January 4, 2010.
DOCUMENT 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.
SUMMARY:
Suitability; Reinvestigation Provisions of E.O. (13488)
SUPPLEMENTAL INFORMATION
Background
On January 16, 2009, President George W. Bush signed Executive
Order 13488, which provides that individuals in public trust positions
shall be subject to reinvestigation under standards determined by the
Director of the Office of Personnel Management (OPM) to ensure their
continued employment is appropriate. The order provides that the standards issued by OPM shall include the frequency of
reinvestigations. E.O. 13488 is distinct from but complements E.O.
13467, concerning alignment, to the extent possible, of security and suitability standards.
Public Trust Positions
Public trust positions are those covered by 5 CFR part 731 which an agency head, under 5 CFR 731.106, has designated at a moderate or high risk level, based on the position's potential for adverse impact on the efficiency or integrity of the service. Such positions may involve policy making, major program responsibility, public safety and health, law enforcement duties, fiduciary responsibilities, or other duties demanding a significant degree of public trust, or access to or operation or control of financial records, with a significant risk for causing damage or realizing personal gain. Designation of public trust positions and their risk level is made by agencies following OPM guidance and taking into account the specific duties of each position. Frequency of Reinvestigations
While a reinvestigation typically will be more limited than the initial investigation, that reinvestigation must occur frequently if agencies are to carry out the purpose of the Executive orderto ensure that continued employment of persons in public trust positions remains appropriate. Accordingly, the proposed rule would require, at 5 CFR 731.106(d)(1), that a person occupying a public trust position be reinvestigated at least once every five years. Contingent on future investigative and resource capacities, OPM supplementary guidance will adjust investigative frequencies within this 5year period based on the level of trust (i.e., either moderate or high risk) associated with a person's position. We specifically solicit comment on whether a periodic reinvestigation cycle of 5 or fewer years is appropriate, considering the risk posed by employment in public trust positions, and the availability of investigative and adjudicative resources. We will consider comments on this proposed rule and consult with affected agencies in developing supplemental guidance on investigative frequency.
At 5 CFR 731.106(d)(2), the proposed rule would provide that an
investigation or reevaluation to determine a person's initial or
continued eligibility for access to classified information, which is
conducted at an equal or higher level than required for their public
trust reinvestigation, satisfies the 5year reinvestigation requirement
for that person. The agency is not required to conduct an additional
investigation in such circumstances, and the completed security
clearance investigation restarts the 5year schedule (or other schedule as future guidance might require) for a new public trust
reinvestigation.
Assessments Resulting From Reinvestigations
The regulation at 5 CFR 731.106(f) would be modified to more
clearly reflect the broader authority and obligation of agencies to
make decisions following investigations. The current language provides
that a completed investigation must result in a ``determination'' by the agency. As discussed below, an agency's decision on a
reinvestigation of an employee in a public trust position will rarely
be a suitability determination that results in a suitability action under this part. Thus, the potentially misleading word
``determination'' would be replaced with the word ``assessment.''
As currently provided at 5 CFR 731.106(f), a person's employment
status will determine the applicable agency authority and procedures to
be followed in any action taken based on the results of the reinvestigation. In most circumstances, the subject of a
reinvestigation will have been employed by their agency for more than
one year and, under those circumstances, only OPM could make a
suitability determination and take a suitability action under very
limited circumstances. As provided under 5 CFR 731.105(d), OPM could
take a suitability action based on (1) a material, intentional false
statement, or deception or fraud in examination or appointment; (2) refusal to furnish testimony; or (3) a statutory or
[[Page 56748]]
regulatory bar that prevents the lawful employment of the person.
However, conduct that surfaces during a reinvestigation (for example,
offduty criminal conduct) could form the basis for an adverse action under 5 CFR part 752.
Consistent with the changes made to 5 CFR 731.106, the reporting requirements under 5 CFR 731.206 would be modified to require agencies to report any decisions and actions taken as a result of a background investigation or reinvestigation. Here, the ``level'' of investigation is replaced by the ``level or nature'' of the investigation as a reporting obligation, to be consistent with E.O. 13488. The actual information reported is unchanged. Section 731.206 of title 5, Code of Federal Regulations, also would be clarified to reflect current practice that agencies follow in reporting the completion dates of background investigations. This is important, since the public trust position reinvestigation schedule is tied to the completion date of a relevant investigation.
Technical Amendment
OPM proposes a technical amendment to the Authorities for this part to reflect the President's signing of Executive Order 13488 on January 16, 2009, which authorizes the Director of OPM to issue regulations and guidance implementing the order.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulations pertain only to Federal employees and agencies. E.O. 12866, Regulatory Review
This proposed rule has been reviewed by the Office of Management and Budget under Executive Order 12866.
E.O. 13132
This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
E.O. 12988Civil Justice Reform
This regulation meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This action pertains to agency management, personnel and organization and does not substantially affect the rights or obligations of 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. Office of Personnel Management.
John Berry,
Director.
Accordingly, OPM proposes to amend part 731, title 5, Code of Federal Regulations, as follows:
PART 731SUITABILITY
Subpart AScope
1. The authority citation for part 731 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, E.O. 13467, E.O. 13488, 3 CFR, 19541958 Comp., p. 218, as amended, 5 CFR, parts 1, 2 and 5.
2. In Sec. 731.106, revise paragraphs (d) and (f) to read as follows:
Sec. 731.106 Designation of public trust positions and investigative requirements.
* * * * *
(d) Reinvestigation requirements.
(1) Agencies must ensure that reinvestigations are conducted and an
assessment made regarding continued employment of persons occupying
public trust positions at least once every 5 years. The nature of these
reinvestigations and any additional requirements concerning their
frequency will be established in supplemental guidance issued by OPM.
(2) If, prior to the next required reinvestigation, a separate
investigation (or reevaluation) is conducted to determine a person's
eligibility (or continued eligibility) for access to classified
information or as a result of a change in risk level as provided in
Sec. 731.106(e), and that investigation is conducted at an equal or
higher level than is required for a public trust reinvestigation, a new
reinvestigation is not required. Such a completed investigation
restarts the cycle for a public trust reinvestigation for that person. * * * * *
(f) Completed investigations. Any suitability investigation (or
reinvestigation) completed by an agency under paragraphs (d) and (e) of
this section must result in an assessment by the employing agency of
whether the findings of the investigation would justify an action
against the employee, under this part or under some other authority,
such as 5 CFR 752. Sec. 731.103 addresses whether an action is
available under this part, and whether the matter must be referred to OPM for debarment consideration.
3. Revise Sec. 731.206 to read as follows:
Sec. 731.206 Reporting requirements.
Agencies must report to OPM the level or nature, result, and
completion date of each background investigation or reinvestigation,
each agency decision based on such investigation or reinvestigation,
and any personnel action taken based on such investigation or reinvestigation, as required in OPM issuances.
[FR Doc. E926448 Filed 11209; 8:45 am]
BILLING CODE 632539P
FOR FURTHER INFORMATION CONTACT
Lisa McGlasson, Senior Advisor, U.S. Office of Personnel Management, Center for Workforce Relations and Accountability Policy, 1900 E St., NW., Room 7H28, Washington, DC 204154000; fax to 2026062613; email to CWRAP@opm.gov.