[Federal Register Volume 59, Number 179 (Friday, September 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22918]


  Federal Register / Vol. 59, No. 179 / Friday, September 16, 1994 /
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[[Page Unknown]]

[Federal Register: September 16, 1994]


                                                   VOL. 59, NO. 179

                                         Friday, September 16, 1994

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 731

RIN 3206-AG36

 

Suitability, Personnel Security and Related Programs, 
Investigations, and Suitability Disqualification Actions

AGENCY: Office of Personnel Management.

ACTION: Interim rule.

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SUMMARY: In April 1991, OPM published interim final regulations that 
effected major changes in procedures governing background 
investigations to determine suitability for competitive service 
employment and eligibility for employment or retention in employment in 
national security positions (56 FR 18650, April 23, 1991). The interim 
regulations set forth separate criteria and procedures for security 
clearances in national security cases and for suitability 
determinations in cases not involving national security, and created 
the OPM Review Panel, an intermediate appellate body for appeals from 
OPM suitability decisions.
    OPM has decided to revoke the section of the interim regulations 
establishing the OPM Review Panel, based on comments received from the 
public and experience acquired under the interim regulations during the 
last three years. OPM has concluded, as several commenters predicted, 
that the OPM Review Panel has not served a useful independent reviewing 
function.

EFFECTIVE DATE: October 17, 1994.

FOR FURTHER INFORMATION CONTACT: PJohn J. Lafferty, Deputy Associate 
Director for Investigations, (202) 376-3800.

SUPPLEMENTARY INFORMATION: OPM promulgated the current suitability and 
personnel security regulations as an interim final rule with a request 
for comments in April 1991. 56 FR 18650-18656 (April 23, 1991). 
Comments were received from 16 sources, including individuals, Federal 
agencies, Federal employee unions, and public interest organizations.
    A number of commenters objected to creation of the OPM Review 
Panel. One agency criticized the Panel on the ground that it would 
create unnecessary delay in the appeal process and increase agency 
operating costs by keeping appellants on the payroll for longer periods 
of time. One public interest organization voiced concern that decisions 
of the Panel might not be impartial, given the fact that Panel members 
would be employed by OPM and their performances would be appraised by 
OPM officials. A Federal employee union noted that, historically, 
internal review boards tend to support decisions of the parent 
organization.
    OPM is now abolishing the Review Panel primarily because the Panel 
has not accomplished its intended purpose. In creating the Panel, OPM 
had hoped to decrease costs, provide appellants with a streamlined 
resolution of their cases, and cut down on the number of appeals taken 
in suitability cases to the Merit Systems Protection Board (MSPB). 
Experience has shown, however, that a large number of appellants still 
proceed with appeals after review by the Panel; thus, the original 
purpose conceived for the Panel has not been realized. OPM has, 
therefore, concluded that the OPM Review Panel does not provide a 
useful independent reviewing function and should be abolished.
    Prior to the creation of the Review Panel, individuals could appeal 
OPM suitability decisions directly to the MSPB, and the appellants' 
agencies had the option to suspend them or to retain them in a pay 
status pending adjudication of the appeal. Under OPM's interim final 
rule that established the Review Panel, appellants were retained in a 
pay status while their appeals were pending with the Panel, but, if the 
Panel affirmed OPM's decision, the appellants' agencies were directed 
to remove the appellants within five days of receipt of the Panel's 
decision by the agency. With the elimination of the Review Panel as 
announced herein, OPM has determined that appellants' pay status will 
be the same as it was prior to creation of the Panel. Therefore, the 
appellants' employing agencies will have the option to suspend the 
appellants or to retain them in an active pay status pending 
adjudication of the appeal to the MSPB.

EO 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with EO 12866.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
relate to internal personnel matters within the Federal Government.

List of Subjects in 5 CFR Part 731

    Administrative practice and procedure, Government employees.

U.S. Office of Personnel Management.
James B. King,
Director.

    Accordingly, OPM amends 5 CFR part 731 as follows:

PART 731--SUITABILITY

    1. The Authority for Part 731 continues to read as follows:

    Authority: 5 U.S.C. 1302, 3301, 3302, 7301, 7701; E.O. 10577, 3 
CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 
306; E.O. 11491, 3 CFR, 1966-1970 Comp., p. 861.

    2. Subpart E of Part 731 is revised to read as follows:

Subpart E--Appeal to the Merit Systems Protection Board


Sec. 731.501  Appeal to the Merit Systems Protection Board.

    (a) An individual who has been found unsuitable for employment may 
appeal the decision to the Merit Systems Protection Board (the Board). 
An employee or appointee who appeals a removal directed by OPM shall 
notify the employing agency of the appeal at the time it is filed.
    (b) Appeal Procedures. The procedures for filing an appeal with the 
Board are found at Part 1201 of Title 5, Code of Federal Regulations.
    (c) Pay Status Pending Appeal. When an employee or appointee whom 
OPM has determined to be unsuitable files an appeal to the Board, the 
employing agency may either suspend the employee or appointee on the 
day following the date on which the removal was to have been effected 
pending adjudication of the appeal, or retain the employee or appointee 
in an active duty status for the period, in which event the agency 
shall so notify the employee or appointee. Part 752 of this chapter 
does not apply to the suspension.

[FR Doc. 94-22918 Filed 9-15-94; 8:45 am]
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