[Federal Register Volume 73, Number 73 (Tuesday, April 15, 2008)]
[Rules and Regulations]
[Pages 20149-20159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7964]



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  Federal Register / Vol. 73, No. 73 / Tuesday, April 15, 2008 / Rules 
and Regulations  

[[Page 20149]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 731

RIN 3206-AL08


Suitability

AGENCY: Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In support of its mission to ensure the Federal Government has 
an effective civilian workforce, the Office of Personnel Management 
(OPM) is issuing final regulations governing Federal employment 
suitability. The final regulations 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) to review actions taken under the 
regulations. The changes also make the regulations more readable.

DATES: Effective Date: The rule is effective June 16, 2008.

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:

Introduction

    On January 18, 2007, OPM published at 72 FR 2203 (2007) proposed 
amendments to 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 proposed various revisions to make the 
regulations more readable. The public comment period on the proposed 
amendments ended on March 19, 2007. OPM received comments from five 
Federal agencies or departments and from three unions. Of the agency 
comments, three were received from security offices, two from human 
resources offices, and one from a legal office. OPM has carefully 
considered the comments received.

Coverage

    OPM proposed to amend the regulations 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. OPM noted that the 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 
this limited group of 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 investigation and disqualifying factors similar to those 
found in part 731. OPM believes that procedural protections should be 
extended to this limited group of persons in the excepted service.
    One commenter had doubts about OPM's statutory authority to extend 
suitability to persons in the excepted service, notwithstanding OPM's 
statement that to do so would be consistent with OPM's suitability 
authority. OPM has carefully reviewed its authority under statute and 
Executive Order (E.O.) and again has concluded it does have the 
required authority.
    Under rules II and V of E.O. 10577, as amended, OPM has the 
authority to regulate standards of fitness for entry in the competitive 
service, to investigate suitability for the competitive service, and to 
establish investigative requirements for competitive service 
appointments. Section 1103(a)(5)(A) of title 5, U.S. Code, requires OPM 
to execute, administer, and enforce these rules. The law does not 
contemplate that the suitability standards and other requirements for 
appointment to a competitive service position would not apply because 
of the means by which an applicant initially enters service.
    While the positions at issue here do not begin in the competitive 
service, they end up in the competitive service if converted. The 
triggering events for this method of entering the competitive service 
are the persons' appointments to the excepted service. Because of the 
continuity of this method, from appointments in the excepted service to 
conversions to the competitive service, OPM concludes that OPM's 
suitability authority applies to these persons and applies as soon as 
they are appointed to the excepted service position. Accordingly, there 
is no requirement that the positions must have been converted before 
the incumbents are subject to investigation and determinations as to 
fitness for Federal employment. Thus, OPM declines to adopt a 
commenter's recommendation that the regulations be revised to state 
that suitability determinations for persons in these positions can only 
take place upon ``application to a competitive appointment'' or when 
the conversion is ``imminent.''
    Several commenters asked for examples of positions in the excepted 
service from which persons may be noncompetitively converted to the 
competitive service. While this is not a complete list of positions, 
some are under the Federal Career Intern Program, the Veterans 
Recruitment Appointment Program, the Student Career Experience Program, 
and the Presidential Management Fellows Program.
    One commenter asked what authority would permit the removal of an 
excepted service employee for suitability reasons such as misconduct

[[Page 20150]]

prior to appointment. As we stated in our proposed rule, the revised 
regulations clarify that they apply to persons who can be 
noncompetitively converted to service because of employment in an 
excepted service position. The purpose of these positions is to lead to 
a competitive appointment and, therefore, should be treated in the same 
way for suitability purposes as those who are appointed directly into 
the competitive service.
    One commenter wondered what the advantage would be of having an 
excepted service position if it is covered by the suitability rules. 
OPM's proposal identified just a limited category of excepted service 
employees that would be covered by part 731, i.e., those whose excepted 
service appointment can lead to their noncompetitive conversion to the 
competitive service. All other excepted service positions are not 
covered by the suitability rules. However, other excepted service 
positions are subject to qualification standards which may include 
disqualifying factors under 5 CFR part 302. At any rate, most persons 
in excepted service positions already have other employee protections, 
whether or not they are covered by suitability rules.
    OPM proposed to add definitions of suitability action and 
suitability determination to Sec.  731.101 to help the reader better 
understand the coverage of part 731. One commenter suggested that the 
definition of ``suitability action'' be reworded so that it would be 
parallel to the definition of ``suitability determination'' and thus 
clarify the distinction between the two. OPM notes that the 
construction of the definitions differs because the processes differ. 
One (suitability actions) concerns the type of actions taken, such as 
debarment or removal, once a person is determined to be unsuitable and 
the other (suitability determinations) concerns the process of 
initially deciding whether a person is suitable. OPM believes that its 
initial proposed language better draws that distinction and the 
suggestion is not adopted.
    OPM proposed at Sec.  731.104(c) 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 
part 731. With respect to seasonal employees, one commenter wondered 
whether the 180 days aggregate service meant 180 days per year or an 
aggregate of 180 days in all their employment. OPM's response is that 
the 180 days means 180 days per year. OPM has modified Sec.  731.104(c) 
accordingly. OPM also has modified the punctuation in this section to 
clarify that the phrase ``with less than 180 days aggregate service per 
year'' applies to each of the types of positions noted: intermittent, 
seasonal, per diem and temporary positions.
    Another commenter expressed concern that the rule would allow such 
persons access to facilities and information without investigation for 
six months because agencies would not be able to investigate them under 
the revised rule. That was not the intent. Rather, OPM's intent is to 
more fully identify those types of positions for which incumbents are 
not subject to investigation as mandated by part 731. As the proposed 
rule states, an agency ``must conduct such checks as it deems 
appropriate to ensure the suitability of the person.'' To accomplish 
such checks, some agencies may choose to investigate these persons in 
the same manner as it would those actually covered by part 731, but 
they are not required to do so. The checks required by Sec.  731.104(c) 
need not rise to the level required for an investigation under part 
731. Likewise, the coverage requirements for suitability purposes of 
these persons do not prevent agencies from conducting other pre-
employment checks, such as an investigation for eligibility for an 
identity credential under Homeland Security Presidential Directive 
No.12--a concern expressed by another commenter. Moreover, E.O. 10450 
authorizes investigations for all civilian officers and employees, 
including, under some circumstances, those in intermittent, temporary, 
or seasonal positions. Finally, as explained in the proposed 
regulations, 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 proposed 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. OPM noted that the added language was 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. This is 
not a new concept since the former regulations at Sec.  731.105(c) 
stated: ``A statement may be a material statement even if an agency 
does not rely upon it.''
    Two commenters recommended that the definition be modified. One of 
these commenters stated that the proposed definition would undercut the 
commonly accepted legal meaning of ``material'' by setting the 
threshold for what may be material too low. The other commenter 
suggested that the definition be modified to state that, in order for 
it to be material, a statement must ``likely'' influence a decision 
rather than just be ``capable of'' influencing a decision. OPM believes 
that in many cases, a statement that is capable of influencing a 
decision is also likely to be relied on by OPM or an agency. However, 
as OPM explained in the proposed rule, a ``material'' statement ``does 
not actually have to influence or affect an official decision by OPM or 
an agency.'' In some situations, such as those involving false 
experience or educational claims, whether the experience or education 
was likely to influence a decision on the person's eligibility for 
employment may have no relationship to the materiality of the false 
statement, i.e., whether the false statement 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. In such situations, OPM 
would be concerned with the individual's lack of honesty in the 
employment process. Accordingly, OPM has not adopted the suggestions.
    Another commenter wondered how the definition of ``material'' 
relates to the statement in the proposed rule's supplementary 
information discussion that ``Factors not relied upon by OPM or 
agencies in individual cases may not be considered by MSPB.'' OPM notes 
that this statement referred to the specific suitability factors 
provided in Sec.  731.202(b) and the additional considerations provided 
in Sec.  731.202(c), not statements that may or may not be material 
under the definition of this part and may or may not be used by the 
agency or OPM.
    While there is no statutory right to appeal actions taken under the 
procedures set forth in part 731, OPM has provided for such appeals by 
regulation. This appeal right does not extend to any other employment 
action that an agency takes outside of the procedures set forth in part 
731. In this regard, OPM proposed changes to the regulations that would 
reaffirm and clarify that there is no right to appeal an agency's 
decision to object to or request to pass over an employment candidate 
under part 332 of this chapter, regardless of the basis for the 
agency's request, including an applicant's fitness or character as 
discussed in OPM's Delegated Examining Operations Handbook. OPM also 
proposed changes that would clarify that 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 as a suitability action. OPM also 
proposed a concurrent change

[[Page 20151]]

that would remove ``denial of appointment'' as a suitability action 
under this part. In other words, non-selection for a position is not an 
appealable suitability action.
    While one commenter thought the proposed changes concerning 
objections and pass overs cleared up much confusion, other commenters 
thought the changes could be clearer. One commenter noted that 
objections and pass overs may be different from suitability 
determinations, but that permitting an agency to ``label'' its action 
as one or the other elevates ``form over substance.'' The commenter 
believed this would allow agencies to make de facto suitability 
determinations without following procedural requirements. The commenter 
recommended that agencies not be allowed to ``label'' their actions. 
OPM declines to limit agencies' authority in this manner. Agencies 
typically identify the authority under which they take actions and this 
in turn informs MSPB of the appropriate review authority, if any, to be 
used in the event those actions are appealed. A common example occurs 
when agencies identify the authority for or ``label'' the actions taken 
under 5 U.S.C. chapters 43 and 75. Performance-based actions may be 
taken under either authority, but agencies choose which authority to 
use and MSPB then knows which review standard to apply.
    Another commenter recommended that, instead of ``pass over of a 
preference eligible,'' the regulations refer to ``pass over of an 
applicant.'' OPM is not adopting this recommendation because it would 
conflict with statutory and regulatory language describing pass overs. 
Upon closer examination of the regulation referred to by the commenter 
(5 CFR 332.406), it is apparent that the proposed rule at part 731 
could be modified to refer precisely to pass over requests and 
objections. That is, part 332 discusses objections to eligibles and 
pass overs of preference eligibles as two categories of actions. 
Therefore, OPM has clarified the regulations to refer to ``objections 
to eligibles'' in Sec. Sec.  731.101(a) and 731.203(b) rather than 
simply ``objections.'' The same commenter also recommended that the 
reference to decisions by OPM concerning pass over requests be changed 
to reflect agency delegated authority by referring to decisions by OPM 
and agencies. OPM agrees this change would properly describe who makes 
these types of decisions and has modified Sec.  731.101(a) accordingly. 
Finally, another commenter stated it was their understanding that OPM's 
current position is that ``objections/pass overs may be based either on 
qualifications or suitability--and that non-selections for suitability 
reasons are NOT suitability actions and are not covered by Part 731.'' 
OPM confirms those understandings.
    One commenter stated that OPM should eliminate employees and 
appointees who have successfully completed twelve months of Federal 
service from coverage of the suitability regulations. The commenter 
stated that this change would eliminate the ``collision'' between OPM 
suitability regulations and the statutes that govern employees who have 
completed their probationary periods. The commenter also argued that 
this change would preserve agencies' discretion to take adverse actions 
and avoid the hardship when OPM initiates action to remove a long-term 
employee for suitability reasons when the agency may want to keep that 
employee. OPM declines to make these changes to the regulations for a 
number of reasons. As an initial matter, there is no collision of 
employee rights upon completion of a probationary period and OPM's 
suitability regulations. Suitability actions for persons who have 
become employees as defined by this part can be initiated only by OPM, 
and the bases for judging a person unsuitable and removing that person 
after the first year of employment are limited to material intentional 
false statement, deception or fraud in examination or appointment; 
refusal to furnish testimony; or a statutory or regulatory bar to 
employment. The commenter's recommendation would eliminate OPM's 
ability to take appropriate suitability actions merely because the 
individual has been employed for 12 months. However, mere completion of 
12 months of service cannot shield a person from the consequences of, 
for example, making material, intentional false statements in order to 
obtain a position with the Federal Government. This would undermine the 
integrity of the Federal employment process.

Procedures

    A number of commenters expressed support for the proposed 
additional procedural protections for persons who may be subject to an 
unfavorable suitability determination or action. One commenter asked 
what role a representative would have under these protections. OPM 
expects the role would be similar to that of a representative in other 
administrative actions, i.e., that a properly-designated representative 
would have the authority to act on behalf of the person he or she 
represents, including corresponding on behalf of the person and being 
responsible for meeting deadlines.
    A commenter suggested that representatives designated under the 
regulations be allowed reasonable official time to review materials and 
prepare responses to proposed actions. While the regulations do not 
require the grant of official time, they do not preclude the agency 
from authorizing official time for a representative. This is consistent 
with other OPM Governmentwide regulations, at 5 CFR parts 432 and 752, 
that also do not provide official time for representatives. Therefore, 
the suggestion to include an official time provision for 
representatives in the regulations is not adopted.

Authorities

    The final rule permits 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. While 
OPM changed this rule to give agencies the same flexibility when 
deciding the appropriate length of debarment as OPM, one commenter 
suggested that objective criteria be published as to when debarment 
would be appropriate beyond one year. OPM intends to provide this type 
of information as part of its guidance issuances referenced in Sec.  
731.102(c).
    The same commenter also suggested that criteria and examples be 
given of when it would be appropriate to impose an additional debarment 
period. An additional debarment period, that is, a new debarment action 
based on a new suitability determination, may be warranted where there 
is a strong nexus between the reasons for the suitability determination 
and the agency mission or position duties. For example, an additional 
debarment period might be appropriate where a person convicted of 
embezzlement continues to apply for fiduciary positions and does not 
report the conviction on the relevant questionnaire; where a person 
guilty of sexual crimes applies for positions dealing with the public 
where contact with children reasonably is expected; where an arsonist 
applies for firefighter positions; and where those with lengthy 
criminal histories want to work in law enforcement positions. Again, 
OPM intends to provide such information as part of its guidance 
referenced in Sec.  731.102(c). Another commenter asked how long an 
additional debarment period can be. An additional debarment period can 
be imposed only if an agency makes a new suitability determination.

[[Page 20152]]

If it again finds the person unsuitable, the new debarment period could 
be imposed for up to three years. One commenter expressed concern that 
an agency may improperly implement its debarment authority; however, 
the rule at Sec.  731.103(f) calls for the revocation of an agency's 
delegation of suitability authority if its actions fail to conform to 
this rule or any of OPM's guidance.
    In response to the comments on additional debarment periods, OPM 
has revised the language in sections 731.204(b) and 731.205(b) of the 
final rule to state more clearly that upon expiration of a debarment 
period, if the person formerly debarred again becomes subject to OPM's 
or an agency's suitability jurisdiction, e.g., by applying for a 
position in the competitive service, a new suitability determination 
must be made under 5 CFR part 731 before an additional period of 
debarment can be imposed.
    In Sec.  731.103(g), OPM proposed 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; or refusal to furnish 
testimony. While agencies would still be required to notify OPM if they 
have taken, or plan to take, such action (and could have their 
delegated authority withdrawn under Sec.  731.103(f) for failure to 
conform to this part or OPM issuances), one commenter suggested that 
oversight of agencies' use of this authority should be mandated and 
that the results of oversight be made public. Under its statutory 
oversight mandate, OPM will continue to conduct reviews of agency 
suitability programs and agency use of delegated authority, including 
whether agencies are properly using their delegated authority under 
this section. Reports on such reviews are provided to the agency 
reviewed so that necessary corrective actions may be taken.
    One commenter wondered why an agency under Sec.  731.103(g) would 
be required to notify OPM if it has already taken or plans to take such 
an action under other authorities. The answer is that OPM may determine 
it appropriate to debar that person from all Federal employment even 
though the agency has taken action to remove the person under other 
authority if the person, for example, provided material, intentional 
false statements in connection with the employment process. To further 
clarify the scope of the reporting requirement, OPM is providing at 
Sec.  731.103(g), that agencies are required to report to OPM only in 
cases involving material, intentional false statement in examination or 
appointment, or deception or fraud in examination or appointment; or 
refusal to furnish testimony as required by Sec.  5.4 of this title. 
Also, corresponding changes referring back to Sec.  731.103(g) are 
being inserted into Sec. Sec.  731.105(e) and 731.203(f) for the same 
reason.
    This commenter also suggested that proposed Sec.  731.103(c) be 
modified to state more clearly that agencies exercising their delegated 
authority must do so in accordance with OPM regulations and issuances. 
The commenter stated that following OPM issuances would ``increase 
government wide uniformity and consistency in making suitability 
determinations and taking suitability actions.'' OPM agrees and has 
modified this section in the final rule accordingly.
    OPM proposed 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 could not be considered by MSPB. One 
commenter believed that this limitation of MSPB's review ``further 
erodes the concept of mitigation'' and ``precludes the Board from a 
full and fair review of OPM and/or agency action.'' OPM strongly 
disagrees. Under the suitability regulations, MSPB has no authority to 
mitigate an agency's action in the same way it does not have authority 
to mitigate performance-based actions taken under chapter 43 of title 5 
of the United States Code. In such cases, MSPB can only affirm or 
reverse the agency's action. With regard to the fullness and fairness 
of MSPB's review, the regulations are intended to insure a full and 
fair review by explicitly stating in the final regulations that MSPB 
must review each specification and each charge in all suitability 
appeals.
    However, OPM has revised section 731.202(c) of the final rule to 
state that OPM or an agency ``must'' consider ``any'' of the additional 
considerations to the extent OPM or the relevant agency, in its sole 
discretion, deems ``any'' of them pertinent to the individual case. 
This is to state more clearly that an agency need not consider all of 
the additional considerations, but must consider those that it deems 
pertinent. As the MSPB's review is limited to the agency's 
determination, however, the MSPB cannot consider, as aggravating or 
mitigating factors, additional considerations that the agency did not 
deem pertinent.
    OPM proposed 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. One commenter 
concurred with the proposal, stating that the ability to begin 
suitability reviews in the early stages of the recruitment process 
would facilitate that agency's ability to make timely selections. 
Another commenter said that this is a change from OPM guidance in 1994 
that the suitability process be initiated late in the recruitment 
process. In more recent guidance, however, OPM stated that agencies may 
begin the process ``at any time during the hiring process'' (see OPM 
Memorandum for Chief Human Capital Officers entitled ``Initiating 
Suitability Determinations'' and dated May 9, 2005). The regulations 
codify the most recent OPM guidance.

Merit Systems Protection Board Review

    In the proposed rule, OPM discussed the basis for concluding that 
the procedures an agency decides to use to take an action, e.g., 
objecting to an eligible under 5 CFR part 332 or taking a suitability 
action under this part, 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) when it 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. OPM noted that this is an incorrect 
reading of the authority that OPM conferred upon the Board and proposed 
to adjust the suitability regulations accordingly. Consequently, OPM 
concluded that, 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 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). OPM proposed 
changes to the regulations to reflect this conclusion.
    One commenter stated that OPM's proposed changes would 
administratively overrule Edwards and

[[Page 20153]]

that change would be tampering with what is now settled MSPB precedent. 
While agreeing that the proposed change would overrule Edwards, OPM is 
not ``tampering'' with MSPB precedent. Rather, OPM is correcting case 
law that is clearly erroneous and well beyond the intent of Congress--
which is that MSPB's jurisdiction is limited to actions appealable 
under ``any law, rule, or regulation'' as provided by 5 U.S.C. 7701(a). 
OPM strongly disagrees that this stands on its head the decision in 
Lovshin v. Navy, 767 F.2d, 8326 (Fed. Cir. 1985), which provides an 
agency may choose whether to use 5 U.S.C. chapter 43 or 5 U.S.C. 
chapter 75 to take a performance-based action. Just as in Lovshin, when 
the choice is between using suitability authority or some other 
authority, whatever action taken under the chosen authority is subject 
to review.
    Another commenter agreed with the notion that MSPB cannot hold an 
agency to standards relating to a legal authority the agency did not 
invoke and concluded that an agency's action ``should rise or fall on 
how that agency characterizes the action, not how MSPB could 
characterize the agency's action.'' OPM agrees and notes that this is 
precisely our rationale for clarifying the authority of MSPB.
    Finally, OPM strongly disagrees with one commenter's claim that OPM 
is ``setting up a system that it and agencies will be free to 
manipulate without a check by MSPB.'' OPM has carefully structured a 
system that protects the rights of persons by providing for MSPB review 
of agency actions. Whatever action an agency chooses to take, there is 
a process for ensuring the rights of those affected are protected.
    OPM proposed to eliminate the provision under the current 
regulations that requires MSPB to remand a case to OPM or an agency if 
fewer than all the charges in an appeal are sustained. While one 
commenter concurred, stating that eliminating the remand would be 
important, several other commenters objected to the proposal, stating, 
among other things, that the change would be capricious, and that it 
and other changes proposed would transform MSPB into a ``rubber stamp'' 
without meaningful review authority. Several commenters were concerned 
that eliminating the remand and requiring MSPB to sustain only one 
charge in order to uphold an agency's suitability action might preclude 
MSPB from considering, or at least not obligate MSPB to consider, all 
charges and specifications once one charge is sustained and might lead 
to multiple proceedings. One commenter suggested that the regulations 
require MSPB to consider all charges and specifications. Another 
commenter noted that, in 2000, when OPM first proposed that an agency's 
suitability action must be affirmed by MSPB even if some of the charges 
are not sustained, OPM ``answered its critics by also providing for 
remands by MSPB.''
    OPM carefully considered these comments and concluded that some 
changes to the final regulations at Sec.  731.501 are appropriate. For 
example, while OPM would expect MSPB to review all matters raised in 
any appeal before it, we have modified the final rule to state 
explicitly that MSPB must review all charges and all specifications in 
each appeal. In addition and upon further reflection, OPM concludes 
that the remand process can be retained in a manner that would help 
eliminate confusion under the current regulations. Accordingly, OPM has 
modified the final rule so that remand decisions, as suggested by a 
commenter, are held in abeyance pending a final decision by MSPB or the 
courts as appropriate. This should help eliminate the current confusion 
about when a person can file a petition for review of an initial 
decision by MSPB and eliminates the current confusion generated when an 
agency is simultaneously reviewing a case on remand while MSPB is 
considering a petition for review. The expected reduction in confusion 
and the assurance that all charges and specifications will be 
considered should help encourage confidence in the appeal process.

Readability

    Commenters supported the changes in the regulations intended to 
make them more readable, with one commenter stating that the proposed 
changes do not appear to affect the substance of the regulations. OPM 
determined however that one proposed change did affect the substance of 
the regulations with respect to periodic reinvestigations. 
Specifically, in the proposed regulation, OPM inadvertently deleted 
section 731.106(d), which provided that agencies relying on authorities 
such as the Computer Security Act and OMB Circular A-130 Revised may 
require employees in certain public trust positions to undergo periodic 
reinvestigation. Accordingly, that section has been reinserted into 
this final regulation. Sections 731.106(d) and (e) have been 
redesignated as sections 731.106(e) and (f).

Miscellaneous Comments

    One commenter wanted to know how OPM would notify agencies about 
persons debarred by OPM. In that commenter's experience, the agency had 
never been notified about any debarment in the last ten years. The 
process for notifying agencies is beyond the scope of this rule and 
will not be addressed further.
    One commenter believes that, because the proposed regulations state 
that OPM or an agency with delegated authority cannot take a 
suitability action against a person who is not covered by the 
regulations, the regulations imply that an agency may take a 
suitability action against any person who is covered and may do so at 
any time. That is an incorrect inference. While OPM can take a 
suitability action against a person who is an applicant, appointee, or 
employee, as those terms are defined in this part, an agency may take a 
suitability action only against an applicant or appointee. An agency 
may not take a suitability action against an employee. Moreover, the 
basis on which OPM may take a suitability action against an employee is 
limited to charges of material, intentional false statement or 
deception or fraud in examination or appointment; refusal to furnish 
testimony as required by Sec.  5.4 of this title; or statutory or 
regulatory bar.
    One commenter discussed establishing an internal agency process for 
interfacing with OPM concerning that agency's actions, particularly 
debarment actions. Agencies' internal processes are outside the scope 
of the proposed amendments to the regulations and are not further 
addressed here.
    A commenter stated that a person who is a member of a collective 
bargaining unit covered by a valid collective bargaining agreement 
should have the discretion to file a grievance under the parties' 
negotiated grievance procedure or to appeal to MSPB. This commenter 
also believes that the scope of review ought to extend to the 
``propriety of the agency's action.'' These topics are outside the 
scope of the proposed regulations and therefore have not been 
considered.
    Another commenter requested a number of revisions to the proposed 
rule in order to avoid inconsistencies with laws enforced by the Equal 
Employment Opportunity Commission (EEOC). The commenter believes 
certain proposed changes to the rules provide agencies with the sole 
discretion over whether and how to consider a person's misconduct in 
ways that could conflict with Title VII of the Civil Rights Act of 
1964. The commenter also believes that agencies' authority to debar 
persons for three years at a time as proposed could

[[Page 20154]]

conflict with section 501 of the Rehabilitation Act.
    With regard to the Title VII concern, the commenter stated that to 
the extent a suitability determination could be made solely based on a 
person's conviction or arrest record, it would violate settled law 
under Title VII disallowing a categorical bar from employment of all 
individuals with arrest or conviction records, because such a bar has a 
disparate impact on certain classes of people. OPM notes that the 
suitability rules do not provide for categorical bars from employment 
on the basis of a conviction or arrest record. The specific factors 
listed in the regulations, such as criminal or dishonest conduct, are 
to be considered in conjunction with any of the additional 
considerations the agency deems pertinent, and in light of the standard 
in Sec.  731.201 that the action cannot be taken unless it will 
``protect the integrity or promote the efficiency of the service.'' 
Further, as discussed previously, a negative suitability determination 
can only be made in accordance with the procedural requirements of the 
suitability rules, including affording a person the right to answer any 
charges. Finally, if the person is determined to be unsuitable, he or 
she may seek administrative review by MSPB and ultimately judicial 
review. As with any appeal to the Board, the person may raise 
affirmative defenses, including allegations that the action appealed is 
discriminatory. OPM disagrees with the suggestion that the Board would 
be prevented from considering affirmative defenses like these simply 
because an agency would not be required under the proposed rule to link 
a determination of unsuitability with a particular position in the 
Government.
    With regard to the Rehabilitation Act (Act), the commenter stated 
that agencies using alcohol abuse and the illegal use of drugs in 
making suitability determinations would have to do so in accordance 
with the Act. For example, if the person has the disability of 
alcoholism (as opposed to simply abusing alcohol), the Act would have 
to be followed. The commenter also states that, under the proposed 
rule, if a person were debarred for a period of three years for alcohol 
abuse or illegal use of drugs, he or she would be prevented, in 
violation of the Act, from demonstrating later that he or she can 
perform the essential duties of a position with or without reasonable 
accommodation. OPM notes that current alcohol abusers and illegal drug 
users are not covered by the Rehabilitation Act. See 29 U.S.C. 
705(20)(c). OPM also notes that the regulation does not prevent a 
debarred person from claiming that he or she later has become suitable 
upon conclusion of the debarment period. To the extent the commenter is 
suggesting that the Rehabilitation Act requires a shortening of the 
debarment period for persons who may later become covered individuals, 
OPM disagrees. The debarment penalty is imposed based on the 
contemporaneous conduct of the person at the time of the negative 
suitability determination, not because of any disability of the person.
    However, as noted above, OPM has revised the language in sections 
731.204(b) and 731.205(b) of the final rule to clarify that upon 
expiration of a debarment period, if the person formerly debarred again 
becomes subject to OPM's or an agency's suitability jurisdiction, e.g., 
by applying for a position in the competitive service, a new 
suitability determination must be made under 5 CFR part 731 before an 
additional period of debarment can be imposed. OPM has further revised 
section 731.202(b)(5) of the final rule to clarify that 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, can only be the basis of a 
negative suitability determination in the absence of ``evidence of 
substantial rehabilitation.''
    The commenter suggested a number of changes to the suitability 
factors provided at Sec.  731.202(b) as a means to avoid what the 
commenter viewed as inconsistencies with laws enforced by EEOC. These 
factors have been in effect for many years and have resulted in a 
legally-sound and uniform body of case law governing the application of 
the factors Governmentwide. OPM does not wish to undermine that case 
law by changing these factors. Therefore, with the exception of the 
revision to section 731.202(b)(5) noted above, OPM is not revising the 
specific factors in section 731.202(b).
    Other suggested changes, including the limitation of agency 
debarment authority to one year, are also not adopted. While not 
adopting the suggestions, OPM strongly emphasizes to agencies that any 
actions taken under OPM's suitability rules must be taken in accordance 
with applicable laws, including those enforced by the EEOC.

Technical Amendments

    OPM has made technical amendments to the Authorities for this part 
by deleting the following citations: ``5 U.S.C. 7701'' and ``E.O. 
12731, 3 CFR, 1990 Comp., p. 306.'' These are deleted since they do not 
provide legal bases for 5 CFR part 731. OPM has also inserted ``as 
amended'' following the citation to E.O. 10577. OPM also moved the 
language defining ``covered position'' in section 731.101(a) to 
``Definitions'' in section 731.101(b) for easy reference. Finally, in 
section 731.105(a), OPM deleted the citation to paragraph (a) of 
section 731.104 because the correct reference is to all of section 
731.104.

Executive Order 12866, Regulatory Review

    The Office of Management and Budget has reviewed the final 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.

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

0
Accordingly, OPM is revising 5 CFR part 731 to read 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.

[[Page 20155]]

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; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218, as amended, 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 covered positions (as 
defined in paragraph (b) of this section) pursuant to 5 U.S.C. 3301, 
E.O. 10577 (3 CFR, 1954-1958 Comp., p. 218), as amended, 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 to eligibles or pass overs of 
preference eligibles, and OPM's and agencies' 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 
first year of a subject-to-investigation appointment (as defined in 
Sec.  731.104).
    Covered position means a position in the competitive service, a 
position in the excepted service where the incumbent can be 
noncompetitively converted to the competitive service, and a career 
appointment to a position in the Senior Executive Service.
    Days means 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 covered positions 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 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 paragraphs (f) 
and (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 adhere to OPM requirements as stated in this part and 
OPM's issuances described in Sec.  731.102(c). Agencies must also 
implement policies and maintain records demonstrating that they employ 
reasonable methods to ensure adherence to these OPM issuances.
    (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

[[Page 20156]]

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 suitability determinations and suitability actions 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 
cases involving material, intentional false statement in examination or 
appointment, or deception or fraud in examination or appointment; or 
refusal to furnish testimony as required by Sec.  5.4 of this title. 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 per year in either a 
single continuous appointment or series of appointments, do not require 
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 or 
check under Sec.  731.104.
    (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. An agency 
must notify OPM to the extent required in Sec.  731.103(g) 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

[[Page 20157]]

as required by paragraph (c)(1) of this section.
    (d) Suitability reinvestigations. Agencies, relying on authorities 
such as the Computer Security Act of 1987 and OMB Circular No. A-130 
Revised (issued November 20, 2000), may require incumbents of certain 
public trust positions to undergo periodic reinvestigations. The 
appropriate level of any reinvestigation will be determined by the 
agency, but may be based on supplemental guidance provided by OPM.
    (e) 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.
    (f) Completed investigations. Any suitability investigation 
completed by an agency under provisions of paragraph (d) of this 
section must result in a 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, without evidence of substantial rehabilitation, 
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 must consider any 
of the following additional considerations to the extent OPM or the 
relevant agency, in its sole discretion, deems any of 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 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 on an objection to an eligible or pass over of a 
preference eligible under 5 CFR 332.406, is not a suitability action 
even if it 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 315, 359, or 752 of 
this chapter. Where behavior covered by this part may also form the 
basis for an action under parts 315, 359, or 752 of this chapter, an 
agency may take the action under part 315, 359, or 752 of this chapter, 
as appropriate, instead of under this part. An agency must notify OPM 
to the extent required in Sec.  731.103(g) 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) OPM may impose an additional period of debarment following the 
expiration of a period of OPM or agency debarment, but only after the 
person again becomes an applicant, appointee, or employee subject to 
OPM's suitability jurisdiction, and his or her suitability is 
determined in accordance with the procedures of this part. An 
additional debarment period may be based in whole or in part on the 
same conduct on which the previous suitability action was based, when 
warranted, or new conduct.
    (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

[[Page 20158]]

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) The agency may impose an additional period of debarment 
following the expiration of a period of OPM or agency debarment, but 
only after the person again becomes an applicant or appointee subject 
to the agency's suitability jurisdiction, and his or her suitability is 
determined in accordance with the procedures of this part. An 
additional debarment period may be based in whole or in part on the 
same conduct on which the previous suitability action was based, when 
warranted, or new conduct.
    (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.
    (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'').
    (b) Decisions by the Merit Systems Protection Board.
    (1) If the Board finds that one or more 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. The Board must consider 
the record as a whole and make a finding on each charge and 
specification in making its decision.
    (2) If the Board sustains fewer than all the charges, the Board 
must remand the case to OPM or the agency to determine whether the 
suitability action taken is appropriate based on the sustained 
charge(s). However, the agency must hold in abeyance a decision on 
remand until the person has exhausted all rights to seek review of the 
Board's decision, including court review.

[[Page 20159]]

    (3) Once review is final, OPM or an agency will determine whether 
the action taken is appropriate based on the sustained charges and this 
determination will be final without any further appeal to the Board.
    (c) 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 June 
16, 2008. 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. E8-7964 Filed 4-14-08; 8:45 am]
BILLING CODE 6326-39-P