[Federal Register Volume 75, Number 214 (Friday, November 5, 2010)]
[Proposed Rules]
[Pages 68222-68224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28054]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

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

[[Page 68222]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 731

RIN 3206-AL90


Suitability

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing 
proposed regulations to assist agencies in carrying out new 
requirements to reinvestigate individuals in public trust positions 
under Executive Order 13488, Granting Reciprocity on Excepted Service 
and Federal Contractor Employee Fitness and Reinvestigating Individuals 
in Positions of Public Trust, to ensure their continued employment is 
appropriate. This proposed rule would implement the suitability 
reinvestigation provisions of E.O. 13488. OPM also proposes to make a 
technical revision to the authority citation to correct the citation 
format.

DATES: Comments must be received on or before December 6, 2010.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AL90,'' using either of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments. All submissions received through 
the Portal must include the agency name and docket number or Regulation 
Identifier Number (RIN) for this rulemaking.
    All Mail: Tom Wachter, Acting Deputy Associate Director, 
Partnership & Labor Relations, U.S. Office of Personnel Management, 
Room 7H28, 1900 E Street, NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: Julie Ohr, U.S. Office of Personnel 
Management, Partnership & Labor Relations, 1900 E St., NW., Room 7H28, 
Washington, DC 20415-4000; fax to 202-606-2613; e-mail to [email protected].

SUPPLEMENTARY INFORMATION:

Reopening of Comment Period for Proposed Rule

    This proposed rule was published on November 3, 2009, at 74 FR 
56747, with the comment period ending on January 4, 2010. Several 
comments received from Federal agencies stated that the commenter was 
unable to provide an informed recommendation related to the frequency 
of reinvestigations without specific information regarding the scope of 
such reinvestigation. This notice is intended to provide additional 
information relative to the scope of reinvestigations for public trust 
positions in order to allow for further comment as to reinvestigation 
frequency. In addition, OPM is revising the text of the proposed rule 
at 5 CFR 731.106(d)(2) to identify separate investigations that satisfy 
the public trust reinvestigation requirement to resolve an interpretive 
ambiguity, and is soliciting additional public comment on the revised 
text. Both the comments received in response to OPM's November 3, 2009, 
Federal Register notice, and the comments received in response to this 
reopening notice related to the frequency of reinvestigation of public 
trust positions, will be considered in the development of the final 
rule. OPM is also using this opportunity to propose a technical 
revision to the authority citation to correct the citation format.

Background

    On January 16, 2009, President George W. Bush signed Executive 
Order 13488, which provides that individuals in public trust positions 
shall be subject to reinvestigation under standards determined by the 
Director of the Office of Personnel Management (OPM) to ensure their 
continued employment is appropriate. The order provides that the 
standards issued by OPM shall include the frequency of 
reinvestigations. E.O. 13488 is distinct from but complements E.O. 
13467, concerning alignment, to the extent possible, of security and 
suitability standards.

Public Trust Positions

    Public trust positions are those covered by 5 CFR part 731 which an 
agency head, under 5 CFR 731.106, has designated at a moderate or high 
risk level, based on the position's potential for adverse impact on the 
efficiency or integrity of the service. Such positions may involve 
policy making, major program responsibility, public safety and health, 
law enforcement duties, fiduciary responsibilities, or other duties 
demanding a significant degree of public trust, or access to or 
operation or control of financial records, with a significant risk for 
causing damage or realizing personal gain. Designation of public trust 
positions and their risk level is made by agencies following OPM 
guidance and taking into account the specific duties of each position.

Frequency of Reinvestigations

    While a reinvestigation typically will be more limited than the 
initial investigation, that reinvestigation must occur frequently if 
agencies are to carry out the purpose of the Executive order--to ensure 
that continued employment of persons in public trust positions remains 
appropriate. Accordingly, the proposed rule would require, at 5 CFR 
731.106(d)(1), that a person occupying a public trust position be 
reinvestigated at least once every 5 years.
    Currently, under 5 CFR 731.106(c)(2) and 732.201(a), each position 
that is designated as a low-, moderate- or high-risk position must also 
be designated as non-sensitive, noncritical-sensitive, critical-
sensitive, or special-sensitive based on the potential that the 
occupant could materially adversely affect the national security. 
Although it is possible that the types of investigations performed may 
change to meet evolving needs, at the writing of this regulatory 
notice, it is the intent of OPM to conduct reinvestigations for non-
sensitive, moderate-risk public trust positions using the NACLC 
(National Agency Check with Local Agency Check and Credit Check), and 
non-sensitive, high-risk public trust reinvestigations would be 
conducted using the PRI (Periodic Reinvestigation). Both of these 
reinvestigations will be conducted using the Questionnaire for Public 
Trust Positions (SF-85P) Form. The reinvestigation may be expanded as 
necessary based upon information discovered during the investigation. 
Contingent on future investigative and resource capacities, OPM 
supplementary guidance will adjust investigative frequencies within 
this 5-year period based on the level of trust (i.e., either moderate 
or high risk) associated with a person's position. We

[[Page 68223]]

are re-opening the comment period to specifically solicit comment on 
whether a periodic reinvestigation cycle of 5 or fewer years is 
appropriate, considering the risk posed by employment in public trust 
positions, and the availability of investigative and adjudicative 
resources based on the investigative product used to conduct the 
reinvestigations. We will consider comments on this proposed rule and 
consult with affected agencies in developing supplemental guidance on 
investigative frequency.
    E.O. 13488 addresses reinvestigations of occupants of all public 
trust positions, including those also designated as noncritical-
sensitive, critical-sensitive, or special-sensitive under 5 CFR part 
732. Certain positions are already subject to national security 
reinvestigation requirements under 5 CFR 732.203 or under E.O. 12968, 
as amended. Requiring multiple reinvestigations for the same individual 
at least every 5 years would be costly and inefficient, and would be 
inconsistent with the policy expressed in E.O. 13467, which calls for 
suitability and national security investigations to be aligned ``using 
consistent standards to the extent possible'' and for ``each 
successively higher level of investigation * * * [to] build upon, but 
not duplicate, the ones below it.''
    Accordingly, at 5 CFR 731.106(d)(2), the proposed rule would 
provide that a national security investigation to determine a person's 
initial or continued eligibility for access to classified information 
or to hold a sensitive position also satisfies the 5-year public trust 
reinvestigation requirement for that person, as long as it is conducted 
at a level equal to or higher than the level required for his or her 
public trust reinvestigation. The agency is not required to conduct an 
additional public trust reinvestigation in such circumstances, and the 
completed national security investigation restarts the 5-year schedule 
(or other schedule as future guidance might require) for a new public 
trust reinvestigation. Likewise, a suitability investigation based on a 
change in risk level as provided in 5 CFR 731.106(e) is sufficient, if 
conducted at the appropriate level, to satisfy the public trust 
reinvestigation requirement.
    The proposed rule published on November 3, 2009, stated that an 
investigation for eligibility for access to classified national 
security information may be sufficient to meet public trust 
reinvestigation requirements, but did not state that an investigation 
for employment in a sensitive national security position may also be 
sufficient to meet public trust reinvestigation requirements. The text 
of the proposed rule has been revised to clarify that both types of 
national security investigations may be sufficient to meet public trust 
reinvestigation requirements. Further, the November 3, 2009, proposed 
rule stated that a ``reevaluation'' may be sufficient to meet public 
trust reinvestigation requirements, without defining a 
``reevaluation.'' The text of the proposed rule has been revised to 
eliminate this ambiguous term. OPM is soliciting public comment on 
these revisions to the text of the proposed rule, in addition to 
soliciting public comment on the appropriate cycle for public trust 
reinvestigations.

Assessments Resulting From Reinvestigations

    The regulation at 5 CFR 731.106(f) would be modified to more 
clearly reflect the broader authority and obligation of agencies to 
make decisions following investigations. The current language provides 
that a completed investigation must result in a ``determination'' by 
the agency. As discussed below, an agency's decision on a 
reinvestigation of an employee in a public trust position will rarely 
be a suitability determination that results in a suitability action 
under this part. Thus, the potentially misleading word 
``determination'' would be replaced with the word ``assessment.''
    As currently provided at 5 CFR 731.106(f), a person's employment 
status will determine the applicable agency authority and procedures to 
be followed in any action taken based on the results of the 
reinvestigation. In most circumstances, the subject of a 
reinvestigation will have been employed by his or her agency for more 
than one year and, under those circumstances, only OPM could make a 
suitability determination and take a suitability action under very 
limited circumstances. As provided under 5 CFR 731.105(d), OPM could 
take a suitability action based on (1) a material, intentional false 
statement, or deception or fraud in examination or appointment; (2) 
refusal to furnish testimony, or (3) a statutory or regulatory bar that 
prevents the lawful employment of the person. However, conduct that 
surfaces during a reinvestigation (for example, off-duty criminal 
conduct) could form the basis for an adverse action under 5 CFR part 
752.
    Consistent with the changes made to 5 CFR 731.106, the reporting 
requirements under 5 CFR 731.206 would be modified to require agencies 
to report any decisions and actions taken as a result of a background 
investigation or reinvestigation. Here, the ``level'' of investigation 
is replaced by the ``level or nature'' of the investigation as a 
reporting obligation, to be consistent with E.O. 13488. The actual 
information reported is unchanged. Section 731.206 of title 5, Code of 
Federal Regulations, also would be clarified to reflect current 
practice that agencies follow in reporting the completion dates of 
background investigations. This is important, since the public trust 
position reinvestigation schedule is tied to the completion date of a 
relevant investigation.

Technical Amendment

    OPM proposes a technical amendment to the Authorities for this part 
to reflect the President's signing of Executive Order 13488 on January 
16, 2009, which authorizes the Director of OPM to issue regulations and 
guidance implementing the order. In this reopener, OPM also makes a 
technical revision to the authority citation to correct the citation 
format.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities because the 
regulations pertain only to Federal employees and agencies.

E.O. 12866, Regulatory Review

    This proposed rule has been reviewed by the Office of Management 
and Budget under Executive Order 12866.

E.O. 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988--Civil Justice Reform

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

Unfunded Mandates Reform Act of 1995

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

[[Page 68224]]

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

PART 731--SUITABILITY

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

    Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218, as amended; E.O. 13467, 3 CFR, 2009 Comp., p. 
198; E.O. 13488, 74 FR 4111; 5 CFR, parts 1, 2 and 5.

Subpart A--Scope

    2. In 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 is conducted to determine a person's eligibility (or 
continued eligibility) for access to classified information or to hold 
a sensitive position, or as a result of a change in risk level as 
provided in 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 public trust reinvestigation is not required. 
Such a completed investigation restarts the cycle for a public trust 
reinvestigation for that person.
* * * * *
    (f) Completed investigations. Any suitability investigation (or 
reinvestigation) completed by an agency under paragraphs (d) and (e) of 
this section must result in an assessment by the employing agency of 
whether the findings of the investigation would justify an action 
against the employee, under this part or under some other authority, 
such as 5 CFR part 752. Section 731.103 addresses whether an action is 
available under this part, and whether the matter must be referred to 
OPM for debarment consideration.
    3. Revise 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. 2010-28054 Filed 11-4-10; 8:45 am]
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