[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 69601-69608]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN 3206-AL90
Suitability
AGENCY: U.S. Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing final
regulations to assist agencies in carrying out new requirements to
reinvestigate individuals in public trust positions under Executive
Order (E.O.) 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 final regulation will implement the suitability
reinvestigation provisions of E.O. 13488.
DATES: This rule is effective December 9, 2011.
FOR FURTHER INFORMATION CONTACT: Debra E. Buford, U.S. Office of
Personnel Management, Employee Services, telephone (202) 606-2930, fax
(202) 606-2613, email PLR@opm.gov.
SUPPLEMENTARY INFORMATION:
Background
On January 16, 2009, President George W. Bush signed Executive
Order 13488. Section 5 of the order states that ``[i]ndividuals in
positions of public trust shall be subject to reinvestigation under
standards (including but not limited to the frequency of such
reinvestigation) as determined by the Director of the Office of
Personnel Management, to ensure their suitability for continuing
employment.'' Section 2 of the order defines the terms ``Position of
Public Trust'' and ``Suitability'' by reference to 5 CFR part 731.
Section 6(b) delegates to OPM the ``authority to implement this order,
including the authority to issue regulations and guidance governing
suitability, or guidance related to fitness, as the Director determines
appropriate.'' Finally, section 6(a) states that ``[a]n agency shall
report to the Office of Personnel Management the nature and results of
the background investigation and fitness determination (or later
changes to that determination) made on an individual, to the extent
consistent with law.''
E.O. 13488 is distinct from, but complementary to, E.O. 13467,
which concerns, among other things, alignment, to the extent possible,
of investigations and standards relating to suitability or fitness,
eligibility for logical and physical access, eligibility to hold a
sensitive position, eligibility for access to classified information,
and, as appropriate, contractor employee fitness.
Public trust positions are those covered by 5 CFR part 731 that 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. These 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. Agencies designate public
trust positions, and their risk levels, following OPM guidance and
taking into account the specific duties of each position.
On November 3, 2009, OPM published, in the Federal Register at 74
FR 56747, a proposed rule to guide agencies in carrying out the new
requirement to reinvestigate individuals in public trust positions
under E.O. 13488. The public comment period ended on January 4, 2010.
Several Federal Agency commenters indicated they were unable to provide
an informed recommendation related to the frequency of reinvestigations
without specific information regarding the scope of the
reinvestigations. Thus, on November 5, 2010, OPM published a notice in
the Federal Register at 75 FR 68222 reopening the comment period on the
proposed rule. This notice provided additional information about the
scope of reinvestigations for public trust positions to allow for
further comment about reinvestigation frequency. In addition, OPM
proposed revising the text of the proposed rule at 5 CFR 731.106(d)(2),
to resolve an ambiguity regarding investigations that satisfy the
public trust reinvestigation requirement, and solicited additional
public comment on the revised text. The comment period on this second
Federal Register notice ended on December 6, 2010.
Response to Public Comments
In response to the original proposed rule and the reopener, OPM
received comments from 8 agencies, 4 unions, and 5 individuals. OPM
carefully considered comments received in response to the November 3,
2009, and November 5, 2010, Federal Register notices in the development
of this final rule. The comments fell into one of the following
categories: frequency of reinvestigations; impact on resources; timing
of implementation of the reinvestigation cycle; reinvestigation
requirements; alignment of reinvestigation standards; confusion
regarding the term ``assessment''; insufficiency of the information
provided; breaks in service of less than 24 months; collective
bargaining and labor relations; and miscellaneous. We have not
addressed the remaining comments either because they concerned other
suitability subparts not being revised or did not relate to suitability
at all.
Frequency of Reinvestigations
Many commenters voiced concerns about the frequency of public trust
reinvestigations. One labor organization representative said OPM should
withdraw the proposed rule and reissue it after providing the rationale
for the reinvestigation, the number of Federal employees affected, the
reinvestigation criteria, and a cost estimate for performing such
investigations. Another labor organization commented that OPM should
reconsider the need for periodic reinvestigations in the first place
and, upon reexamination, recommend to the Administration that the
Executive Order be rescinded. Other commenters stated that OPM should
not issue a reinvestigation cycle requirement
[[Page 69602]]
without first analyzing the actual need for, and effectiveness of,
these investigations, their overall costs to the Government, and
whether research exists that suggests 5 years is the most appropriate
timeframe. A commenter recommended that reinvestigations be conducted
every 10 or 15 years, and opined that it does not appear appropriate to
require the same reinvestigation timeframes for public trust positions
as for national security positions, considering the potential for harm
to the United States. Another commenter recommended a frequency of 10
years, as OPM has not provided data to demonstrate that a more frequent
reinvestigation cycle for public trust positions than for national
security positions promotes the efficiency of the service. One
commenter suggested the frequency be every 7 years as a cost-saving
measure. Still another commenter recommended agencies be given
additional flexibility so periodic background checks can be extended
beyond a 5-year time limit or agencies be granted the flexibility to
identify, based on their needs and knowledge of the positions, which
ones require reinvestigations every 5 years, rather than imposing a
blanket requirement for all positions. During the first comment period,
one commenter stated that those positions that truly warrant periodic
reinvestigations, such as supervisory and auditor positions, should be
reinvestigated no more frequently than once every 5 years. However,
during the second comment period, this same commenter stated those
positions should be subject to periodic reinvestigations without
mentioning a specific timeframe. A labor organization representative
stated that, in making certain assumptions about the scope of the
investigation, a frequency of every 10 years is sufficient. On the
other hand, two commenters suggested that the time period for
reinvestigations be lowered from 5 years to a frequency of every 2 or 3
years. Lastly, two commenters stated the policy change is appropriate
considering the risk posed by public trust positions in their agency.
OPM did not adopt any of these recommendations. This rule is
intended to satisfy E.O. 13488, which requires reinvestigations of
public trust positions with a frequency as determined by the Director
of the Office of Personnel Management. As described in the reopener,
the investigative product for reinvestigations of employees occupying
nonsensitive public trust positions will be the National Agency Check
with Local Agency Check and Credit Check (NACLC) or Periodic
Reinvestigation (PRI) depending on the level of public trust. As
proposed, reinvestigations must occur frequently enough to ensure that
continued employment of persons in public trust positions remains
appropriate. The E.O. requires a meaningful determination of continuing
suitability for employment. To be meaningful, a determination cannot
reasonably be made with outdated information. Accordingly, we have
decided to retain the 5-year reinvestigation requirement.
OPM chose the 5-year timeframe because it is consistent with the
coverage period that has long been established as the minimum coverage
period for suitability investigations. The National Agency Check with
Written Inquiries (NACI) is the minimum required level of initial
investigation and is required for low-risk positions. The coverage
period for the NACI is 5 years and has historically been 5 years.
Considering that a public trust position's potential adverse impact on
the efficiency or integrity of the service is greater than that of low-
risk positions, we believe 5 years is a reasonable timeframe for public
trust reinvestigations. Further, if the scope of coverage for the
original suitability investigation is 5 years, it follows that the
reinvestigations should be completed within the same timeframe, at a
minimum. Therefore, a less-frequent timeframe for reinvestigations has
not been adopted.
E.O. 13467 requires OPM to consider efficiency and cost
effectiveness in setting reinvestigative requirements as well.
Regarding comments about the number of employees impacted and the costs
associated with reinvestigations, we recognize that the number of
employees who may be affected has a direct correlation to the cost of
reinvestigations. However, it is difficult to arrive at an accurate
number affected because of the evolving needs of agencies. Historical
costs are, therefore, poor indicators of future costs. Agencies are
responsible for assessing the position designations within their
agencies and will know the number of employees to be reinvestigated and
may, therefore, predict the cost based on the price of the required
investigation. However, while we cannot allow too much time to go by
between reinvestigations, we recognize the need to balance risk and
cost. Therefore, we have chosen relatively low-cost investigative
products, the NACLC and the PRI, to minimize the cost. As described
below, we have also sought to reduce cost by aligning public trust and
national security reinvestigation requirements. In addition, OPM
commits to periodically assess the cost-effectiveness of the
investigative products selected.
Commenters suggested that the frequency of public trust
reinvestigations should be aligned with those required for clearance
holders. We recognize the need for alignment to the extent possible.
Therefore, in section 731.106(d)(2) of the final rule, as in the
proposed rule, a reinvestigation for eligibility for access to
classified information or to occupy a sensitive national security
position may be sufficient to meet the requirements for a public trust
reinvestigation. Likewise, in our proposed rule amending 5 CFR part
732, dated December 14, 2010, Designation of National Security
Positions, the timeframe for reinvestigations is also set at 5 years
for national security positions not requiring eligibility for access to
classified information. We expect to publish the revised part 732
regulations in early 2012. In tandem, these provisions in parts 731 and
732 will ensure that one reinvestigation at least every 5 years will be
sufficient to meet national security and public trust requirements, so
that agencies will not have to bear the burden and expense of
requesting multiple reinvestigations to meet separate requirements. A
reinvestigation on a Special Sensitive or Critical Sensitive national
security position will be sufficient to meet, the reinvestigation need
of a High Risk public trust position. A reinvestigation on a Non-
Critical Sensitive national security position will be sufficient to
meet the reinvestigation need of a Moderate Risk public trust position.
A commenter suggested a 15-year timeframe is an appropriate
frequency for reinvestigations for low-risk positions that are
investigated with the National Agency Check with Inquiry Investigations
(NACI's). However, this rule does not cover low-risk positions. It
fulfills the requirements of E.O. 13488, which mandates that
individuals who are in public trust positions, defined by 5 CFR part
731 as those designated as moderate and high risk, be reinvestigated.
There is no government-wide requirement to conduct reinvestigations of
employees in low-risk, nonsensitive positions.
During the initial comment period, a commenter suggested that OPM
consider allowing additional flexibility following the first 5-year
reinvestigation. The commenter suggested widening the window for
subsequent reinvestigations to every 5-10 years at the discretion of
the agency, depending on the nature of the position and its public
trust level. During the
[[Page 69603]]
second comment period, the same commenter suggested agencies be given
discretion to stretch the reinvestigation period to 10 years. We did
not adopt these recommendations. E.O. 13488 requires reinvestigations
of individuals in public trust positions with a frequency determined by
the Director of OPM, not by individual agencies. OPM has decided to
require all agencies to follow the same reinvestigation schedule to
promote consistency across the Federal Government. Further, 5 CFR
731.104 and 731.202 require reciprocal acceptance of prior suitability
investigations and adjudications. A consistent reinvestigation cycle
will promote reciprocity by giving gaining agencies confidence that
they are accepting prior investigations and adjudications that were
recent enough to have identified any serious issues that would have
affected eligibility for continued employment.
A labor organization representative stated that longer intervals
are needed between reinvestigations because it is a stressful and time-
consuming process for the typical employee. However, reinvestigations
must occur frequently enough if agencies are to carry out the purpose
of Executive Order 13488 to ensure that continued employment of persons
in public trust positions remains appropriate.
A commenter stated that clarification may be needed to ensure
agencies understand the reinvestigation requirement is based on the
completion date of the prior investigation. We agree and will provide
clarification in the implementing guidance.
Impact on Resources
Many commenters made observations regarding the impact of
reinvestigations on time, personnel, and financial resources. A
commenter stated that large agencies with a high number of public trust
positions would incur a heavy economic impact, while another commenter
voiced concerns regarding the strain on personnel resources when taking
on the additional reinvestigation requirements, since most employees in
moderate-risk positions have not been reinvestigated. A commenter also
voiced concern about OPM's Federal Investigative Services having the
capacity to perform reinvestigations in a timely manner, while another
commenter stated OPM will have major increases in costs and workload.
Further, a labor organization representative commented that, since OPM
does not know how many Federal employees will be subject to the
regulation, no analysis of the program's cost has been provided. A
labor organization representative further stated that, before the
regulation can be properly evaluated, the costs must be examined.
Another labor organization representative stated that OPM should
postpone issuing the regulation until the number of employees affected
by this regulation and the scope of the investigations that will be
conducted are known. However, agencies also commented that such
reinvestigations are necessary, and one commenter felt it was
irrelevant to consider future investigation and resource capacities in
the implementation of suitability policies and procedures.
OPM has not made changes to the rule as a result of these comments.
While we agree that reinvestigations will take time and resources to
accomplish, they are essential investments to ensure that continued
employment of employees is appropriate. OPM's responses to comments
about the cost and resource implications of the frequency of
reinvestigations, the population affected, and the reinvestigation
products selected, are addressed in greater detail above. OPM provides
investigative services on a reimbursable basis, pursuant to a revolving
fund established by Congress for this purpose, and is thus in a
position to readily ensure that sufficient investigative resources are
dedicated to meet the requirements of this rule.
During the first comment period, a commenter questioned whether the
proposed regulation will allow effective and efficient use of time and
resources if the regulations do not establish substantive regulatory
standards for adjudicating public trust reinvestigations, and if
agencies are unable to use suitability actions as the result of a
reinvestigation. During the reopener, the commenter again voiced
concerns that the proposed regulation does not meet the test of
effectiveness and efficiency regarding the use of time and resources.
The regulation is intended to satisfy E.O. 13488 which requires
reinvestigations of public trust positions.
Because the Executive order requires a reinvestigation of
``suitability for continuing employment'' and defines ``suitability''
by reference to 5 CFR part 731, agencies should consider the
substantive standards in Sec. 731. 202, when evaluating the results of
a public trust reinvestigation. However, 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 situations the subject of a reinvestigation
will have been employed by his or her agency for more than 1 year
following an appointment subject to investigation, and, in that
context, only OPM could take a suitability action under 5 CFR part 731
and only under the limited circumstances described in Sec. 731.105(d).
Nonetheless, conduct that surfaces during a reinvestigation could form
the basis for an adverse action under 5 CFR part 752. Whether to
propose and take an adverse action on the basis of a public trust
reinvestigation is a matter within the employing agency's discretion.
A commenter expressed concern that, given finite resources,
security clearance cases are given first priority to ensure they meet
the requirements of the law (i.e., the timeliness requirements for
security clearance adjudications in 50 U.S.C. 435b(g)). Further, the
commenter stated that, with the implementation of the reinvestigation
cycle for public trust positions, the timeliness of determinations
based on public trust reinvestigations will only diminish unless
Congress or the President requires them to be made within a specified
timeframe. These comments did not make any specific recommendation as
to the text of the rule. Accordingly, we did not make changes to the
rule as a result of these comments. We note that E.O. 13488 requires
individuals to be investigated with a frequency determined by the
Director of OPM to ensure suitability for continued employment; and
that to help achieve this objective the order requires agencies to
report the results of background investigations to OPM. Section 731.206
of the final rule implements this reporting requirement, so that OPM
can assess the timeliness of agency decisions. This regulation
complements the reporting requirements in part 732 for national
security investigations and adjudications, which also facilitate
monitoring.
One commenter noted that the same resources used to meet new
reinvestigation requirements are also used to make initial
determinations for suitability and security for new hires. This
commenter expressed concern about having sufficient resources to meet
these requirements and suggested that the requirements will have an
adverse impact on agencies' ability to meet the goals of OPM's Hiring
Reform Initiative. As noted above, the re-investigation requirement was
imposed by a 2009 Executive Order that requires reinvestigation of
public trust positions. Therefore, we do not agree with this
commenter's assessment of the impact on hiring reform. The hiring
reform initiative is a comprehensive and
[[Page 69604]]
integrated approach to Federal hiring that addresses workforce
planning, recruitment, hiring process, security and suitability, and
orientation. Moreover, this initiative assumes there are ongoing reform
efforts to align investigative and adjudicative processes and also
addresses various challenges throughout the hiring process, including
limited resources. Agencies have known about the reinvestigation
requirement for some time, now, and can be presumed to have anticipated
its implementation.
A commenter inquired as to whether or not the proposed rule would
create other changes to the investigation structure, the overall
investigation process, or the types of investigations available that
will ultimately impact agencies' workload. The final rule will not
affect the structure of investigations, the process, or the types of
investigation. However, OPM is assessing its investigative products as
part of a Joint Security and Suitability Process Reform effort under
E.O. 13467. Future Federal investigative standards resulting from this
effort will use automated records to the extent possible and may impact
the investigative structure and process. Other impacts on the
investigative process may result from our proposed rule in 5 CFR part
732, dated December 14, 2010, Designation of National Security
Positions, which prescribes time frames for national security
reinvestigations.
Timing of the Implementation of Reinvestigation Cycle
One commenter indicated the regulation lacks clarity as to when the
5-year investigation period will begin following the rule's
implementation, while other commenters suggested agencies be given
flexibility to implement the reinvestigation cycle. OPM concurs and has
added language to the rule stating that implementing guidance will be
issued regarding time lines for implementing this regulation. Agencies
will be afforded flexibility within the parameters set in that
guidance.
One commenter suggested that the reinvestigation cycle be delayed
until the new SF-85P, Questionnaire for Public Trust Positions, is
published for agency use. This comment is beyond the scope of this
regulation. This regulation is intended to satisfy E.O. 13488, which
requires reinvestigations of public trust positions.
A commenter suggested delaying implementation of the
reinvestigation cycle until OPM implements the tiered investigative
model described in section 2.1(a) of E.O. 13467, where each
successively higher level of investigation shall build upon, but not
duplicate, the ones below it. We did not adopt this recommendation.
Although OPM is working on the investigative standards contemplated by
E.O. 13467, we do not believe the possibility of future changes to
investigative products should affect the need to timely implement E.O.
13488. OPM has added language to this regulation at Sec. 731.106(d)(1)
stating that implementing guidance will be issued.
A labor organization representative expressed concern that this
regulation will take effect without any prior notice to current Federal
employees that informs them they may be subject to reinvestigations.
This labor union representative also recommended that current employees
be grandfathered under the old rules and the new rules apply only to
future employees. This recommendation is not adopted as it does not
satisfy the requirements of E.O. 13488, to conduct reinvestigations for
all public trust positions. However, we do recognize the commenter's
concern and have made revisions to the regulation at Sec.
731.106(d)(3), requiring agencies to notify all current employees
impacted by this rule of these new reinvestigation requirements.
The labor organization representative further commented that
reinvestigations could result in employees being jeopardized for
previously undisclosed past misconduct. OPM does not regard this as an
effective argument against a reinvestigation requirement for public
trust positions. Rather, the possibility that an employee may not
always disclose past misconduct to the employing agency provides a
sound reason for conducting such reinvestigations.
Reinvestigation Requirements
One commenter stated that the proposed language confuses
reinvestigation requirements for national security positions with new
reinvestigation requirements for public trust positions mandated by
E.O. 13488. We disagree and did not make a change as a result of this
comment. Rather, the separate authorities for reinvestigations for
national security positions and public trust positions are outlined to
ensure agencies avoid duplicate investigations where an existing
investigation already satisfies the requirement.
In the Notice of Proposed Rulemaking dated November 3, 2009, the
proposed language in Sec. 731.106(d)(2) states: ``If, prior to the
next required reinvestigation, a separate investigation (or
reevaluation) is conducted to determine a person's eligibility (or
continued eligibility) for access to classified information or as a
result of a change in risk level as provided in Sec. 731.106(e), and
that investigation is conducted at an equal or higher level than is
required for a public trust reinvestigation, a new reinvestigation is
not required. * * *'' A commenter stated that the meaning of ``at an
equal or higher level'' in Sec. 731.106(d)(2) is unclear. We have
reworded this paragraph to clarify that a new investigation is not
needed if the previous investigation ``meets or exceeds'' the criteria
required for a public trust reinvestigation.
A labor organization representative stated that it welcomed an
indication that OPM intends the scope of reinvestigation for moderate-
risk positions to be generally less intrusive and narrower in scope
than the reinvestigation of employees in high-risk positions. It should
be noted that the scope of the reinvestigation may be changed to meet
needs such as a further assessment of character or conduct because of
new information. A commenter suggested the use of automated
reinvestigative database checks without a new investigative
questionnaire. This suggestion is not feasible because the
effectiveness of reinvestigations relies on updated information
provided by the individual. However, OPM is considering the use of
automated reinvestigative database checks in addition to a new
investigative questionnaire.
One commenter recommended that 5 CFR part 731 be revised to provide
general authority to take suitability actions, not only for limited
situations currently described in part 731. The commenter believed this
change would allow the suitability decision to remain with agency
officials responsible for security, enhance consistency, and aid
reciprocity. Another commenter recommended that OPM revise the
regulations to allow agencies to take suitability actions whenever a
new suitability investigation is conducted rather than limiting agency
suitability actions to 1 year from the date an individual enters on
duty. We did not accept these recommendations as they are beyond the
scope of the proposed rule. Further, agencies' authority to take
suitability actions is delegated by OPM under 5 U.S.C. 1104(a)(2), and
cannot exceed the authority that OPM itself possesses. By regulation,
OPM's own jurisdiction to take a suitability action against employees
who have completed the first year of appointments subject to
investigation is limited to those cases where the employee has
committed falsification, deception or fraud in an
[[Page 69605]]
examination or appointment; is disqualified under a statutory or
regulatory bar to appointment; or has refused to testify when required
to do so by Civil Service Rule V. See 5 CFR 731.103(g), 731.105(d). OPM
does not interpret its suitability jurisdiction more broadly. Further,
OPM declines to delegate to agencies the authority to take suitability
actions against employees in these circumstances, because they are at
the core of OPM's responsibility to protect the integrity of the
competitive examining system and to impose government-wide debarments
when appropriate. Moreover these are circumstances where there may be a
conflict between OPM's and the agencies' interests, as recognized by 5
CFR 731.303(b).
One commenter stated that agencies should be delegated the
authority to initiate subsequent reinvestigations based on changes in
the position requirements and/or findings of misconduct. Another
commenter asked why OPM doesn't issue a regulation moving this entire
process to a ``risk-based'' process--i.e., requiring agencies to focus
on the actual employees in public trust positions instead of requiring
basically all employees to complete this periodic reinvestigation. A
third commenter noted that OPM should issue implementing guidance allow
public trust reinvestigations to be event-driven to resolve any new
potentially adverse information. As previously stated, E.O. 13488
requires reinvestigations of all employees in public trust positions.
If position requirements change, an agency should use OPM's Position
Designation System to determine any new investigation requirement and
subsequent reinvestigation requirements. As for event-driven situations
or misconduct, another reinvestigation may or may not be appropriate.
When the agency becomes aware of misconduct, it should take appropriate
action. This may include fact-finding inquiries and an adverse action
under 5 CFR part 752, if appropriate.
A commenter asked whether employees who have been employed for a
long period of time will be subject to a less rigorous reinvestigation.
Employees will not be subject to less rigorous reinvestigations simply
because of their length of service. All public trust employees will be
required to undergo reinvestigations at the level commensurate with
their position designations.
A commenter stated that the agency conducting the reinvestigation
does not appear to have authority under the proposed rule to take any
negative action based upon a negative ``assessment''. Another commenter
asked what standards will be used to assess an employee's fitness after
a reinvestigation. As noted above, since the Executive order requires a
reinvestigation of ``suitability for continuing employment'' and
defines ``suitability'' by reference to 5 CFR part 731, agencies should
consider the substantive standards in Sec. 731. 202, when evaluating
the results of a public trust reinvestigation. 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. If the character or
conduct of an employee undermines the efficiency of the service, the
agency may take an adverse action under 5 CFR part 752, if warranted.
In addition, to provide further clarification as to the types of
actions that can be taken against categories of probationary employees,
we have modified the language in Sec. 731.106(f) to include a
reference to 5 CFR part 315 for appointees or 5 CFR part 359 for SES
probationers.
A labor organization representative commented that the lack of a
substantive need for a reinvestigation is illustrated by the narrow
nature of the suitability action that could result from the
reinvestigation. The labor organization representative further stated
that there are better, less intrusive and more targeted ways to uncover
and correct an employee's misconduct other than the ``broad brush'' of
a reinvestigation. Another labor organization questioned the need to do
reinvestigations when only a few investigations will uncover areas of
concerns and most issues could not lead to disciplinary actions. We did
not make changes to the rule as a result of these comments, which
question the need for the Executive order rather than requesting a
change to the proposed rule implementing the order.
A labor organization representative called on OPM to recommend to
the Administration that it reexamine the need for reinvestigations for
public trust positions. This comment is outside the scope of the
rulemaking, so it cannot be considered by OPM as part of the rulemaking
process.
A commenter stated that the rule should include a requirement that,
prior to performing a reinvestigation, the employing agency must review
and determine that the employee's position has been properly designated
as to risk level. We did not adopt this recommendation, as agencies
must use OPM's Position Designation System, and should re-designate
positions as appropriate, such as when duties of the position change.
OPM will not impose a requirement to review the position designation
solely due to a pending reinvestigation. We note that our proposed
amendment to 5 CFR 732.204 would require agencies to reassess the
sensitivity designation of each national security position within a 24-
month period. Proposed section 732.201(c) states that OPM will issue
guidance under which an appropriate risk designation will automatically
follow from the position's sensitivity designation. Agencies are free
to reassess the risk designations of their nonsensitive public trust
positions at the same time.
One commenter stated that it has a Continuous Evaluation Program
(CEP) in place to identify, investigate, and adjudicate many of the
same issues a public trust reinvestigation process would address.
Further, the commenter suggested that focusing efforts on agency CEPs
would reduce the need for more frequent reinvestigation cycles. Another
commenter questioned whether or not there is redundancy between the
reinvestigation and the FD-961 (Bioterrorism Preparedness Act: Entity/
Individual Information) form. An investigation based on a CEP or the
FD-961 that meets all requirements for reinvestigation or goes beyond
those requirements may be sufficient. However, the commenters have not
provided enough information about the content of the CEP or an FD-961
investigation; therefore, we are not able to determine if these
investigations will satisfy the intended investigative requirement for
public trust reinvestigations. These recommendations are not adopted
because we do not have enough information to evaluate them.
A commenter recommended aligning fingerprinting requirements for
periodic reinvestigations on public trust positions with those of
reinvestigations for national security positions; and indicated that no
fingerprinting is required in most periodic reinvestigations. Criminal
checks will remain a critical component of reinvestigations, but
whether or not fingerprinting for criminal checks will be required will
be addressed in implementing guidance.
One commenter stated that it is using the National Agency Check
with Inquiries (NACI) investigation in lieu of the Modified Background
Investigation or Limited Background Investigation for moderate-risk
public trust positions where the incumbent has no access to
[[Page 69606]]
national security classified information. The NACI is not an
appropriate level of investigation for Public Trust positions. OPM
issued an October 2010 instruction to executive branch agencies
regarding the appropriate investigations for moderate-risk public trust
positions. The NACLC will be the reinvestigation required for moderate-
risk public trust positions because it efficiently provides high-value
information necessary to evaluate a person's continued suitability for
a moderate-risk position. Future Federal investigative standards may
redefine investigation and reinvestigation standards for public trust
positions.
One commenter recommended OPM grant exemptions for reinvestigations
on Minimum Background Investigations and revise the regulations to
clarify or expand definitions of representative public trust position
duties in 5 CFR 731.106. This recommendation is not adopted because the
Executive order does not authorize OPM to grant exemptions from
reinvestigation requirements, and because the definitions of
representative public trust position duties are not within the scope of
this rulemaking.
Alignment of Reinvestigation Standards
A commenter voiced a concern that OPM may propose that
reinvestigations for moderate and high-risk positions be different from
the continuous evaluation requirements (at the same tier level)
approved in Federal Investigative Standards that were issued in
December 2008, but never implemented. OPM declines to modify the rule
to reference or align with standards that were not implemented.
However, as previously noted, we recognize the need for alignment of
reinvestigation requirements to the extent possible, and this alignment
is reflected both in Sec. 731.106(d)(2) of this final rule, and in
proposed 5 CFR 732.203. Also as previously noted, new investigative
standards are under development. The new investigative standards are
targeted to be implemented in 2013.
Another commenter stated it is unclear why OPM is deferring
establishing new investigative standards for public trust
investigations until a later issuance, as this means that the rule
offers little guidance on anything other than the frequency of
reinvestigations. The commenter also stated that the rule cannot be
implemented until guidance on the investigative standards is published.
The purpose of this rulemaking is to prescribe the frequency of public
trust reinvestigations. In the reopener, we also explained the
investigative products we intend to use for public trust
reinvestigations for non-sensitive positions: The NACLC and the PRI.
Scope and coverage standards have already been established for these
products. Investigations and adjudications have been proceeding
throughout the period that OPM and other agencies have been working on
alignment issues, and will continue to proceed after implementation of
these regulations. OPM therefore disagrees with the commenter's
assertion that introducing changes to the suitability rule that are
required by Executive Order is somehow inappropriate or that there is
insufficient guidance to implement the rule. Further, as alignment
efforts move forward, new investigative standards and products will be
developed, but it is neither necessary nor desirable to codify the
scope and coverage standards for investigative products in permanent
rules.
Confusion Regarding the Term ``Assessment''
Some commenters stated that the term ``assessment'' caused
confusion. One commenter suggested we use the term ``decision''
instead, as ``assessment'' implies observation and evaluation. Another
commenter stated that OPM did not adequately explain why it is
proposing to replace ``determination'' with ``assessment.'' The
commenter recommended that the language remain as it is in the current
rule and include new language that states what action must be taken as
a result of a reinvestigation. A commenter recommended we change the
term ``assessment'' back to ``determination,'' as this commenter
believed that any final decision regarding an individual's continued
suitability for Federal employment based upon a completed investigation
should be called a ``determination'' for consistency across agencies.
Another commenter recommended that OPM outline what happens after a
completed suitability investigation (``determination'') and what
happens after a completed reinvestigation (``assessment''). The
commenter also stated that the term ``assessment'' needs to be further
defined or explained. Only one commenter indicated that the term
``assessment'' clarified the process.
Since use of the term ``assessment'' has not provided clarification
as intended, in Sec. 731.106(d)(1) we have changed the term back to
``determination,'' to reflect the decision-making process associated
with ensuring suitability for continuing employment. In the context of
this rule, the ``determination'' is a decision as to whether or not to
take a suitability action, adverse action, or probationary action, or
to refer a case to OPM for adjudication, as appropriate. An adverse
action, if taken, must meet statutory procedural requirements. E.O.
13488 does not require an agency to take an adverse action when it
otherwise would not be warranted.
To provide further clarification as to the types of actions that
can be taken against categories of employees, we have modified the
language in Sec. 731.106(f) to include a reference to 5 CFR part 315
for probationers or 5 CFR part 359 for Senior Executive Service (SES)
probationers. We have also changed Sec. 731.106(e) to include
appointees as well as employees, as changes in risk levels can occur
with respect to both.
Insufficient Information
Some labor organization representatives expressed concerns that
sufficient information was not provided to enable them to comment in a
meaningful fashion regarding the frequency of reinvestigation. We
disagree. This rule was originally proposed on November 3, 2009, and
reopened on November 5, 2010, to specifically solicit comments on the
reinvestigation cycle. The new notice provided adequate information
about the intended reinvestigation products. Despite continuing
concerns expressed on lack of information, a number of substantive
comments were still provided by these parties regarding frequency of
reinvestigation.
Breaks in Service That Are Less Than 24 Months
Some commenters observed that the proposed rule does not contain
language addressing how breaks in service affect investigative
requirements. As a result, they recommended that OPM amend the proposed
rule to clarify that a break in service of less than 24 months would
not require a new investigation. They argued that this would support
the goals of reciprocity and alignment between suitability and national
security investigations. OPM agrees and has revised Sec. 731.104(a) to
clarify that a new investigation is not required when there has been a
break in service of less than 24 months.
Collective Bargaining and Labor Relations
One agency commenter and a labor organization representative
expressed the opinion that implementation of these regulations may
require collective bargaining for employees in bargaining
[[Page 69607]]
units prior to implementation. The commenters made no specific
recommendations, so no changes were made to the rule.
A labor organization representative commented that implementation
of these regulations will have a negative impact on labor relations and
Federal employees and recommends that the National Council on Federal
Labor-Management Relations review the rule and make recommendations to
the President on whether to proceed with the rule. This labor
organization representative also proposed that OPM hold the rule in
abeyance until the President decides whether or not to proceed with it.
The labor organization representative did not provide any additional
information regarding the perceived negative impact on labor relations
and Federal employees. We did not adopt these recommendations. The
rulemaking is required by E.O. 13488. As long as the E.O. remains in
place, there is no basis for OPM to submit this rule for the National
Council's review or to hold it in abeyance. The proposed rule dated
November 3, 2009, and the reopener dated November 5, 2010, were
provided to all unions with Governmentwide consultation rights with OPM
for their comments and recommendations regarding the rule.
Additionally, agencies, members of the public, and other labor
organizations were also provided an opportunity to comment on the
proposed rule.
Miscellaneous Comments
One commenter stated that a review should be made as to whether
agencies will initiate adverse action proceedings should off-duty
criminal conduct be discovered, when the conduct does not have a nexus
to the service. OPM did not adopt this recommendation as it is outside
the scope of this rule. However, as stated earlier, 5 CFR 731.106(f)
currently provides that 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. This rule prescribes
reinvestigation requirements, and cannot be read to amend the statutory
standard for bringing an adverse action under 5 U.S.C. chapter 75.
Under this standard an adverse action must have a nexus with the
efficiency of the service.
One commenter stated that OPM's separate proposal to amend part 732
will, if adopted, have the effect of broadening the categories of
position duties that are categorized as ``sensitive'' and, as a result,
OPM should not make references in part 731 to the representative
position duties of ``public trust'' positions. The definition of
representative ``public trust'' position duties in 5 CFR 731.106(b) is
not within the text that OPM proposed to amend in the rule, so the
comment is outside the scope of the rulemaking. Nonetheless, we note
that the commenter appears to assume that national security positions
do not also have a public trust risk designation. This assumption is
incorrect under Sec. 731.106(b)(2). We also note that the commenter's
statement about the possible effect of OPM's proposal to amend part 732
is speculative. As we noted in the Supplementary Information
accompanying the notice of proposed rulemaking, the proposed rule
contains text intended to address the risk of over-designating national
security positions as well as the risk of under-designating such
positions.
One commenter stated that directing agencies to make an
``assessment'' of whether findings of an investigation would justify an
action against an employee will take the decision out of the personnel
security arena and place it into the employee and labor relations
arena. While we have agreed to retain the term ``determination''
instead of ``assessment,'' there is no intended change in how these
actions are handled in an agency. OPM is aware that some agencies
conduct suitability reviews as a human resources function, while other
agencies conduct such reviews as a security function. It is not OPM's
intent in this rulemaking to prescribe which internal component of an
agency will conduct a function.
One commenter stated that, given the reporting requirement, the
agency will have to complete the INV Form 79A, Report of Adjudicative
Action on OPM Personnel Investigations. The agency further stated that
this requirement will place the burden on personnel security divisions
to report on actions that may be taken by other offices. While agencies
have responsibilities to comply with this rule, it is up to each agency
to determine how it will do so.
One commenter questioned why OPM doesn't issue a regulation
regarding how employees can dispute the designation of their positions
as public trust positions. This question is beyond the scope of the
proposed rule, which is limited to the frequency of reinvestigations.
However, because the position designation process is a discretionary
agency decision, employees should consult with their agency human
resources office regarding whether any administrative procedures are
available to employees if they wish to dispute whether rules and
regulations have been properly applied.
One commenter questioned how designations of public trust positions
are made, and recommended that OPM clarify the definition of public
trust position duties in its regulation. Designations of public trust
positions and their risk levels are made by agencies following OPM
guidance and taking into account the specific duties of each position.
The comment that OPM should clarify the definition of public trust
position duties in the rule cannot be considered because it addresses
matters outside the scope of the rulemaking.
Finally, OPM is updating the authority citation for part 731 to
include a reference to E.O. 13488. We also are making a correction to
the citation format.
Regulatory Flexibility Act
OPM has determined that this rule will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
Executive Order 13563 and Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 13563 and E.O. 12866.
E.O. 13132, Federalism
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 regulation will not result in the expenditure by State, local,
or Tribal governments of more than $100 million annually. Thus, no
written assessment of unfunded mandates is required.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-
[[Page 69608]]
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.
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This final regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
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 amends part 731, title 5, Code of Federal
Regulations, as follows:
PART 731--SUITABILITY
0
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, 3 CFR, 2010 Comp., p. 189; 5 CFR, parts 1, 2 and 5.
Subpart A--Scope
0
2. In Sec. 731.104, remove ``or'' at the end of paragraph (a)(3),
replace the period at the end of paragraph (a)(4) with ``; or'', and
add a new paragraph (a)(5) to read as follows:
Sec. 731.104 Appointments subject to investigation.
(a) * * *
(5) Appointment to a covered position where there has been a break
in service of less than 24 months, and the service immediately
preceding the break was in a covered position, an excepted service
position, or a contract employee position described in paragraphs
(a)(1) to (a)(4) of this section.
* * * * *
0
3. In Sec. 731.106, revise paragraphs (d), (e), 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 a determination 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 and parameters 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 paragraph (e) of this section, and that investigation meets
or exceeds the requirements 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.
(3) Agencies must notify all employees covered by this section of
the reinvestigation requirements under this paragraph.
(e) Risk level changes. If an employee or appointee experiences a
change to a higher position risk level due to promotion, demotion, or
reassignment, or the risk level of the employee's or appointee's
position is changed to a higher level, the employee or appointee may
remain in or encumber the position. Any upgrade in the investigation
required for the new risk level should be initiated within 14 calendar
days after the promotion, demotion, reassignment or new designation of
risk level is final.
(f) Completed investigations. Any suitability investigation (or
reinvestigation) completed by an agency under paragraphs (d) and (e) of
this section must result in a determination by the employing agency of
whether the findings of the investigation would justify an action under
this part or under another applicable authority, such as part 315, 359,
or 752 of this chapter. Section 731.103 addresses whether an agency may
take an action under this part, and whether the matter must be referred
to OPM for debarment consideration.
Subpart B--Suitability Determinations and Actions
0
4. 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. 2011-29057 Filed 11-8-11; 8:45 am]
BILLING CODE 6325-39-P
