for adverse impact to the efficiency of the service.

(b) Investigative requirements. Persons receiving an appointment made subject to investigation shall undergo a background investigation, the scope and coverage of which shall be determined by OPM in accordance with the level of risk determined by the agency.

(1)

(c) Suitability reinvestigations. Every incumbent of a competitive service position:

(i) Designated High Risk under paragraph (a) of this section, or

(ii) That is a law enforcement or public safety position designated Moderate Risk under paragraph (a) of this section, shall be subject to a periodic reinvestigation of a scope established by OPM 5 years after placement, and at least once each succeeding 5 years.

(2) Periodic reinvestigations required by paragraph (c)(1) of this section may be adjudicated by the employing agency according to the procedures in this part, if applicable.

§731.303 Actions by OPM and other agencies.

(a) For a period of one year after the effective date of an appointment subject to investigation under §731.301, OPM may instruct an agency to remove an appointee when it finds that the appointee is unsuitable for any of the reasons cited in §731.202.

(b) Thereafter, OPM may require the removal of an employee on the basis of either intentional false statement or deception or fraud in examination or appointment; or refusal to furnish testimony; or statutory or regulatory bar.

(c) An action to remove an appointee or employee taken pursuant to an instruction by OPM is not an action under part 752, or §§315.804 through 315.806 of part 315, of this chapter.

(d) When OPM instructs an agency to remove an appointee or employee under this part it shall notify the agency and the appointee or employee of its decision in writing.

(e) Before OPM, or any agency having delegated authority from OPM under this part, shall take a final suitability action against an applicant, eligible, appointee, or employee under this part, the person against whom the action is proposed shall be given notice of the

proposed action (including the availability for review, upon request, of the materials relied upon), an opportunity to answer, notice of the final decision on the action, and notice of rights of appeal, if any, all in accordance with this part.

8731.304 Debarment.

(a) When OPM finds a person unsuitable for any reason named in §731.202, OPM, in its discretion, may deny that person examination for and appointment to a competitive position for a period of not more than 3 years from the date of determination of unsuitability.

(b) On expiration of a period of debarment, a person who has been debarred may not be appointed to any position in the competitive service until OPM has redetermined that person's suitability for appointment.

Subpart D-Suitability Actions §731.401 Scope.

(a) Coverage. This subpart sets forth the procedures to be followed when OPM, acting under authority of this part, proposes to take or to instruct an agency to take, a final suitability ineligibility action, including removal, against an applicant or eligible for appointment in, or an appointee or employee in, the competitive service. This subpart does not apply to an action taken by an agency to which OPM has delegated authority under § 731.103.

(b) Definition. In this subpart, days means calendar days.

§ 731.402 Notice of proposed action.

(a) OPM shall notify the applicant, eligible, appointee, or employee (hereinafter, the "respondent”) in writing of the proposed action and of the charges against the respondent. The notice shall state the reasons, specifically and in detail, for the proposed action. The notice shall also state that the respondent has the right to answer this notice in writing. If the respondent is an employee the notice shall further state that the employee may also make an oral answer, as specified in §731.403(a). The notice shall further inform the respondent of the time limits

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for answer as well as the address to which such answer should be made.

(b) OPM shall send a copy of this notice to the agency, if any, that is involved. The notice shall be served upon the respondent by being mailed to the respondent's last known residence or duty station no less than 30 days prior to the effective date of the proposed adverse action. If the respondent is employed in the competitive service on the date the notice is served, the respondent shall be entitled to be retained in pay status during the notice period.

§731.403 Answer.

(a) Respondent's answer. A respondent may answer the charges in writing and furnish affidavits in support of the response. A respondent who is an employee may answer orally. The respondent may be represented by a representative of the respondent's choice, and such representative shall be designated in writing to OPM. To be timely, a written answer shall be made to OPM no more than 30 days after the date of the notice of proposed action. In the event that an employee requests to make an oral answer, OPM shall determine the time and place thereof. OPM shall consider any answer that the respondent makes in reaching a decision.

(b) Agency's answer. In actions proposed by OPM under 5 CFR 5.3, the agency may also answer the notice of proposed action. The time limit for filing an answer is 30 days from the date of the notice. OPM shall consider any answer that the agency makes in reaching a decision.

8731.404 Decision.

OPM shall notify the respondent and the agency of the decision. The decision shall be in writing, be dated, and inform the respondent of the reasons for the decision. Removal of appointees or employees will be effective 30 days following the date of the decision. The respondent shall also be informed that an adverse decision can be appealed in accordance with subpart E of this part.

Subpart E-Administrative Review and Appeal

$731.501 OPM Review Panel.

(a) Composition. The OPM Review Panel (the Panel) is composed of 3 members. The Director of OPM in his/ her sole discretion shall appoint the members of the Panel from among employees of OPM and shall designate one of them Chairman. The Chairman and members of the Panel shall be individuals who, by demonstrated ability, background, training, or experience in dealing with appellate matters or suitability issues are qualified to review OPM suitability determinations. This subpart does not apply to an action taken by an agency to which OPM has delegated authority under §731.103, but agencies may establish similar procedures at their option.

(b) Function. The Panel's function is to review OPM determinations that an individual is unsuitable for employment in the competitive service and to affirm, reverse, or affirm as modified the OPM determination.

(c) Decisions. The Panel shall make the decision by majority vote.

8731.502 Procedures.

(a) Time of filing. When OPM issues a decision that an individual is unsuitable for employment, the individual may appeal the decision to the Panel within 30 days of the date of the decision.

(b) Untimely filing. If the 30-day time limit is not met the Panel will dismiss the appeal as untimely filed unless good cause for the untimely filing is demonstrated.

(c) Computation of time. In computing the number of days allowed for filing an appeal, the first day counted is that day after the date of the decision. If the date that would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the individual may file his/her appeal on the first workday after the date.

§ 731.503 Content of appeal.

(a) Who may appeal. Only an individual whom OPM has determined to be unsuitable for employment or his/her

representative may file an appeal with the panel.

(b) Content of appeal. An appeal must include:

(1) The name, address, and telephone number of the appellant.

(2) A statement of the reasons why the appellant believes OPM's determination of unsuitability was incorrect together with any supporting documentation that he/she wishes the Panel to consider.

(c) Service. An appeal shall be served by personal delivery or by United States Mail to the Office of Personnel Management Suitability Review Panel, 1900 E Street, NW., room 800E, Washington, DC 20415, or P.O. Box 886, Washington, DC 20044. If the appeal concerns an individual employed at a Federal agency, the individual shall also serve a copy of the appeal upon the agency at which the action took place.

$731.504 Representation.

An individual may represent himself/ herself or may designate a representative. An employing agency may disallow the choice of an individual as a representative that would result in a conflict of interest of position, that would conflict with the needs of the agency, or that would give rise to unreasonable costs to the Government. Before accepting a designation as representative, employees in the executive branch should consult 18 U.S.C. 205. An applicant may not be represented by an employee of an agency.

$731.505 Pay status.

When an employee or appointee whom OPM has determined to be unsuitable files an appeal the employing agency shall retain him or her in a pay status until the Panel issues its decision. If the Panel affirms OPM's decision, the employing agency shall remove the employee or appointee from the rolls within 5 days of receipt of the Panel's decision.

8731.506 Decision.

(a) After reviewing the record, the Panel shall prepare a written decision, affirming, reversing, or affirming as modified OPM's decision. The decision, if adverse, will inform the respondent of the right to appeal to the Merit Sys

tems Protection Board under §731.508 below.

(b) The Panel, in its discretion, may remand the case for additional investigation or consideration of relevant factors as it deems appropriate.

8731.507 Scope of review.

The Panel shall review de novo the OPM decision on the record. OPM bears the burden of proving by a preponderance of the record evidence that its decision would promote the efficiency of the service. If an issue of timeliness is raised, the individual appealing the OPM decision bears the burden of proving that his/her appeal was filed in a timely manner.

$731.508 Appeal to the Merit Systems Protection Board.

(a) Appeal to the Merit Systems Protection Board. An individual whom the Panel has decided is unsuitable for employment may appeal the Panel's decision to the Merit Systems Protection Board (the Board).

(b) Exhaustion of remedies. An individual may not appeal a determination of unsuitability to the Board unless he/ she has perfected an appeal with the Panel and has received a decision from the Panel that he/she is unsuitable for Federal employment.

(c) Appeal procedures. The procedures for filing an appeal with the Board are found at part 1201 of title 5, Code of Federal Regulations.

Subpart F-Reemployment
Eligibility

§731.601 Reemployment eligibility of certain former Federal employees.

(a) Request for suitability determination. When an employee has been removed by an agency on charges (other than security or loyalty) or has resigned on learning the agency planned to prefer charges, or while charges were pending, the former employee may request OPM to determine his or her suitability for further employment in the competitive service. OPM shall consider the request only if the former employee:

(1) Has completed any required probationary period;

(2) Has basic eligibility for reinstatement; and

(3) Includes a sworn statement with the request which sets forth fully and in detail the facts surrounding the removal or resignation.

(b) Action by OPM. (1) OPM, after appropriate consideration, including any investigation OPM deems necessary, shall inform the former employee of his or her current suitability for employment in the competitive service.

(2) If the former employee is found unsuitable and has had an opportunity to comment on the reasons for this finding, or has furnished comments to OPM, then OPM may cancel his or her reinstatement eligibility if that eligibility was obtained through fraud. In addition, OPM may prescribe a period of debarment from the competitive service not to exceed 3 years from the date of determination of unsuitability.

Subpart D-Security and Related
Determinations

732.401 Reemployment eligibility of certain former Federal employees.

AUTHORITY: 5 U.S.C. 3301, 3302, 7312; 50 U.S.C. 403; E.O. 10450, 3 CFR, 1949-1953 Comp., p. 936.

SOURCE: 56 FR 18654, Apr. 23, 1991, unless otherwise noted.

Subpart A-Scope

$732.101 Purpose.

This part sets forth certain requirements and procedures which each agency shall observe for determining national security positions pursuant to Executive Order 10450-Security Requirements for Government Employment (April 27, 1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936, as amended.

§ 732.102 Definition and applicability.

(a) For purposes of this part, the term "national security position" includes: (1) Those positions that involve activities of the Government that are concerned with the protection of the nation from foreign aggression or espionage, including development of defense plans or policies, intelligence or counterintelligence activities, and related activities concerned with the preservation of the military strength of the United States; and (2) positions that require regular use of, or access to, classified information. Procedures and guidance provided in FPM chapter 732 and related issuances apply.

(b) The requirements of this part apply to competitive service positions, and to Senior Executive Service positions filled by career appointment, within the Executive Branch, and agencies may apply them to excepted service positions within the Executive Branch.

Subpart B-Designation and
Investigative Requirements

§732.201 Sensitivity level designations and investigative requirements.

(a) For purposes of this part, the head of each agency shall designate, or cause to be designated, any position within the department or agency the occupant of which could bring about,

(b) Investigative requirements for each sensitivity level are provided in FPM chapter 732.

§732.202 Waivers and exceptions to investigative requirements.

(a) Waivers (1) General. A waiver of the preappointment investigative requirement contained in section 3(b) of Executive Order 10450 for employment in a sensitive national security position may be made only for a limited period: (i) In case of emergency if the head of the department or agency concerned finds that such action is necessary in the national interest; and (ii) when such finding is made a part of the records of the department or agency.

(2) Specific waiver requirements. (i) The preappointment investigative requirement may not be waived for appointment to positions designated SpecialSensitive under this part.

(ii) For positions designated CriticalSensitive under this part, the records of the department or agency required by §732.202(a)(1) of this part shall show what decision was made on obtaining prewaiver checks, as follows: (A) The nature of the emergency precluded obtaining prewaiver checks; or (B) checks were initiated but not all responses were received within 5 days; or (C) checks made and favorably completed are listed.

(iii) The waiver restriction is optional for positions designated Noncritical-Sensitive under this part.

(iv) When waiver is authorized, the required investigation must be initiated within 14 days of placement of the individual in the position.

(b) Exceptions to investigative requirements. (1) Pursuant to section 3(a) of E.O. 10450, the following positions are exempt from the investigative requirements of E.O. 10450, providing that the employing agency conducts such checks as it deems appropriate to insure that the employment or retention of individuals in these positions is clearly consistent with the interests of the national security:

(i) Positions that are intermittent, seasonal, per diem, or temporary, not to exceed an aggregate of 180 days in either a single continuous appointment or series of appointments; or

(ii) Positions filled by aliens employed outside the United States.

(2) Other positions that OPM, in its discretion, deems appropriate may be made exempt based on a written request to OPM by the agency head in whose department or agency the positions are located.

§732.203 Periodic reinvestigation requirements.

The incumbent of each position designated Special-Sensitive or CriticalSensitive under this part shall be subject to periodic reinvestigation of a scope prescribed by OPM 5 years after placement, and at least once each succeeding 5 years. The employing agency will use the results of such periodic reinvestigation to determine whether the continued employment of the individual in a sensitive position is clearly consistent with the interests of the national security.

Subpart C-Due Process and
Reporting

§ 732.301 Due process.

When an agency makes an adjudicative decision under this part based on an OPM investigation, or when an agency, as a result of information in an OPM investigation, changes a tentative favorable placement or clearance decision to an unfavorable decision, the agency must:

(a) Insure that the records used in making the decision are accurate, relevant, timely, and complete to the extent reasonably necessary to assure fairness to the individual in any determination.

(b) Comply with all applicable administrative due process requirements, as provided by law, rule, or regulation.

(c) At a minimum, provide the individual concerned:

(1) Notice of the specific reason(s) for the decision; and

(2) An opportunity to respond; and (3) Notice of appeal rights, if any. (d) Consider all available information in reaching its final decision.