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shall apply to employment in federally conducted programs or activities. $ 723.141—723.148 (Reserved) 8 723.149 Program accessibility: Discrimi.

nation prohibited. Except as otherwise provided in $ 723.150, no qualified individual with handicaps shall, because the agency's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency. 8723.150 Program accessibility: Existing

facilities. (a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This paragraph does not

(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;

(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or

(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 723.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action

would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that in. dividuals with handicaps receive the benefits and services of the program or activity.

(b) Methods—(1) General. The agency may comply with the require ments of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of serv. ices at alternate accessible sites, alter. ation of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by individuals with handicaps. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified individuals with handicaps in the most integrated setting appropriate.

(2) Historic preservation programs. In meeting the requirements of § 723.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to individuals with handicaps. In cases where a physical alteration to an historic property is not required be. cause of $ 723.150(a) (2) or (3), alterna. tive methods of achieving program accessibility include

(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot other. wise be made accessible;

(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties

that cannot otherwise be made accessi- 101-19.607, apply to buildings covered ble; or

by this section. (iii) Adopting other innovative methods.

88 723.152—723.159 (Reserved] (c) Time period for compliance. The

8 723.160 Communications. agency shall comply with the obligations established under this section by

(a) The agency shall take appropri. November 7, 1988, except that where

ate steps to ensure effective communistructural changes in facilities are un

cation with applicants, participants, dertaken, such changes shall be made

personnel of other Federal entities. by September 6, 1991, but in any event

and members of the public. as expeditiously as possible.

(1) The agency shall furnish appro(d) Transition plan. In the event

priate auxiliary aids where necessary that structural changes to facilities

to afford an individual with handicaps will be undertaken to achieve program

an equal opportunity to participate in, accessibility, the agency shall develop,

and enjoy the benefits of, a program by March 6, 1989, a transition plan set

or activity conducted by the agency. ting forth the steps necessary to com

(i) In determining what type of auxplete such changes. The agency shall

iliary aid is necessary, the agency shall provide an opportunity to interested

give primary consideration to the repersons, including individuals with

quests of the individual with handihandicaps or organizations represent

caps. ing individuals with handicaps, to par

(ii) The agency need not provide inticipate in the development of the

dividually prescribed devices, readers transition plan by submitting com

for personal use or study, or other dements (both oral and written). A copy

vices of a personal nature. of the transition plan shall be made

(2) Where the agency communicates available for public inspection. The

with applicants and beneficiaries by plan shall, at a minimum,

telephone, telecommunication devices (1) Identify physical obstacles in the

for deaf persons (TDD's) or equally efagency's facilities that limit the acces

fective telecommunication systems sibility of its programs or activities to

shall be used to communicate with

persons with impaired hearing. individuals with handicaps; (2) Describe in detail the methods

(b) The agency shall ensure that in

terested persons, including persons that will be used to make the facilities

with impaired vision or hearing, can accessible;

obtain information as to the existence (3) Specify the schedule for taking

and location of accessible services, acthe steps necessary to achieve compli

tivities, and facilities. ance with this section and, if the time

(c) The agency shall provide signage period of the transition plan is longer

at a primary entrance to each of its inthan one year, identify steps that will

accessible facilities, directing users to be taken during each year of the tran

a location at which they can obtain insition period; and

formation about accessible facilities. (4) Indicate the official responsible The international symbol for accessifor implementation of the plan.

bility shall be used at each primary

entrance of an accessible facility. 8 723.151 Program accessibility: New con.

(d) This section does not require the struction and alterations.

agency to take any action that it can Each building or part of a building demonstrate would result in a fundathat is constructed or altered by, on mental alteration in the nature of a behalf of, or for the use of the agency program or activity or in undue finanshall be designed, constructed, or al cial and administrative burdens. In tered so as to be readily accessible to those circumstances where agency perand usable by individuals with handi- sonnel believe that the proposed caps. The definitions, requirements, action would fundamentally alter the and standards of the Architectural program or activity or would result in Barriers Act (42 U.S.C. 4151-4157), as undue financial and administrative established in 41 CFR 101-19.600 to burdens, the agency has the burden of

proving that compliance with $ 723.160 would result in such alteration or bur dens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with handicaps receive the benefits and services of the program or activity.

88 723.161—723.169 (Reserved]

8723.170 Compliance procedures.

(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the agency.

(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).

(c) The Assistant Director for Personnel and EEO shall be responsible for coordinating implementation of this section. Complaints may be sent to the Assistant Director for Personnel and EEO, Office of Personnel Management, Room 1479, 1900 E St.. NW., Washington, DC 20415.

(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.

(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasona

ble efforts to refer the complaint to the appropriate Government entity.

(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to and usable by individuals with handicaps.

(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing

(1) Findings of fact and conclusions of law;

(2) A description of a remedy for each violation found; and

(3) A notice of the right to appeal.

(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by $723.170(g). The agency may extend this time for good cause.

(i) Timely appeals shall be accepted and processed by the head of the agency.

(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.

(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.

(1) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency. (53 FR 25880 and 25885, July 8, 1988, as amended at 53 FR 25880, July 8, 1988)

PART 731_SUITABILITY

Subpart A-Scope Sec. 731.101 Purpose. 731.102 Implementation. 731.103 Delegation to agencies.

Subpart B-Suitability Determinations 731.201 Standard. 731.202 Criteria.

Subpart C-Suitability Rating Actions 731.301 Jurisdiction. 731.302 Risk designation and investigative

requirements. 731.303 Actions by OPM and other agen

cies. 731.304 Debarment.

pointments in the Senior Executive Service (hereinafter in this part, “competitive service") pursuant to 5 U.S.C. 3301 and E.O. 10577. Section 3301 of title 5, United States Code, directs consideration of "age, health, character, knowledge, and ability for the employment sought.” E.O. 10577 directs OPM to examine “suitability" for competitive Federal employment. This part concerns only determinations of “suitability" based on an individual's character or conduct that may impact the efficiency of the service by jeopardizing an agency's accomplishment of its duties or responsibilities, or by interfering with or preventing effective service in the position applied for or employed in, and determinations that there is a statutory or regulatory bar to employment. Determinations made under this part are distinct from determinations of eligibility for assignment to, or retention in, sensitive national security positions made under E.O. 10450 or similar authorities.

Subpart D-Suitability Actions 731.401 Scope. 731.402 Notice of proposed action. 731.403 Answer. 731.404 Decision.

Subpart E-Administrative Review and Appeal 731.501 OPM Review Panel. 731.502 Procedures. 731.503 Content of appeal. 731.504 Representation. 731.505 Pay status. 731.506 Decision. 731.507 Scope of review. 731.508 Appeal to the Merit Systems Pro

tection Board.

Subpart F-Reemployment Eligibility 731.601 Reemployment eligibility of cer

tain former Federal employees.

8 731.102 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) Policies, procedures, criteria, and guidance for the implementation of this part shall be set forth in issuances of the Federal Personnel Manual System or other appropriate instruments. Agencies exercising authority under this part by delegation from OPM shall conform to such policies, procedures, criteria, and guidance.

Subpart G-Savings Provision 731.701 Savings provision.

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

SOURCE: 56 FR 18650, Apr. 23, 1991, unless otherwise noted.

Subpart A-Scope 8731.101 Purpose.

The purpose of this part is to establish criteria and procedures for making determinations of suitability for employment in positions in the competitive service and for career ap

8 731.103 Delegation to agencies.

(a) Direct Hires. The head of each agency is delegated authority for adjudicating suitability under this part for applicants filing directly with the agency outside a civil service register.

(b) OPM may in its discretion delegate to the heads of agencies authority for adjudicating suitability in other cases involving applicants and eligibles for, and appointees to, competitive service positions in the agency.

(c) Paragraphs (a) and (b) of this section notwithstanding, OPM may exercise its jurisdiction under this part in any case when deemed necessary.

(d) Any applicant, eligible, or appointee who is found unsuitable by any agency having delegated authority from OPM under this part for any reason named in g 731.202 may appeal to the Merit Systems Protection Board under the Board's regulations.

Subpart B-Suitability Determinations 8 731.201 Standard.

Subject to subpart C of this part, OPM may deny an applicant examination, deny an eligible appointment, and direct an agency to remove an appointee or employee when OPM determines the action will promote the efficiency of the service.

8731.202 Criteria.

(a) General. In determining whether its action will promote the efficiency of the service, OPM or an agency to which OPM has delegated authority under $ 731.103 of this chapter, shall make its determination on the basis

(2) Criminal or dishonest conduct related to the duties to be assigned to the applicant or appointee, or to that person's service in the position or the service of other employees;

(3) Intentional false statement or deception or fraud in examination or appointment;

(4) Refusal to furnish testimony as required by $ 5.4 of this chapter;

(5) Alcohol abuse of a nature and duration which 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 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;

(8) Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.

(c) Additional considerations. In making a determination under paragraphs (a) and (b) of this section, OPM and agencies shall consider the following additional factors to the extent that they deem these factors pertinent to the individual case:

(1) The kind of position for which the person is applying or in which the person is employed, including the degree of public trust or risk in the position;

(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;

(7) The absence or presence of rehabilitation or efforts toward rehabilitation.

of:

(1) Whether the conduct of the individual may reasonably be expected to interfere with, or prevent, efficient service in the position applied for or employed in; or

(2) Whether the conduct of the individual may reasonably be expected to interfere with, or prevent, effective accomplishment by the employing agency of its duties or responsibilities; or

(3) Whether a statutory or regulatory bar prevents the lawful employment of the individual in the position in question.

(b) Specific factors. When making a determination under paragraph (a) of this section, any of the following reasons may be considered a basis for finding an individual unsuitable:

(1) Misconduct or negligence in prior employment which would have a bearing on efficient service in the position in question, or would interfere with or prevent effective accomplishment by the employing agency of its duties and responsibilities;

Subpart C-Suitability Rating Actions 8731.301 Jurisdiction.

(a) Appointments subject to investigation. (1) In order to establish an appointee's suitability for employment in the competitive service, every appoint

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