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ment to a position in the competitive service is subject to investigation by OPM, except:

(i) Promotion;
(ii) Demotion;
(iii) Reassignment;

(iv) Conversion from career-conditional to career tenure;

(v) Appointment, or conversion to an appointment, made by an agency of an employee of that agency who has been serving continuously with that agency for at least one year in one or more positions under an appointment subject to investigation; and

(vi) Transfer, provided the one-year, subject-to-investigation period applied to the previous appointment has expired.

(2) Appointments are subject to in vestigation to continue OPM's jurisdiction to investigate the suitability of an applicant after appointment and to authorize OPM to require removal when it finds the appointee is unsuitable for Federal employment. The subject-to-investigation condition may not be construed as requiring an employee to serve a new probationary or trial period or as extending the probationary or trial period of an employee.

(b) Duration of condition. The subject-to-investigation condition expires automatically at the end of one year after the effective date of appoint ment, except in a case involving intentional false statement or deception or fraud in examination or appointment, or refusal to furnish testimony.

(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. 8 731.303 Actions by OPM and other agen

cies. (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 OPM may inst 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.

8 731.302 Risk designation and investiga

tive requirements. (a) Risk designation. Agency heads shall designate every competitive service position within the agency at either a High, Moderate, or Low risk level as determined by the position's potential 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.

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

311-005 0–92—-2

8 731.304 Debarment.

dence or duty station no less than 30 (a) When OPM finds a person un

days prior to the effective date of the suitable for any reason named in

proposed adverse action. If the re$ 731.202, OPM, in its discretion, may

spondent is employed in the competideny that person examination for and

tive service on the date the notice is appointment to a competitive position

served, the respondent shall be entifor a period of not more than 3 years

tled to be retained in pay status from the date of determination of un

during the notice period. suitability.

8731.403 Answer. (b) On expiration of a period of debarment, a person who has been de

(a) Respondent's answer. A respondbarred may not be appointed to any

ent may answer the charges in writing position in the competitive service

and furnish affidavits in support of until OPM has redetermined that per the response. A respondent who is an son's suitability for appointment.

employee may answer orally. The re

spondent may be represented by a repSubpart D—Suitability Actions

resentative of the respondent's choice,

and such representative shall be desig8 731.401 Scope.

nated in writing to OPM. To be timely,

a written answer shall be made to (a) Coverage. This subpart sets forth

OPM no more than 30 days after the the procedures to be followed when

date of the notice of proposed action. OPM, acting under authority of this

In the event that an employee repart, proposes to take or to instruct an

quests to make an oral answer, OPM agency to take, a final suitability ineli

shall determine the time and place gibility action, including removal,

thereof. OPM shall consider any against an applicant or eligible for ap

answer that the respondent makes in pointment in, or an appointee or em

reaching a decision. ployee in, the competitive service. This

(b) Agency's answer. In actions prosubpart does not apply to an action

posed by OPM under 5 CFR 5.3, the taken by an agency to which OPM has delegated authority under $ 731.103.

agency may also answer the notice of

proposed action. The time limit for (b) Definition. In this subpart, days

filing an answer is 30 days from the means calendar days.

date of the notice. OPM shall consider 8 731.402 Notice of proposed action.

any answer that the agency makes in

reaching a decision. (a) OPM shall notify the applicant, eligible, appointee, or employee (here $ 731.404 Decision. inafter, the “respondent”) in writing

OPM shall notify the respondent of the proposed action and of the

and the agency of the decision. The charges against the respondent. The

decision shall be in writing, be dated, notice shall state the reasons, specifi

and inform the respondent of the reacally and in detail, for the proposed

sons for the decision. Removal of apaction. The notice shall also state that

pointees or employees will be effective the respondent has the right to

30 days following the date of the decianswer this notice in writing. If the re

sion. The respondent shall also be inspondent is an employee the notice

formed that an adverse decision can be shall further state that the employee

appealed in accordance with subpart E may also make an oral answer, as spec

of this part. ified in $ 731.403(a). The notice shall further inform the respondent of the time limits for answer as well as the

Subpart E-Administrative Review address to which such answer should

and Appeal be made. (b) OPM shall send a copy of this

8731.501 OPM Review Panel. notice to the agency, if any, that is in (a) Composition. The OPM Review volved. The notice shall be served Panel (the Panel) is composed of 3 upon the respondent by being mailed members. The Director of OPM in to the respondent's last known resi. his/her sole discretion shall appoint

the members of the Panel from among mentation that he/she wishes the employees of OPM and shall designate Panel to consider. one of them Chairman. The Chairman (c) Service. An appeal shall be served and members of the Panel shall be in by personal delivery or by United dividuals who, by demonstrated abili States Mail to the Office of Personnel ty, background, training, or experience

Management Suitability Review in dealing with appellate matters or

Panel, 1900 E Street, NW., room 800E, suitability issues are qualified to

Washington, DC 20415, or P.O. Box review OPM suitability determina

886, Washington, DC 20044. If the tions. This subpart does not apply to

appeal concerns an individual eman action taken by an agency to which

ployed at a Federal agency, the indiOPM has delegated authority under § 731.103, but agencies may establish

vidual shall also serve a copy of the similar procedures at their option.

appeal upon the agency at which the (b) Function. The Panel's function is

action took place. to review OPM determinations that an

§ 731.504 Representation. individual is unsuitable for employment in the competitive service and to An individual may represent himaffirm, reverse, or affirm as modified self/herself or may designate a reprethe OPM determination.

sentative. An employing agency may (c) Decisions. The Panel shall make disallow the choice of an individual as the decision by majority vote.

a representative that would result in a

conflict of interest of position, that 8 731.502 Procedures.

would conflict with the needs of the (a) Time of filing. When OPM. issues agency, or that would give rise to una decision that an individual is unsuit

reasonable costs to the Government. able for employment, the individual

Before accepting a designation as repmay appeal the decision to the Panel

resentative, employees in the execuwithin 30 days of the date of the deci

tive branch should consult 18 U.S.C. sion.

205. An applicant may not be repre(b) Untimely filing. If the 30-day

sented by an employee of an agency. time limit is not met the Panel will dismiss the appeal as untimely filed

§ 731.505 Pay status. unless good cause for the untimely filing is demonstrated.

When an employee or appointee (c) Computation of time. In comput- whom OPM has determined to be uning the number of days allowed for suitable files an appeal the employing filing an appeal, the first day counted agency shall retain him or her in a pay is that day after the date of the deci status until the Panel issues its decision. If the date that would be the last sion. If the Panel affirms OPM's deciday for filing falls on a Saturday, sion, the employing agency shall Sunday, or Federal holiday, the indi- remove the employee or appointee vidual may file his/her appeal on the from the rolls within 5 days of receipt first workday after the date.

of the Panel's decision. 8 731.503 Content of appeal.

8731.506 Decision. (a) Who may appeal. Only an indi

(a) After reviewing the record, the vidual whom OPM has determined to be unsuitable for employment or his/

Panel shall prepare a written decision, her representative may file an appeal

affirming, reversing, or affirming as with the panel.

modified OPM's decision. The deci(b) Content of appeal. An appeal

sion, if adverse, will inform the remust include:

spondent of the right to appeal to the (1) The name, address, and tele

Merit Systems Protection Board under phone number of the appellant.

$ 731.508 below. (2) A statement of the reasons why (b) The Panel, in its discretion, may the appellant believes OPM's determi. remand the case for additional investination of unsuitability was incorrect gation or consideration of relevant factogether with any supporting docu- tors as it deems appropriate.

8 731.507 Scope of review.

any investigation OPM deems necesThe Panel shall review de novo the

sary, shall inform the former employOPM decision on the record. OPM ee of his or her current suitability for bears the burden of proving by a pre

employment in the competitive servponderance of the record evidence ice. that its decision would promote the ef (2) If the former employee is found ficiency of the service. If an issue of unsuitable and has had an opportunitimeliness is raised, the individual ap- ty to comment on the reasons for this pealing the OPM decision bears the finding, or has furnished comments to burden of proving that his/her appeal OPM, then OPM may cancel his or was filed in a timely manner.

her reinstatement eligibility if that eli

gibility was obtained through fraud. 8 731.508 Appeal to the Merit Systems

In addition, OPM may prescribe a Protection Board.

period of debarment from the com(a) Appeal to the Merit Systems Pro petitive service not to exceed 3 years tection Board. An individual whom from the date of determination of unthe Panel has decided is unsuitable for

suitability. employment may appeal the Panel's decision to the Merit Systems Protec

Subpart G—Savings Provision tion Board (the Board). (b) Exhaustion of remedies. An indi

8 731.701 Savings provision. vidual may not appeal a determination of unsuitability to the Board unless

No provision of these regulations he/she has perfected an appeal with shall be applied in such a way as to the Panel and has received a decision affect any administrative proceeding from the Panel that he/she is unsuit- pending at the effective date of such able for Federal employment.

provision. An administrative proceed. (c) Appeal procedures. The proce- ing is deemed to be pending from the dures for filing an appeal with the date of the “notice of proposed action" Board are found at part 1201 of title 5, described in $ 731.303 of this part. Code of Federal Regulations.

PART 732-NATIONAL SECURITY Subpart F-Reemployment Eligibility

POSITIONS $ 731.601 Reemployment eligibility of certain former Federal employees.

Subpart A-Scope (a) Request for suitability determi. Sec. nation. When an employee has been 732.101 Purpose. removed by an agency on charges

732.102 Definition and applicability. (other than security or loyalty) or has resigned on learning the agency

Subpart B-Designation and Investigative planned to prefer charges, or while

Requirements charges were pending, the former em

732.201 Sensitivity level designations and ployee may request OPM to determine

investigative requirements. his or her suitability for further em- 732.202 Waivers and exceptions to investiployment in the competitive service.

gative requirements. OPM shall consider the request only if 732.203 Periodic reinvestigation requirethe former employee:

ments. (1) Has completed any required probationary period;

Subpart C-Due Process and Reporting (2) Has basic eligibility for reinstate

732.301 Due process. ment; and

732.302 Reporting to OPM. (3) Includes a sworn statement with the request which sets forth fully and

Subpart D-Security and Related in detail the facts surrounding the re

Determinations moval or resignation.

(b) Action by OPM. (1) OPM, after 732.401 Reemployment eligibility of cer. appropriate consideration, including

tain former Federal employees.

AUTHORITY: 5 U.S.C. 3301, 3302, 7312; 50 tional security as a sensitive position U.S.C. 403; E.O. 10450, 3 CFR, 1949-1953 at one of three sensitivity levels: SpeComp., p. 936.

cial-Sensitive, Critical-Sensitive, or SOURCE: 56 FR 18654, Apr. 23, 1991, unless Noncritical-Sensitive. otherwise noted.

(b) Investigative requirements for

each sensitivity level are provided in Subpart A-Scope

FPM chapter 732. § 732.101 Purpose.

§ 732.202 Waivers and exceptions to invesThis part sets forth certain require

tigative requirements. ments and procedures which each (a) Waivers.-(1) General. A waiver agency shall observe for determining of the preappointment investigative national security positions pursuant to requirement contained in section 3(b) Executive Order 10450-Security Re- of Executive Order 10450 for employquirements for Government Employ- ment in a sensitive national security ment (April 27, 1953), 18 FR 2489, 3 position may be made only for a limitCFR 1949-1953 Comp., p. 936, as ed period: (i) In case of emergency if amended.

the head of the department or agency

concerned finds that such action is § 732.102 Definition and applicability.

necessary in the national interest; and (a) For purposes of this part, the (ii) when such finding is made a part term "national security position" in of the records of the department or cludes: (1) Those positions that in agency. volve activities of the Government (2) Specific waiver requirements. (i) that are concerned with the protection The preappointment investigative reof the nation from foreign aggression quirement may not be waived for apor espionage, including development pointment to positions designated Speof defense plans or policies, intelli- cial-Sensitive under this part. gence or counterintelligence activities,

(ii) For positions designated Criticaland related activities concerned with

Sensitive under this part, the records the preservation of the military

of the department or agency required strength of the United States; and (2)

by $ 732.202(a)(1) of this part shall positions that require regular use of, show what decision was made on obor access to, classified information.

taining prewaiver checks, as follows: Procedures and guidance provided in

(A) The nature of the emergency preFPM chapter 732 and related is- cluded obtaining prewaiver checks; or suances apply.

(B) checks were initiated but not all (b) The requirements of this part

responses were received within 5 days; apply to competitive service positions, or (C) checks made and favorably comand to Senior Executive Service posi- pleted are listed. tions filled by career appointment,

(iii) The waiver restriction is optionwithin the Executive Branch, and

al for positions designated Noncriticalagencies may apply them to excepted

Sensitive under this part. service positions within the Executive

(iv) When waiver is authorized, the Branch.

required investigation must be initiat

ed within 14 days of placement of the Subpart B-Designation and individual in the position. Investigative Requirements

(b) Exceptions to investigative re

quirements. (1) Pursuant to section 8 732.201 Sensitivity level designations

3(a) of E.O. 10450, the following posiand investigative requirements.

tions are exempt from the investiga(a) For purposes of this part, the tive requirements of E.O. 10450, prohead of each agency shall designate, viding that the employing agency conor cause to be designated, any position ducts such checks as it deems approwithin the department or agency the priate to insure that the employment occupant of which could bring about, or retention of individuals in these poby virtue of the nature of the position, sitions is clearly consistent with the a material adverse effect on the na- interests of the national security:

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