Proposed Rule2023-01650
Suitability and Fitness Vetting
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 31, 2023
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is proposing amendments to the Federal Government personnel vetting investigative and adjudicative processes for determining suitability and fitness. The purpose of OPM's work in this area is to establish requirements and standards for agencies to properly vet individuals to assess risk to the integrity and efficiency of the service. Nothing in this proposed rule shall be read in derogation of any individual's rights under Title VII. OPM is also proposing to update and streamline the language of several provisions to include conforming and minor editorial changes throughout.
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<title>Federal Register, Volume 88 Issue 20 (Tuesday, January 31, 2023)</title>
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[Federal Register Volume 88, Number 20 (Tuesday, January 31, 2023)]
[Proposed Rules]
[Pages 6192-6209]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01650]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 20 / Tuesday, January 31, 2023 /
Proposed Rules
[[Page 6192]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 302 and 731
RIN 3206-AO17
Suitability and Fitness Vetting
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing
amendments to the Federal Government personnel vetting investigative
and adjudicative processes for determining suitability and fitness. The
purpose of OPM's work in this area is to establish requirements and
standards for agencies to properly vet individuals to assess risk to
the integrity and efficiency of the service. Nothing in this proposed
rule shall be read in derogation of any individual's rights under Title
VII. OPM is also proposing to update and streamline the language of
several provisions to include conforming and minor editorial changes
throughout.
DATES: Comments must be received on or before April 3, 2023.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. All submissions received must
include the agency name and docket number or Regulation Identifier
Number (RIN).
Where possible, please arrange and identify your comments on the
regulatory text by subpart and section number; if your comments relate
to the supplementary information, please refer to the heading and page
number. All comments received will be posted without change, including
any personal information provided. Comments received after the close of
the comment period will be marked ``late,'' and OPM is not required to
consider them in formulating a final decision. If you cannot submit
comments electronically, please contact the individual listed in the
further information section.
FOR FURTHER INFORMATION CONTACT: For questions contact Christine
Bilunka, Program Manager, Suitability Executive Agent Programs,
Operations (Adjudications) by email at <a href="/cdn-cgi/l/email-protection#b4e7c1ddc0f1f5f4dbc4d99ad3dbc2"><span class="__cf_email__" data-cfemail="cb98bea2bf8e8a8ba4bba6e5aca4bd">[email protected]</span></a> or by phone at
202-606-1800.
SUPPLEMENTARY INFORMATION:
Authority and Background
Under 5 U.S.C. 3301 and 7301, ``[t]he President may . . . prescribe
such regulations for the admission of individuals into the civil
service in the executive branch as will best promote the efficiency of
that service,'' ``ascertain the fitness of applicants as to . . .
character,'' and ``prescribe regulations for the conduct of employees
in the executive branch.'' In addition to the President's authority to
prescribe standards for suitability and fitness for civil service
appointment based on character and conduct, 5 U.S.C. 3301 recognizes
the President's authority to ``ascertain the fitness of applicants as
to . . . knowledge, and ability for the employment sought,'' i.e., to
prescribe qualification standards based on applicants' education and
experience and to assess their relative knowledge, skill, and ability.
Historically the President delegated to OPM and its predecessor,
the Civil Service Commission, the authority to prescribe both
qualification standards and suitability standards, and to conduct both
examinations of applicants' qualifications and investigations of
suitability for appointment and continuing employment. See 5 U.S.C.
1104(a)(1). However, the delegation was generally limited to positions
in the competitive service under the Civil Service Rules compiled in
Executive Order (E.O.) 10577, Nov. 23, 1954, 19 FR 7521, as amended.
See Civil Service Rules II, V, VI, as codified in 5 CFR parts 2, 5, 6.
E.O. 13764 of January 17, 2017, Amending the Civil Service Rules,
Executive Order 13488, and Executive Order 13467 to Modernize the
Executive Branch-Wide Governance Structure and Processes for Security
Clearances, Suitability and Fitness for Employment, and Credentialing
and Related Matters amended the Civil Service Rules to expand OPM's
responsibilities for establishing minimum standards of fitness based on
character and conduct for appointment to positions in the excepted
service of the executive branch. Previously, OPM's jurisdiction over
suitability for appointment to positions in the excepted service was
limited to positions in the excepted service where the incumbent could
be non-competitively converted to the competitive service, consistent
with OPM's jurisdiction over positions in the competitive service and
career appointments to the Senior Executive Service. E.O. 13764 set
forth requirements for the OPM Director to establish mutually
consistent standards and procedures to determine the reliability,
trustworthiness, and good character and conduct of those working for
the Government in the executive branch regardless of appointment type.
Additionally, E.O. 13764 expanded OPM's responsibilities by making OPM
responsible for establishing investigative standards, risk designation
procedures, and reciprocity rules for this additional population.
E.O. 13488, as amended, Granting Reciprocity on Excepted Service
and Federal Contractor Employee Fitness and Reinvestigating Individuals
in Positions of Public Trust, establishes that contractor employee
fitness or nonappropriated fund employee fitness is subject to the same
position designation requirements and investigative standards,
policies, and procedures as fitness determinations for civil service
employees as prescribed by OPM under the Civil Service Rules. E.O.
13467, as amended, Reforming Processes Related to Suitability for
Government Employment, Fitness for Contractor Employees, and
Eligibility for Classified National Security Information, establishes a
requirement for continuous vetting for persons who perform, or who seek
to perform, work for the executive branch in competitive service,
excepted service, career Senior Executive Service, contractor, and
nonappropriated fund positions that are included in covered positions
as defined in the E.O. Furthermore, E.O. 13467 (section 2.1(c))
establishes that ``(t)he investigative and adjudicative standards for
fitness shall, to the extent practicable, be consistent with the
standards for suitability.''
In May 2018, the OPM Director and the Director of National
Intelligence, in their respective roles as Suitability and
Credentialing Executive Agent and Security Executive Agent, launched an
effort consistent with this direction,
[[Page 6193]]
``Trusted Workforce 2.0,'' to transform workforce vetting by employing
a modernized and more efficient process for ensuring that only trusted
individuals enter and remain in the Federal workforce. Key goals of the
initiative are to capitalize on information technology capabilities
that allow for the integration of automation and take advantage of a
wider spectrum of data, reduce time-intensive manual processing, and
promote greater mobility of the workforce by providing vetting
processes that enable each individual's vetting status to be
continuously up-to-date.
On February 4, 2021, the President issued National Security
Memorandum (NSM-) 3, Revitalizing America's Foreign Policy and National
Security Workforce, Institutions, and Partnerships. See Daily Comp.
Pres. Docs., DCPD No. 202100122. The Memorandum established an
Interagency Working Group on the National Security Workforce (the
Working Group), with one of its goals to ``[a]ssess implementation of
security clearance reforms and reciprocity proposals, additional
reforms to eliminate bias, and ensure efficient timelines for
completion of security clearance investigations.'' Together with the
Security, Suitability, and Credentialing Performance Accountability
Council (PAC), the Working Group developed a set of follow-on policy
goals and actions that were communicated to Executive departments and
agencies on December 14, 2021 through a cabinet memorandum,
Transforming Federal Personnel Vetting.
Four actions implementing NSM-3 have informed OPM's policy choices
in developing this proposed rule. Those actions state that the Director
of OPM and the Director of National Intelligence, in their respective
roles as the Suitability and Credentialing Executive Agent and the
Security Executive Agent under E.O. 13467, will:
(a) Issue, not later than 180 days from the date of this
memorandum, investigative and adjudicative guidelines and standards for
Federal personnel vetting, consistent with the Federal Personnel
Vetting Core Doctrine, which became effective on February 13, 2021;
(b) Transition from traditional periodic reinvestigations to U.S.
Government-wide continuous vetting, as defined in E.O. 13467, as
amended, to the maximum extent practicable, consistent with law and as
further directed by the E.O., to assess security, suitability, fitness,
and credentialing decisions on an ongoing basis;
(c) Eliminate unnecessarily duplicative applications,
investigations, adjudications, and access determinations and gain
efficiencies and align, to the maximum extent practicable, the
processes and criteria used for all Federal personnel vetting
determinations as described in E.0. 13467, as amended; and
(d) Enable efficient timelines for personnel vetting; improve
mobility; promote equal treatment; streamline standards, to the maximum
extent practicable, for background investigations; and maximize
uniformity across all Federal personnel vetting.
What is suitability and fitness?
Suitability and fitness refer to a decision by an agency that an
individual does or does not have the required level of character and
conduct necessary to perform work for a Federal agency. These
determinations are based on whether a person's character or conduct may
have an adverse impact on the integrity or efficiency of the service.
The difference in terminology used, as to suitability or fitness, is
based on the type of position being adjudicated. Suitability
determinations are made in reference to positions in the competitive
service or career Senior Executive Service, whereas fitness
determinations are made for excepted service positions, contractor
positions, or Department of Defense (DOD) nonappropriated fund
positions.
Suitability and fitness determinations are distinct from the
assessment of an individual's job qualifications. With respect to
suitability determinations, ``competitive service or career Senior
Executive Service'' positions refer to positions in the competitive
service, positions in the excepted service where the incumbent can be
noncompetitively converted to the competitive service, and career
appointments to positions in the Senior Executive Service.
With respect to fitness determinations, in the context of this
regulation ``excepted service'' positions are positions in the excepted
service of the executive branch, except for (A) positions in any
element of the intelligence community as defined in the National
Security Act of 1947, as amended, to the extent they are not otherwise
subject to OPM appointing authorities, (B) positions where OPM is
statutorily precluded from prescribing such standards, (C) positions
when filled by political appointment, and (D) excepted service
positions where the incumbent can be noncompetitively converted to the
competitive service, as noted above. For purposes of this regulation, a
``contractor employee'' is an individual who performs work for or on
behalf of any agency under a contract and who, in order to perform the
work specified under the contract, will require access to Federal
space, information, information technology systems, staff, or another
asset of the Federal Government, and who could, by the nature of their
access or duties, adversely affect the integrity or efficiency of the
Government. Such contracts include, but are not limited to: a personal
service contract; a contract between any non-Federal entity and any
agency; and a subcontract between any non-Federal entity and another
non-Federal entity to perform work related to the primary contract with
the agency. Finally, DOD ``nonappropriated fund employee'' means an
employee paid from non-appropriated funds of an instrumentality of the
United States under the jurisdiction of the Armed Forces conducted for
the comfort, pleasure, contentment, and mental and physical improvement
of personnel of the Armed Forces as described in section 2105 of title
5, United States Code.
Title 5 CFR part 731 establishes and maintains OPM's policies and
procedures governing suitability investigations and adjudications,
including the procedures for taking suitability actions and the general
process for appealing a suitability action. Title 5 CFR part 1201
provides procedures for appeals of suitability actions to the Merit
Systems Protection Board (MSPB).
OPM's suitability program has been shaped by more than policy.
Throughout the program's history, through precedential decisions made
upon appeals of suitability actions, the suitability program has been
impacted. For example, through case law, evidentiary standards have
been shaped, standards for establishing intent with regard to making
false statements have been made, impacts of employing an individual who
has falsified information have been addressed, and authorities of MSPB
have been affirmed.
While the responsibility for suitability adjudication falls to OPM,
OPM is authorized, in accordance with 5 U.S.C. 1104, to delegate this
responsibility to other departments and agencies employing positions in
the competitive service, positions where the incumbent can be
noncompetitively converted to the competitive service, and career
appointments to positions in the Senior Executive Service. As with all
delegated functions, OPM must establish and maintain an oversight
program to ensure that activities under any delegated authority are in
accordance with merit
[[Page 6194]]
system principles and departments and agencies are following the
standards established by OPM for the activity. For the most part, OPM
delegates to departments and agencies authority to conduct their own
suitability adjudications and take suitability actions, which may
include imposing an agency-specific debarment. However, in cases
involving evidence of material, intentional false statements; deception
or fraud in examination or appointment; refusal to furnish testimony;
or evidence of other egregious conduct; OPM retains jurisdiction to
make the suitability determination and take suitability actions, which
may include imposing a government-wide debarment.
What are the current elements of the suitability process?
In order to properly vet an individual's suitability, agencies will
generally follow these steps. First, agencies must properly designate
the position an individual will occupy for risk and sensitivity. This
is accomplished using the Position Designation System developed by OPM
and ODNI. Known as ``position designation,'' this process allows
agencies to determine the level of background investigation required of
an incumbent. Upon an application and generally after conditional
offer, agencies may collect information from the individual that they
may use to conduct a suitability screening (i.e. Declaration for
Federal Employment, Optional Form 306). Once completed, and as
appropriate, the agency will validate the need for investigation by
assessing whether a previous suitability determination may be
reciprocally applied, and if not, whether a previously conducted
investigation is available to use in making a suitability
determination. If an investigation is needed, the agency will collect
the appropriate investigative questionnaire (e.g., Standard Form 85,
85P, or 86) and initiate the investigation with the investigative
service provider. Upon receiving the results, the agency will make the
suitability determination along with any other determination that may
be required for the position (i.e. national security or credentialing).
Agencies must follow OPM's guidance when making a suitability
determination, using the criteria in this regulation as well as the
additional considerations established by OPM that the agency deems
pertinent to the individual case. With respect to appeals of
suitability actions, the MSPB's review is limited to an agency's
determination, so the MSPB cannot consider, as aggravating or
mitigating, additional considerations that the agency did not deem
pertinent. Therefore, when determining if OPM or an agency has met its
burden in demonstrating that a suitability action protects the
integrity and promotes the efficiency of the service, the MSPB, with
respect to the charges and specifications brought by OPM or an agency
as a basis for the suitability action(s) must consider only those
additional considerations that were deemed pertinent by OPM or the
agency. Subject to the current provisions in this regulation,
subsequent to the initial investigation and determination, agencies
will initiate re-investigations for public trust positions (i.e.
moderate and high risk).
Significant Changes Proposed by This Rule
Aligned Criteria
Per the amended Civil Service Rule II (5 CFR 2.1(a)), ``OPM shall
be responsible for . . . (iii) Standards of suitability based on
character and conduct for appointment to a position in the competitive
service, for appointment to a position in the excepted service where
the incumbent can be noncompetitively converted to the competitive
service, and for career appointment to a position in the Senior
Executive Service'' and ``(iv) Minimum standards of fitness based on
character and conduct for appointment in any other position in the
excepted service of the executive branch, except for (A) positions in
any element of the intelligence community as defined in the National
Security Act of 1947, as amended, to the extent they are not otherwise
subject to OPM appointing authorities, and (B) positions where OPM is
statutorily precluded from prescribing such standards.'' Consistent
with E.O. 13467 of June 30, 2008, as amended by E.O. 13764, which
states that standards for suitability for appointment in the
competitive service and standards for fitness for appointment in the
excepted service ``shall be aligned using consistent standards to the
extent possible'' and that ``[t]he investigative and adjudicative
standards for fitness shall, to the extent practicable, be consistent
with the standards for suitability,'' OPM is proposing that the
suitability criteria found at 5 CFR 731.202 be used for making both
suitability and fitness determinations except as otherwise noted in the
regulation.
As is addressed within the proposed regulation at 5 CFR
731.104(b)(2), suitability or fitness determinations are required, as
follows: suitability determinations must be made for all appointments
in the competitive service or career Senior Executive Service and
fitness determinations must be made for all appointments to excepted
service positions, unless an agency is required to reciprocally accept
a prior suitability or fitness determination under the conditions
prescribed in the proposed Sec. 731.104(b)(2)(ii). In accordance with
changes proposed at Sec. 731.104(b)(2)(i) and (ii), agencies may make
a new determination under the following conditions: when a prior
investigation is reciprocally accepted but the record in the Central
Verification System or its successor does not reflect a prior favorable
suitability or fitness determination, the agency will need to review
the prior investigation for the purpose of making a suitability or
fitness determination; or when the investigative record on file was
favorably adjudicated for suitability or fitness but shows conduct that
is incompatible with the core duties of the relevant covered position;
or, for fitness determinations, when the agency has prescribed
additional factors under Sec. 731.202(b) that were not addressed in
the prior favorable adjudication, and the agency will conduct an
adjudication using only those additional factors. In the case of
continuous vetting checks, agencies must also make a determination
regarding continued employment that is based upon the results of those
checks.
Aligned Position Designation Requirements, Investigative Standards, and
Reciprocity
OPM is also proposing a number of changes to improve consistency in
the vetting process and to enhance mobility of the civil service,
contractor, and nonappropriated fund workforces. Specifically, the
proposed changes will align the requirements for position designation,
investigations, and reciprocal acceptance of investigations and
suitability or fitness determinations amongst these populations. Less
the exceptions described below, agencies will use the same system for
designating position risk (i.e., low, moderate, and high) for civil
service, contractor and nonappropriated fund positions to determine the
commensurate level of background investigation. Background
investigations conducted for these positions will be done using the
same investigative standards. Finally, agencies will apply the same
rules for determining whether reciprocal acceptance of prior background
investigations and suitability or fitness determinations are required.
Civil Service Rule V (5 CFR 5.2 (a)), as amended by E.O. 13764
section 1,
[[Page 6195]]
establishes that for ``positions in the excepted service of the
executive branch for which the Director has standard-setting
responsibility under Civil Service Rule II,'' the Director ``may cause
positions to be designated based on risk to determine the appropriate
level of investigation,'' ``may prescribe investigative standards,
policies, and procedures,'' and ``may prescribe standards for
reciprocal acceptance by agencies of investigations and adjudications
of suitability and fitness, except to the extent authority to apply
additional fitness standards is vested by statute in an agency.'' Civil
Service Rule VI (5 CFR 6.3(b)), as amended by E.O. 13764 section 1,
likewise provides that appointments and position changes in the
excepted service are ``subject to the suitability and fitness
requirements of the applicable Civil Service Rules and Regulations'' as
prescribed by the Director.
E.O. 13467, as amended, section 1.1 provides that policies and
procedures for suitability and fitness ``shall be aligned using
consistent standards to the extent possible'' and ``shall provide for
reciprocal recognition.'' Further, ``agencies shall accept background
investigations and adjudications conducted by other authorized agencies
unless . . . a particular background investigation or adjudication does
not sufficiently address the standards used by that agency in
determining the fitness of its excepted service employees who cannot be
noncompetitively converted to the competitive service.'' E.O. 13467, as
amended, section 2.2. The Executive Order assigns responsibility to the
Director of OPM, as the Suitability and Credentialing Executive Agent,
to give effect to these requirements through regulations, guidance, and
standards (E.O. 13467, as amended, section 2.5).
Accordingly, OPM is proposing that agencies use the same system for
designating position risk (i.e., low, moderate or high risk) for
excepted service positions as is used for assessing risk to the Public
Trust for positions in the competitive service, positions in the
excepted service that non-competitively convert to the competitive
service, and career appointments to the Senior Executive Service. This
system is currently used to determine the appropriate level of
suitability investigation for employment in the competitive service,
and OPM is proposing the same standards, requirements, and reciprocity
rules for fitness investigations for employment in the excepted
service. As required by E.O. 13467, as amended, OPM is prescribing
exceptions from reciprocity where agencies have additional adjudicative
standards or investigative requirements for certain excepted service
positions (E.O. 13467, as amended, section 2.2).
E.O. 13488 of January 16, 2009, as amended by E.O. 13764,
establishes that ``[c]ontractor employee fitness or nonappropriated
fund employee fitness is subject to the same position designation
requirements and investigative standards, policies, and procedures as
fitness determinations for civil service employees, as prescribed by
the Office of Personnel Management under the Civil Service Rules''
(E.O. 13488, as amended, section 3(b)). Likewise, ``[f]itness
determinations and investigations for fitness determinations for
contractor employees and nonappropriated fund employees are subject to
the same reciprocity requirements as those for employment in the civil
service, as prescribed by the Office of Personnel Management under the
Civil Service Rules'' (E.O. 13488, as amended, section 3(c)).
Therefore, OPM is proposing that contractor and nonappropriated fund
populations, as they are defined in this proposed change, are subject
to the same position designation, investigative, and reciprocity
requirements as positions in the competitive service, the excepted
service (including positions where the incumbent can non-competitively
convert to the competitive service), and for career appointments to the
Senior Executive Service.
OPM's proposed rule does not, however, cover contractor populations
in any element of the intelligence community or where OPM is
statutorily precluded from prescribing standards. Nor does OPM's
proposed rule specifically address investigative requirements for
eligibility for access to classified information or for employment in
sensitive (national security) positions, matters that are addressed in
5 CFR part 1400 and in issuances by the Director of National
Intelligence acting as the Security Executive Agent under E.O. 13467.
However, the proposed rule continues the existing requirement (5 CFR
731.106(c)(2)) that a position must be designated based both on its
public trust risk and its national security sensitivity so that the
appropriate level of investigation is conducted to address both
suitability and national security concerns. Complementary language
appears in 5 CFR 1400.201.
The position designation, reciprocity, and investigation
requirements for contractors that OPM is proposing to codify in part
731 are not new. Since 2009, E.O. 13488 has covered contactor fitness,
giving agency heads the discretion on the fitness criteria, but
requiring them to take into account OPM guidance when considering if
the criteria was equivalent for the purpose of making a reciprocally
acceptable determination. Per E.O. 13488, reciprocity for fitness and
suitability determinations applied to contractors, and agencies had to
report the nature and results of background investigations and fitness
determinations to the government-wide investigations and adjudications
index.
Likewise, the requirement for contractor \1\ employees to be
subject to the same investigative requirements as apply to Federal
employees has been in place since 2012. In a December 6, 2012,
memorandum issued by the Security, Suitability, and Credentialing
Performance Accountability Council \2\ (PAC) titled Assignment of
Functions Relating to Coverage of Contractor Employee Fitness in the
Federal Investigative Standards, the PAC ``in consultation with other
affected agencies, including the Department of Defense, determined that
contractor employees should be subject to the same Federal
Investigative Standards (``Standards'') as apply to Federal
employees.'' Consistent with E.O. 13467, which authorized the PAC to
assign functions related to matters such as alignment and improvement
of investigations and contractor employee fitness, the PAC via this
memorandum, assigned the Director of OPM the function of prescribing
investigative standards for ``contractor employee fitness'' which at
that time was defined in section 1.3(f) of E.O. 13467 as ``fitness
based on character and conduct for work for or on behalf of the
Government as a contractor employee.''
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\1\ Contractors, were defined in E.O. 13467 when issued on June
30, 2009, as experts or consultants (not appointed under section
3109 of title 5, United States Code, to an agency; an industrial or
commercial contractor, licensee, certificate holder, or grantee of
any agency, including all subcontractors; a personal services
contractor, or any other category of person who performs work for or
on behalf of an agency (but not a Federal employee).
\2\ The PAC was previously referred to as the Suitability and
Security Clearance Performance Accountability Council.
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In December 2012, the Executive Agents issued the revised Federal
Investigative Standards which ``apply to all individuals working for or
on behalf of the executive branch and individuals with access to
federally controlled facilities and information systems.'' The
Standards were established for investigations to determine eligibility
for logical and physical access, suitability for Government employment,
[[Page 6196]]
eligibility for access to classified information, eligibility to hold a
sensitive position, and fitness to perform work for or on behalf of the
Government as a contractor employee.
When E.O. 13467 was amended in 2017, the definition of ``covered
individual'' was revised to include ``a person who performs, or seeks
to perform, work for or on behalf of the executive branch (e.g.,
Federal employee, military member, or contractor).'' The definition of
``fitness'' was also revised to mean ``the level of character or
conduct determined necessary for an individual to perform work for or
on behalf of a Federal agency as an employee in the excepted service
(other than a position subject to suitability), or a `contractor
employee' or as a `nonappropriated fund employee' as those terms are
defined in Executive Order 13488 of January 16, 2009, as amended.'' The
definition of ``contractor employee'' in section 2(b) of E.O. 13488,
was also amended, and now reads as ``an individual who performs work
for or on behalf of any agency under a contract and who, in order to
perform the work specified under the contract, will require access to
space, information, information technology systems, staff, or other
assets of the Federal Government, and who could, by the nature of his
or her access or duties, adversely affect the integrity or efficiency
of the Government. Such contracts include, but are not limited to: (i)
personal services contracts; (ii) contracts between any non-Federal
entity and any agency; and (iii) sub-contracts between any non-Federal
entity and another non-Federal entity to perform work related to the
primary contract with the agency.''
Finally, with the amendments to E.O. 13488, agency heads retained
the discretion to establish adjudicative criteria for determining
fitness of contractor employees but with due regard to OPM prescribed
regulations and guidance. Furthermore, the E.O. set forth in section
3(b) and (c) that investigations for contractor employee fitness are
subject to the same position designation requirements, investigative
standards, policies, and procedures as fitness determinations for civil
service employees, as prescribed under the Civil Service Rules and
reciprocity of fitness determinations and investigations are subject to
the same reciprocity requirements.
Continuous Vetting Requirements
Continuous vetting refers to the process of ``reviewing the
background of a covered individual at any time to determine whether
that individual continues to meet applicable requirements.'' E.O.
13467, as amended, Sec. 1.3. In the context of suitability and fitness
for employment, continuous vetting is used to determine if an
individual remains suitable or fit for a position over time. A covered
individual, as defined in E.O. 13467, as amended, Sec. 1.3 is, with
limited exceptions, ``. . . a person who performs, or who seeks to
perform, work for or on behalf of the executive branch (e.g., Federal
employee, military member, or contractor), or otherwise interacts with
the executive branch such that the individual must undergo vetting.''
In accordance with E.O. 13467, as amended, section 2.1, ``[a]ll covered
individuals shall be subject to continuous vetting under standards
(including, but not limited to, the frequency of such vetting) as
determined by the Security Executive Agent or the Suitability and
Credentialing Executive Agent exercising its Suitability Executive
Agent functions, as applicable.'' Further, E.O. 13467, as amended,
section 2.5, requires the Director of OPM as the Suitability Executive
Agent, to be responsible for ``prescribing applicable investigative
standards, policies, and procedures.'' OPM is proposing changes in
regulation to implement the continuous vetting requirement set forth in
E.O. 13467, as amended, section 2.1, as amended. Specifically, any
individual occupying a position that is subject to investigation, as
described in the proposed Sec. 731.104(a)(1) through (3), will also be
subject to continuous vetting. The nature and specificity of continuous
vetting checks will be further defined in supplemental issuances, but
requirements will account for position risk and sensitivity
designations.
Elimination of Fixed, Five-Year Periodic Reinvestigation Requirement
for Public-Trust Positions
E.O. 13467, as amended, section 1.1, directs that, ``The
Government's tools, systems, and processes for conducting . . .
background investigations and managing sensitive investigative
information should keep pace with technological advancements, regularly
integrating current best practices to better anticipate, detect, and
counter malicious activities, and threats posed by external or internal
actors who may seek to do harm to the Government's personnel, property,
and information.'' Further, E.O. 13467, as amended, section 1.1,
directs that, ``Executive branch vetting policies and procedures shall
be sustained by an enhanced risk-management approach that facilitates
early detection of issues by an informed, aware, and responsible
Federal workforce; results in quality decisions enabled by improved
vetting capabilities; and advances Government-wide capabilities through
enterprise approaches.'' These principles inform the design of
continuous vetting, as described above.
E.O. 13488 section 5 directed OPM to prescribe the standards for
frequency of reinvestigations but does not itself impose a fixed cycle
for reinvestigations.
OPM's current regulations in 5 CFR 731.106 provide that
reinvestigations of individuals in moderate- and high-risk public trust
positions should be conducted at least every five years. Further, the
2012 Federal Investigative Standards sections 7.4.1 and 9.4.2
established that individuals in Tier 2 and Tier 4 positions
(nonsensitive positions designated as moderate and high-risk public
trust) ``shall be reinvestigated at least once every five years and as
event driven, subject to implementing guidance.'' As such, excepted
service and contractor employees covered by the Federal Investigative
Standards have also been subject to reinvestigation requirements.
Given the direction of E.O. 13467, as amended, section 2.1 that all
covered individuals (as defined in the E.O.) undergo continuous
vetting, OPM is proposing to amend part 731 to make clear that all
individuals covered under this part, regardless of risk level (i.e.,
low risk, moderate risk, high risk) must undergo continuous vetting for
suitability and fitness. At the same time, OPM is proposing to remove
the existing requirement for a periodicity of at least once every five
years for Public Trust reinvestigations and to establish that
continuous vetting for individuals in public trust positions satisfies
the requirement for periodic reinvestigations of individuals in public
trust positions as directed in E.O. 13488, as amended.
By removing the requirement for a five-year periodicity for Public
Trust reinvestigations from the current regulations, OPM will be able
to establish, through supplemental guidance, the periodicity of checks
to be conducted under a continuous vetting framework based upon
position risk and sensitivity. The nature of the continuous vetting
checks are established in supplemental guidance issued by OPM, taking
into account position risk and sensitivity when establishing the
requirements. For example, continuous vetting checks of individuals in
low risk positions will be minimal, whereas continuous vetting checks
of
[[Page 6197]]
individuals in moderate and high risk positions will likely be more
involved according to position risk. OPM anticipates that checks will
be required at regular intervals as determined by the type of check
(i.e., certain checks may be conducted daily while others may be
yearly), with developed information being subject to expansion or
follow-up, depending on the adjudicative relevance or significance.
With this new model, the expectation is that checks will be conducted
by authorized Investigative Service Providers (ISP) while other
information may come from within the agency from complementary mission
areas (e.g., Employee Relations, Counterterrorism/Counterintelligence
units, etc.).
The proposed change to implement continuous vetting for covered
positions and in place of existing Public Trust reinvestigations has no
bearing on requirements for agencies to conduct initial investigations
as is prescribed in the regulations. OPM describes the major proposed
changes in a section-by-section analysis below.
This proposal parallels a separate forthcoming rulemaking by OPM
and the Office of the Director of National Intelligence (ODNI) to amend
5 CFR 1400.203 to remove a current requirement, parallel to the
requirement in 5 CFR 731.106, that persons in sensitive positions must
undergo a national security reinvestigation at least once every five
years, thereby aligning the periodic reinvestigation requirements for
public trust positions and for national security positions. Under 50
U.S.C. 3352b, the Director of National Intelligence, as the Security
Executive Agent, has the authority to prescribe a strategy such that
individuals in national security sensitive positions are continuously
vetted and reinvestigations for persons requiring security clearances
will be conducted only as needed based on risk, with exceptions for
designated national security populations requiring reinvestigation at
more regular intervals.
Section by Section Analysis
Authorities
OPM is proposing to add Civil Service Rule 6 and E.O. 13764 to the
list of authorities and to address Presidential Memorandum--Enhancing
Safeguards to Prevent the Undue Denial of Federal Employment
Opportunities to the Unemployed and Those Facing Financial Difficulty
Through no Fault of Their Own that resulted in previous changes to the
regulation. OPM is anticipating additional changes to the authorities
through a separate rule implementing provisions of 5 U.S.C. 9201-9206
(The Fair Chance to Compete for Jobs Act).
Part 302
Section 302.108 Determinations of Fitness for Employment in an Excepted
Service Position Based on Character and Conduct
OPM is proposing to add section 302.108 to Subpart A to incorporate
the requirements of E.O. 13764 section 1. This proposed section
clarifies that positions filled in the excepted service are subject to
the provisions of part 731. The title of the section emphasizes that
the provision does not address qualifications for excepted service
positions based on, for example, education and experience. Under Civil
Service Rule VI (5 CFR 6.3), these matters are prescribed ``in
accordance with such regulations and practices as the head of the
agency concerned finds necessary,'' subject to general requirements of
Federal employment law (e.g., that hiring practices be job-related and
consistent with business necessity). Rather, this provision concerns
fitness of character for appointment for a position in the excepted
service.
Section 302.203 Standard and Criteria for Determining Fitness for
Employment in an Excepted Service Position Based on Character and
Conduct
OPM is proposing to revise this section by replacing the non-
exclusive list of disqualifying factors for an excepted-service
appointment with the minimum fitness standards that must be used when
making fitness determinations under part 731 of this chapter. The
current list of disqualifying factors in section 302.203 is not
consistent with those in section 731.202 and includes obsolete criteria
derived from E.O. 10450 of April 27, 1953 (revoked in 2017).
Part 731
Section 731.101 Purpose
OPM is proposing to amend this section by reordering information
and placing the definitions up front, and to revise the purpose to
encompass the new requirements with respect to position designation,
investigations, continuous vetting, and reciprocity for the excepted
service, for contractor employees, and for nonappropriated fund
employees under the jurisdiction of the Armed Forces. OPM is proposing
to amend the definition for ``covered positions'' to make the
distinction between (1) positions in the competitive service, positions
in the excepted service where the incumbent can non-competitively
convert to the competitive service, and career appointments in the
Senior Executive Service, from (2) other positions that will now also
be covered by the rule. The term ``covered positions'' is replaced with
``competitive service or career Senior Executive Service'' positions
throughout the regulation. As was explained in a prior Federal Register
notice (72 FR 2203, January 18, 2007), positions that begin with an
initial appointment in the excepted service when that appointment can
lead to conversion to the competitive service through a continuous
process are subject to OPM's suitability authority and are treated in
the same manner as positions in the competitive service.
OPM is proposing to define the ``excepted service,'' for purposes
of its authority under part 731, as any position excepted from the
competitive service or the Senior Executive Service of the of the
executive branch, except for (A) positions in any element of the
intelligence community as defined in the National Security Act of 1947,
as amended, to the extent they are not otherwise subject to OPM
appointing authorities, (B) positions where OPM is statutorily
precluded from prescribing such standards, and (C) positions when
filled by political appointment. These exceptions are in Civil Service
Rule II, 5 CFR 2.1(a)(iv), as added by E.O. 13764. OPM is also
excluding noncareer, limited term, and limited emergency appointments
in the SES. These appointments are not currently subject to OPM's
suitability jurisdiction under part 731 or under E.O. 13764.
OPM is also excluding political appointees from its definition of
the ``excepted service'' for purposes of suitability and fitness under
part 731. OPM has determined that the Director of OPM does not have the
authority to prescribe standards of fitness and related vetting
requirements for political appointments. See Review of Agency Schedule
C Appointments by the Exec. Office of the President, 6 U.S. Op. O.L.C.
114, 116 (1982).
OPM is proposing to also amend the definitions for ``appointee''
and ``employee'' to establish that individuals who meet the definition
of appointee and who are also serving a probationary or trial period,
will remain an ``appointee'' until the probationary or trial period
ends. The proposed changes to the definition for ``employee'' are to
reconcile with the proposed changes to the definition of ``appointee.''
OPM is also proposing to add definitions for ``contactor employee,''
``employment subject to investigation,'' ``fitness,''
[[Page 6198]]
``fitness determinations,'' and ``nonappropriated fund employees.''
Finally, OPM is proposing to amend the definitions for ``suitability
action'' and ``suitability determination'' to reflect their application
to positions in the ``competitive service or career appointments to the
Senior Executive Service.''
Section 731.102 Implementation
OPM is proposing to add a reference to ``fitness'' investigations
and to clarify that policies, procedures, criteria, standards, quality
control procedures, and supplementary guidance for implementation of
this part may come in the form of OPM or joint Executive Agent
issuances. OPM is also proposing to remove current Sec. 731.102(b),
which refers to screening requirements for access to automated
information systems that are no longer current. Under Office of
Management and Budget (OMB) Circular A-130, as recently amended,
agencies must follow OMB information security policies, and
requirements issued by OPM, the Departments of Commerce and Homeland
Security, and the General Services Administration on access to
federally-controlled information systems, including personal identity
verification. OPM will address personal identity verification in its
role as Credentialing Executive Agent in separate rulemaking. OPM is
adding a reference to section 1.1(e) of E.O. 13467, which addresses
control and appropriate uses of reports of investigation and other
material developed during the vetting process.
Section 731.103 Delegation to Agencies for Competitive Service
Positions
OPM is proposing to move the information currently in Sec.
731.103(d) and (e) to Sec. 731.106 as it applies to all positions
subject to position designation, investigation, continuous vetting, and
reciprocity as defined in the proposed rule.
OPM is also proposing to revise the delegation to agencies for
making suitability determinations and taking suitability actions in the
case of positions in the competitive service, positions in the excepted
service that convert non-competitively to the competitive service, and
career appointments to the Senior Executive Service. For such
positions, OPM proposes to retain jurisdiction in cases where there is
evidence of conduct that falls within any of four new suitability
factors at Sec. 731.202(b)(7) (``Knowing engagement in an act or
activity with the purpose of overthrowing Federal, State, local, or
tribal government''), (8) (``An act of force, violence, intimidation,
or coercion with the purpose of denying another individual the free
exercise of rights under the U.S. constitution or any state
constitution''), (9) (``Attempting to indoctrinate another or to incite
another to action in furtherance of an illegal act''), and (10)
(``Active membership or leadership in a group with knowledge of its
unlawful aim, or participation in such a group with a specific intent
to further its unlawful aim''), as proposed to be added further below.
These four new factors would replace the current Sec. 731.202(b)(7),
``Knowing and willful engagement in acts or activities designed to
overthrow the U.S. Government by force.''
In addition, OPM is proposing to add language to clarify that OPM
retains jurisdiction under this part regardless of whether an agency
may adjudicate the issue(s) under another authority.
Section 731.104 Investigation and Reciprocity Requirements
OPM is proposing to address the subject-to-investigation
requirement for ``competitive service or career Senior Executive
Service'' and ``excepted service'' positions, as well as for
``contractor employees'' and ``nonappropriated fund employees,'' in
this section, and to move the requirements for reciprocity to this
section. With respect to investigation and reciprocity requirements,
OPM is proposing to amend the rule to reflect that a new investigation
is not required when the individual appointed has undergone a
background investigation that is at or above the level required for the
position, removing existing provisions that have limited the ability of
agencies to reciprocally accept prior investigations that were done for
certain position types and/or were not adjudicated under suitability or
equivalent criteria. OPM is also proposing to remove the 24-month
break-in-service provision for applying reciprocity. A policy, issued
by the Executive Agents as part of the Trusted Workforce 2.0 effort,
establishes a new process for applying reciprocity to prior
investigations upon a return to service. The new requirement will
expand the window of time for which a break in service may last without
requiring the individual to undergo a new investigation upon returning
to service. OPM proposes that upon reentry into Federal service,
individuals will need to be enrolled in continuous vetting consistent
with new requirements that are being proposed in Sec. 731.106(d). With
the implementation of continuous vetting, agencies can accept the
return to service of an individual, without requiring another full
background investigation, with a reduced amount of risk.
In Sec. 731.104(a)(3), OPM proposes to remove ``seasonal''
positions from the list of positions that do not require a background
investigation for suitability or fitness as described in Sec.
731.106(c)(1). According to 5 CFR 340.401(a), ``(s)easonal employees
are permanent employees who are placed in a nonduty/nonpay status and
recalled to duty in accordance with preestablished conditions of
employment.'' Because of the positions' permanent character, they
implicate different risks than temporary appointments, and should not
be treated the same.
Section 731.105 Authority To Take Suitability Actions in Cases
Involving the Competitive Service or Career Senior Executive Service
OPM proposes a change to clarify that OPM, or agencies with
delegated authority, have authority to take suitability actions, in
accordance with the procedures and provisions outlined elsewhere in
this part, in cases where an applicant for or appointee to a
``competitive service or career Senior Executive Service'' position is
moving from another type of position, even if the applicant or
appointee is not required to undergo a new investigation because a
prior one is reciprocally accepted in accordance with the requirements
outlined in Sec. 731.104(a).
In Sec. 731.105(a), OPM proposes a clarifying edit in reference to
the ability of OPM or an agency to pursue a suitability action against
an individual whose status may change in the course of the suitability
action process (for example, OPM or the agency may pursue an action
against an appointee who resigns after receipt of the notice of
proposed action).
In Sec. 731.105(c), OPM proposes changes for correctness, and in
Sec. 731.105(d), a change is proposed related to OPM's retained
jurisdiction to make determinations and take actions against an
``employee'' based upon conduct under the suitability factors proposed
to replace the current factor at Sec. 731.202(b)(7).
Section 731.106 Designation of Public Trust Positions and Investigative
Requirements
OPM proposes a clarifying edit to Sec. 731.106(c) with regard to
the timing of the initiation of investigations, which should be prior
to appointment. In Sec. 731.106(c)(2), OPM proposes to update
references to 5 CFR part 1400 for guidance on designating position
[[Page 6199]]
sensitivity. The current references to part 732 are obsolete.
OPM proposes to move information from Sec. 731.103 that addresses
the timing of collection of criminal and credit history to this
section. In a separate notice, OPM is proposing to revise this language
to implement changes required by the Fair Chance to Compete for Jobs
Act (Pub. L. 11-92-Dec. 20, 2019). Finally, OPM proposes changes to
implement continuous vetting for low-risk and public trust positions.
In Sec. 731.106(f), OPM proposes edits to make the information
current.
Subpart B--Determinations of Suitability or Fitness; Suitability
Actions in Cases Involving the Competitive Service or Career Senior
Executive Service
OPM proposes changes to this subpart to implement the minimum
standards of fitness for excepted service positions (those not subject
to suitability determinations and actions) and to make changes aimed at
increasing alignment between suitability and fitness criteria and those
for other vetting domains. The minimum standards of fitness in part 731
will supersede the disqualifying factors in part 302. While agencies
may supplement the minimum standards of fitness when job-related and
consistent with business necessity, OPM is proposing that agencies must
make the additional factors a matter of record.
Section 731.201 Standard
OPM proposes a change to reflect that the standard for both
suitability and fitness determinations and for suitability actions is
to protect the integrity and promote the efficiency of the service.
Section 731.202
OPM proposes edits to clarify that the criteria in this section
apply also to fitness determinations for excepted service positions
covered by this part, unless otherwise noted, and that when used to
make determinations for eligibility to hold a Personal Identity
Verification Credential, agencies must also ensure they have verified
the individual's identity as specified in OPM's credentialing
procedures or subsequent regulation. Further, OPM proposes that while
the factors will establish the minimum standards of fitness for the
excepted service, agencies may prescribe additional factors to protect
the integrity and promote the efficiency of the service when job-
related and consistent with business necessity. Additional factors
shall be made a matter of record and furnished to the applicant, upon
request.
OPM proposes changes to the suitability factors at Sec.
731.202(b), as follows:
<bullet> Separate criminal and dishonest conduct into two separate
factors. Separating these considerations into two distinct factors will
provide clarity that dishonest conduct need not be criminal to be
considered relevant to a determination of suitability or fitness;
<bullet> Adjust the punctuation in factor (3) to clarify that
falsification or deception or fraud occurs in connection with the
examination or appointment process;
<bullet> Eliminate current factor (4) Refusal to furnish testimony
as required by Sec. 5.4 of this chapter. Use of this factor was
reserved by OPM. If eliminated, this change does not otherwise affect
requirements established by Sec. 5.4 nor does it limit an agency's
ability to appropriately deal with an employee's refusal to furnish
testimony under other applicable authorities.
<bullet> Revise factors (5) and (6), by striking the requirement
that evidence of rehabilitation must be ``substantial.'' The
requirement that agencies must consider whether there is evidence of
rehabilitation prior to making a determination that one is unsuitable
based upon alcohol abuse or illegal drug use is long standing. The
suitability criteria contain an additional consideration for
rehabilitation at Sec. 731.202(c)(7) that must be considered along
with the alcohol and drug factors. However, that consideration, the
absence or presence of rehabilitation or efforts toward rehabilitation,
does not qualify or emphasize the rehabilitation must be
``substantial''; therefore, the change is to align the factor and
additional consideration.
<bullet> Revise factor (5), to change ``alcohol abuse'' to
``excessive alcohol use.'' OPM is proposing to revise the factor to
address ``excessive alcohol use'' rather than ``alcohol abuse.'' We
believe this change better represents the intent of the factor which is
to account for an individual's problematic misuse of alcohol, such as
by binge drinking or heavy drinking, over a period of time, and
suggesting that the individual would be prevented from performing the
duties of the position or would constitute a direct threat to the
property or safety of themselves or others as a result.
<bullet> Replace factor (7), which currently reads: Knowing and
willful engagement in acts or activities designed to overthrow the U.S.
Government by force with four distinct factors:
[cir] Knowing engagement in acts or activities with the purpose of
overthrowing Federal, State, local, or tribal government.
[cir] Acts of force, violence, intimidation, or coercion with the
purpose of denying others the free exercise of their rights under the
U.S. constitution or any state constitution.
[cir] Attempting to indoctrinate others or to incite them to action
in furtherance of illegal acts.
[cir] Active membership or leadership in a group with knowledge of
its unlawful aims, or participation in such a group with specific
intent to further its unlawful aims.
This proposed change is to broaden the types of conduct covered to
include not only acts to attempt to overthrow the Federal Government
but also to overthrow state, local, or tribal governments, to engage in
violent and unlawful civil rights offenses, and to engage in
association or advocacy to commit illegal acts. These more nuanced
factors are narrowly tailored to address conduct that is not protected
by the First Amendment, that has a clear nexus to the integrity and
efficiency of the civil service, and that poses significant insider
threat risks to Federal agencies and to the public they serve. Updating
the suitability factors will help OPM fulfill the requirement of E.O.
13467, as amended, section 1.1, that ``Executive branch vetting
policies and procedures shall be sustained by an enhanced risk-
management approach that facilitates early detection of issues by an
informed, aware, and responsible Federal workforce.''
Adoption of the new factors also furthers Strategic Goal 3.3 of the
National Strategy for Countering Domestic Terrorism to ``ensure that
screening and vetting processes consider the full range of terrorism
threats'' and to ``augment the screening process for . . . any
government employee who receives a security clearance or holds a
position of trust.'' \3\ Adoption of the factors will permit OPM to
update related information collections consistent with Strategic Goal
3.3, and to better address risks associated with, for example,
racially- or ethnically-motivated unlawful acts of violent extremism
and anti-government or anti-authority domestic terrorism,\4\
[[Page 6200]]
which have been identified as emergent threats posing a significant
public safety challenge.\5\
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\3\ National Security Council, National Strategy for Countering
Domestic Terrorism, Strategic Goal 3.3, at 26 (June 2021), available
at <a href="https://www.whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-Domestic-Terrorism.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-Domestic-Terrorism.pdf</a>.
\4\ A provision of Federal law, 18 U.S.C. 2331, defines domestic
terrorism '' as ``activities that involve acts dangerous to human
life that are a violation of the criminal laws of the United States
or of any State ; appear to be intended to intimidate or coerce a
civilian population, to influence the policy of a government by
intimidation or coercion, or to affect the conduct of a government
by mass destruction, assassination, or kidnapping ; and occur
primarily within the territorial jurisdiction of the United
States.''
\5\ See National Strategy for Countering Domestic Terrorism at
pages 8-11.
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<bullet> Add a factor for Violent behavior. This proposed change is
for clarity and specificity, to account for violent behavior that does
not squarely fall under another factor, such as violent behavior that
occurs outside of the workplace and may not be considered criminal or
dishonest in nature. We believe that the current suitability factors
for ``misconduct or negligence in employment'' and for ``criminal or
dishonest conduct'' do not convey the gravity of the risk posed by
violent behavior, particularly for positions in, for example, law
enforcement, patient care, childcare, and front-line customer service.
For the purposes of this regulation, the term ``violent'' means using
or involving physical force intended to hurt, damage, or kill someone
or something. Guidance for considering what may constitute violent
behavior will be provided via supplemental issuance.
<bullet> Renumber the factors in accordance with the proposed
changes.
Section 731.203 Suitability Actions by OPM and Other Agencies for the
Competitive Service or Career Senior Executive Service
The proposed change is to limit jurisdiction only to OPM for
suitability determinations and actions in the case of ``competitive
service or career Senior Executive Service'' positions that are based
upon the factors proposed to replace the current factor at Sec.
731.202(b)(7). Agencies must refer these cases to OPM for suitability
determinations and suitability actions under this authority (though
agencies are not prohibited from taking appropriate action under
separate authorities). Conduct of this nature, if substantiated, would
make one unsuitable for any position in the competitive service or for
a career appointment to the Senior Executive Service. As such, OPM is
reserving jurisdiction for taking suitability actions in these cases.
The proposed changes also seek to clarify that OPM may take an action
under this part even when an agency takes an action based upon another
authority and to specify that agencies must report suitability
determinations and actions on investigated individuals into the
government-wide repository.
Section 731.204 Debarment by OPM in Cases Involving the Competitive
Service and Career Senior Executive Service
The proposed change clarifies that OPM may impose an additional
period of debarment concurrent to an existing debarment when new
conduct arises. OPM may pursue suitability actions, in accordance with
the procedures outlined in this part, as appropriate when there is new
conduct of suitability concern, even when the individual is already
serving a period of debarment. For example, if an individual who is
barred from applying to the competitive service and career Senior
Executive Service makes application for a covered position and does not
report the debarment, when required, OPM may consider imposing an
additional period of debarment due to a material, intentional false
statement.
Section 731.206 Reporting Requirements for Investigations and
Suitability and Fitness Determinations
The proposed change reflects that agencies must report the level,
nature, and completion date of investigations and reinvestigations, as
well as continuous vetting enrollment, into the government-wide central
repository.
Section 731.302 Notice of Proposed Action and 731.402 Notice of
Proposed Action
OPM is proposing to expand the methods for delivery of a notice of
proposed action to include secure email.
Subpart F--Savings Provision
OPM is proposing to eliminate this Subpart as obsolete.
Expected Impact of This Proposed Rule
The expected benefits of the proposed rule are to further establish
standards and processes by which OPM and agencies efficiently and
appropriately vet individuals to assess risk to the integrity and
efficiency of the service. These changes promote a more trusted
workforce to serve the American public through an enhanced risk
management approach for personnel vetting, one which advances the
mobility of the workforce to support agency mission needs. Establishing
a continuous vetting approach for all populations subject to personnel
vetting provides a framework for modernized investigative and
adjudicated processes that leverage available, appropriate technology
to replace costly and time-consuming labor-intensive processes that
have burdened efforts by agencies to acquire top talent in a timely
manner. Further, the new model assists agencies in managing and
reducing risk by providing more timely information than was possible
under the prior investigative model.
This proposed rule provides greater consistency in vetting
processes and where possible, is cost saving by reducing redundancy and
duplication and using modernized processes for collecting information.
By establishing minimum standards of fitness for the excepted service
that align to OPM's suitability standards, there is a greater
likelihood that individuals will be assessed using consistent
standards, thus providing the basis for application of reciprocity when
moving between positions. The impact to agencies' personnel vetting
programs is reduced when they can reciprocally apply prior
determinations rather than making new determinations or requesting new
investigations.
In particular, OPM anticipates reduced impacts to agencies as they
transition from a full reinvestigation of every public trust employee
every five years to reinvestigation only as needed and to continuous
vetting that relies extensively on automated sources. Although agencies
will also need to enroll their low risk population, which is not
currently subject to reinvestigation requirements, into continuous
vetting, the cost impacts may be offset by savings associated with the
move from periodic reinvestigations to continuous vetting for their
sensitive and nonsensitive public trust populations. Under the Trusted
Workforce 2.0 initiative, the Security Executive Agent and the
Suitability and Credentialing Executive Agent have directed agencies to
begin enrolling the national security sensitive population into
continuous vetting in lieu of the traditional periodic
reinvestigations. Through a phased process, agencies are initiating
their national security sensitive populations into continuous vetting
and eventually, individuals will be enrolled into continuous vetting at
the onset of their initial background investigation. We envision
following a similar iterative approach for low risk and public trust
populations, upon implementation.
Further, since each individual's investigation will always be up to
date through the continuous vetting approach, agencies will no longer
need to await results of a new background investigation and will
instead be able to onboard individuals more quickly into new positions,
while only having to request investigation necessary to cover any
investigative gaps that may be due
[[Page 6201]]
to changes in position risk and/or sensitivity.
Agencies' populations of individuals subject to continuous vetting
are those populations already subject to Federal personnel vetting
investigative standards as described previously, including contractor
employees with long term access to Federal facilities and information
systems. Even prior to more recent Executive Orders and policy
requirements requiring personnel vetting investigations and
determinations on contractors, the FAR Council published a final rule
in November 2006, amending the Federal Acquisition Regulation to
require contracting officers to incorporate the requirement for
contractors to comply with agency verification procedures--implementing
Homeland Security Presidential-12 (HSPD-12), Office of Management and
Budget (OMB) guidance M-05-24, and Federal Information Processing
standards Publication (FIPS PUB) number 201 when applicable to be
performed under the contract. Aside from the new requirement for
individuals in low risk positions to be continuously vetted, agencies
and contractor employees supporting agencies when long term access to
Federal facilities and information systems is required should be
familiar with personnel vetting requirements.
Cost
This proposed rule will affect the operations of most Federal
agencies in the Executive branch--ranging from cabinet-level
departments to small independent agencies. In order to comply with the
regulatory changes in this proposed rule, affected agencies will need
to review the rule and update their policies and procedures. For the
purpose of this cost analysis, the assumed average salary rate of
Federal employees performing this work will be the rate in 2023 for GS-
14, step 5, from the Washington, DC, locality pay table ($150,016
annual locality rate and $71.88 hourly locality rate). We assume that
the total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $143.76 per hour. We estimate that, in the first
year following publication of the final rule, the effort to update
policies and procedures will require an average of 250 hours of work by
employees with an average hourly cost of $143.76. This effort would
result in estimated costs in the first year of implementation of about
$35,940 per agency, and about $2,875,200 in total Government-wide.
The ongoing administrative costs to agencies for continuous vetting
enrollment of existing and new individuals working for or on behalf of
the Government will vary depending on the makeup of each agency's
populations with regard to their affected Federal and contract
positions and the risk levels of those positions. As noted, agencies'
populations of individuals subject to continuous vetting are those
populations already subject to Federal personnel vetting investigative
standards as described previously, including contractor employees with
long term access to Federal facilities and information systems. The
extent to which such individuals have previously been subject to
periodic reinvestigation requirements depended on the nature of their
access or duties. Those in national security sensitive positions have
long been subject to periodic reinvestigation requirements and more
recently to continuous vetting requirements. Those in nonsensitive
public trust positions have been subject to periodic reinvestigations
for suitability, as described previously. Each agency is responsible
for assessing the risk level at the low, moderate, or high level for
each position within their agency. Each agency is therefore best
positioned to know the number of employees in positions at each level
and the number of individuals associated with the personnel vetting
requirements at each respective investigative tier. Each agency will
have different numbers of positions at each risk level and the
proportion of low, moderate, and high risk positions will vary.
Subsequently, the cost of continuous vetting for the low risk and
public trust population will vary amongst the Federal agencies.\6\ To
assist Federal agencies in budget development, the Defense
Counterintelligence and Security Agency (DCSA) has released its fiscal
year 2024 price estimates, including pricing for the initial continuous
vetting capability for low risk and non-sensitive public trust
positions. For fiscal year 2024, agencies can expect to pay a $3
monthly subscription fee for active enrollees in low risk and
nonsensitive public trust continuous vetting. By comparison, DCSA's
price for a standard service, nonsensitive high risk public trust
reinvestigation (Tier 4) in FY 2024 is $2400, which amortized over five
years equates to approximately $40 monthly. Agencies utilizing
continuous vetting in FY 2024 for their nonsensitive high risk public
trust populations would avoid $2,220 in personnel vetting costs over
five years for each such position. The delta between reinvestigation
costs and initial continuous vetting checks for nonsensitive moderate
risk positions is not as significant; still, agencies would avoid $180
in personnel vetting costs over five years for such positions given the
FY 2024 cost of $360 for each nonsensitive moderate risk public trust
reinvestigation. Conversely, agencies enrolling low risk populations
will pay $36 yearly, based upon DCSA's FY 2024 price estimates, for
continuous vetting on a population that to date has not been subject to
reinvestigation requirements. While DCSA's FY 2024 pricing reflects
initial pricing for continuous vetting for this population, future
costs for continuous vetting for the low risk population are not
expected to rise to the cost of checks for the national security
population, since checks on the low risk population will be much less
expansive than those on the national security population. An additional
factor that agencies will need to consider when assessing budget
impacts of continuous vetting is the cost avoidance realized by the
move from periodic reinvestigations to continuous vetting of their
sensitive populations. To illustrate how the impacts to agency budgets
will vary, the following examples are provided of a department, the
Department of Veterans Affairs (VA), that is comprised mainly of
nonsensitive positions and a department that is comprised mainly of
sensitive positions, the Department of Defense (DoD). The VA has vastly
more nonsensitive positions--approximately 513,400--than sensitive
positions--approximately 9,000. Their positions are largely
nonsensitive low risk, with approximately 455,000 Federal and
contractor personnel in low risk positions, with some nonsensitive
public trust positions, 41,200 in nonsensitive moderate risk public
trust positions, and 17,200 in nonsensitive high risk public trust
positions. Under the current requirement to request a reinvestigation
for public trust positions every five years and considering FY 2024
DCSA pricing, the VA should anticipate paying $56,112,000 \7\ in total
for nonsensitive public trust reinvestigations over five years. With
continuous vetting, the annual cost of enrolling the public trust
population for fiscal year 2024 would be $2,102,400, or $10,512,000
over five years, equating to
[[Page 6202]]
$45,600,000 in cost avoidance for the nonsensitive moderate and high
risk positions over the five year cycle. For continuous vetting of the
low risk population, VA would expect to pay DCSA $16,380,000 annually
or $81,900,000 over five years. For any sensitive positions the VA has,
they may also recognize the cost savings between the periodic
reinvestigation products and continuous vetting product for sensitive
positions. The cost implications for enrollment of VA's 9,000 sensitive
positions into continuous vetting could range from an additional cost
of $810,000 over five years to cost avoidance of $21,285,000 depending
on the proportion of noncritical sensitive positions (Tier 3) and
critical sensitive/special sensitive positions (Tier 5). Thus the total
cost of the shift to continuous vetting for all of VA's populations
subject to this requirement, using VA's anticipated payments to DCSA
for these services, will depend on the makeup of VA's population.
Compare this to the Department of Defense (DOD), which has a much
higher sensitive population than non-sensitive, approximately 3.5
million individuals in sensitive positions and approximately 283,000 in
non-sensitive positions. With approximately 3,000 nonsensitive moderate
risk positions and 560 nonsensitive high risk position, the DOD could
plan to spend $2,424,000 on periodic reinvestigations over five years
for their nonsensitive public trust positions whereas continuous
vetting would result in a total cost of $640,800 and therefore
$1,783,200 in cost avoidance over that same period. The cost of
enrolling DoD's 280,000 Federal and contractor low risk positions
subject to the requirement would equate to an annual cost of
$10,080,000 or $50,400,000 over five years; however, this cost would be
offset not only by the cost avoidance of $1,783,200 for the
nonsensitive public trust population but also by the cost savings
associated with the shift to continuous vetting from periodic
reinvestigations for the sensitive population. Given that the DoD has
approximately 3.5 million individuals in national security positions
undergoing continuous vetting in lieu of periodic reinvestigations, the
expected cost savings would be expected to offset the cost for
enrollment of their low risk populations into continuous vetting.
---------------------------------------------------------------------------
\6\ Federal agencies are responsible for appropriate vetting of
their personnel according to standards set by the Security and
Suitability & Credentialing Executive Agents and pay for background
investigations and continuous vetting checks on contractor personnel
as well as federal appointees and employees.
\7\ This is based upon DCSA's FY24 pricing estimate.
---------------------------------------------------------------------------
Thus, with respect to continuous vetting, agencies may recognize a
cost savings by using continuous vetting rather than the traditional
reinvestigation product that is currently required for public trust
positions at a five-year periodicity, and the extent of the cost
savings will vary depending on the proportion of their populations with
regard to risk and sensitivity levels. Additionally, cost savings may
be realized since continuous vetting provides that the vetting of
enrolled individuals will always be up-to-date. This will result in
further cost avoidance whenever an individual requires an upgrade of
their vetting level or when an individual returns to a vetted position
after a break in service. Agencies will be able to onboard individuals
more quickly into new positions while requesting only the investigative
elements necessary to cover any investigative gaps that may be due to
changes in position risk and/or sensitivity. This cost avoidance will
be borne out as agencies begin to implement the new TW 2.0 policies
that leverage continuous vetting for risk management. On balance, while
we anticipate there may be additional costs to agencies with much
greater proportions of low risk positions than nonsensitive public
trust or national security positions, we do not believe that this
proposed rule will substantially increase the ongoing costs to most
agencies, and the benefits outweigh the costs in providing agencies
greater opportunities for timely talent acquisition and reduced risk to
people, property, information systems, and mission through timely
delivery of relevant information.
Alternatives
OPM must comply with Executive Order direction, as previously
described, to establish minimum standards of fitness based on character
and conduct for appointment to positions in the excepted service of the
executive branch that are to the extent practicable consistent with the
standards for suitability. OPM is likewise responsible for establishing
in its regulations that excepted service employee, nonappropriated fund
DoD employee, and contractor employee fitness is subject to enterprise
position designation requirements, investigative standards, and
reciprocity requirements. Similarly, continuous vetting for all
populations subject to personnel vetting has been directed by Executive
Order to sustain an enhanced risk-management approach. Ultimately, the
cost to agencies for establishing policies and procedures to conform to
OPM's regulation in this regard are unavoidable. Such costs are offset,
however, by savings and cost avoidance resulting from policy
implementation. The expected impact of aligned investigative and
adjudicative standards of fitness for excepted and competitive service
positions is the increased application of reciprocity, which eliminates
the need for a new investigation or new adjudication. Similarly,
individuals enrolled in continuous vetting will not require periodic
reinvestigations, nor will they require a repeat of initial vetting, as
they have to date, when moving from one position level to a higher
level or when returning to a vetted position after a break in service.
Still, agencies with a greater proportion of individuals in low
risk positions will incur costs as a result of the requirement for
continuous vetting of this population when periodic reinvestigations
were not previously required. As noted above, these costs may be offset
by cost savings realized as agencies implement continuous vetting
across all populations, particularly for agencies with large
populations of individuals in high risk positions. However, not all
agencies will realize cost savings. While there is no alternative to
the policy requirement, agencies may realize some cost in the near term
through phased implementation of continuous vetting for low risk
populations. Such phased implementation could be accomplished through
two approaches. First, implementation of the required continuous
vetting checks for enrolled individuals could be eased through a phased
introduction of the required checks over time. OPM anticipates
utilizing this approach. Second, phased implementation could be
accomplished through a phased implementation of the percent of the
population required to be enrolled over time. This will enable agencies
to adopt the necessary policy and procedural infrastructure necessary
to execute requirements. OPM will consider this approach in developing
requirements for the ongoing roll out of the Trusted Workforce 2.0
Implementation Strategy, which the PAC has established to guide
agencies in developing their agency-specific implementation plans under
the direction of each agency's Senior Implementation Official.
Currently, enrollment of all positions subject to personnel vetting in
a continuous vetting capability is targeted by the end of FY 2024.
Executive Orders 13563 and 12866, Regulatory Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory
[[Page 6203]]
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. In accordance with the provisions
of Executive Order 12866, this proposed rule was reviewed by the Office
of Management and Budget as a significant, but not economically
significant, rule as it does not meet the annual effect of $100
million.
Regulatory Flexibility Act
OPM certifies that this proposed rule will not have a significant
economic impact on a substantial number of small entities.
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 proposed 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 proposed rule 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
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires rules to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this proposed rule
before its effective date, as required by 5 U.S.C. 801. The Office of
Information and Regulatory Affairs in the Office of Management and
Budget has determined that this proposed rule is not a major rule as
defined by the CRA (5 U.S.C. 804).
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number.
Depending on the population, currently suitability and vetting
information is collected through the following OMB Control Numbers.
<bullet> 3206-0261 (Standard Form 85, Questionnaire for Non-Sensitive
Positions)
<bullet> 3206-0258 (Standard Form 85P, Questionnaire for Public Trust
Positions and SF 85P-S, Supplemental Questionnaire for Selected
Positions)
<bullet> 3206-0005 (SF 86, Questionnaire for National Security
Positions
Additional information regarding these collections of information--
including all current supporting materials--can be found at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a> by using the search function to enter
either the title of the collection or the OMB Control Number. Data
gathered through the information collection falls under the following
systems of record notice: Personnel Vetting Records System, DUSDI 02-
DoD.
In a parallel effort to this proposed rule, and as part of its work
with the PAC, OPM proposed a new information collection, Personnel
Vetting Questionnaire (PVQ) to streamline the existing information
collections, as well as the renewal cycle for them, commensurate with
on-going efforts to improve personnel vetting processes and the
experience of individuals undergoing personnel vetting. OPM published a
Federal Register Notice regarding the proposed collection on November
23, 2022, and accepted comments until January 23, 2023. OPM plans to
publish a Federal Register Notice in February 2023 announcing a thirty-
day period for public comment on the proposed collection. Once the new
collection is finalized, OPM plans to discontinue the current
information collections.
For the populations subject to the existing collections that will
be replaced by the Personnel Vetting Questionnaire, OPM does not
anticipate any changes to the current total cost or burden estimates as
a result of the changes in this proposed rule.
However, some individuals or populations may be required to
complete an updated questionnaire in order for continuous vetting to be
conducted. OPM is interested in public comment on the cost and burden
implications for this potential new population.
List of Subjects in 5 CFR Parts 302 and 731
Administrative practices and procedure, Authority delegations
(government agencies), Government contracts, Government employees,
Investigations.
U.S. Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM is
proposing to revise parts 302 and 731 of title 5, Code of Federal
Regulations as follows:
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
1. Revise the authority citation to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320,
8151, E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); Sec. 302.105 also
issued under 5 U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501
also issued under 5 U.S.C. 7701 et seq; Sec. 302.107 also issued
under 5 U.S.C. 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1); Sec.
302.108 and 302.203 also issued under E.O. 13764, 3 CFR, 2017 Comp.,
p. 243.
0
2. Add Sec. 302.108 to subpart A to read as follows:
Sec. 302.108 Determinations of fitness for employment in an excepted
service position.
(a) An agency must make fitness determinations for excepted
positions in accordance with the applicable requirements of part 731 of
this chapter.
(b) An agency must record its reasons for making fitness
determinations under part 731 of this chapter and shall furnish a copy
of those reasons to an applicant upon their request.
0
3. Revise Sec. 302.203 to read as follows:
Sec. 302.203 Standard and criteria for determining fitness for
employment in an excepted service position.
(a) The minimum standard and criteria for determining fitness for
employment based on character and conduct are prescribed in part 731,
subpart B of this chapter.
(b) Agencies may prescribe additional factors to protect the
integrity and promote the efficiency of the service, when job-related
and consistent with business necessity.
[[Page 6204]]
PART 731--SUITABILITY AND FITNESS
0
4. 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, as amended; E.O. 13488, 3 CFR, 2010 Comp., p. 189, as amended;
E.O. 13764, 3 CFR, 2017 Comp. p. 243; 5 CFR, parts 1, 2, 5, and 6;
Presidential Memorandum of January 31, 2014, 3 CFR, 2014 Comp., p.
340.
0
5. Revise subpart A to read as follows:
Subpart A--Scope
Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies for the competitive service and
career Senior Executive Service.
731.104 Investigation and reciprocity requirements.
731.105 Authority to take suitability actions in cases involving the
competitive service and career Senior Executive Service.
731.106 Designation of public trust positions and investigative
requirements.
Sec. 731.101 Purpose.
(a) Definitions. In this part:
Applicant means an individual who is being considered or has been
considered for employment in the competitive service or career Senior
Executive Service.
Appointee means an individual who has entered on duty and is in the
first year of employment in a competitive service or career Senior
Executive Service position when it is employment subject to
investigation. When the individual is serving a probationary or trial
period, their status as an appointee will extend through the end of
their initial probationary/trial period, if longer than one year.
Core Duty means a continuing responsibility that is of particular
importance to the relevant covered position or the achievement of an
agency's mission.
Competitive Service or career Senior Executive Service--For the
purposes of this part, ``Competitive Service or career Senior Executive
Service'' refers to a position in the competitive service, a position
in the excepted service where the incumbent can be noncompetitively
converted to the competitive service, and a career appointment to a
position in the Senior Executive Service.
Contractor Employee means an individual who performs work for or on
behalf of any agency under a contract and who, in order to perform the
work specified under the contract, will require access to space,
information, information technology systems, staff, or other assets of
the Federal Government, and who could, by the nature of their access or
duties, adversely affect the integrity or efficiency of the Government.
Such contracts include but are not limited to: personal service
contracts; contracts between any non-Federal entity and any agency; and
subcontracts between any non-Federal entity and another non-Federal
entity to perform work related to the primary contract with the agency.
The term contractor includes grantees of any agency or any other
category of person who performs work for or on behalf of an agency (but
not a Federal employee).
Days means calendar days unless otherwise noted in this part.
Employee means an individual who has completed the first year of an
appointment in the Civil Service when it is employment subject to
investigation and is no longer serving the initial probation or trial
period, if applicable. In the case of an appointee whose initial
probation or trial period is for more than one year, the individual
will be considered an employee at the completion of their initial
probation or trial period.
Employment Subject to Investigation, except as described elsewhere
in this part, includes an appointment to the competitive service or
career senior executive service, an appointment to the excepted
service, employment as a contractor employee, or employment as a
nonappropriated fund employee.
Excepted Service means any position excepted from the competitive
service or the Senior Executive Service of the executive branch. For
the purposes of this regulation, excepted service does not include:
(1) positions in any element of the intelligence community as
defined in the National Security Act of 1947, as amended, to the extent
they are not otherwise subject to Office of Personnel Management (OPM)
appointing authorities;
(2) positions where OPM is statutorily precluded from prescribing
such standards; and
(3) positions when filled by political appointment. Senior
Executive Service noncareer, limited term, and limited emergency
appointments are excepted from the competitive service in this part.
Excepted service does not mean any position excepted from the
competitive service of the executive branch that could be
noncompetitively converted to the competitive service.
Fitness is the level of character or conduct determined necessary
for an individual to perform work for a Federal agency as an employee
in the excepted service, as a contractor employee, or as a
nonappropriated fund employee.
Fitness Determination means a decision by an agency that an
individual has or does not have the required level of character and
conduct necessary to perform work for a Federal agency as an excepted
service employee. These determinations are based on whether an
individual's character or conduct may have an adverse impact on the
integrity or efficiency of the service.
Material means, in reference to a statement, one that affects, or
has a natural tendency to affect, or is capable of influencing, an
official decision even if OPM or an agency does not rely upon it.
Nonappropriated fund employee means an employee paid from non-
appropriated funds of an instrumentality of the United States under the
jurisdiction of the Armed Forces conducted for the comfort, pleasure,
contentment, and mental and physical improvement of personnel of the
Armed Forces as described in section 2105 of title 5, United States
Code.
Political Appointment means an appointment by Presidential
nomination for confirmation by the Senate, an appointment by the
President without Senate confirmation (except those appointed under 5
CFR 213.3102(c)); an appointment to a position compensated under the
Executive Schedule (5 U.S.C. 5312 through 5316); an appointment of a
White House Fellow to be assigned as an assistant to a top-level
Federal officer (5 CFR 213.3102(z)); a Schedule C appointment (5 CFR
213.3301, 213.3302); a noncareer, limited term, or limited emergency
Senior Executive Service appointment (5 CFR part 317, subpart F); an
appointee to serve in a political capacity under agency-specific
authority; and a provisional political appointment.
Suitability action means an outcome described in Sec. 731.203 and
may be taken only by OPM or an agency with delegated authority in the
case of the competitive service or career Senior Executive Service
under the procedures in subparts C and D of this part.
Suitability determination means a decision by OPM or an agency with
delegated authority that an individual is suitable or is not suitable
for employment in the competitive service or career Senior Executive
Service in the Federal Government or a specific Federal agency. A
determination is based on whether an individual's character or conduct
may have an adverse impact on the integrity or efficiency of the
service.
[[Page 6205]]
(b) The purpose of this part is as follows:
(1) To establish investigation, continuous vetting, and reciprocity
requirements for an appointment to a position in the competitive
service and excepted service, and for career appointment in the Senior
Executive Service. Contractor employee fitness and nonappropriated fund
employee fitness, as addressed in sections 3(b) and 3(c) of Executive
Order (E.O.) 13488, are also subject to these position designation
requirements, investigative standards, and reciprocity-requirements.
(2) To establish the criteria for making a determination of
suitability for the competitive service or career Senior Executive
Service and a minimum standard of fitness for the excepted service.
(3) To establish the procedures for taking suitability actions in
the case of the competitive service or career Senior Executive Service.
(4) An Agency shall exercise due regard to this regulation and
supplemental guidance if determining fitness for employment as a
contractor employee or as a nonappropriated fund employee.
(c) Any determination made and action taken under this part are
distinct from: an objection to an eligible or pass over of a preference
eligible; OPM's or an agency's decision on a request, made under 5
U.S.C. 3318 and 5 CFR 332.406; and any determination of eligibility for
access to classified information or for assignment to, or retention in,
sensitive national security positions made under, E.O. 12968, E.O.
10865, or E.O. 13467, as amended, or similar authorities.
Sec. 731.102 Implementation.
(a) An investigation conducted 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 and section
1.1(e) of Executive Order 13467, as amended.
(b) OPM may set forth any policy, procedure, criteria, standard,
quality control procedure, and supplementary guidance to implement this
part in an OPM or joint Executive Agent issuance.
Sec. 731.103 Delegation to agencies for the competitive service and
career Senior Executive Service.
(a) Subject to the limitations and requirements of paragraphs (b),
(d), and (f) of this section, OPM delegates to the head of an agency
authority for making a suitability determination and taking a
suitability action (including limited, agency-specific debarments under
Sec. 731.205) in a case involving an applicant or appointee.
(b) When an agency, acting under delegated authority from OPM,
determines that a Government-wide debarment by OPM under Sec.
731.204(a) may be an appropriate action, it must refer the case to OPM
for debarment consideration. An agency must make a referral prior to
any proposed suitability action, but only after sufficient resolution
of the suitability issue(s) to determine if a Government-wide debarment
appears warranted.
(c) An agency exercising authority under this part by delegation
from OPM must adhere to OPM requirements as stated in this part and
issuances described in Sec. 731.102(b). An Agency must also implement
policies and maintain records demonstrating that they employ reasonable
methods to ensure adherence to these issuances.
(d) OPM reserves the right to undertake a determination of
suitability based upon evidence of falsification or fraud relating to
an examination or appointment at any point when information giving rise
to such a charge is discovered. OPM must be informed in all cases where
there is evidence of material, intentional false statements, or
deception or fraud, in examination or appointment, and OPM will take a
suitability action where warranted.
(e) OPM may revoke an agency's delegation to make suitability
determinations and take suitability actions under this part if an
agency fails to conform to this part or OPM issuances as described in
Sec. 731.102(b).
(f) OPM retains sole jurisdiction to make a final suitability
determination and take an action under this part in any case where
there is evidence that there has been a material, intentional false
statement, or deception or fraud, in examination or appointment. OPM
also retains sole jurisdiction to make a final suitability
determination and take an action under this part in any case when there
is evidence of an action or conduct that falls within any or all of the
following factors: Knowing engagement in an act or activity with the
purpose of overthrowing Federal, State, local, or tribal government by
an unconstitutional mean; an Act of force, violence, intimidation, or
coercion with the purpose of denying others the free exercise of their
rights under the U.S. Constitution or any state constitution;
Attempting to indoctrinate another or to incite another to action in
furtherance of an illegal act; Active membership or leadership in a
group with knowledge of its unlawful aim, or participation in such a
group with a specific intent to further its unlawful aim. An Agency
must refer these cases to OPM for suitability determinations and
suitability actions under this authority. Although no prior approval is
needed, notification to OPM is required if the agency wants to take, or
has taken, action under its own authority (such as 5 CFR parts 315,
359, or 752) in cases involving conduct fitting within any of these
factors. In addition, paragraph (a) of this section notwithstanding,
OPM may, in its discretion, exercise its jurisdiction under this part
in any case it deems necessary regardless of whether the agency may
adjudicate under another authority.
Sec. 731.104 Investigation and reciprocity requirements.
(a) To establish an individual's suitability or fitness, employment
subject to investigation identified in Sec. 731.101 requires the
individual to undergo investigation by an agency with authority to
conduct investigations, except as described in paragraphs (a)(1)
through (3) of this section.
(1) Promotion, demotion, reassignment, or transfer from employment
subject to investigation to other employment subject to investigation
without a break in service does not require the person to undergo a new
investigation if the person has already undergone an investigation,
unless the new employment is at a higher risk level.
(2) When the person entering employment subject to investigation
has undergone a background investigation that is at or above the level
required for the position as determined by position designation and has
a qualifying break in service specified in supplemental guidance, a new
investigation need not be conducted unless the agency obtains new
information in connection with the person's employment that calls into
question the person's suitability or fitness under Sec. 731.202.
Agencies will need to enroll individuals re-entering service after a
break in service into continuous vetting, consistent with the
requirements in Sec. 731.106(d).
(3) Positions that are intermittent, per diem, or temporary in
nature, not to exceed an aggregate of 180 days per year in either a
single continuous appointment or series of appointments, do not require
a background investigation for suitability or fitness. The employing
agency, however, must conduct such checks as it deems appropriate to
ensure the suitability or fitness of the person. The employing agency
must conduct such vetting as required under OPM issuances.
(b)(1) An individual does not have to serve a new probationary or
trial period in the Civil Service merely because the individual's
employment is subject to
[[Page 6206]]
investigation under this section. An individual's probationary or trial
period in the Civil Service is not extended because the individual's
employment is subject to investigation under this section.
(2) A suitability determination must be made for each appointment
in the competitive service or career Senior Executive Service and a
fitness determination must be made for each appointment in the excepted
service, except as described in paragraph (b)(2)(ii) of this section.
(i) In the case of a prior investigation that is reciprocally
accepted, if the record in the Central Verification System or its
successor does not reflect a prior favorable suitability or fitness
determination, the agency will need to review the prior investigation
for the purpose of making a suitability or fitness determination.
(ii) In the case of a prior investigation that is reciprocally
accepted, if the prior investigation was favorably adjudicated for
suitability or fitness, the agency shall accept the prior determination
unless:
(A) The investigative record on file for the individual shows
conduct that is incompatible with the core duties of the relevant
covered position; or
(B) The agency has prescribed additional factors under section
731.202(b) that were not addressed in the prior favorable adjudication,
and the agency will conduct an adjudication using only those additional
factors.
(C) Reinvestigation or continuous vetting requirements under Sec.
731.106 are not affected by this section.
Sec. 731.105 Authority to take suitability actions in cases
involving the competitive service or career Senior Executive Service.
(a) OPM or an agency acting under delegated authority may take a
suitability action in connection with any application for, or
appointment to, the competitive service or career Senior Executive
Service.
(1) OPM's or an agency's authority to take a suitability action
continues when an application is withdrawn, when an offer of employment
is withdrawn, or when an individual appointed separates from
employment.
(2) OPM's or an agency's authority to take a suitability action
includes the case of an application for or appointment to the
competitive service or career Senior Executive Service from another
type of position when a prior investigation is being reciprocally
accepted as described in Sec. 731.104(a).
(b) OPM may take a suitability action under this part against an
applicant or appointee based on the criteria in Sec. 731.202.
(c) Except as limited by Sec. 731.103(b), (d), and (f), an agency,
exercising delegated authority, may take a suitability action under
this part against an applicant or appointee based on the criteria of
Sec. 731.202;
(d) Only OPM may take a suitability action under this part against
an employee in the competitive service or career Senior Executive
Service based on the criteria of Sec. 731.202(b)(3), (7), (8), (9),
(10), or (11).
(e) An agency may not take a suitability action against an employee
in the competitive service or career Senior Executive Service. Nothing
in this part precludes an agency from taking an adverse action against
an employee under the procedures and standards of part 752 of this
chapter or terminating a probationary employee under the procedures of
part 315 or part 359 of this chapter or under agency specific
authorities. An agency must notify OPM to the extent required in Sec.
731.103(d) and (f) if it wants to take, or has taken, action under
these authorities. OPM retains the right to take a suitability action
even in those cases where the agency makes an adjudicative
determination under another authority.
Sec. 731.106 Designation of public trust positions and investigative
requirements.
(a) Risk designation. An agency head must designate at high,
moderate, or low risk level, as determined by the position's potential
for adverse impact to the efficiency or integrity of the service, every
position: in the competitive service; in the excepted service; to be
filled with a career appointment in the Senior Executive Service; and
in which the occupant performs a service as a contractor employee or as
a nonappropriated fund employee. OPM provides a risk designation system
for agency use in an issuance as described in Sec. 731.102(b).
(b) Public Trust position. A position at the high or moderate risk
level is designated as a ``Public Trust'' position. Such positions may
involve policy making, major program responsibility, public safety and
health, law enforcement duties, fiduciary responsibilities or other
duties demanding a significant degree of public trust, and positions
involving access to or operation or control of financial records, with
significant risk for causing damage or realizing personal gain.
(c) Investigative requirements. (1) An individual entering
employment subject to investigation under this part must undergo a
background investigation as described in Sec. 731.104. OPM establishes
minimum investigative requirements correlating to the risk level. An
investigation should be initiated before the individual is appointed or
otherwise becomes employed by or on behalf of the agency; however,
where an agency does not timely initiate the investigation, it must do
so as soon as possible, even if the appointment has already occurred.
(2) Any position subject to risk designation under this section
must also receive a sensitivity designation of Special-Sensitive,
Critical-Sensitive, Noncritical-Sensitive, or Nonsensitive, as
appropriate. This designation is complementary to the risk designation
and may have an effect on the position's investigative requirement.
Part 1400 of this chapter details the various sensitivity levels and
investigative requirements for positions designated as sensitive.
Procedures for determining investigative requirements for a position
based upon risk and sensitivity will be published in issuances, as
described in Sec. 731.102(b) and part 1400 of this chapter.
(3) If a suitability or fitness issue develops prior to the
required investigation, OPM or the agency may request investigation
from an authorized investigative service provider sufficient to resolve
the issue and support an unfavorable suitability or fitness
determination. However, inquiries into criminal or credit history
cannot occur until a conditional offer has been made, as specified in
Sec. 731.106(g). If warranted for positions in the competitive service
or career Senior Executive Service, an agency may also take suitability
action, in accordance with the authorities described in this part. If
the individual is then appointed or otherwise becomes employed by or on
behalf of the agency, the minimum level of investigation must be
conducted as required by paragraph (c)(1) of this section.
(d) Continuous vetting requirements. (1) Individuals occupying
positions of employment subject to investigation are also subject to
continuous vetting through periodic checks of their background at any
time in accordance with standards issued by OPM. The nature of a
continuous vetting check, and any additional requirement and parameter
will be established in supplemental issuances as described in Sec.
731.102(b). These requirements will take into account position risk and
sensitivity, with a check being required at regular intervals depending
on the type of check. An individual may be subject to continuous
vetting only if they have signed an authorization for release of
information permitting a disclosure for continuous vetting purposes.
Continuous vetting for an
[[Page 6207]]
individual in a public trust position satisfies the requirement for a
periodic reinvestigation of an individual in a public trust position as
directed in E.O. 13488, as amended. An agency must ensure that each
continuous vetting check is conducted and a determination made
regarding continued employment.
(2) An individual in a sensitive position who is continually vetted
to standards established by the Security Executive Agent for satisfying
periodic reinvestigation and/or continuous vetting requirements meets
the continuous vetting requirements for a public trust position.
(3) An agency must notify each employee covered by this section of
the continuous vetting requirements under paragraph (d) of this
section.
(e) Risk level changes. If an individual in employment subject to
investigation experiences a change to a higher position risk level due
to promotion, demotion, reassignment, or transfer, or the risk level of
the individual's position is changed to a higher level, the individual
may remain in or encumber the position. Any upgrade in the
investigation required for the new risk level should be initiated
within 14 days after the promotion, demotion, reassignment, transfer or
new designation of risk level is final or as otherwise required by part
1400 of this chapter.
(f) Completed investigations. An investigation or continuous
vetting check under paragraphs (c), (d), and (e) of this section
supports 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.
(g) With respect to Civil Service employment, a hiring agency may
not make specific inquiries concerning an applicant's criminal or
credit background of the sort asked on the OF-306 or other forms used
to conduct suitability investigations for Federal employment (i.e.,
inquiries into an applicant's criminal or adverse credit history)
unless the hiring agency has made a conditional offer of employment to
the applicant. An agency may make an inquiry into an applicant's
Selective Service registration, military service, citizenship status,
or previous work history, prior to making a conditional offer of
employment to an applicant. However, in certain situations, an agency
may have a business need to obtain information about the suitability or
background of an applicant earlier in the process. If so, an agency
must request an exception from the Office of Personnel Management, in
accordance with the provisions of 5 CFR part 330, subpart M.
(h) When an agency makes a suitability or fitness determination
based on an investigation, the agency must:
(1) Ensure that any record used in making the determination is
accurate, relevant, timely, and complete to the extent reasonably
necessary to ensure fairness to the individual in any determination;
(2) Ensure that all applicable administrative procedural
requirements provided by law, including the regulations in this part
and issuances as described in Sec. 731.102(b) have been observed;
(3) Consider all available information in reaching its final
decision on a suitability or fitness determination or suitability
action, except information furnished by a non-corroborated confidential
source, which may be used only for limited purposes, such as
information used to develop a lead or in interrogatories to a subject,
if the identity of the source is not compromised in any way; and
(4) Keep any record of the agency determination or action as
required by issuances as described in Sec. 731.102(b).
0
6. Revise subpart B to read as follows:
Subpart B--Determinations of Suitability or Fitness; Suitability
Actions in Cases Involving the Competitive Service or Career Senior
Executive Service
Sec.
731.201 Standard.
731.202 Criteria for making suitability and fitness determinations.
731.203 Suitability actions by OPM and other agencies for the
competitive service or career Senior Executive Service.
731.204 Debarment by OPM in cases involving the competitive service
or career Senior Executive Service.
731.205 Debarment by agencies in cases involving the competitive
service or career Senior Executive Service.
731.206 Reporting requirements for investigations and suitability
and fitness determinations.
Sec. 731.201 Standard.
The standard for a suitability and fitness determination and for a
suitability action defined in Sec. 731.203 is that the action will
protect the integrity or promote the efficiency of the service.
Sec. 731.202 Criteria for making suitability and fitness
determinations.
(a) General. OPM, or an agency to which OPM has delegated
suitability authority, must base its suitability determination on the
presence or absence of one or more of the specific factors in paragraph
(b) of this section. An agency is responsible for making a fitness
determination for an excepted service position covered by this part but
must apply the specific factors in paragraph (b) of this section as the
minimum standards for making the determination. When applying these
criteria, an agency must also apply guidance in supplemental issuances,
as described in Sec. 731.102(b). If using these factors to also make a
Personal Identity Verification (PIV) Credential determination as
outlined in OPM issuances regarding PIV credentialing eligibility, an
agency must also ensure they have verified the individual's identity.
(b) Specific factors. When making a suitability determination, OPM
or an agency will consider only the following factors to determine if
one is suitable. Only OPM may take a suitability action considering the
factors in paragraphs (b)(3), (b)(7), (b)(8), (b)(9), or (b)(10) of
this section. Agencies may use the factor in paragraph (b)(11) in
applicant and appointee cases but not employee cases; however, OPM may
use this factor in employee cases. When making fitness determinations,
an agency must consider these factors as a minimum standard, but it may
prescribe additional factors to protect the integrity and promote the
efficiency of the service, when job-related and consistent with
business necessity:
(1) Misconduct or negligence in employment;
(2) Criminal conduct;
(3) Material, intentional false statement, or deception or fraud,
in examination or appointment;
(4) Dishonest conduct;
(5) Excessive alcohol use, without evidence of rehabilitation, of a
nature and duration that suggests 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 the
applicant, appointee, or others;
(6) Illegal use of narcotics, drugs, or other controlled
substances, without evidence of rehabilitation;
(7) Knowing engagement in an act or activity with the purpose of
overthrowing Federal, State, local, or tribal government;
(8) An act of force, violence, intimidation, or coercion with the
purpose of denying another individual
[[Page 6208]]
the free exercise of rights under the U.S. constitution or any state
constitution;
(9) Attempting to indoctrinate another or to incite another to
action in furtherance of an illegal act;
(10) Active membership or leadership in a group with knowledge of
its unlawful aim, or participation in such a group with a specific
intent to further its unlawful aim;
(11) Any statutory or regulatory bar that prevents the lawful
employment of the individual involved in the position in question; and
(12) Violent conduct.
(c) Additional considerations. OPM and an agency must consider any
of the following additional considerations to the extent OPM or the
relevant agency, in its sole discretion, deems any of them pertinent to
the individual case:
(1) The nature of the position for which the individual is applying
or in which the individual is employed;
(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 individual involved at the time of the conduct;
(6) Contributing societal conditions; and
(7) The absence or presence of rehabilitation or efforts toward
rehabilitation.
Sec. 731.203 Suitability actions by OPM and other agencies for the
competitive service or career Senior Executive Service.
(a) This section pertains only to the competitive service or career
Senior Executive Service as defined in Sec. 731.101.
(b) For purposes of this part, a suitability action is one or more
of the following:
(1) Cancellation of eligibility;
(2) Removal;
(3) Cancellation of reinstatement eligibility; and
(4) Debarment.
(c) A non-selection, or cancellation of eligibility for the
competitive service based on an objection to an eligible or pass over
of a preference eligible under 5 CFR 332.406, is not a suitability
action even if it is based on reasons set forth in Sec. 731.202.
(d) A suitability action may be taken against an applicant or an
appointee to the competitive service or career Senior Executive Service
when OPM or an agency exercising delegated authority under this part
finds that the applicant or appointee is unsuitable for the reasons
cited in Sec. 731.202, subject to the agency limitations of Sec.
731.103(b), (d), and (f).
(e) OPM may require that an employee in the competitive service or
career Senior Executive Service be removed on the basis of one or more
of the following:
(1) A material, intentional false statement, deception or fraud in
examination or appointment;
(2) Knowing engagement in an act or activity with the purpose of
overthrowing Federal, State, local or tribal government;
(3) An act of force, violence, intimidation, or coercion with the
purpose of denying another individual the free exercise of their rights
under the U.S. constitution or any state constitution;
(4) Attempting to indoctrinate another or to incite them to action
in furtherance of an illegal act;
(5) Active membership or leadership in a group with knowledge of
its unlawful aim, or participation in such a group with a specific
intent to further its unlawful aim; or
(6) Statutory or regulatory bar that prevents the individual's
lawful employment.
(f) OPM may cancel any reinstatement eligibility obtained as a
result of a material, intentional false statement, deception, or fraud
in examination or appointment.
(g) An action to remove an appointee or employee for suitability
reasons under this part is not an action under part 315, 359, or 752 of
this chapter. Where conduct covered by this part may also form the
basis for an action under parts 315, 359, or 752 of this chapter, an
agency may take the action under part 315, 359, or 752 of this chapter,
as appropriate, instead of under this part. An agency must notify OPM
to the extent required in Sec. 731.103(f) if it wants to take, or has
taken, action under these authorities. OPM reserves the right to also
take an action under this part.
(h) An agency does not need approval from OPM before taking an
unfavorable suitability action. However, it is required to report to
the Central Verification System or its successor, each unfavorable
suitability action taken under this part within 30 days after they take
the action. Also, each suitability determination based on an
investigation must be reported to the Central Verification System or
its successor as soon as possible and in no event later than 90 days
after receipt of the final report of investigation.
Sec. 731.204 Debarment by OPM in cases involving the competitive
service and career Senior Executive Service.
(a) When OPM finds an individual unsuitable for any reason listed
in Sec. 731.202, OPM, in its discretion, may, for a period of not more
than three calendar years from the date of the unfavorable suitability
determination, deny that individual examination for, and appointment
to, the competitive service and career appointment in the Senior
Executive Service.
(b) OPM may impose an additional period of debarment following the
expiration of a period of OPM or agency debarment or when new conduct
arises while under debarment, but only after the individual again
becomes an applicant, appointee, or employee subject to OPM's
suitability jurisdiction, and the individual's suitability is
determined in accordance with the procedures of this part. An
additional debarment period may be based in whole or in part on the
same conduct on which the previous suitability action was based, when
warranted, or new conduct.
(c) OPM, in its sole discretion, determines the duration of any
period of debarment imposed under this section.
Sec. 731.205 Debarment by agencies in cases involving the
competitive service and career Senior Executive Service.
(a) Subject to the provisions of Sec. 731.103, when an agency
finds an applicant or appointee unsuitable based upon reasons listed in
Sec. 731.202, the agency may, for a period of not more than 3 years
from the date of the unfavorable suitability determination, deny that
individual examination for, and appointment to, either all, or specific
competitive service positions and career appointment to all, or
specific Senior Executive Service positions within that agency.
(b) The agency may impose an additional period of debarment
following the expiration of a period of OPM or agency debarment, but
only after the individual again becomes an applicant or appointee
subject to the agency's suitability jurisdiction, and his or her
suitability is determined in accordance with the procedures of this
part. An additional debarment period may be based in whole or in part
on the same conduct on which the previous suitability action was based,
when warranted, or new conduct.
(c) The agency, in its sole discretion, determines the duration of
any period of debarment imposed under this section.
(d) The agency is responsible for enforcing the period of debarment
and taking appropriate action if an individual applies for a position
at that agency during the debarment period, or is examined for or
appointed to a position at that agency during the debarment period.
This responsibility
[[Page 6209]]
does not limit OPM's authority to exercise jurisdiction itself and take
any action OPM deems appropriate.
Sec. 731.206 Reporting requirements for investigations and
suitability and fitness determinations.
An agency must report to the Central Verification System or its
successor the level or nature, result, and completion date of each
background investigation, reinvestigation, or enrollment in Continuous
Vetting; each agency decision based on such investigation,
reinvestigation, or Continuous Vetting; and any personnel action taken
based on such investigation or reinvestigation, as required in
supplemental guidance.
0
7. Revise the subpart heading of subpart C to read as follows:
Subpart C--OPM Suitability Action Procedures for the Competitive
Service or Senior Executive Service
0
8. Amend Sec. 731.302 by revising paragraph (c) to read as follows:
Sec. 731.302 Notice of proposed action.
* * * * *
(c) OPM will serve the notice of proposed action upon the
respondent by mail, secure email, or hand delivery no less than 30 days
prior to the effective date of the proposed action to the respondent's
last known residence or duty station.
* * * * *
0
9. Revise the subpart heading of subpart D to read as follows:
Subpart D--Agency Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
0
10. Amend Sec. 731.402 by revising paragraph (c) to read as follows:
Sec. 731.402 Notice of proposed action.
* * * * *
(c) The agency must serve the notice of proposed action upon the
respondent by mail, secure email, or hand delivery no less than 30 days
prior to the effective date of the proposed action to the respondent's
last known residence or duty station.
* * * * *
0
11. Revise the subpart heading of subpart E to read as follows:
Subpart E--Appeal to the Merit Systems Protection Board of
Suitability Actions in Cases Involving the Competitive Service or
Career Senior Executive Service
[FR Doc. 2023-01650 Filed 1-30-23; 8:45 am]
BILLING CODE 6325-66-P
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</html>Indexed from Federal Register on January 31, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.