Rule2024-29799
Suitability and Fitness
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
December 18, 2024
Effective
January 17, 2025
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing a final rule revising regulations governing the Federal Government personnel vetting investigative and adjudicative processes for determining suitability and fitness. This final rule establishes requirements and standards for agencies to properly vet individuals to assess risk to the integrity and efficiency of the service. The regulations establish the requirements for when investigations must be conducted for appointments to the civil service, to work as a contractor employee, or to work in a Department of Defense Non appropriated Fund position. This final rule establishes the requirement for enrolling these populations, including low, moderate, and high risk, into continuous vetting. Furthermore, this rule provides adjudicative criteria for assessing suitability and fitness for much of the civil service. Nothing in this rule shall be read in derogation of any individual's rights under Title VII of the U.S. Code.
Full Text
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<title>Federal Register, Volume 89 Issue 243 (Wednesday, December 18, 2024)</title>
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[Federal Register Volume 89, Number 243 (Wednesday, December 18, 2024)]
[Rules and Regulations]
[Pages 102675-102696]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29799]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 /
Rules and Regulations
[[Page 102675]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 302 and 731
RIN 3206-AO17
Suitability and Fitness
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing a final
rule revising regulations governing the Federal Government personnel
vetting investigative and adjudicative processes for determining
suitability and fitness. This final rule establishes requirements and
standards for agencies to properly vet individuals to assess risk to
the integrity and efficiency of the service. The regulations establish
the requirements for when investigations must be conducted for
appointments to the civil service, to work as a contractor employee, or
to work in a Department of Defense Non appropriated Fund position. This
final rule establishes the requirement for enrolling these populations,
including low, moderate, and high risk, into continuous vetting.
Furthermore, this rule provides adjudicative criteria for assessing
suitability and fitness for much of the civil service. Nothing in this
rule shall be read in derogation of any individual's rights under Title
VII of the U.S. Code.
DATES: Effective January 17, 2025.
FOR FURTHER INFORMATION CONTACT: Christine Bilunka at (202) 599-0090 or
by email at <a href="/cdn-cgi/l/email-protection#9ecdebf7eadbdfdef1eef3b0f9f1e8"><span class="__cf_email__" data-cfemail="0655736f7243474669766b28616970">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
Under 5 U.S.C. 3301 and 7301, Congress authorizes the President to
prescribe regulations to govern the admission into the civil service in
the executive branch. The regulations must ``best promote the
efficiency'' of the executive branch civil service, ``ascertain the
fitness of applicants with respect to character, and prescribe rules
for the conduct of executive branch employees. In addition to the
President's authority to prescribe standards for suitability and
fitness for civil service appointments based on character and conduct,
5 U.S.C. 3301 recognizes the President's authority to prescribe
qualification standards based on applicants' education and experience
and to assess their relative knowledge, skill, and ability.
OPM, as delegated by the President, has the authority to prescribe
qualification standards and to conduct examinations of applicants'
qualifications. OPM also has the authority to prescribe suitability
standards and to conduct investigations of suitability for appointment
and continuing employment. (See 5 U.S.C. 1104(a)(1).) Amendments to the
Civil Service Rules made by Executive Order (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, directed
OPM to establish minimum standards of fitness based on character and
conduct for appointment to positions in the excepted service of the
executive branch. (82 FR 8115.) E.O. 13764 required 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 positions in the excepted service beyond those that could be
noncompetitively converted to the competitive service.
As amended by E.O. 13764, E.O. 13488 of January 16, 2009, 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. (74 FR 41111.) As amended by E.O. 13764,
E.O. 13467 of June 30, 2008, 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 employee,
and nonappropriated fund positions that are included in covered
positions as defined in the E.O. 73 FR 38103. Furthermore, E.O. 13467
(section 2.1(c)), as amended by E.O. 13764, requires that, to the
extent practicable, the investigative and adjudicative standards for
fitness be consistent with the suitability standards.
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, ``Trusted Workforce 2.0'' (see
<a href="https://www.performance.gov/trusted-workforce/">https://www.performance.gov/trusted-workforce/</a>), 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. This final rule helps advance the
goals of the Trusted Workforce 2.0 initiative.
Explanation of OPM's Final Rule
Aligned Criteria
OPM is issuing revised suitability criteria at 5 CFR 731.202. The
basis for the specific revisions to several of the existing suitability
factors is explained in the section discussing Sec. 731.202.
Additionally, OPM is revising Sec. 731.202 so that these criteria will
be used for making both suitability and fitness
[[Page 102676]]
determinations except as otherwise noted in the regulation.
Establishing the criteria as the minimum standards of fitness for much
of the excepted service is done per the amended Civil Service Rule II
(5 CFR 2.1(a)(iii) and (iv), making OPM responsible for setting
standards of suitability for most Federal appointments and for setting
minimum standards of fitness for positions in the excepted service,
with certain exceptions.) Additionally, the aligned factors are
consistent with E.O. 13467, as amended by E.O. 13764, which requires
standards for suitability for appointment in the competitive service
and standards for fitness for appointment in the excepted service be
aligned ``to the extent possible.'' OPM is also revising 5 CFR 731.104
to specify the circumstances under which either a suitability or
fitness determination is required. These changes are described in
detail in the sections discussing Sec. Sec. 731.104 and 731.202.
Aligned Position Designation Requirements, Investigative Standards, and
Reciprocity
This final rule also implements several changes to improve
consistency in the vetting process and to enhance mobility of the civil
service, contractor employee, and nonappropriated fund workforces.
Specifically, the rule aligns the requirements for position
designation, investigations, and reciprocal acceptance of
investigations and suitability or fitness determinations amongst these
populations. Agencies will use the same system for designating position
risk (i.e., low, moderate, and high) for civil service, contractor
employee 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, which prescribe the investigative checks
to be conducted at low, moderate, and high tiers that correlate to
position risk. Finally, agencies will apply the same rules for
determining whether reciprocal acceptance of prior background
investigations and suitability or fitness determinations are required,
promoting efficient transfer of trust determinations.
Civil Service Rule V (5 CFR 5.2(a)), as amended by E.O. 13764,
section 1, establishes that, for positions in the excepted service for
which the OPM Director has standard-setting responsibility under 5 CFR
part 2, the Director may require agencies to designate positions based
on risk in accordance with OPM guidance to determine the appropriate
level of investigation, and may prescribe investigative standards,
policies, and procedures, and reciprocity standards for investigations
and adjudications of suitability and fitness, except to the extent
statute vests authority to apply additional fitness standards 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.
Policies and procedures for suitability and fitness are required to
be ``aligned using consistent standards to the extent possible'' and to
``provide for reciprocal recognition.'' (E.O. 13467, as amended,
section 1.1.) Further, agencies are required to accept background
investigations and adjudications conducted by other agencies except
when an agency determines the prior investigation or adjudication does
not meet its standards. (E.O. 13467, as amended, section 2.2.) The
Director of OPM, as the Suitability and Credentialing Executive Agent,
is responsible for establishing these requirements through regulations,
guidance, and standards. (E.O. 13467, as amended, section 2.5.)
E.O. 13488, as amended by E.O. 13764, establishes that the same
position designation requirements and investigative standards,
policies, and procedures used for fitness determinations for civil
service employees apply to contractor employee fitness and
nonappropriated fund employee fitness. (E.O. 13488, as amended, section
3(b).) Likewise, section 3(c) of E.O. 13488, as amended, provides that
fitness determinations for contractor employees and nonappropriated
fund employees and their underlying investigations are subject to the
same reciprocity requirements as those prescribed by OPM under the
Civil Service Rules for employment in the civil service. Therefore,
contractor employees, except those for which OPM is statutorily
precluded from prescribing standards, and nonappropriated fund
populations 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 noncompetitively convert to the competitive service),
and for career appointments to the Senior Executive Service.
The position designation, reciprocity, and investigation
requirements for contractor employees that OPM is codifying in part 731
are not new. Since 2009, E.O. 13488 has covered contractor employee
fitness, giving agency heads discretion on fitness criteria, but
requiring them to take into account OPM guidance when determining 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 contractor employees, and
agencies have been required to report the nature and results of
background investigations and fitness determinations to the government-
wide investigations and adjudications index (Central Verification
System or successor). Likewise, the requirement that contractor
employees 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 (PAC) titled Assignment of Functions
Relating to Coverage of Contractor Employee Fitness in the Federal
Investigative Standards, the PAC determined, after consulting with the
Department of Defense and other affected agencies, that contractor
employees should be subject to the same Federal Investigative 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.''
The Federal Investigative Standards, which were issued by the
Executive Agents in December 2012, applied ``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,
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.
This rule does not specifically address investigative requirements
for eligibility for access to classified information or for employment
in sensitive (national
[[Page 102677]]
security) positions. Those matters 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, this rule continues
the existing requirement (5 CFR 731.106(a) and (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.
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, section 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 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.'' (Id.) In accordance with section 2.1 of E.O. 13467,
as amended, all covered individuals are to be subject to continuous
vetting under standards to be established by the Security Executive
Agent or the Suitability and Credentialing Executive Agent exercising
its Suitability Executive Agent functions, as applicable. Further, the
Director of OPM as the Suitability Executive Agent is responsible for
prescribing applicable investigative standards, policies, and
procedures. With this final rule, any individual occupying a position
that is subject to investigation, as described in revised Sec.
731.104(a), including both public trust positions and low risk
positions, is subject to continuous vetting. The nature and specificity
of continuous vetting checks will be further defined in supplemental
issuances, and requirements will account for position risk and
sensitivity designations.
Elimination of Fixed, Five-Year Periodic Reinvestigation Requirement
for Public-Trust Positions
With this final rule and OPM's implementation of the continuous
vetting requirement set forth in E.O. 13467, as amended, section 2.1,
OPM has eliminated the fixed, five-year periodic reinvestigation
requirement for public trust positions.
Digest of Public Comments
In response to the proposed rule (88 FR 6192, January 31, 2023),
OPM received 3,587 comments via the eRulemaking portal, one comment via
email, and one comment by phone. All comments were received during the
60-day comment period. Comments received were from individuals,
organizations, a labor union, and a Federal agency. Approximately 3,500
identical form comments were submitted by about 3,400 commenters.
In general, the comments ranged from categorical rejection of the
proposed regulations to strong support. OPM carefully considered
comments and arguments made in support of and in opposition to the
proposed amendments. The comments are summarized and discussed in the
subsequent sections. Comments are organized by general comments
followed by comments specific to each section. A discussion of the
suggested revisions that were considered and either adopted, adopted in
part, or declined, and the rationale therefore is included. Comments
beyond the scope of the proposed changes or which were vague or
incomplete are not addressed.
General Comments
Some commenters offered support for the regulatory changes,
believing that the changes to the regulation would serve to improve the
Government's ability to assess the integrity and efficiency of the
service and streamline the process, while others suggested that the
current process is sufficient and that changes are unnecessary.
Several commenters took issue with the relevant terminology,
suggesting that the terms ``character,'' ``suitability and fitness,''
and ``conduct necessary'' are vague and could allow for discrimination,
including against individuals who do not have the same educational or
cultural background as other job applicants. Others commented more
generally that the rule would allow for discrimination without regard
to an individual's qualifications, asserting that hiring managers could
determine the level of character required and reject candidates based
on their own ideology. Other commenters called the rule
unconstitutional and illegal, suggesting it may allow for
discrimination based upon political beliefs or protected speech.
In response to these comments, OPM agrees that this final rule
advances important goals to strengthen and streamline personnel
vetting. This rule implements vetting reform requirements and
initiatives that span three Administrations and were first initiated in
2017 and distilled into the transformational Trusted Workforce 2.0
framework beginning in 2018 with a focus on revamping the fundamental
approach and supporting policy framework, overhauling business
processes, and modernizing the information technology architecture.
Effective Government operations require that the Government's workforce
be trusted to deliver on mission, provide excellent service, and
demonstrate effective stewardship of taxpayer funds. Establishing and
maintaining trust is a core goal of the Federal personnel vetting
program. Further, as addressed in the previous sections (Background and
Explanation of OPM's Final Rule), the rule implements requirements
established by the President via Executive orders. Therefore, the scope
of the regulations with respect to the populations covered, including
the excepted service, adheres to the direction of the Executive orders.
As such, OPM will not make any revisions to the rule regarding the
scope.
OPM disagrees with comments suggesting the language in the
regulation may allow for discrimination. The terms called out by the
commenters are well-established and their application to personnel
vetting is not changing through this rule. As outlined in the
regulation and elaborated upon in a body of guidance, such as the
Suitability Processing Handbook, the Trusted Workforce 2.0 policy, and
the Investigative Standards, OPM and agencies must base suitability
determinations on the presence or absence of one or more of the
specific factors in 5 CFR 731.202(b) while considering the additional
considerations in Sec. 731.202(c) to the extent they are deemed
pertinent. OPM also disagrees that agencies, when acting in accordance
with the rule, are at liberty to determine the level of character that
applicants must possess arbitrarily, nor do the requirements allow for
suitability or fitness decisions that are based upon the decision-
maker's personal ideology.
With respect to the concerns raised that some of the proposed
changes are vague and may be illegal or unconstitutional, OPM disagrees
that the proposed changes are illegal and unconstitutional. OPM
acknowledges the concerns regarding clarity and is not moving forward
with some of the proposed changes. This is discussed in subsequent
sections.
[[Page 102678]]
Part 302--Employment in the Excepted Service
The final rule adds as an authority E.O. 13764, which amended the
Civil Service Rules to extend authority by the OPM Director to
establish the minimum standards of fitness for the excepted service,
and amends the existing authority citations to comply with 1 CFR part
21, subpart B. This final rule adds Sec. 302.108 to refer readers to
part 731 for requirements on fitness determinations for excepted
positions. Additionally, the section establishes that an agency must
record its reason(s) for making fitness determinations under part 731
and must furnish a copy of those reasons to an applicant upon their
request. Section 302.203 is revised to direct readers to part 731 for
the minimum standards and criteria for determining fitness for
employment based on character and conduct, allowing agencies to
prescribe additional factors to protect the integrity and promote the
efficiency of the service when job-related and consistent with business
necessity.
One commenter wrote that the disqualifying factors in the existing
part 302, which the commenter opines address an applicant's ability to
effectively work for the Government, their ability to faithfully
service the Federal Government, and other possible statutory concerns,
are far different from the new factors OPM proposed in part 731.
According to the commenter, the new factors in part 731 consider
behavior that is entirely unrelated to the applicant's proven history
with the law and the Federal Government and the applicant's capacity to
perform the job.
OPM agrees that the disqualifying factors in part 302, although
similar, were not entirely consistent with those in Sec. 731.202. OPM
disagrees with the commenter's notion that the intent of the
disqualifying factors was far different than consideration of behavior
as specified in part 731. As was explained in the notice of proposed
rulemaking, the inconsistency is, in part, a basis for making the
change in this rulemaking, as the President has called for an executive
branch-wide vetting enterprise to use, to the greatest extent
practicable, aligned and consistent vetting policies, procedures, and
standards for determining suitability or fitness for Government
employment. (See E.O. 13467, as amended.) Specifically, the President
directed that the investigative and adjudicative standards for fitness
must, to the extent practicable, be consistent with the standards for
suitability. (E.O. 13467, sec. 2.1(c).) Therefore, OPM is necessarily
changing the way in which fitness is determined by aligning the factors
and additional considerations used for fitness determinations with
those used for suitability. OPM agrees that the President intended for
the OPM Director to establish the minimum standards of fitness based
upon character or conduct (see E.O. 13764, sec. 1(a)(iii), revising 5
CFR 2.1(a)(vi).); however, OPM disagrees with the suggestion that the
fitness factors as aligned with the suitability factors evaluate
fitness based on something other than an assessment of an individual's
character or conduct. Each of the factors is designed to allow agencies
to consider different aspects of an individual's past conduct, as
identified during the vetting process, and how that conduct illustrates
the individual's character. See discussion of Sec. 731.202 for more
information about the factors.
This same commenter suggested that permitting agencies to prescribe
additional fitness factors is an extreme change that grants agencies
near limitless power. The commenter suggested that this delegation to
agencies is inconsistent with the direction of E.O. 13764 to promote
consistency between agencies. The commenter suggested the terms ``job-
related'' and ``business necessity'' must be defined very clearly,
agencies must be required to publicly post and explain potential
factors, and OPM must oversee and assess these factors.
OPM agrees that E.O. 13764 seeks to promote consistency between
agencies. By aligning the minimum fitness factors with the suitability
standards, application of reciprocity between agencies based on fitness
determination should increase. Under the existing regulations, an
agency has latitude for establishing reasons to deem an applicant unfit
for an excepted service appointment. OPM regulations have provided a
list of potential disqualifying reasons (which are referenced by the
commenter) but have not required the use of any particular factors.
This final rule, in establishing a specific list of factors that can be
supplemented by an agency in making a fitness determination, is not a
vast expansion of authority for agencies. Commenter's suggestion to the
contrary is simply incorrect.
Nonetheless, the President amended the Civil Service Rules to make
OPM responsible for the minimum standards of fitness based on character
and conduct, and thus allowed agencies to supplement the fitness
standards, where appropriate. (See E.O. 13764, amending 5 CFR 2.1(a)(i)
and (ii) to state that OPM is responsible for ``Standards of
suitability'' for the competitive service but is responsible for
``Minimum standards of fitness'' for the excepted service.) The
President also made clear that each agency is authorized to
``determine[ ] that 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.
(E.O. 13467, sec. 2.2, as amended (emphasis added).) Accordingly, OPM
is not responsible for, nor is it required to approve or oversee, the
establishment of additional fitness factors used by an agency in
determining fitness for its excepted service positions.\1\ OPM agrees,
however, that additional fitness factors should be made known to
applicants when such factors are used in making an unfavorable fitness
determination, and therefore has included a requirement in Sec.
302.108(b) for agencies to make additional factors a matter of record
and furnish them to an applicant, upon request, in such circumstances.
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\1\ See E.O. 13764, sec. 3(q), adding a new section 2.2
``Reciprocity'' to E.O. 13467. The provision cited by the commenter
(``Any additional requirements approved by the appropriate Executive
Agent shall be limited to those that are necessary to address
significant needs unique to the agency involved, to protect national
security, or to satisfy a requirement imposed by law.'') does not
indicate that agency fitness factors are subject to this Executive
Agent oversight. The preceding sentence states: ``Except as
described above and except to the extent authority to apply
additional requirements is vested by statute in an agency, an agency
may not establish additional . . . requirements . . . without the
approval of the [appropriate Executive Agent].'' This sentence
applies to the suitability factors but does not apply to the fitness
factors, which were ``described above.'' Accordingly, the
``additional requirements approved by the appropriate Executive
Agent'' refers only to suitability factors.
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OPM is not accepting the request to define what job-related and
consistent with business necessity means because we do not agree it is
needed in this context. This terminology is not unique to personnel
vetting and is generally understood as the standard that agencies must
meet to justify unique hiring requirements. These concepts appear in
civil service hiring policy at least as early as the Uniform Guidelines
on Employee Selection Procedures (1978), which the Civil Service
Commission, the Equal Employment Opportunity Commission, the U.S.
Department of Justice, and the U.S. Department of Labor helped develop.
(See sec. 60-3, Uniform Guidelines on Employee Selection Procedure
(1978); 43 FR 38295 (Aug. 25, 1978).) OPM and agencies are well-versed
in applying these concepts. (See, e.g., OPM's Delegated Examining
[[Page 102679]]
Operations Handbook, available at <a href="https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/deo_handbook.pdf">https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/deo_handbook.pdf</a>.)
Agencies also apply these concepts in administering Section 501 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 791), which prohibits
selection criteria and standards that tend to screen out people with
disabilities unless the procedures have been determined through a job
analysis to be job-related and consistent with business necessity.
Part 731--Suitability and Fitness
This final rule revises the authorities by adding E.O. 13764, Civil
Service Rule 6, and Presidential Memorandum--Enhancing Safeguards to
Prevent the Undue Denial of Federal Employment Opportunities to the
Unemployed and Those Facing Financial Difficulties Through no Fault of
Their Own, January 31, 2014. This rule also revises the formatting of
existing authorities to comply with 1 CFR part 21, subpart B.
Section 731.101 Purpose
This section describes the purposes for this regulation, which are
to establish investigation, continuous vetting, and reciprocity
requirements; suitability requirements and the minimum standards of
fitness; and the procedures for taking suitability actions. This
section also provides definitions necessary for administration.
Notably, OPM is adopting its proposed definition for the term
``employment subject to investigation,'' which is used throughout the
revisions to part 731. This term captures the range of individuals
subject to investigation by virtue of their 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.
OPM received no comments on this section; however, OPM is making
several changes in the final rule to improve clarity and readability.
For example, OPM has made minor wording changes to the definition of
excepted service (e.g., moving the clause ``of the executive branch''
to follow the word ``position,'' which is the noun that the clause
modifies). OPM is also revising the definition of suitability action,
which referenced the list of actions in Sec. 731.203. OPM has moved
that list into the definition. Conversely, the definition of a
suitability action included regulatory information of relevance in
Subpart B and included information that was redundant with Sec.
731.203(a); therefore, OPM has deleted the redundant information from
the definition and moved the remaining language to Sec. 731.203(b).
OPM is adopting minor clarifying edits to the proposed definitions of
appointee, contractor employee, and employee.
OPM also is correcting a numbering error from the proposed rule.
Proposed paragraph (b)(4) is not part of the ``purpose'' sentence in
paragraph (b) and is renumbered as paragraph (c). Proposed paragraph
(c) is codified at paragraph (d) in this final rule.
Section 731.102 Implementation
This section addresses the requirement to use investigations
conducted under part 731 only in accordance with the Privacy Act and
section 1.1(e) of E.O. 13467, as amended, and it establishes that OPM
may issue requirements for implementing the rule. OPM received no
comments on this section and is adopting the language as proposed.
Section 731.103 Delegation to Agencies for Competitive Service
Positions
This section describes the limited delegation and related
requirements that OPM makes to agency heads for adjudicating the
suitability of applicants or appointees for competitive service and
career Senior Executive Service positions (as defined in Sec. 731.101)
within the agency.
A commenter suggested OPM revise the rule to allow an agency head
with delegated suitability authority to redelegate or convey outside of
their agency the authority for making suitability adjudicative
determinations for positions within their agency. OPM is not accepting
this change. For the reasons described in the following paragraphs, OPM
delegates limited authority for adjudicating suitability to agency
heads. Agency heads may redelegate the function within their own
agency, and agency records must show any redelegation.
Congress and the President have assigned to OPM the responsibility
for adjudicating the suitability of certain individuals applying to or
holding positions in the competitive service. (See 5 CFR parts 2 and 5;
see generally 5 U.S.C. 3301 and 7301 and the Civil Service Rules
established in E.O. 10577, as amended by E.O.s 12107 and 13764.)
Congress has authorized the OPM Director to delegate any function
vested in or delegated to the Director to heads of executive branch
agencies and other agencies employing persons in the competitive
service. (5 U.S.C. 1104(a)(2).) When OPM delegates functions, it must
establish standards that apply to OPM as well as to any agency under
delegated authority, and OPM must oversee the performance of those
delegated functions. And, when an agency does not wish to perform the
function(s) delegated, the head of the agency may ask OPM to assist in
performing the function on a reimbursable basis. (See 5 U.S.C.
1104(b)(4).) Additionally, section 2.5(b)(v) of E.O. 13467, as amended,
requires the OPM Director, as the Suitability Executive Agent, to
review agency suitability and fitness vetting programs on a continuous
basis to determine whether they are meeting the executive order's
requirements.
Suitability determinations are case-by-case decisions based upon
the nature of the conduct, as applicable, and the functions and
responsibilities of the position. In making the delegation for
suitability adjudications to agency heads, OPM recognized the important
role an agency plays in comparing the nature of the position against
the issues in an individual's background. The agency, armed with the
understanding of the job duties and agency mission, is best positioned
to determine when conduct warrants a finding of unsuitability and, in
that instance, determine the best course of action--whether it be
taking suitability action in accordance with the agency's delegated
authority or looking to another authority more appropriate or
applicable to the situation.
OPM retained the authority to adjudicate suitability in cases where
the nature of the conduct causes the individual to be unsuitable for
any position. Through suitability reviews, agency officials may
identify cases that warrant referral to OPM for suitability review and
action and can make those referrals as is required by the regulation.
OPM proposed to retain authority to adjudicate suitability where there
was evidence of conduct that fell within several proposed, new
suitability factors. As addressed further in the pertinent section of
this final rule, OPM is not proceeding with the four distinct factors
that would have comprised Sec. 731.202(b)(7) through (10) and is
instead retaining the current factor at Sec. 731.202(b)(7).
Accordingly, OPM is modifying its proposed language at Sec. 731.103(f)
to specify that OPM has sole jurisdiction to adjudicate cases involving
evidence of conduct that falls within Sec. 731.202(b)(7).
Section 731.104 Investigation and Reciprocity Requirements
This section establishes investigation requirements and reciprocity
requirements for investigations and for
[[Page 102680]]
suitability and fitness determinations. As an initial matter, a Federal
agency recommended reorganizing the paragraphs in Sec. 731.104(b) for
clarity. OPM agrees and has made the following adjustments from the
notice of proposed rulemaking:
<bullet> Section 731.104(b)(1) is now Sec. 731.104(b).
<bullet> Section 731.104(b)(2) is now Sec. 731.104(c).
<bullet> Section 731.104(b)(2)(i) is now Sec. 731.104(c)(1).
<bullet> Section 731.104(b)(2)(ii) is now Sec. 731.104(c)(2).
<bullet> Section 731.104(b)(2)(ii)(C) is now Sec. 731.104(d).
In addition, OPM has edited the proposed regulatory language to
improve clarity and readability. For example, OPM modified paragraphs
(a)(1) and (2) from the proposal to use more consistent terminology
throughout the section. Specifically, paragraphs (c)(1) and (2) (as
renumbered) referred to a prior investigation being reciprocally
accepted. In contrast, paragraphs (a)(1) and (2) discussed the concept
of reciprocal acceptance of a prior investigation but did not use that
phrasing. In rephrasing paragraphs (a)(1) and (2) to use more
consistent language, OPM has also restated the requirement in terms of
providing direction to the employing agency. OPM also revised paragraph
(c)(2)(ii) (as renumbered) to make clear that the additional factors
are permitted, but not required, by Sec. 731.202(b). Finally, OPM
revised paragraph (d) (as renumbered) to remove an inadvertent
reference to reinvestigation. (See prior discussion in the Elimination
of Fixed, Five-Year Periodic Reinvestigation Requirement for Public-
Trust Positions section.)
Section 731.104 explains the requirements for employment subject to
investigation (see Sec. 731.101 discussion of definitions) and
reciprocity requirements for populations covered. OPM's proposed
revisions, which are adopted in this final rule, extend these
requirements to include the ``excepted service,'' ``contractor
employees,'' and ``nonappropriated fund employees'' in addition to
appointments in the competitive service, appointments to the excepted
service that can noncompetitively convert to the competitive service,
and career appointments to the career Senior Executive Service. In
general, these types of employment are subject to background
investigations for suitability or fitness. However, as described in the
new Sec. 731.104(a)(3), certain short-term positions are not subject
to background investigations for suitability and fitness but checks to
ensure suitability or fitness are still required.
Per revised 5 CFR 731.104(c), suitability determinations must be
made for all appointments in the competitive service, excepted service
when the position can noncompetitively convert to the competitive
service, or career Senior Executive Service; and fitness determinations
must be made for all appointments to excepted service positions, except
under specified circumstances. Under Sec. 731.104(c)(2), however, an
agency is generally required to reciprocally accept a prior favorable
determination, except under certain circumstances. The conditions under
which an agency is not required to reciprocally accept a prior
favorable suitability or fitness determination are addressed in the new
Sec. 731.104(c)(2)(i) and (ii). Additionally, OPM clarifies that
agencies may reciprocally accept a prior investigation that is at or
above the appropriate tier but for which a new suitability or fitness
determination is needed. Prior to this change, the regulation could be
misread to require a new investigation in this scenario.
The following are examples where an agency will reciprocally accept
an existing background investigation while making a new suitability or
fitness determination.
Example 1: An individual is employed with Agency A in a position
that required a Tier 5 level background investigation. Agency A
reported a favorable national security determination for the Tier 5
investigation and did not report a suitability determination. The
individual is transferring to a position with Agency B which also
requires a Tier 5 level background investigation. The new position is
in the competitive service, so the agency is also required to make a
suitability determination. Because there is no record of a favorable
suitability or fitness determination, Agency B will request a copy of
the existing Tier 5 background investigation and will review it to make
a suitability determination.
Example 2: An individual works for Agency A as a Program Analyst.
The individual had a Tier 4 level background investigation for which
Agency A made a favorable suitability determination. The individual has
now been given a conditional offer for employment with Agency B in a
Fiduciary Service Representative position. Agency B sees that the
individual has a Tier 4 level background investigation, which is
sufficient for the new position. Agency B also sees that Agency A made
a favorable suitability determination; however, the background
investigation record in the government-wide repository reflects the
individual had financial issues. Given the financial duties of the new
position, Agency B determines that a core duty determination \2\ is
warranted. Agency B must reciprocally accept the existing Tier 4
background investigation but will request a copy of it for review to
determine whether the individual is suitable for the position with
their agency.
---------------------------------------------------------------------------
\2\ An agency must consider the nature of the position in
evaluating suitability or fitness if pertinent to a specific case. 5
CFR 731.202(c). This assessment, which considers the core duties of
the position and the relevance of information discovered during an
investigation, is called a ``core duty determination.''
---------------------------------------------------------------------------
With respect to break-in-service requirements, OPM is removing the
24-month break-in-service provision that applied to reciprocity (see
current Sec. Sec. 731.104(a)(5) and 731.202(d)). This requirement is
replaced with a new process, established in the Federal Personnel
Vetting Investigative Standards issued by the Suitability,
Credentialing, and Security Executive Agents, which expands this window
of time up to sixty months using a tiered, risk-based approach of
graduated levels of investigation. Upon reentry, individuals will be
enrolled into continuous vetting consistent with new requirements in
Sec. 731.106(d).
Finally, OPM updates requirements for ``seasonal'' positions to
require a background investigation as addressed in Sec. 731.106(c)(1).
Seasonal employees, in accordance with 5 CFR 340.401(a), 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 permanent characteristics of the positions, they
implicate different risks than temporary appointments.
An individual commented on the option for agencies to make a core
duty determination, rather than reciprocally accept a prior favorable
suitability or equivalent fitness determination. The commenter believes
this option will require agencies to review the prior investigative
record each time an individual changes positions and suggested instead
that OPM consider stipulating a time period after which agencies would
no longer need to consider the impact of past conduct, as indicated in
a prior investigation, against the core duties of the new position. OPM
does not agree with the commenter's interpretation. Agencies are not
required to make a core duty determination each time an individual
changes positions. Core duty
[[Page 102681]]
determinations are only required when there is information in the
individual's investigative record as reflected in the government-wide
repository that shows the individual has engaged in conduct that may be
incompatible with the core duties of the position to which the person
is applying or transferring into. That prior conduct may make that
person unsuitable or unfit for the new position, though they were
suitable or fit for the current position. It would be inconsistent with
the manner in which suitability should be assessed if OPM were to
establish deadlines after which an agency may not consider how conduct
may impact suitability or fitness for a new position. Take for example
an individual moving into a law enforcement position where conduct of a
criminal nature, even if dated, may be incompatible. While OPM is not
making a change as a result of this comment, we acknowledge that
enhancements to information technology systems allowing agencies more
clarity regarding the nature of conduct contained within the
investigation record would streamline and reduce processing times for
agencies. Additionally, future system enhancements could avoid the need
for agencies to request copies of prior files as is often required
currently to make a new determination.
A labor union expressed support for the change to remove the 24-
month break in service provision citing that investigations can be
onerous and time-consuming for employees. The organization agreed that
the change is a reasonable step towards minimizing that burden.
A Federal agency recommended that, as written, the proposed
regulatory text requiring agencies to enroll individuals into
continuous vetting when reentering service may not align with
implementation guidance. Implementation guidance has not yet been made
available for the full scope of this rule. OPM is revising the
regulatory text in Sec. 731.104(a)(2) for clarity by adding that
agencies must request such checks as may be specified in implementing
guidance and must enroll individuals re-entering service after a break
in service into continuous vetting, consistent with the requirements in
Sec. 731.106(d). Additionally, OPM will continue to issue updated
implementation guidance as continuous vetting is expanded to more
populations.
Section 731.105 Authority To Take Suitability Actions in Cases
Involving the Competitive Service or Career Senior Executive Service
This section specifies OPM and agency authorities with respect to
taking suitability actions. Changes from the current rule are for
clarity and to address the additional circumstances under which OPM
retains jurisdiction when the nature of the conduct would make an
individual unsuitable to hold any covered position.
One commenter believed that, because the language in Sec.
731.105(a)(1) was new (clarifying that suitability actions can be taken
if an application is withdrawn, if an offer of employment is withdrawn,
and if an appointed individual separates from employment), the
authority to take suitability actions in these instances is also new.
It is not. The authority to take suitability actions in these
circumstances exists currently and updates to the regulation simply
provide clarity and greater transparency on the situations when
suitability actions can be taken. In regulatory changes made in 2008
(see 73 FR 20149), OPM revised the definition of ``applicant'' from
``[a] person being considered for employment'' to ``a person who is
being considered or has been considered for employment.'' In a notice
explaining the regulatory changes, OPM stated ``[s]uitability actions
may be warranted for individuals who are not currently, but were
previously, under consideration. For instance, if an individual
provided fraudulent information in an attempt to obtain a Federal job,
he or she might no longer be actively under consideration because the
qualification requirements were not met. In such a case, it is in the
best interests of the Government to refer the case to OPM for
suitability adjudication.'' (See Federal Investigations Notice No. 09-
06, available at <a href="https://www.dcsa.mil/Portals/128/Documents/pv/GovHRSec/FINs/FY09/fin-09-06.pdf">https://www.dcsa.mil/Portals/128/Documents/pv/GovHRSec/FINs/FY09/fin-09-06.pdf</a>.) The commenter also suggested that,
by resigning from a position, the individual should be protected from a
suitability action. However, if an individual who is undergoing a
suitability review and whose suitability is in question has the job
application or offer withdrawn or resigns or is terminated for reasons
other than suitability, this will not prevent an agency or OPM from
taking a suitability action, including the potential to impose a
debarment so that the individual cannot serve in a position for a
period of time. Imposing a debarment through the suitability action
process not only stops an individual from holding a covered position,
it also offers a period of time for the individual to potentially
rehabilitate from the concerning conduct that caused them to be deemed
unsuitable, raising the possibility that they could be found suitable
for a future position after the period of debarment has concluded. To
improve clarity, OPM is adopting revised text at Sec. 731.105(a)(1) to
reflect the intent of the rule, which is to allow OPM or an agency to
continue with an action that is in process. Specifically, we are
revising ``take'' in the proposed rule to ``complete'' in this final
rule.
At Sec. 731.105(d), in addition to OPM having jurisdiction over
material intentional falsification, OPM has added that only OPM is able
to take a suitability action under part 731 against an employee in the
competitive service or career Senior Executive Service based on the
criteria of Sec. 731.202(b)(3), (7), or (8). As addressed further in
the pertinent section of this final rule, OPM is not proceeding with
the four distinct factors that would have comprised Sec.
731.202(b)(7), (8), (9), or (10) and is instead retaining the current
factors at Sec. 731.202(b)(7) and (8). An individual commented that
the proposed change to also retain jurisdiction over the (previously
proposed) four distinct additional factors is unjustified as it seems
to exist for the exclusive purpose of targeting ideological enemies.
The commenter's concerns with the factors are moot now that OPM has
decided not to proceed with those factors; but, with respect to the
commenter's objection to OPM retaining suitability jurisdiction, OPM
does not agree with the commenter's contention. OPM is assigned the
authority to adjudicate suitability on behalf of the executive branch.
Where OPM has determined that individual agencies are better positioned
to make the suitability determination, OPM has delegated the
responsibility to the respective agency head. However, where there is
evidence of conduct that would make an individual unsuitable for any
covered position, OPM retains jurisdiction as only OPM can impose a
government-wide debarment.
Section 731.106 Designation of Public Trust Positions and Investigative
Requirements
This section addresses requirements for agencies to designate
position risk and sensitivity. OPM is adding a reference to 5 CFR part
1400, which is the complementary regulation, issued jointly by OPM and
the Office of the Director of National Intelligence (ODNI), addressing
position sensitivity designations. Additionally, OPM
[[Page 102682]]
clarifies the timing of initiating background investigations, which
should occur prior to appointment. This is consistent with OPM's prior
guidance for issuing personal identity verification credentials and
with what is required for positions with a sensitivity designation, as
specified in 5 CFR part 1400.
OPM is also moving the requirements regarding the timing of
criminal and credit history collection from Sec. 731.103 to this
section by including the language that was published in the final rule
to implement the Fair Chance to Compete for Jobs Act of 2019 (see 88 FR
60317). Finally, this section adds the requirement for continuous
vetting for the low risk population and replaces periodic
reinvestigations for the public trust population.
One commenter recommended that OPM should enhance training on
position designation and provide additional guidance to agencies. The
comment is outside the scope of the rule changes, but OPM will take the
commenter's suggestion under consideration.
OPM received comments in support of and in opposition to continuous
vetting. A labor union, in support of the change, acknowledged the
importance of ensuring that the integrity and efficiency of the civil
service is upheld but expressed concern with the current
reinvestigation process, which they described as unnecessarily rigid
and burdensome for employees.
The same labor union and another commenter urged OPM to consider
the burden on employees, while two commenters opined that the nature
and periodicity of the continuous vetting checks needs to be specified.
One commenter expressed concern that the investigative service provider
could determine the scope of the checks, causing the checks to be too
intrusive. OPM acknowledges that, even with the shift to continuous
vetting, individuals will be required to provide self-reported
information and may be subject to interviews or inquiries as a result
of information revealed via checks. OPM recognizes that the Privacy Act
of 1974 requires collecting information, to the greatest extent
practicable, from the individual and, accordingly, that there is a need
to provide the individual with an opportunity to address issues an
agency may determine to be adjudicatively relevant. OPM also agrees
that the process should be designed in a way such that individuals
undergoing vetting are not required to provide information or respond
to requests unnecessarily. These individuals deserve transparency into
the vetting process in a way that will not jeopardize the nation's
security. OPM and ODNI, in their respective roles as the Suitability
and Security Executive Agents, establish the continuous vetting checks
that are required, considering the positions' risk and sensitivity
levels. The requirements specify the types of checks conducted along
with the periodicity. Heads of agencies must follow policies and
issuances by the Executive Agents, including investigative standards
(see E.O. 13467, sec. 2.7, as amended) and all Federal personnel
vetting conducted by the executive branch must comply with the
standards established by the Executive Agents. Therefore, the
mechanisms will be better understood and widely followed, resulting in
consistent and standardized checks across the covered populations.
One commenter opined that, if periodic reinvestigations are
replaced by continuous vetting, the initial check should only go back
one year, while two commenters opined that individuals in positions
designated as low risk should not be subject to continuous vetting or
personnel vetting standards because they do not require security
clearances, making it unfair for them to fall under the same scrutiny.
Various commenters also expressed concern that the requirement is
contrary to the Administration's position on second chance hiring, will
result in less talent competing for Government positions, could cause
difficulty keeping jobs, and is too invasive. An organization objected
to the reduction in suitability and fitness review from an objective,
five-year reassessment to a continuous review process on the basis that
the current rule already permits this and that doing away with the
five-year requirement could weaken agency security.
OPM agrees that the current rule permits checks for the public
trust population at a higher periodicity if they take place at least
once every five years but otherwise disagrees with these points. The
requirement that individuals working for or on behalf of the Government
be subject to some level of vetting dates back several decades. More
recently, since 2008, under the Final Credentialing Standards for
Issuing Personal Identity Verification Cards under Homeland Security
Presidential Directive 12, a Tier 1 or equivalent investigation has
been required to be granted a personal identity verification (PIV)
credential. Investigative source and coverage requirements for full
background investigations are established commensurate with the
position risk and sensitivity designations and the same will be true
with continuous vetting requirements. The President, by Executive
order, established the requirement for continuous vetting for covered
individuals, and therefore, OPM is implementing that requirement via
this rule. OPM has revised the regulatory text to state that checks
must be conducted at regular intervals based on the type of check and
with consideration of position risk and sensitivity. These provisions
were in the proposed regulatory text but are reorganized to clarify the
agency requirements. Similarly, OPM has made minor changes to the
examples of public trust positions in the regulatory text to improve
readability.
Another commenter raised questions about the authorities that
agencies may consider when actionable information is returned as the
result of continuous vetting checks. As has been the case with periodic
reinvestigations, agencies will consider the substantive standards in
Sec. 731.202 when evaluating the results. A person's employment
status, however, will determine the applicable agency authority and
procedures to be followed in any action taken based upon the results.
In many instances, based upon the time on the job and/or the conduct
occurring post appointment, a suitability action under part 731 will
not be applicable. Nonetheless, conduct that surfaces could be the
basis for an adverse action under 5 CFR part 752. Whether to propose or
take an adverse action based on results from continuous vetting checks
is a matter within the discretion of the employing agency. How the
results of continuous vetting may be addressed when a favorable
determination cannot be made is not different from how agencies
currently manage the results of periodic reinvestigations.
A commenter expressed concern with the language in the revised
Sec. 731.106(d)(1) specifying that individuals may only be subject to
continuous vetting if they have signed an authorization for release of
information permitting a disclosure for continuous vetting purposes.
The commenter is concerned the continuous vetting requirement addressed
in part 731 might be confused with other processes also referred to as
continuous vetting where a release is not required. They asked that OPM
replace the word ``individual'' to state more clearly to whom the
continuous vetting requirements apply. Section 731.106(d)(1) addresses
the continuous vetting requirements as being applicable to individuals
occupying positions of employment subject to investigation and, under
Sec. 731.101, ``employment
[[Page 102683]]
subject to investigation'' generally 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 non-appropriated fund employee. Read as a whole,
paragraph (d)(1) identifies the population to which continuous vetting
and the corresponding requirements apply. In addition, the regulatory
text explicitly states that continuous vetting may be conducted only
after an individual has signed an authorization for release of
information. Therefore, OPM is not making a change in response to this
comment.
OPM is making a clarifying edit to Sec. 731.106(g) with respect to
the timing of credit history inquiries, consistent with OPM's guidance
since December 1, 2016 (81 FR 86555). For competitive service and
career Senior Executive Service positions, agencies may not make
specific inquiries concerning an applicant's credit background unless
the hiring agency has made a conditional offer of employment to the
applicant or has been granted an exception by OPM. (See 5 CFR
330.1300.) The requirement with respect to timing of collection of
credit history does not apply to other positions, though agencies may
determine it to be a best practice.
Section 731.201 Standard
Section 731.201 has long provided the standard for protecting the
integrity and promoting the efficiency of the service. This final rule
extends the standard to fitness determinations.
OPM received comments from two individuals. One interpreted the
change making the standard applicable to fitness determinations as
suggesting that agencies may use part 752 procedures to take a removal
action. The intent of the section, however, is to establish that, like
suitability, fitness determinations must be based on the degree of
impact an individual's character or conduct may have on the integrity
and efficiency of the service. As we explained in the response to
comments regarding Sec. 731.106 and also addressed in the regulation
at Sec. 731.105(e), an agency has discretion to take adverse actions
against individuals under authorities other than part 731, as
appropriate and applicable. For populations subject to assessment of
fitness, rather than suitability, OPM does not establish in part 731
procedures by which the agency may take an action based upon an
unfavorable fitness determination.
The other commenter suggested the standard is subject to
interpretation by hiring officials and could lead to prohibited
personnel practices, discrimination, civil rights violations, and
potential legal action. The commenter asked OPM to develop a specific
definition for suitability and fitness that applies to all agencies.
OPM agrees that one suitability and fitness standard that applies to
all agencies, to the extent feasible, is desirable. To that end, the
standard that a suitability action ``will protect the integrity or
promote the efficiency of the service'' has been in place since 2000
when it was last updated to add the phrase ``protect the integrity . .
. of the service.'' In addition to considering the risk to an agency's
accomplishment of its duties or responsibilities, or potential
interference or prevention of effective service in the position, an
important facet of the standard for suitability is the integrity of the
merit system and fair and open competitions for positions. The
standard, now applicable to fitness determinations, is consistent with
the suitability standards to the extent practicable in accordance with
E.O. 13467, as amended.
Section 731.202 Criteria for Making Suitability and Fitness
Determinations
This section establishes the suitability and fitness factors and
additional considerations that collectively, and in consideration of
the standard set forth in Sec. 731.201, are used by agencies to
determine if an individual is suitable or fit.
OPM received comments on this section from one Federal agency, five
organizations, one labor union, and numerous individuals. Comments were
in support of and in opposition to the proposed changes. Some comments
were general to the section while others related to specific factors.
The general comments are summarized first. Comments on specific factors
are discussed next.
One individual opposed the application of the minimum standards of
fitness to contractor employees. The individual stated that, because
contractors are owners, members, or non-federal employees conducting
their personal matters inside private businesses, the invasion of
privacy and other rights is especially damaging and an overreach in
comparison to the factors that had existed in part 302. OPM disagrees
but offers a clarification. First, Government contractors are not
``conducting their personal matters inside private businesses.'' The
very reason that a contractor employee needs to be vetted is because
they are working for or on behalf of the Federal Government. Second,
the President directed that contractor employee fitness be subject to
the same vetting requirements (e.g., position designation requirements;
investigative standards, policies, and procedures; reciprocity) as
civil service employees as prescribed by OPM. (See E.O. 13488, as
amended.) Further, OPM notes that this is not a new requirement--
contractors have been covered by E.O. 13488 since it was issued in
2009. Under this Executive Order, agency heads were required to take
OPM guidance into account when considering if adjudicative criteria
were equivalent for the purposes of making a reciprocally acceptable
determination. Contractor employees have also been subject to the same
investigative requirements as Federal employees since 2012. This was
the result of a decision by Security, Suitability, and Credentialing
Performance Accountability Council, as authorized by E.O. 13467.
Finally, OPM notes that the additional authority given to OPM by the
President to establish the minimum standards of fitness relates to the
excepted service. (See E.O. 13764, sec. 2(c), amending E.O. 13488, sec.
3(a).) As has been the case since 2009, agency heads retain the
discretion to establish adjudicative criteria for determining fitness
to perform work as a contractor employee but with due regard to the
regulations and guidance prescribed by OPM for the civil service and
directives of the Office of Management and Budget.
A commenter suggested adding a factor covering emotional, mental,
and personality disorders. They suggested that an individual's mental
health may have the propensity to affect their conduct and should be a
factor for suitability or fitness as is done with national security
determinations. Further, they pointed to medical qualification
assessments that may be available to agencies for civil service
positions, but not for contractors, as a basis for adding mental health
concerns as a factor in the fitness determination process. OPM
disagrees. Suitability and fitness determinations are decisions on
whether an individual's past conduct and actions may introduce risk to
an agency's mission or are contrary to the integrity required of
individuals working for or on behalf of the Government. Additionally,
the medical qualification determination process is addressed in 5 CFR
part 339 and, therefore, is outside the scope of this rulemaking.
Multiple individuals asked OPM to reconsider changes to the
factors, stating they are inappropriate, vague, overly broad and open
to personal interpretation which could lead to bias or discrimination.
Several of these
[[Page 102684]]
commenters suggested the proposed changes are illegal and would violate
constitutional rights. A few commenters suggested that individuals
should be hired based upon their qualifications without consideration
of the types of conduct which the criteria address. OPM generally
disagrees that any of the proposed factors give OPM or agencies the
ability or authority to consider information in a way that is
unconstitutional; however, OPM is not moving forward with some of the
proposed changes. These changes are discussed as part of the discussion
of each factor in the following sections. Further, OPM agrees that the
process for assessing qualifications of applicants is essential, though
separate from the process of vetting individuals, such as for
suitability or fitness. In 5 U.S.C. chapter 73, Congress authorizes the
President to prescribe regulations for the conduct of employees in the
executive branch and, in chapter 33, authorizes the President to
prescribe regulations for admission into the civil service that will
best promote the efficiency of the service and to ascertain the fitness
of applicants for employment sought. As such, via the Civil Service
Rules, the President has made OPM responsible for establishing
qualification standards and, separately, standards of suitability and
fitness.
Evaluating whether an individual is suitable or fit to work for the
Federal Government (either directly or indirectly as a contractor
employee) often occurs after a background investigation. Portions of
that investigation are conducted by gathering information directly from
the individual via personnel vetting forms and, in some cases, personal
interviews. Additional information is gathered from other sources.
Once the background investigation is complete, an adjudicator
evaluates the information obtained against the factors. Only conduct
falling within a factor may be the basis for finding one unsuitable or
unfit. The adjudicator, through application of pertinent additional
consideration, will determine whether the individual's character or
conduct may have an adverse impact on the integrity or efficiency of
the service.
Factor 4--Dishonest Conduct
OPM proposed to split the existing factor regarding ``criminal and
dishonest conduct'' into two separate factors to make it clear that
dishonest conduct need not be criminal to be relevant to a
determination of suitability or fitness. OPM is adopting ``dishonest
conduct'' as Factor 4.
A Federal agency noted that financial concerns can be easily
overlooked under the criteria for ``dishonest conduct.'' That Federal
agency acknowledged that financial irresponsibility may be a
suitability issue falling under the dishonest conduct factor but
suggested adding a factor specifically to address intentional disregard
for debt in finances. The agency expressed the view that adding a
factor would provide better clarity as the agency recognized that, to
be a basis for unsuitability, an agency must establish financial
irresponsibility demonstrated by evidence of the individual
deliberately accumulating debt of a significant nature and/or
intentionally disregarding those debts. OPM agrees that an important
aspect of establishing financial irresponsibility as a suitability or
fitness concern is the requirement to have evidence of the dishonest
actions by the individuals. However, OPM believes that the current
factor of ``dishonest conduct'' sufficiently captures this intentional
disregard. Therefore, the suggestion to add another factor, or to
elaborate on the existing, is not adopted.
Factor 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
OPM proposed to change ``alcohol abuse'' to ``excessive alcohol
use'' to capture the intent that the relevance to suitability and
fitness is the need to account for an individual's problematic misuse
of alcohol over a period of time. As OPM described in the proposed
rule, excessive alcohol use may suggest 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. OPM also proposed to remove the requirement that
rehabilitation be ``substantial'' to align the suitability and fitness
factors.
A labor union agreed with the change to this factor as being more
representative of the concern of accounting for an individual's
problematic misuse of alcohol, over time. The labor union also agreed
with not requiring evidence that rehabilitation be substantial. An
individual, who also expressed support for the change, asked OPM to
provide additional guidance or examples for identifying and
distinguishing conduct that may fall within this factor as well as what
constitutes rehabilitation. The individual also asked that OPM
emphasize the importance of following other laws which offer
protections from discrimination based upon past alcohol use, such as
the Americans with Disabilities Act.
OPM agrees and will continue to provide guidance on this factor via
supplemental issuances to agencies. Though outside the scope of this
rulemaking, OPM also agrees that agency personnel involved in the
hiring process must be familiar with and abide by laws and requirements
meant to protect the rights of job applicants.
Factor 6--Illegal Use of Narcotics, Drugs, or Other Controlled
Substances, Without Evidence of Rehabilitation
OPM proposed to remove the requirement for evidence of
``substantial'' rehabilitation to provide consistency between Factors 5
and 6. A labor union and the individual commenting on Factor 5 in
support of the change also commented on Factor 6. The labor union
commended the changes to strike the requirement for evidence of
rehabilitation to be substantial while the individual expressed support
but asked OPM to provide additional guidance.
Another individual suggested striking Factor 6, amend it to not
apply to marijuana, or modify Factor 5 to focus on excess use of
marijuana because of shifts in state laws regarding marijuana usage.
OPM is not adopting this change. Factor 6 may be used by agencies to
assess an individual's illegal use of several substances, not only
marijuana. Also, despite changes to state laws, marijuana continues to
be classified as a controlled substance under the Controlled Substances
Act (21 U.S.C. 802(16)). But as is the case with any of the suitability
factors, agencies and OPM must apply additional considerations, as
pertinent, to assess the potential for the individual, based upon their
conduct, to negatively impact the integrity and efficiency of the
service. Marijuana use, alone, is not a basis for automatically finding
one unsuitable or unfit. Instead, the agency or OPM must demonstrate
how, considering the nature of the position, the past usage will have
negative impact. This is the case with any illegal use of drugs.
Recognizing that past marijuana usage may factor into the suitability
determination of job applicants who are well qualified, OPM has issued
guidance \3\ for agencies on
[[Page 102685]]
how marijuana use may or may not adversely affect the integrity and
efficiency of the service, thereby impacting an individual's
suitability or fitness for a position. Adjudicators will consider the
person holistically, evaluating any impact to the integrity and
efficiency of the service on a case-by-case basis.
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\3\ Available at <a href="https://www.chcoc.gov/content/assessing-suitabilityfitness-applicants-or-appointees-basis-marijuana-use-maintaining-drug">https://www.chcoc.gov/content/assessing-suitabilityfitness-applicants-or-appointees-basis-marijuana-use-maintaining-drug</a>.
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Comments Applicable to Proposed Factors 7, 8, 9, and 10
OPM proposed to replace the existing Factor 7 with four distinct
factors. Most of the comments received regarding OPM's proposed changes
to the suitability factors were on these proposed changes. Some
commenters, including multiple organizations, expressed general
opposition to the changes, asking OPM to leave the existing Factor 7
unchanged, while others expressed specific concerns. Several commenters
suggested that, without a stricter delineation of allowable or
disqualifying conduct, the factors may be misused and could lead to
findings of unsuitability for actions such as membership in
organizations or movements that peacefully seek changes to our Nation's
current laws and policies. The commenters offered other examples of
conduct that they posited could lead to findings of unsuitability under
the revised factors such as protesting at school board meetings or
counseling a pregnant woman on her options. Finally, the commenters
suggested the rule does not include any prohibition about applying the
factors in a way that circumscribes an individual's personal liberties
and recommended that OPM include an assertion that the factors address
conduct not protected by the First Amendment. OPM does not agree with
the commenters' assessment of how the factors could be applied or with
the examples offered. As OPM explained in the proposed rule, the four
new factors were intended to address conduct that has a clear nexus to
the integrity and efficiency of the civil service, that poses
significant insider threat risks to Federal agencies and the public and
also is not protected by the First Amendment. (88 FR 6192, 6199.) OPM
acknowledges the commenters' concerns regarding clarity. OPM is not
proceeding with the four distinct factors that would have comprised
Sec. 731.202(b)(7), (8), (9), or (10) and is instead retaining at
Sec. 731.202(b)(7) the current factor, Knowing and willful engagement
in acts or activities designed to overthrow the U.S. Government by
force.
Proposed Factor 7--Knowing Engagement in an Act or Activity With the
Purpose of Overthrowing Federal, State, Local, or Tribal Government
OPM is not moving forward with its proposed changes to Factor 7 and
is retaining the existing provision at 5 CFR 731.202(b)(7). Two
individuals and two organizations supported this factor as was
proposed, but not Factors 8, 9, and 10 as were proposed. A Federal
agency asked OPM to strike ``knowing'' to avoid agencies having to
establish evidence of the individual's thoughts and intentions and
eliminate the risk of not being able to establish conduct if the
individual claims to have not acted knowingly. OPM acknowledges that
direct evidence of knowledge may not be readily available thus
requiring circumstantial evidence. But requiring evidence that the
individual participated in an act or activity with the purpose of
overthrowing the Government knowingly is critical if the conduct is to
be considered as a basis for finding an individual unsuitable or unfit.
Requiring this element to establish the Factor helps demonstrate that
the individual understood that the conduct was wrongful and better
avoids scenarios where an individual is found unsuitable or unfit
solely because they were in the wrong place at the wrong time or were
misled about the purpose or intent of an event.
Two organizations and an individual questioned the removal of the
words ``by force'' from Sec. 731.202(b)(7) and recommended re-
inserting it for clarity. As discussed, OPM is not moving forward with
its proposed changes and will retain the existing factor.
Proposed Factor (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
A Federal agency suggested revising the factor to include attempted
acts, and two individuals requested that the factor be removed because
it could be used to discriminate against people who hold different
views than those in government. Another commenter, who suggested the
existing provision at 5 CFR 731.202(b)(7) was sufficient, suggested the
language in this factor is unclear, overreaches OPM's authority, and
could infringe on individuals' rights. The commenter suggested that,
with this factor, OPM or an agency could find someone unsuitable due to
``praying outside of an abortion clinic or marching in a Black Lives
Matter protest march.'' An organization suggested the factor parrots
the ``Klan Act'' which would already be covered by the criminal conduct
factor.
OPM disagrees that the factor, as was proposed, could be used by an
agency to find someone unsuitable for activity protected by the First
Amendment. OPM agrees that conduct covered by the proposed factor
includes conduct covered by another factor as applicable to the
circumstances, such as criminal conduct (see 5 CFR 731.202(b)(2)).
Therefore, OPM is not implementing this proposed factor in this final
rule.
Proposed Factor (9)--Attempting To Indoctrinate Another or To Incite
Another to Action in Furtherance of an Illegal Act
One individual requested that OPM remove this proposed factor
because of its potential breadth--positing it could result in finding
an individual unsuitable who sought to teach or influence another
person in any context whatsoever. The individual commented that the
language is vague and indoctrination must be defined. The commenter
also suggested that this factor may be used to find unsuitable anyone
who has ever attempted to persuade another person to lobby legislators
to change laws and asked if even home schooling or holding political
rights training sessions would be considered indoctrination. Two
organizations commented that the factor is ambiguous with one asking if
it makes it permissible for an agency to ask about all attempts to
indoctrinate which could include serving as a youth group leader or
posting about the pandemic on social media and another questioning
whether indoctrination, a prolonged process, could lead to conduct in
furtherance of an illegal act. OPM does not agree that the language is
vague nor that ``indoctrinate'' needs further definition. Indoctrinate
when used as a verb is generally understood to mean teaching another
the ideas, opinions, or beliefs of a particular group. Under this
factor, the attempt to indoctrinate or incite another must be done in
furtherance of an illegal act. It is this latter point regarding
illegality that sufficiently narrows the factor to answer commenters'
various questions and hypotheticals and would be the relevant inquiry
to be addressed in determining an individual's suitability or fitness.
As discussed, however, OPM is not implementing this proposed factor in
this final rule.
[[Page 102686]]
Proposed Factor (10)--Active Membership or Leadership in a Group With
Knowledge of its Unlawful Aim, or Participation in Such a Group With
Specific Intent To Further Its Unlawful Aim
A Federal agency suggested removing the element that the individual
have knowledge of a group's unlawful aim. Three individuals suggested
that ``unlawful aim'' will be difficult to prove and therefore,
difficult to enforce. Two organizations suggested that the wording of
the factor make it open to interpretation.
Similar to OPM's response relating to suggestions about Factor 7,
this element helps demonstrate that the individual understood that the
aim was wrongful and should be included t to better avoid scenarios
where being misled about a group's aim causes an individual to be found
unsuitable or unfit.
Further, suitability and fitness determinations are based upon
evidence of an individual's character or conduct and when that evidence
supports a conclusion that the character or conduct will have an
adverse impact on the integrity and efficiency of the service, OPM or
the agency must not make a favorable suitability or fitness
determination. The point of this factor was not to target individuals
for holding views that may be in conflict with those of officials
making adjudicative decisions or to find individuals unsuitable or
unfit because of affiliations they may have with groups of others who
share their opinions, for example. As specified in the text of the
proposed factor, the factor required an unlawful aim or participation
specifically for the purpose of furthering the unlawful aim. It is the
knowing affiliation or intent to further illegal activities that raise
the potential suitability or fitness concern. OPM agrees, though, that
the nature of character or conduct that this tailored factor addresses,
could be better addressed under another factor as applicable to the
circumstances, such as criminal conduct (see 5 CFR 731.202(b)(2)).
Therefore, OPM is not implementing this proposed factor in this final
rule.
Factor (12)--Violent Conduct
OPM also proposed to add a factor for violent behavior to account
for 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. For the purposes of this
regulation, the term ``violent'' means using or involving physical
force intended to hurt, damage, or kill someone or something. (88 FR
6192, 6200.)
For example, in certain jurisdictions, protection orders may be
filed against individuals for sexual or physical violence regardless of
whether the violent conduct constitutes a criminal act under the law of
the relevant jurisdiction. The process for securing the protection
order may be a civil matter. The addition of this factor gives agencies
and OPM a way to consider, in such a scenario, if the individual's
conduct is a basis for finding the individual to be unsuitable or
unfit.
One individual expressed support for the factor but asked that the
scope be limited to avoid application against, for example, those who
participate in competitive boxing or recreational hunting as those
activities could arguably fit with the definition of violent conduct,
because they involve physical force intended to hurt, damage, or kill
someone or something. Two commenters opposed to this factor expressed
the same concern that the factor was vague and potentially covered
those who use deadly force in self-defense, such as abused spouses or
law enforcement officers. OPM appreciates these comments as another
opportunity to elaborate on how suitability or fitness determinations
are made.
When evaluating information to consider if it may warrant an
assessment for suitability or fitness, OPM or the agency must first
consider whether the information falls within one of the factors. If
so, OPM or the agency will consider the impact on the integrity and
efficiency of the service through application of the additional
considerations. For example, while the act of hunting wild game could
technically fall within the definition of conduct that is ``violent''
as it involves physical force intended to kill something, lawful
hunting would not have an adverse impact on the integrity and the
efficiency of the service. First, an individual would not be required
to report legal hunting activities during the course of a background
investigation. If it were reported, such as by a co-worker, it is
unlikely to be identified as a potential issue in the background
investigation. Even in the unlikely event an adjudicator were to make
the initial consideration that legal hunting could cause the individual
to be unsuitable or unfit, the subsequent process of relating the
conduct to the factor, assessing the applicable additional
considerations under 5 CFR 731.202(c) (such as the nature and
seriousness of the conduct and the circumstances surrounding the
conduct), and ultimately assessing whether the conduct negatively
impacts the integrity and efficiency of the service would yield a
favorable determination. In sum, when evaluating the nature of the
conduct or the circumstances surrounding it, OPM or the agency would
conclude that it is not adjudicatively relevant.
As another example, while deadly force in self-defense could be
considered violent conduct, in the scenarios offered by the commenter,
the surrounding circumstances would also be considered under Sec.
731.202(c)(3) to determine if the conduct was mitigated, thus not
leading to a finding of unsuitability.
As discussed previously, OPM is retaining the existing Factor 7
without change. OPM is also retaining the existing Factor 8 without
change. (Although OPM had proposed to renumber the factors, OPM did not
propose any substantive changes to the existing Factor 8.) Accordingly,
OPM is adopting this proposed Factor 12 as new Factor 9 at Sec.
731.202(b)(9).
Section 731.203 Suitability Actions by OPM and Other Agencies for the
Competitive Service or Career Senior Executive Service
OPM proposed to revise Sec. 731.203 to limit the applicability of
suitability actions to only individuals in the competitive service, in
the excepted service that can noncompetitively convert to the
competitive service, or the career Senior Executive Service. The change
was necessary due to the implementation of the minimum standards of
fitness for the excepted service.
OPM did not receive any comments on this section. OPM is adopting
its proposed changes with several modifications as discussed in more
detail in the section regarding Sec. 731.101. Specifically, OPM has
moved the list of actions from the proposed Sec. 731.203 into the
definition of a suitability action in Sec. 731.101. OPM also moved the
limitation that a suitability action may be taken only by OPM or an
agency with delegated authority under the procedures in subparts C and
D of the part from the proposed definition of a suitability action to
Sec. 731.203.
Section 731.204 Debarment by OPM in Cases Involving the Competitive
Service and Career Senior Executive Service
This section explains OPM's ability to impose debarment, including
concurrent periods of debarment, when new conduct arises while an
individual is under debarment. OPM also proposed to revise the text to
explain that this
[[Page 102687]]
provision is limited to individuals in or seeking appointment to the
competitive service or the career Senior Executive Service.
OPM received no comments on this section and sees no reason to
amend the proposal. OPM is adopting its proposed changes.
Section 731.205 Debarment by Agencies in Cases Involving the
Competitive Service and Career Senior Executive Service
OPM proposed to revise the text to explain that this provision is
limited to individuals in or seeking appointment to the competitive
service or the career Senior Executive Service.
OPM received no comments on this section and sees no reason to
amend the proposal. OPM is adopting its proposed changes.
Section 731.206 Reporting Requirements for Investigations and
Suitability and Fitness Determinations
This section specifies reporting requirements for agencies into the
government-wide central repository. OPM proposed to revise this section
to include references to continuous vetting.
OPM received no comments on this section and sees no reason to
amend the proposal. OPM is adopting its proposed changes.
Sections 731.302 and 731.402 Notice of Proposed Action
Sections 731.302 and 731.402 govern the issuance of a notice of
proposed action in a suitability action by OPM or an agency,
respectively. OPM proposed to amend these sections to also permit
delivery of correspondence by secure email.
OPM received no comments on these sections and sees no reason to
amend the proposal. OPM is adopting its proposed changes.
Subpart Headings
OPM proposed to revise the headings of several subparts of part 731
to indicate that those provisions only apply to individuals in or
applying to the competitive service, the excepted service that may
noncompetitively convert to the competitive service, or career Senior
Executive Service. OPM received no comments on those amendments, sees
no reason to amend the proposal, and is adopting its proposed changes.
Subpart F--Savings Provision
OPM proposed to eliminate this subpart as obsolete. OPM received no
comments on this subpart, sees no reason to amend the proposal, and is
removing the subpart in this final rule.
Expected Impact of This Final Rule
1. Statement of Need
OPM is issuing this final rule to 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. It
implements several changes required by E.O. 13764. First, per the
change to the Civil Service Rules expanding OPM's responsibilities for
fitness, it sets the minimum standards of fitness for the excepted
service. This change results in the same adjudicative factors and
additional considerations being applicable across much of the civil
service. Consistent with amendments to E.O.s 13467 and 13488, the
changes also align position designation requirements, investigative
standards, and reciprocity rules between the civil service, contactor
employees, and nonappropriated funds workforces. Now, agencies will use
the same system for designating position risk and sensitivity,
background investigations will be conducted using the same standards,
and the same rules for determining whether reciprocal acceptance of
prior background investigations and suitability or fitness
determinations will be applied across the workforce.
As required by E.O. 13467, as amended, the rule also implements
continuous vetting for the low risk and public trust populations.
2. Regulatory Alternatives
OPM must comply with Executive order directions, 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 Department of Defense (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.
In implementing this requirement, OPM considered the cost to
agencies of establishing policies and procedures to conform to OPM's
regulation. There will be costs associated with implementing aspects of
the policies required by the E.O.s; however, there are also
efficiencies resulting from policy implementation. The expected impact
of aligned investigative and adjudicative standards 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 in the section 4. of this
preamble, 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 avoidance in the near term through phased
implementation of continuous vetting for low risk populations. As such,
implementation of the required continuous vetting checks for enrolled
individuals is eased through a phased introduction of the required
checks over time.
OPM considered not only the cost to agencies but the burden of
preparing for enrollment of the low risk and public trust populations
into continuous vetting. Recognizing that agencies must validate the
need of their current workforce to be enrolled into continuous vetting
in accordance with this new requirement, a process that could be time
intensive in particular for the low risk population not previously
subject to a reinvestigation requirement, we established a phased
approach. Beginning with the public trust population, agencies, working
with their investigative service providers, will gradually enroll their
workforces into the new continuous vetting service. This iterative
approach avoids agency vetting professionals from being faced with
enrolling their covered workforce all at the same time and adjudicating
any resulting hits from continuous vetting checks. This enables
agencies to adopt the necessary policy and procedural infrastructure
needed to execute requirements.
[[Page 102688]]
3. Impact
The rule promotes 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 adjudicative 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.
OPM is implementing these requirements in the least burdensome way
possible while still effectuating what the President set forth in
Executive orders. Individuals subject to continuous vetting are those
populations already subject to Federal personnel vetting investigative
standards, including contractor employees with long term access to
Federal facilities and information systems. Even prior to recent
Executive orders and policy requirements requiring personnel vetting
investigations and determinations on contractors, the Federal
Acquisition Regulation (FAR) Council published a final rule in November
2006, amending the FAR to require contracting officers to incorporate
the requirement for contractors to comply with agency verification
procedures--implementing 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 requiring long term access to Federal facilities and
information systems to support agencies should already be familiar with
personnel vetting requirements.
This final rule provides greater consistency in vetting processes
and, where possible, saves costs by reducing redundancy and duplication
and modernizes processes for collecting information. By establishing
minimum standards of fitness for the excepted service that align with
OPM's suitability standards, there is a greater likelihood that
individuals will be assessed using consistent standards, thus providing
a stronger 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.
OPM anticipates this final rule will reduce the burden on 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 non-sensitive public trust populations.
Enrollment of the non-sensitive public trust population will occur
throughout fiscal year 2025. Enrollment of the low risk population is
projected to begin in fiscal year 2027. Through a phased process,
agencies are initiating their populations into continuous vetting and,
eventually, individuals will be enrolled into continuous vetting at the
onset of their initial background investigations. 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. Instead, agencies will 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 to breaks in service or changes in position risk
and/or sensitivity.
One organization suggested OPM provide data demonstrating the
number of Federal civil service employees who were delayed in
transferring to another agency and the processing burden to agencies as
a result. An individual suggested that more research into the benefit
of the scope and frequency of vetting could be beneficial, especially
in the case of suitability or fitness vetting, which the commenter
opines is less studied and scrutinized than that of security vetting.
The individual offered that there is little objective research to
support that this degree of vetting is effective and that there is
little discussion of the goals and objectives of conducting vetting to
this extent. As is outlined at the onset of this rule, OPM is required
by Executive order to establish continuous vetting requirements for the
non-sensitive public trust and low risk populations to standardize
investigative activities across the civil service, contractor employee,
and DoD nonappropriated funds populations. OPM is not adopting
substantial changes to the applicability of reciprocity requirements
that have been in place since 2009. Further, by way of this rule, OPM
is not increasing the scope of vetting requirements, though the
periodicity of post-appointment checks are changing for the non-
sensitive public trust population. The Federal Personnel Vetting Core
Doctrine,\4\ which defines the personnel vetting mission, its guiding
principles, key supporting processes, and policy priorities, provides
more explanation in support of the new approaches.
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\4\ 86 FR 2705 (January 13, 2021), available at <a href="https://www.federalregister.gov/documents/2021/01/13/2021-00547/federal-personnel-vetting-core-doctrine">https://www.federalregister.gov/documents/2021/01/13/2021-00547/federal-personnel-vetting-core-doctrine</a>.
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4. Costs
An organization asked for a cost-benefit analysis of the change
from periodic reinvestigations to continuous vetting. The organization
recognized that the current regulation already authorizes a continuous
reassessment so long as it occurs at least every five years. The
organization suggested reassessments that decrease in periodicity may
result in a cost savings but could weaken agency security. The
commenter did not express questions or concerns with the cost analysis
that was included in the notice of proposed rulemaking published in
January 2023 or with the explanation of anticipated benefits with the
changes. Therefore, OPM adopts the economic assessment provided in the
proposed rule with only two sets of changes. First, OPM updated pricing
of products by the Defense Counterintelligence and Security Agency
(DCSA), which was an estimate at the time the proposed rule was issued.
Second, OPM also updated the cost analysis to use the 2024 pay rates.
This rule will affect the operations of most Federal agencies in
the executive branch--ranging from cabinet-level departments to small
independent agencies. To comply with the regulatory changes, affected
agencies will need to review the rule and update their policies and
procedures. For this cost analysis, the assumed average salary rate of
Federal employees performing this work will be the rate in 2024 for GS-
14, step 5, from the Washington, DC, locality pay table ($157,982
annual locality rate and $75.70 hourly locality rate). We assume that
the total dollar
[[Page 102689]]
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
$151.40 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 $151.40. This effort would result in
estimated costs in the first year of implementation of about $37,850
per agency, and about $3,028,000 in total government-wide. In
subsequent years, the costs of regulatory compliance associated with
this rule will be folded into agencies' routine costs.
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
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 non-sensitive 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.
Consequently, the cost of continuous vetting for the low risk and
public trust population will vary amongst the Federal agencies.\5\ To
assist Federal agencies in budget development, DCSA released in August
2024 its 2025 and 2026 products and services billing rates \6\
including pricing for the initial continuous vetting capability for
non-sensitive public trust positions. For fiscal year 2025, agencies
can expect to pay a $3.25 monthly subscription fee for active enrollees
in non-sensitive, public trust continuous vetting. By comparison,
DCSA's price for a standard service, non-sensitive, high risk public
trust reinvestigation (Tier 4) in fiscal year (FY) 2025 is $2,505,
which equates to $41.75 monthly over five years. Agencies utilizing
continuous vetting in FY 2025 for their non-sensitive, high risk,
public trust populations would avoid $2,310 in personnel vetting costs
over five years for each such position. The difference 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 2025 cost of $375 for each non-
sensitive moderate risk public trust reinvestigation. While DCSA's
pricing for FY 2025 and 2026 does not establish the cost of the
continuous vetting product for the low risk population, it will not be
more than $39-$40.20 per year which are the FY 2025 and FY 2026 costs
for the continuous vetting products for the non-sensitive, public trust
populations.\7\ 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 extensive than those on the national security
population.
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\5\ 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.
\6\ Available at <a href="https://www.dcsa.mil/Portals/128/Documents/about/err/FIN_24-01_FY25_and_FY26_Billing-Rates.pdf">https://www.dcsa.mil/Portals/128/Documents/about/err/FIN_24-01_FY25_and_FY26_Billing-Rates.pdf</a>.
\7\ DCSA has established the FY 2025 cost for the interim
continuous vetting product for the non-sensitive public trust
population at $39 per year versus the full Trusted Workforce 2.0
product which is priced at $90.
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An additional factor that agencies 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 for a department that is
comprised mainly of non-sensitive positions, the Department of Veterans
Affairs (VA), and a department that is comprised mainly of sensitive
positions, DoD. The VA has vastly more non-sensitive positions
(approximately 513,400) than sensitive positions (approximately 9,000).
The VA's positions are largely non-sensitive, low risk, with
approximately 455,000 Federal and contractor personnel in low risk
positions; 41,200 in non-sensitive, moderate risk, public trust
positions; and 17,200 in non-sensitive, high risk, public trust
positions. Under the current requirement to request a reinvestigation
for public trust positions every five years and considering FY 2025
DCSA pricing, the VA should anticipate paying $58,536,000 for non-
sensitive, public trust reinvestigations over five years. With
continuous vetting, the annual cost of enrolling the public trust
population for fiscal year 2025 is $2,277,600, or $11,338,000 over five
years, equating to $47,198,000 in cost avoidance for the non-sensitive,
moderate and high risk positions over the five-year cycle. For
continuous vetting of the low risk population, at a cost of $39 per low
risk position per year, VA would expect to pay DCSA $17,745,000
annually or $88,725,000 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
$29,286,000 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 DoD, which has a much higher
sensitive population than non-sensitive with approximately 3.5 million
individuals in sensitive positions and approximately 283,000 in non-
sensitive positions. With approximately 3,000 non-sensitive, moderate
risk positions and 560 non-sensitive, high risk positions, the DoD
could plan to spend $3,465,440 on periodic reinvestigations over five
years for their non-sensitive public trust positions whereas continuous
vetting would result in a total cost of $1,602,000 and therefore result
in $1,863,440 in cost avoidance over that same period. The cost of
enrolling DoD's 280,000 federal and contractor low risk positions at
$39 per year subject to the requirement would equate to an annual
[[Page 102690]]
cost of $11,037,000 or $55,185,000 over five years; however, this cost
would be offset not only by the cost avoidance of $1,863,440 for the
non-sensitive, 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.
5. Benefits
The standardization in vetting resulting from the changes in this
rule will increase efficiency across the executive branch while
allowing for faster identification of issues that may adversely affect
trust determinations of individuals. Mobility of individuals is
enhanced by reciprocal acceptance of investigations and adjudications
thus allowing individuals to move more quickly between and within
Federal agencies and Government contractors. Additionally, the revised
rule enables a more efficient re-entry to Federal service.
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 minimum 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 Trusted Workforce
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 non-sensitive,
public trust or national security positions, we do not believe that
this 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.
Severability
If any of the provisions of this final rule is held to be invalid
or unenforceable by its terms, or as applied to any person or
circumstance, it shall be severable from its respective section(s) and
shall not affect the remainder thereof or the application of the
provision to other persons not similarly situated or to other
dissimilar circumstances, unless such holding is that the provision is
invalid and unenforceable in all circumstances, in which event the
provision shall be severable from the remainder of this part and shall
not affect the remainder thereof. This final rule revises vetting
requirements by broadening their applicability, establishing continuous
vetting, and standardizing the way in which suitability and fitness
determinations are made. As discussed elsewhere in this rule, there are
various authorities for these provisions. The provisions of this final
rule apply to different populations such as the competitive service,
the excepted service, and contractor employees. Should provisions
related to one of these populations be held to be invalid we believe
that most of the provisions should be severable and would not be
impacted. Similarly, many of the operational requirements have no
bearing on other provisions and are severable. For example, a holding
that a suitability or fitness factor is invalid should not impact other
provisions related to how these decisions are made. In enforcing the
provisions of this rule, OPM will comply with all applicable legal
requirements.
Regulatory Review
OPM has examined the impact of this rule as required by Executive
Orders 12866, 13563, and 14094, which direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis must be prepared for major rules with
effects of $200 million or more in any one year. This rulemaking does
not reach that threshold but has otherwise been designated as a
``significant regulatory action'' under section 3(f) of Executive Order
12866, as amended by Executive Order 14094.
Regulatory Flexibility Act
The Acting Director of the OPM certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the Federal Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant preparation of a Federalism
Assessment.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits before
issuing any rule that would impose spending costs on State, local, or
tribal governments in the aggregate, or on the private sector, in any 1
year of $100 million in 1995 dollars, updated annually for inflation.
That threshold is currently approximately $183 million. This regulation
will not result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, in excess of
the threshold. Thus, no written assessment of unfunded mandates is
required.
Congressional Review Act
The Office of Information and Regulatory Affairs in the Office of
Management and Budget has determined that this rule does not satisfy
the criteria listed in 5 U.S.C. 804(2).
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 OMB
Control Number.
[[Page 102691]]
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 systems of
record notice Personnel Vetting Records System, DUSDI 02-DOD (83 FR
52420).
In a parallel effort to this rule, and as part of its work with the
PAC, OPM proposed a new information collection and renewal cycle,
Personnel Vetting Questionnaire (PVQ), to streamline the existing
information collections commensurate with on-going efforts to improve
personnel vetting processes and the experience of individuals
undergoing personnel vetting. OMB approved the PVQ information
collection under control number 3206-0279 on November 15, 2023. See
<a href="https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202302-3206-005">https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202302-3206-005</a>.
Once the new collection is implemented, OPM plans to discontinue the
current information collections.
Some individuals or populations may be required to complete an
updated questionnaire in order for continuous vetting to be conducted.
In the notice of proposed rulemaking published in January 2023, OPM
sought public comment on the cost and burden implications for this
potential new population. However, no comments were received other than
what has been addressed elsewhere within this rule.
List of Subjects in 5 CFR Parts 302 and 731
Administrative practices and procedure, Authority delegations
(Government agencies), Government contracts, Government employees,
Investigations.
Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM amends 5
CFR parts 302 and 731 as follows:
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
1. The authority citation for part 302 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320,
8151. E.O. 10577, 19 FR 7521, 3 CFR 1954-1958 Comp., p. 218. Sec.
302.105 also issued under 5 U.S.C. 1104; sec. 3(5), Pub. L. 95-454,
92 Stat. 1111. Sec. 302.501 also issued under 5 U.S.C. ch. 77. Sec.
302.107 also issued under 5 U.S.C. 9201-9206; sec. 1122(b)(1), Pub.
L. 116-92, 133 Stat. 1607. Secs. 302.108 and 302.203 also issued
under E.O. 13764, 82 FR 8115, 3 CFR, 2017 Comp., p. 243.
0
2. Amend Sec. 302.107 by revising the section heading to read as
follows:
Sec. 302.107 Suitability and fitness inquiries regarding criminal
history.
0
3. 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 service
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 must furnish a copy
of those reasons to an applicant upon their request.
0
4. 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.
PART 731--SUITABILITY AND FITNESS
0
5. The authority citation for part 731 is revised to read as follows:
Authority: 5 U.S.C. 1302, 3301, 7301. E.O. 10577, 19 FR 7521, 3
CFR, 1954-1958 Comp., p. 218, as amended. E.O. 13467, 73 FR 38103, 3
CFR, 2009 Comp., p. 198, as amended. E.O. 13488, 74 FR 4111, 3 CFR,
2010 Comp., p. 189, as amended. E.O. 13764, 82 FR 8115, 3 CFR, 2017
Comp. p. 243. Presidential Memorandum of January 31, 2014, 3 CFR,
2014 Comp., p. 340. 5 CFR parts 1, 2, 5, and 6.
0
6. Revise the heading for part 731 to read as set forth above.
0
7. 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) The following definitions apply for the purposes of 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, the individual's status as an appointee will extend through the
end of the initial probationary/trial period, if longer than one year.
Competitive service or career Senior Executive Service, for the
purposes of this part, 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, 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
[[Page 102692]]
to the primary contract with the agency. The term contractor employee
includes employees of a grantee of any agency or any other category of
person who performs work for or on behalf of an agency but does not
include a Federal employee.
Core duty means a continuing responsibility that is of particular
importance to the relevant covered position or the achievement of an
agency's mission.
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 competitive service or career Senior Executive
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 the 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 of the executive branch either
excepted from the competitive service or which is not in the Senior
Executive Service.
(1) For the purposes of this part, excepted service does not
include:
(i) Any position in an element of the intelligence community as
defined in the National Security Act of 1947, as amended, to the extent
that the individual is not otherwise subject to OPM appointing
authorities;
(ii) Any position where OPM is statutorily precluded from
prescribing such standards; and
(iii) Any position when filled by political appointment.
(2) Senior Executive Service noncareer, limited term, and limited
emergency appointments are not subject to suitability actions under
this part.
(3) 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
nonappropriated 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 5 U.S.C. 2105.
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 and 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 one or more of the following outcomes:
(1) Cancellation of eligibility;
(2) Removal;
(3) Cancellation of reinstatement eligibility; and
(4) Debarment.
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
suitability determination is based on whether an individual's character
or conduct may have an adverse impact on the integrity or efficiency of
the service.
(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 13488, are also subject to the position designation requirements,
investigative standards, and reciprocity-requirements in this part.
(2) To establish the criteria for making determinations of
suitability for the competitive service or career Senior Executive
Service and to establish 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.
(c) An Agency shall exercise due regard to this part and
supplemental guidance if determining fitness for employment as a
contractor employee or as a nonappropriated fund employee.
(d) 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
[[Page 102693]]
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 that there has been knowing and willful engagement in acts
or activities designed to overthrow the U.S. Government by force. 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 part 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 (see definitions Sec. 731.101(a)) 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) An agency must reciprocally accept a prior background
investigation in the event of promotion, demotion, reassignment, or
transfer from employment subject to investigation to other employment
subject to investigation without a break in service, unless the new
employment is at a higher risk level.
(2) An agency must reciprocally accept a prior background
investigation 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, 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 must
request such checks as may be specified in implementing guidance and
must 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) 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 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.
(c) 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 (c)(2) of this section.
(1) In the case of a prior investigation that is reciprocally
accepted, if the record in the Central Verification System or its
successor system does not reflect a prior favorable suitability or
fitness determination, the agency must review the prior investigation
for the purpose of making a suitability or fitness determination.
(2) In the case of a prior investigation that is reciprocally
accepted, if the prior investigation was favorably adjudicated for
suitability or fitness, the agency must accept the prior determination
except that the agency must make a new determination where:
(i) The investigative record on file for the individual shows
conduct that is incompatible with the core duties of the relevant
covered position; or
(ii) The agency has prescribed additional factors as permitted
under Sec. 731.202(b) that were not addressed in the prior favorable
adjudication, in which case the agency must conduct an adjudication
using only those additional factors.
(d) 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 complete 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), or (8).
(e) An agency may not take a suitability action against an employee
in
[[Page 102694]]
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 5 CFR part 752 or
terminating a probationary employee under the procedures of 5 CFR part
315 or 359 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. For every position in the competitive
service; in the excepted service; to be filled with a career
appointment in the Senior Executive Service; or in which the occupant
performs a service as a contractor employee or as a nonappropriated
fund employee, an agency head must designate the position at high,
moderate, or low risk level (in accordance with the risk designation
system issued jointly by the Executive Agents; see Sec. 731.102(b)),
as determined by the position's potential for adverse impact to the
efficiency or integrity of the service.
(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 such as positions
involving access to or control of financial records or 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 Non-sensitive, 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 title 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 5 CFR part 1400.
(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. Checks must be
conducted at regular intervals, based on the type of check and with
consideration of position risk and sensitivity. The nature of a
continuous vetting check, and any additional requirements and
parameters, are specified in supplemental issuances as described in
Sec. 731.102(b). An individual may be subjected 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 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 this paragraph (d).
(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 5
CFR part 1400.
(f) Completed investigations. An investigation or continuous
vetting check under paragraphs (c) through (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 5 CFR part 315, 359, or 752. 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) Criminal or credit history inquiries. A hiring agency may not
make specific inquiries concerning an applicant's criminal background
in oral or written form (including through the OF-306 or other forms
used to conduct vetting for Federal employment, USAJOBS, or any other
electronic means) unless the hiring agency has made a conditional offer
of employment to the applicant. For criminal inquiries prior to a
conditional offer, this prohibition does not apply to applicants for
positions excepted under 5 CFR 920.201(b). For competitive service or
career Senior Executive Service, a hiring agency may not make specific
inquiries concerning an applicant's credit background in oral or
written form (including through the OF-306 or other forms used to
conduct vetting for Federal employment, USAJOBS, or any other
electronic means) unless the hiring agency has made a conditional offer
of employment to the applicant. Agencies may request an exception to
the provision for making credit inquiries in advance of a conditional
offer in accordance with the provisions in 5 CFR part 330, subpart M.
Agencies may make an inquiry into an applicant's Selective Service
registration, military service, citizenship status, where applicable,
or previous work history, prior to making a conditional offer of
employment to an applicant.
[[Page 102695]]
(h) Recordkeeping and use of information. 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
8. 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) 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. Only OPM may take a suitability action
considering the factors in paragraph (b)(3) or (7) of this section.
Agencies may use the factor in paragraph (b)(8) of this section in
applicant and appointee suitability cases but not employee cases;
however, OPM may use this factor in employee cases. When making a
suitability determination, OPM or an agency will consider only the
following factors to determine if one is suitable. 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 and willful engagement in acts or activities designed
to overthrow the U.S. Government by force;
(8) Any statutory or regulatory bar that prevents the lawful
employment of the individual in the position in question; and
(9) 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) A suitability action may be taken only by OPM or an agency with
delegated authority under the procedures in subparts C and D of this
part.
(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 and willful engagement in acts or activities designed
to overthrow the U.S. Government by illegal or unconstitutional means;
and/or
(3) 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 5
[[Page 102696]]
CFR part 315, 359, or 752. Where conduct covered by this part may also
form the basis for an action under 5 CFR part 315, 359, or 752, an
agency may take the action under 5 CFR part 315, 359, or 752, 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 it takes
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 3 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 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
9. Revise the heading of subpart C to read as follows:
Subpart C--OPM Suitability Action Procedures for the Competitive
Service or Senior Executive Service
0
10. 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
11. Revise the heading of subpart D to read as follows:
Subpart D--Agency Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
0
12. 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
13. Revise the 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
Subpart F--[Removed]
0
14. Remove subpart F, consisting of Sec. 731.601.
[FR Doc. 2024-29799 Filed 12-17-24; 8:45 am]
BILLING CODE 6325-66-P
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</html>Indexed from Federal Register on December 18, 2024.
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.