Proposed Rule2025-10067
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
June 3, 2025
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is proposing amendments to the Federal Government personnel vetting adjudicative processes for determining suitability and taking suitability actions. The purpose of the proposed rule is to improve the efficiency, rigor and timeliness by which OPM and agencies vet individuals for risk to the integrity and efficiency of the service, and to make clear that individuals who engage in serious misconduct while employed in Federal service are subject to the same suitability procedures and actions as applicants for employment.
Full Text
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<title>Federal Register, Volume 90 Issue 105 (Tuesday, June 3, 2025)</title>
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[Federal Register Volume 90, Number 105 (Tuesday, June 3, 2025)]
[Proposed Rules]
[Pages 23467-23477]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-10067]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 90, No. 105 / Tuesday, June 3, 2025 /
Proposed Rules
[[Page 23467]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
RIN 3206-AO84
Suitability and Fitness
AGENCY: Office of Personnel Management.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Office of Personnel Management (OPM) is proposing
amendments to the Federal Government personnel vetting adjudicative
processes for determining suitability and taking suitability actions.
The purpose of the proposed rule is to improve the efficiency, rigor
and timeliness by which OPM and agencies vet individuals for risk to
the integrity and efficiency of the service, and to make clear that
individuals who engage in serious misconduct while employed in Federal
service are subject to the same suitability procedures and actions as
applicants for employment.
DATES: Comments must be received on or before July 3, 2025.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. All submissions received must
include the agency name and docket number or Regulation Identifier
Number (RIN).
Where possible, please arrange and identify your comments on the
regulatory text by subpart and section number; if your comments relate
to the supplementary information, please refer to the heading and page
number. Comments received after the close of the comment period will be
marked ``late,'' and OPM is not required to consider them in
formulating a final decision. If you cannot submit comments
electronically, please contact the individual listed in the further
information section.
The general policy for comments and other submissions from members
of the public is to make these submissions available for public viewing
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> without change, including any personal
identifiers or contact information.
As required by 5 U.S.C. 553(b)(4), a summary of this rule may be
found in the docket for this rulemaking at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For questions contact Joseph Knouff,
Suitability Executive Agent Programs, by email at <a href="/cdn-cgi/l/email-protection#aefddbc7daebefeec1dec380c9c1d8"><span class="__cf_email__" data-cfemail="60331509142521200f100d4e070f16">[email protected]</span></a> or by
phone at (202) 599-0090.
SUPPLEMENTARY INFORMATION:
Authority and Background
Congress has long granted the President authority to ensure that
those employed in the competitive service are suitable for Federal
employment. In 1871, Congress authorized the President to ``prescribe
such regulations for the admission of persons into the civil service .
. . as may best promote the efficiency thereof, and ascertain the
fitness of each candidate in respect to . . . character''; appoint
individuals to investigate applicants' suitability for Federal
employment; and ``establish regulations for the conduct of [employees]
in the civil service.'' 1 Rev. Stat. 313, Sec. 1753 (1875) (enacted
Mar. 3, 1871). Today, 5 U.S.C. 3301 and 7301 provide similarly that
``[t]he President may . . . prescribe such regulations for the
admission of individuals into the civil service in the executive branch
as will best promote the efficiency of that service,'' ``ascertain the
fitness of applicants as to . . . character,'' and ``prescribe
regulations for the conduct of employees in the executive branch.''
Historically the President delegated to OPM and its predecessor,
the Civil Service Commission, the authority to prescribe both
qualification standards and suitability standards, and to conduct both
examinations of applicants' qualifications and investigations of
suitability for appointment and continuing employment. See 5 U.S.C.
1104(a)(1). The President charged OPM with, among other duties: (1)
``establish[ing] standards with respect to . . . suitability . . .
which applicants must meet to be admitted to or rated in
examinations''; (2) ``[i]nvestigating. . . the suitability . . . of
applicants for positions in the competitive service''; (3)
``requir[ing] appointments to be made subject to investigation to
enable the [Director] to determine, after appointment, that the
requirements of law or the Civil Service Rules and Regulations have
been met''; and (4) instructing an agency ``to remove'' an employee
found to be ``disqualified for Federal employment.'' E.O. 10577 (Nov.
22, 1954) (codified, in relevant part, as amended, at 5 CFR 2.1(a),
5.2(a), 5.3(a)(1), 5.3(b)); see also 5 U.S.C. 1103(a)(5) (the
Director's responsibility for ``executing, administering, and
enforcing'' these Civil Service Rules); 5 U.S.C. 1104(a)(1) (the
President's authority to ``delegate, in whole or in part, [his]
personnel management functions'' to OPM); 5 U.S.C. 3302 (the
President's authority to ``prescribe rules governing the competitive
service'').
Part 731 of title 5, Code of Federal Regulations, establishes and
maintains OPM's policies and procedures governing suitability and
fitness investigations and adjudications, including the procedures for
taking suitability actions and the general process for appealing a
suitability action. Suitability and fitness determinations examine
``character or conduct that may have an adverse impact on the integrity
or efficiency of the service,'' such as criminal or dishonest conduct,
and deception or fraud in examination or appointment. 5 CFR 731.101,
731.201, 731.202. If the suitability determination is unfavorable, the
adjudicator must then determine what ``suitability action'' is
appropriate. See Sec. 731.203(a). OPM's regulations define a
``suitability action'' to include ``[c]ancellation of eligibility,''
``[r]emoval,'' ``[c]ancellation of reinstatement eligibility,'' and
``[d]ebarment.'' See Sec. 731.101(a). OPM may also be subject to these
regulations in the capacity of an agency.
The objective of the suitability and fitness adjudicator is to
establish a reasonable expectation that employment or continued
employment of an individual either would or would not protect the
integrity and promote the efficiency of the service. When there is a
reasonable expectation employment would not do so, the individual
should be found unsuitable or unfit. This expectation is established
when an adverse nexus or connection can be shown between the character
or conduct in question and the integrity of the service or the
individual's capacity and
[[Page 23468]]
fitness for employment or continued employment.
These interests and objectives apply equally to applicants for
employment and current Federal employees, regardless of the employment
status as an ``appointee'' or ``employee'' as those terms are defined
in Sec. 731.101. Current Federal employees, no less than applicants,
must remain suitable for Federal employment. Employees who engage in
serious misconduct while in the Federal service are equally as
unsuitable for Federal employment as applicants who engaged in serious
misconduct before applying for Federal employment.
The statutory authorities that allow the President and, by
presidential delegation, OPM to take suitability actions apply to
employees, not just job applicants. See 5 U.S.C. 7301 (``The President
may prescribe regulations for the conduct of employees in the executive
branch.''). Consistent with this broad grant of statutory authority, it
has long been Presidential and executive branch policy to assess post-
appointment conduct to determine an individual's ongoing suitability or
fitness to remain in their position.
OPM regulations have long applied suitability criteria to both
Federal employees and applicants. Under part 731 and implementing
guidance, OPM has required agencies to make suitability determinations
based on post-appointment conduct. OPM has established in its
regulations that ``OPM may take a suitability action under this part
against an employee'' of an agency and direct that agency to remove the
employee based on the suitability factors set forth in 5 CFR part 731,
subpart B. These factors are as follows: material, intentional false
statement, deception, or fraud, in examination or appointment; a
statutory or regulatory bar that prevents the individual's lawful
employment; and/or, knowing and willful engagement in acts or
activities designed to overthrow the U.S. Government by illegal or
unconstitutional means. 5 CFR 731.203(e). Another factor, refusal to
furnish testimony as required by 5 CFR 5.4, was a basis for OPM to take
a suitability action against an employee and was in place from 1996
until January 2025, when OPM removed this factor from the suitability
factors. See 61 FR 394 (Jan. 5, 1996) and 89 FR 102675 (Dec. 18, 2024).
OPM regulations have further allowed OPM to consider ``[t]he nature of
the position for which the person is applying or in which the person is
employed'' in applying the suitability criteria, making clear that
suitability actions might apply to incumbent employees, whether in an
appointee or employee status as defined in 5 CFR 731.101, as well as
applicants. 5 CFR 731.202(c).
Successive presidential administrations have similarly emphasized
that suitability determinations apply not only to applicants and
appointees to competitive service or career SES positions but also to
employees in such positions, for the purpose of assessing whether
incumbent employees remain suitable for Federal employment. It has
accordingly long been Presidential and executive branch policy to
assess employees' post-appointment conduct to determine their ongoing
suitability to remain in their positions, and OPM has, under part 731
and implementing guidance, required agencies to make suitability
determinations based on post-appointment conduct. See, e.g., 76 FR
69601 (Nov. 9, 2011) and 89 FR 102675 (Dec. 18, 2024) (discussing 5 CFR
731.106(d)).
E.O. 13488, Granting Reciprocity on Excepted Service and Federal
Contractor Employee Fitness and Reinvestigating Individuals in
Positions of Public Trust, (74 FR 4111) issued in relevant part under 5
U.S.C. 7301, established a uniform, Government-wide requirement for
public trust suitability reinvestigations to ensure persons in public
trust positions remain suitable for continued employment.
In January 2017, E.O. 13764 amended the Civil Service Rules, E.O.
13488, and E.O. 13467 (82 FR 8115), and established continuous vetting
for all positions subject to personnel vetting, including positions
subject to OPM's suitability regulations. 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.'' Sec. 1.3, E.O. 13467, as amended by E.O.
13764. A ``covered individual'' is ``a person who performs, or who
seeks to perform, work for or on behalf of the executive branch.'' Id.
In the context of suitability for employment, continuous vetting is
used to determine if an individual remains suitable for a position over
time.
E.O. 13764 also amended the Civil Service Rules at 5 CFR 5.2(a) to
permit the OPM Director to require appointments be made subject to
investigation so that the OPM Director can determine, post-appointment,
that Civil Service Rules and regulations have been met. E.O. 13764
clarified Civil Service Rule 5.3 to specify that the OPM Director could
instruct an agency to remove an employee when the Director finds that
the employee is unsuitable. 5 CFR 5.3(a)(1).
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
the ``Trusted Workforce 2.0'' initiative 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. A
key goal of the initiative is to provide vetting processes that enable
each individual's vetting status to be continuously up to date. Since
its launch, the initiative has enabled the enrollment into continuous
vetting of more than 4 million individuals serving the Government in
national security sensitive positions, including sensitive competitive
service and career SES positions, and enrollment is underway for those
serving in nonsensitive public trust positions with a targeted
completion date by the end of fiscal year 2025.
OPM has established in its regulations that OPM itself may take a
suitability action against an employee in the competitive service or
the career Senior Executive Service and direct the employing agency to
remove the employee, based on a narrow set of its suitability factors
in 5 CFR part 731, subpart B. OPM regularly takes suitability actions
against such employees based on material, intentional false statement
or deception, or fraud, in examination or appointment. OPM has not
redelegated to agencies the authority to take suitability actions
against employees, even when the conduct occurred prior to employment.
OPM requires agencies to refer to OPM cases where there has been
evidence of such conduct and should OPM decide to take a suitability
action, OPM directs the agency to remove the employee. OPM also
requires agencies to refer cases involving knowing and willful
engagement in acts or activities designed to overthrow the U.S.
Government by force.
Although OPM has required agencies to make suitability
determinations regarding employees based on post-appointment conduct,
OPM has not permitted agencies to take suitability actions when the
determination is unfavorable. Further, since the Merit Systems
Protection Board's (MSPB) decision in Scott v. OPM in 2011 (116
M.S.P.R. 356 (2011), modified by 117 M.S.P.R. 467 (2012)), which held
that suitability actions cannot be taken for post-appointment conduct,
OPM has not itself taken suitability actions regarding
[[Page 23469]]
employees, regardless of employment status as an ``appointee'' or
``employee'' per 5 CFR 731.101, for post-appointment conduct. OPM has
recognized, however, in its regulations, that an agency may employ
other authorities available to the agency when an employee's post-
appointment conduct renders them unsuitable for continued employment in
the position, such as Chapter 75 actions. Agencies have reported
frustration with not being able to take the next logical step, a
suitability action, after finding an employee unsuitable for continued
employment.
After Scott, Congress specifically legislated that agencies need
not proceed through Chapter 75 procedures when taking suitability
actions. OPM's regulations have long defined a ``suitability action''
to include ``[c]ancellation of eligibility,'' ``[r]emoval,''
``[c]ancellation of reinstatement eligibility,'' and ``[d]ebarment.'' 5
CFR 731.203. In 2015, Congress amended 5 U.S.C. 7512 to exclude ``a
suitability action taken by [OPM] under regulations prescribed by
[OPM], subject to the rules prescribed by the President under this
title for the administration of the competitive service'' from the
scope of actions subject to Chapter 75 procedures. 5 U.S.C. 7512(F);
see also Public Law 114-92, Div. A, Title X, Sec. 1086(f)(9), Nov. 25,
2015, 129 Stat. 1010. This legislation overruled a Federal Circuit case
(Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015)) that held that
suitability-based removals were in fact subject to Chapter 75
procedures.
In Hopper, OPM argued that suitability-based removals derived from
a separate statutory authority than Chapter 75 removals--that is, the
presidential authority to regulate employee conduct implies authority
to remove employees who violate those regulations, and the President
had delegated that authority to OPM. Hopper, 786 F.3d at 1348-49. The
Federal Circuit in Hopper rejected OPM's position. Id. But Congress, in
adding 5 U.S.C. 7512(F), repudiated Hopper and excluded ``a suitability
action taken by [OPM] under regulations prescribed by [OPM], subject to
the rules prescribed by the President under this title for the
administration of the competitive service'' from the scope of Chapter
75. Congress thus expressly recognized the validity of suitability-
based removals from the Federal service, and that this authority is
separate and distinct from Chapter 75 removal authority.
In addition to congressional action, presidential actions since
Scott have further established OPM's authority to take suitability
actions for post-appointment conduct against appointees and employees
in competitive and career SES positions, although OPM has not done so.
Notably, in Scott, a key element of the Board's rationale for deciding
OPM could not take suitability actions for post-appointment conduct was
that while ``it may be that the President could, pursuant to 5 U.S.C.
7301, issue an Executive Order authorizing OPM to make suitability
determinations and take or direct suitability actions based on post-
admission or postappointment conduct . . . , the President has not
issued such an order.''
President Trump has now issued such an order, in the Presidential
Memorandum Strengthening the Suitability and Fitness of the Federal
Workforce, issued March 20, 2025 (``the Presidential Memorandum''). 90
FR 13683 (Mar. 25, 2025). President Trump further directed that the OPM
Director ``propose regulations, consistent with applicable law,
amending Part 731 of title 5, Code of Federal Regulations, to account
for the delegation'' and ``to implement appropriate rules and
procedures regarding suitability determinations and suitability actions
based on post-appointment conduct.''
Despite the clear intent from both Congress and the President--
stretching over decades now--that agencies should not rely on Chapter
75 procedures to address post-appointment conduct covered by the
factors described in 5 CFR 731.202(b), today agencies still largely
must rely on Chapter 75 procedures to remove employees who engage in
serious misconduct. This means that, illogically, the government has
far greater ability to bar someone from Federal employment who has
committed a serious crime or misconduct in the past than it does to
remove someone who engages in the exact same behavior as a Federal
employee. This arbitrary state of affairs seriously impairs the
efficiency, effectiveness, and public perception of the Federal
service.
OPM therefore is proposing to conform its regulations to meet the
requirements of the Presidential Memorandum and rectify this irrational
gap in the part 731 regulations. Specifically, the rule will satisfy
the President's direction in the Presidential Memorandum to ``propose
regulations, consistent with applicable law, amending Part 731 of title
5, Code of Federal Regulations, to account for the delegation'' and
``to implement appropriate rules and procedures regarding suitability
determinations and suitability actions based on post-appointment
conduct.'' It also ensures that implementation of continuous vetting as
required by E.O. 13467, as amended, as part of the Trusted Workforce
2.0 initiative noted above, is done in an efficient and effective
manner. Under this proposed rule, when continuous vetting uncovers
information that results in a determination that an individual employed
in the competitive service or career Senior Executive Service is no
longer suitable for service, the situation can be remedied by the next
logical step: a suitability action.
This rulemaking will also implement Sec. 3(d) of E.O. 14210 of
February 11, 2025, Implementing the President's ``Department of
Government Efficiency'' Workforce Optimization Initiative, which
specifies several additional suitability criteria. 90 FR 9669 (Feb. 11,
2025). E.O. 14210 directed the OPM Director to initiate a rulemaking
that would include four additional suitability criteria: ``failure to
comply with generally applicable legal obligations, including timely
filing of tax returns''; ``failure to comply with any provision that
would preclude regular Federal service, including citizenship
requirements''; ``refusal to certify compliance with any applicable
nondisclosure obligations, consistent with 5 U.S.C. 2302(b)(13), and
failure to adhere to those compliance obligations in the course of
Federal employment''; and ``theft or misuse of Government resources and
equipment, or negligent loss of material Government resources and
equipment.'' When these criteria are incorporated into the factors
listed at 731.202(b), OPM and agencies must still 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. The application of the additional considerations ensures
suitability determinations are made case-by-case based upon the nature
of the conduct, and its potential impact on the individual's ability to
protect the integrity or promote the efficiency of the Federal service.
Significant Changes Proposed by This Rule
Suitability Actions on Employees for Post-Appointment Conduct
OPM is proposing to establish in regulation its authority to take
suitability actions against competitive service and career Senior
Executive Service appointees and employees
[[Page 23470]]
based on post-appointment conduct related to any of the suitability
factors in 5 CFR 731.202. This proposal reflects the President's
explicit delegation of authority in the Presidential Memorandum to OPM
to make final suitability determinations and take suitability actions
against employees based on post-appointment conduct. As noted in the
Authority and Background section above, it has been the policy of at
least the last five Administrations that individuals undergo
investigation, evaluation, and adjudication of whether they are, and
remain over time, suitable or fit for Federal employment. To that end,
the Government's vetting process includes steps to ensure that
individuals continue to meet the applicable standards for the position
for which they were favorably adjudicated. Consistent with the
President's delegation of authority, OPM proposes to require that
employing agencies make referrals to OPM in order for the Director to
make final suitability determinations and take suitability actions on
employees for post-appointment conduct that would merit a suitability
action based on any of the factors in 5 CFR 731.202.
These proposed regulations would expand OPM's existing authority to
take suitability actions against employees for conduct falling under
specific suitability criteria in 5 CFR 731.203(e) so that OPM may take
suitability actions against employees for any of the suitability
factors in 5 CFR 731.202. Because employees who engage in serious
misconduct while in the Federal service should not remain in Federal
service, OPM should not limit its ability to take action to a limited
subset of factors. Further, Presidential policy over the last few
decades has increasingly emphasized the importance of evaluating
conduct on an ongoing basis, as evidenced for example by the
Presidential mandate to implement continuous vetting, and agencies now
have more information and insight into the risk that current employee
conduct poses to the efficiency of the service. Therefore, OPM believes
that the same set of suitability factors should be evaluated when
considering removal of an employee as considered when evaluating an
applicant for appointment.
Suitability Factors
OPM proposes changes to amend the specific factors that must be
used by OPM or an agency when making suitability determinations and
taking suitability actions. These specific factors are also the minimum
standards of fitness used by agencies when making fitness
determinations for excepted service appointments and ongoing
employment. OPM proposes to incorporate additional criteria as directed
by the President in E.O. 14210 of February 11, 2025, Implementing the
President's ``Department of Government Efficiency'' Workforce
Optimization Initiative, 90 FR 9669. Two of these criteria--theft,
misuse, or negligent loss of government resources and equipment, and
refusal to certify compliance with, and/or adhere to, applicable non-
disclosure obligations--are examples of misconduct or negligence in
employment, a current suitability factor. OPM therefore is proposing to
add these criteria as examples that fall under OPM's existing factor at
5 CFR 731.202(b)(1)
OPM is also proposing to add a third example of employment
misconduct under this factor, specifically, refusal to furnish
testimony as required by 5 CFR 5.4. This proposed factor was a long-
standing suitability factor that was removed in the 2024 final rule (89
FR 102675). OPM removed this factor in the 2024 final rule because it
was rarely, if ever used; however, OPM now proposes to restore it as
OPM intends to take suitability actions on appointees and employees for
post-appointment conduct, consistent with the Presidential delegation.
OPM proposes incorporating the other two factors specified in E.O.
14210, namely, failure to comply with legal obligations and failure to
comply with provisions that would preclude Federal service, including
citizenship requirements, into its list of suitability factors.
Suitability Action Procedures
OPM is proposing changes to procedures OPM follows to take a
suitability action against an applicant, appointee, or employee. OPM is
also proposing changes to suitability action procedures when an agency,
acting under delegated authority from OPM, takes a suitability action
against an applicant or appointee. OPM's purpose in proposing these
changes is to provide for procedures for taking post-appointment
conduct suitability actions against employees, to include establishing
requirements for maintaining independence between proposing officials
and final decisionmakers.
Section-by-Section Analysis
Authorities
OPM is proposing to add E.O. 14210, 90 FR 9669; and the
Presidential Memorandum, 90 FR 13683 (Mar. 25, 2025) to the list of
authorities for part 731.
Part 731
Section 731.101 Purpose
OPM is proposing a minor edit to remove the word ``covered'' from
the definition of ``core duty'' for clarity and to align with changes
to the regulatory text throughout part 731 in the final rule at 89 FR
102,675.
Section 731.103 Delegation to Agencies for the Competitive Service and
Career Senior Executive Service
OPM is proposing edits to Sec. 731.103(a) and (b) to clarify the
delegation to agencies for making suitability determinations and taking
suitability actions to specify that, in the case of an employee, the
head of an agency is delegated authority to review whether an
unfavorable suitability determination may be warranted but is not
delegated authority to make a final suitability determination or take a
suitability action.
OPM is proposing to edit Sec. 731.103(f) to remove a reference to
5 CFR part 315, as E.O. 14284 directed removal of the procedures for
terminating a probationer.
OPM also proposes to clarify that OPM retains sole jurisdiction for
making final suitability determinations and taking suitability actions
in any case involving an employee for post-appointment conduct. OPM
also proposes clarifying that an agency must refer to OPM cases where a
government-wide debarment of an individual by OPM may be an appropriate
action, whether the individual is an applicant, appointee, or employee.
Section 731.104 Investigation and Reciprocity Requirements
OPM is proposing a minor edit to remove the word ``covered'' from
the definition of ``core duty'' for clarity and to align with changes
to the regulatory text throughout part 731 in the final rule at 89 FR
102,675.
Section 731.105 Authority To Take Suitability Actions in Cases
Involving the Competitive Service or Career Senior Executive Service
Section 731.105 describes the authority of OPM and agencies to take
suitability actions against applicants, appointees, and employees
involving the competitive service or career Senior Executive Service.
Paragraph (a) of Sec. 731.105 broadly describes the authority of
OPM or an agency (acting under delegated authority) to take a
suitability action with respect to an applicant or an
[[Page 23471]]
appointee. OPM proposes clarifying that an agency and OPM have
authority to take an action against an individual in appointee status
based on conduct occurring prior to the appointment or occurring post-
appointment. In Sec. 731.105(a)(1), OPM proposes a minor edit to
revise ``an individual appointed'' to ``appointee.''
Paragraph (b) addresses situations in which OPM may take a
suitability action against an applicant or an appointee. OPM proposes
to take suitability actions against appointees on the basis of post-
appointment conduct, as appropriate, when an agency has referred the
matter to OPM for action.
Paragraph (c) addresses when an agency (acting under delegated
authority) may take a suitability action against an applicant or an
appointee. OPM is not proposing changes to this paragraph.
Paragraph (d) addresses situations in which OPM may take a
suitability action against an employee. Only OPM has this authority.
Historically, OPM has not taken suitability actions against employees
except for certain factors and then only on the basis of conduct that
occurred prior to the individual achieving ``employee'' status. OPM
proposes to expand the criteria for which OPM may take a suitability
action on employees to include any of the criteria in 731.202. OPM also
proposes to make final suitability determinations and take suitability
actions against employees on the basis of post-appointment conduct, as
appropriate, when an agency has referred the matter to OPM for action,
consistent with the President's direction in the Presidential
Memorandum.
Paragraph (e) currently specifies that an agency may not take a
suitability action against an employee. OPM proposes to add that an
agency must make a referral to OPM to take a suitability action when
the agency has information that an employee's conduct warrants an
unfavorable suitability determination. OPM proposes to move part of the
existing paragraph (e) to a new paragraph (f) to address other actions
available to agencies. OPM also proposes to replace a reference to 5
CFR part 315 with 5 CFR part 11, as directed by E.O. 14284.
Section 731.106 Designation of Public Trust Positions and Investigative
Requirements
OPM proposes to revise paragraph Sec. 731.106(d)(1) to specify
that, when an agency determines that a suitability action against an
employee in the competitive service or career Senior Executive Service
may be appropriate based on the results of continuous vetting, the
agency must refer the matter to OPM, since only OPM may take a
suitability action on an employee. OPM proposes to revise Sec.
731.106(f), to clarify that determinations made as a result of
completed investigations may justify actions by an agency under part
731 or under another applicable authority. OPM also proposes to remove
a reference to 5 CFR part 315, as E.O. 14284 directed removal of the
procedures for terminating a probationer.
Subpart B--Determinations of Suitability or Fitness; Suitability
Actions in Cases Involving the Competitive Service or Career Senior
Executive Service
OPM proposes changes to this subpart to amend the specific factors
for making suitability determinations and to expand OPM's authority to
take a suitability action against an employee so that the action may be
based on any of the factors. As discussed in the section ``Suitability
Actions on Employees for Post-Appointment Conduct,'' for over 30 years
across multiple administrations, it has been the express policy of each
President to ensure that employees remain suitable or fit for Federal
employment; however, the suitability regulations limited the ability of
OPM to take suitability actions against employees by restricting the
factors OPM could use to take a suitability action. These proposed
changes would further align OPM's regulations with this long-standing
Executive policy.
Section 731.202 Criteria for Making Suitability and Fitness
Determinations
OPM proposes changes to the suitability factors at Sec.
731.202(b), as follows:
<bullet> Add examples to the factor misconduct or negligence in
employment that may be committed by current or former employees--
specifically, theft or misuse of government resources and equipment or
negligent loss of government resources and equipment; refusal to
certify compliance with, and/or adhere to, applicable non-disclosure
obligations; and refusal to furnish testimony as required by 5 CFR 5.4.
<bullet> Add specific factors regarding failure to comply with
legal obligations and failure to comply with provisions that would
preclude Federal service, including citizenship requirements.
<bullet> Remove the words ``applicant or appointee'' from the
factor on excessive use of alcohol, without evidence of rehabilitation,
to clarify to agencies that this factor may be applied to all
individuals regardless of employment status.
<bullet> Renumber the factors in accordance with the proposed
changes.
OPM proposes to add a new Sec. 731.202(d) to codify existing
training requirements for all persons responsible for suitability
screening, review, or making suitability determinations to be trained
in accordance with national training standards for suitability
adjudicators.
Section 731.203 Suitability Actions by OPM and Other Agencies for the
Competitive Service or Career Senior Executive Service
OPM proposes to amend Sec. 731.203(e) to clarify that when OPM
takes a suitability action pursuant to its authority, it may require
the employing agency to execute the action.
OPM proposes to edit Sec. 731.203(g) to replace references to 5
CFR part 315 with 5 CFR part 11 consistent with E.O. 14284.
OPM proposes to amend Sec. 731.203(f) to clarify that OPM may
cancel reinstatement eligibility based on any of the criteria of Sec.
731.202.
Section 731.206 Reporting Requirements for Investigations and
Suitability and Fitness Determinations
OPM proposes to amend Sec. 731.206 to clarify that suitability
actions are included in the types of personnel actions to be recorded
in the Central Verification System or its successor.
Subpart C--OPM Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
OPM proposes changes to this subpart to amend suitability action
procedures when OPM takes a suitability action against an applicant,
appointee, or employee. Subpart C only applies to applicants to, and
appointees or employees in, the competitive service or career Senior
Executive Service.
Section 731.301 Scope
OPM proposes changes to the text to specify that OPM may initiate
suitability actions against an applicant, appointee, or employee
depending on the nature and timing of the conduct, but OPM requires
that the head of an appointee's or employee's employing agency, or
designee, must make a referral to OPM in order for the Director of OPM,
or designee, to take a suitability action against an appointee or
employee on the basis of post-appointment conduct.
Section 731.304 Decision
OPM proposes to amend the process by which a final decision on a
[[Page 23472]]
suitability action is made by OPM. OPM proposes to clarify that the OPM
Director, or designee, will make the final decision regarding a
suitability action. When the OPM Director delegates such decision-
making, the OPM employee authorized to make the decision would be
required to be appropriately independent from the employee who made the
suitability determination and proposed the action. For example, the
employee adjudicating the suitability determination (i.e., proposing a
suitability action) may not participate in discussions with or advise
the OPM official authorized to make the final suitability decision. OPM
also proposes to prohibit ex parte communication with the OPM official
authorized to make the final decision, applying procedural protections
akin to those provided by 5 U.S.C. 554(d). Although 5 U.S.C. 554 and
557 do not apply to suitability actions, OPM believes that the type of
legal protections provided by those procedures are appropriate for
suitability actions, given the potential significant consequences.
Section 731.304 also specifies that, if the OPM Director or designee
determines to take a suitability action, OPM will direct the agency to
remove the individual or to process a different suitability action.
Consistent with current regulations, if a suitability action requires
removal, OPM specifies that the employing agency must remove the
employee within five workdays of receipt of OPM's decision.
Subpart D--Agency Suitability Action Procedures for the Competitive
Service or Senior Executive Service
731.404 Decision
OPM proposes to amend the process by which a final decision on a
suitability action is made by an agency, in cases where agencies are
permitted to take suitability actions. OPM proposes that the agency
head, or designee, will make the final decision regarding a suitability
action. When the agency head delegates such decision-making, the
agency's employee authorized to make the decision would be required to
be appropriately independent from the employee who proposed the action.
OPM also proposes to prohibit ex parte communication with the agency's
official authorized to make the final decision, applying procedural
protections akin to those provided by 5 U.S.C. 554(d). Although 5
U.S.C. 554 and 557 do not apply to suitability actions, OPM believes
that similar legal protections are appropriate for suitability actions,
given the potential significant consequences.
Expected Impact of This Proposed Rule
1. Statement of Need
This rule is needed to improve the efficiency, rigor, and
timeliness by which OPM and agencies vet individuals for risk to the
integrity and efficiency of the service. Permitting OPM to take
suitability actions against employees for post-appointment conduct,
consistent with the President's direction, will allow for faster
removals by the agencies of those employees against whom OPM takes
suitability actions, as the suitability actions process is more
streamlined for the agencies than the Chapter 75 process. Importantly,
more streamlined removals by the agencies of such employees will reduce
the risk to the efficiency and integrity of the service that is
currently posed when employees found to be unsuitable remain in their
positions longer than necessary because Chapter 75 processes take
longer than the suitability action process. Moreover, offering agencies
a more streamlined process to remove employees found unsuitable will
encourage agencies and managers to act, rather than choosing not to act
because the Chapter 75 process is perceived as too difficult. Surveys
show that only two-fifths of Federal supervisors believe they could
remove an employee for serious misconduct.\1\ Allowing employees who
engage in gross--and at times criminal--misconduct to remain in their
positions undermines the integrity of the Federal service.
---------------------------------------------------------------------------
\1\ See, supra, footnote 2.
---------------------------------------------------------------------------
On balance, these changes are expected to reduce time and costs
while promoting an impartial and effective suitability process that
produces sound decisions. The suitability factors that are being
introduced by this rulemaking are needed to emphasize that individuals
serving for, or on behalf of, the Government are expected to comply
with legal and ethical obligations. Specifying these factors in the
regulations will provide greater clarity to agencies as well as to
applicants and employees as to the types of conduct by which an
individual may be found unsuitable.
2. Impact
Applicants, appointees, and employees in the competitive service,
in the excepted service where the incumbent can be noncompetitively
converted to the competitive service, and in the career Senior
Executive Service would be impacted by the changes proposed in this
rule permitting OPM to take suitability actions for post appointment
conduct on these positions, revising suitability action procedures, and
incorporating additional suitability criteria used in making
suitability determinations and taking suitability actions. Applicants,
appointees, and employees in the excepted service would be impacted by
changes incorporating new factors at Sec. 731.202(b) as these factors
are required to be used as the minimum standards of fitness for
excepted service positions. Contractors and nonappropriated fund
employees would also be impacted by the updated factors, as agencies
must exercise due regard to the minimum fitness standards in 5 CFR part
731 and supplemental guidance for these populations as well.
OPM would also be impacted by the proposed changes as the rule
would increase the number of suitability actions OPM would be required
to conduct. OPM anticipates the impact to MSPB to be neutral. Any
removal action on an employee for post-appointment conduct currently
processed under Chapter 75 that results in an appeal to MSPB and might
be processed instead as a suitability action will still likely result
in an appeal to MSPB. OPM assumes an individual willing to appeal a
Chapter 75 action to MSPB would be equally willing to appeal a
suitability action to MSPB.
3. Costs
One-time Implementation Cost: This proposed rule will affect the
operations of most Federal agencies in the Executive branch--ranging
from cabinet-level departments to small independent agencies. To comply
with the regulatory changes in this proposed rule, affected agencies
will need to review the rule and update their policies and procedures.
For this cost analysis, the assumed average salary rate of Federal
employees performing this work will be the rate in 2025 for GS-14, step
5, from the Washington, DC, locality pay table ($161,486 annual
locality rate and $77.38 hourly locality rate). We assume that the
total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an
assumed labor cost of $154.76 per hour. We estimate that, in the first
year following publication of the final rule, the effort to update
policies and procedures will require an average of 250 hours of work by
employees with an average hourly cost of $154.76. This effort would
result in estimated costs in the first year of implementation of about
$38,690 per agency, and about $3.1 million in total Government-wide.
[[Page 23473]]
Savings from Fewer Chapter 75 Removals: In permitting OPM to take
suitability actions for post-appointment conduct, OPM anticipates a
decreased level of effort for agencies as they will refer employee
cases to OPM for action procedures rather than pursue Chapter 75
removals. In fiscal years 2022 and 2023, an average of 2,452 Federal
employees were removed under Chapter 75, or Chapter 75 equivalent,
procedures for post-appointment misconduct.\2\ OPM estimates that
approximately 50 percent, or 1226, of these Chapter 75, or Chapter 75
equivalent, removal actions presently taken by agencies could be
referred to OPM for suitability actions instead. The average number of
collective hours for supervisory and HR personnel to take a Chapter 75
action is 600 hours. The cost analysis assumes an average salary rate
of Federal supervisors and senior HR personnel performing this work at
the 2025 rate for a GS-15, step 5, from the Washington, DC, locality
pay table ($189,950 annual locality rate and $91.02 hourly locality
rate). OPM assumes the total value of labor is 200 percent of the
hourly wage rate, for a total average hourly cost of $182.04. While a
portion of the 600 hours would still fall to the agency to establish a
fulsome referral to OPM for a suitability action, OPM anticipates that
referring the matter to OPM for a suitability action would relieve the
agencies of at least thirty percent of the work involved in taking a
Chapter 75 action, prior to appeals. This implies total savings of
$32,767 per case and a total annual savings of $40.2 million.
---------------------------------------------------------------------------
\2\ This data comes from OPM's Enterprise Human Resources
Integration Program's (EHRI) Data Warehouse and is analyzed using
nature of action codes for terminations to identify Chapter 75
removals for misconduct. Certain data from EHRI is available to the
public in summarized form on FedScope, accessible at <a href="https://www.fedscope.opm.gov/">https://www.fedscope.opm.gov/</a>. However, complete raw data from EHRI is not
available due to concerns about identifying employees at the
individual level.
---------------------------------------------------------------------------
Cost Increase to Handle Agency Post-Appointment Conduct Referrals:
OPM would likely need to increase the number of resources to handle the
new workload from agencies' referrals for suitability determinations
and actions on employees based on post-appointment conduct. Even if
some agency referrals for determinations and actions on employees for
post-appointment conduct do not result in a suitability action, OPM
estimates it would likely need eighteen additional adjudicators
performing the work at the 2025 rate for a GS-13, step 5, from the
Pittsburgh, PA locality pay table ($123,486 annual locality rate and
$59.17 hourly locality rate). OPM assumes the total value of labor is
200 percent of the hourly wage rate, for a total average hourly cost of
$118.34 and a collective annual cost of $4.4 million for all eighteen
additional employees.
Taking into account both decreases and increases in levels of
effort associated with the proposed rule, on balance OPM anticipates
one-time implementation costs of approximately $3.1 million and
recurring annual net cost savings governmentwide of approximately $35.7
million. OPM requests comment on these effects, as well as other
impacts of the rule.
4. Benefits
The expected benefits of the proposed rule are to further establish
standards and processes by which OPM and agencies efficiently and
appropriately vet individuals for risk to the integrity and efficiency
of the service. More expeditious removal and debarment of individuals
found to negatively impact the integrity or efficiency of the service
will reduce risks posed by such individuals as well as costs to
agencies, allowing them to spend resources on mission services rather
than administrative processes.
5. Alternatives
OPM must comply with Executive Order and the Presidential
Memorandum direction, as previously described, to establish specific
suitability factors and to take suitability actions on employees when
warranted and referred by agencies based on post-appointment conduct.
OPM could have delegated to agencies the authority to take suitability
actions against employees for post-appointment conduct. Given that
suitability actions against employees for post-appointment conduct is a
new process, OPM believes reserving jurisdiction for these actions for
itself will provide for government-wide consistency in decision-making
as this new process is implemented. OPM may at a later time determine
to delegate this authority to the heads of agencies.
For the proposed updates to the suitability factors, OPM could have
elected to establish each new criteria from E.O. 14210 as its own
separate suitability factor under 5 CFR 731.202(b). The current
suitability factors employ a hierarchical approach where the factors
establish broad categories of conduct or behavior where discrete
examples of such conduct may then fit within the general categories.
For example, the criminal conduct factor establishes a broad category
under which a wide range of criminal behavior may be considered,
regardless of whether the conduct resulted in an arrest or conviction.
Therefore, where appropriate, OPM believes that the inclusion of some
of the new suitability criteria required by E.O. 14210 as examples of
conduct that would fall under an existing factor will be more intuitive
and easier for agency suitability staff to apply in making suitability
determinations.
Severability
OPM proposes that, if any of the provisions of this proposed rule
as finalized 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. For example, if a court were to
invalidate any portions of this proposed rule as finalized revising the
suitability factors, the other portions of the rule--including the
portions providing that OPM may make suitability determinations for
post-appointment conduct--would independently remain workable and
valuable. In enforcing civil service protections and merit system
principles, OPM will comply with all applicable legal requirements.
Regulatory Compliance
1. Regulatory Review
OPM has examined the impact of this rule as required by Executive
Orders 12866 and 13563, 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 rules with effects of $100 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 supplemented by
Executive Order 13563. This proposed rule is expected to be an
Executive Order 14192 deregulatory action.
2. Regulatory Flexibility Act
The Acting Director of OPM certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
3. Federalism
This regulation will not have substantial direct effects on the
States,
[[Page 23474]]
on the relationship between the National Government and the States, or
on distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with Executive Order 13132, it
is determined that this rule does not have sufficient federalism
implications to warrant preparation of a Federalism Assessment.
4. Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
5. 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 $206 million. This rulemaking
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.
6. Paperwork Reduction Act
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. chapter 35) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number.
Depending on the population, currently suitability and vetting
information is collected through the following OMB Control Numbers.
<bullet> 3206-0261(Standard Form 85, Questionnaire for Non-Sensitive
Positions)
<bullet> 3206-0258 (Standard Form 85P, Questionnaire for Public Trust
Positions and SF 85P-S, Supplemental Questionnaire for Selected
Positions)
<bullet> 3206-0005 (SF 86, Questionnaire for National Security
Positions)
Additional information regarding these collections of information--
including all current supporting materials--can be found at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a> by using the search function to enter
either the title of the collection or the OMB Control Number. Data
gathered through the information collection falls under the following
system of record notice: Personnel Vetting Records System, DUSDI 02-DoD
(83 FR 52420).
In addition, OPM suitability adjudication records currently are
covered by the system of record notice CENTRAL-9 (81 FR 70191). OPM is
reviewing that SORN in light of the changes proposed in this
rulemaking. OPM will publish any proposed changes to its SORNs in the
Federal Register. Individual agencies should each have a SORN that
covers the agency adjudication records. Agencies may need to evaluate
whether the agency-specific SORNs should be updated to include sharing
information with OPM as part of the appeals process.
On November 15, 2023, a new information collection, the Personnel
Vetting Questionnaire (PVQ), was approved (OMB Control Number 3206-
0279). The Defense Counterintelligence and Security Agency (DCSA) is
working to implement the new information collection. OPM plans to
discontinue the current information collections once the PVQ is
operational.
OPM believes this rulemaking does not warrant any changes in any of
these collections.
List of Subjects in 5 CFR Part 731
Administrative practices and procedure, Authority delegations
(Government agencies), Government contracts, Government employees,
Investigations.
Office of Personnel Management.
Jerson Matias,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM is
proposing to amend part 731 of title 5, Code of Federal Regulations as
follows:
PART 731--SUITABILITY AND FITNESS
0
1. 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. E.O. 14210, 90 FR 9669. Presidential Memorandum of
January 31, 2014, 3 CFR, 2014 Comp., p. 340. Presidential Memorandum
of March 20, 2025, 90 FR 13683. 5 CFR parts 1, 2, 5, and 6.
Subpart A--Scope
0
2. Amend Sec. 731.101 by:
0
a. Revising the section heading; and
0
b. In paragraph (a), revising the definitions for ``Competitive service
or career Senior Executive Service'' and ``Core duty'' to read as
follows:
Sec. 731.101 Definitions and Purpose.
(a) * * *
* * * * *
Competitive service or career Senior Executive Service--For the
purposes of this part, ``Competitive service or career Senior Executive
Service'' refers to a position in the competitive service, a position
in the excepted service where the incumbent can be noncompetitively
converted to the competitive service, or a career appointment to a
position in the Senior Executive Service.
* * * * *
Core duty means a continuing responsibility that is of particular
importance to the relevant position or the achievement of an agency's
mission.
* * * * *
0
3. Amend Sec. 731.103 by revising paragraphs (a), (b), and (f) to read
as follows:
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. In a case
involving an employee, the head of the employee's employing agency must
make a proper and sufficient referral to OPM, as specified in OPM
issuances as described in Sec. 731.102(b), if the employee's conduct
appears to warrant an unfavorable suitability determination.
(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, whether on an applicant,
appointee, or employee, it must refer the case to OPM for debarment
consideration. An agency must make a referral, but only after
sufficient resolution of the suitability issue(s) to determine if a
government-wide debarment appears warranted.
* * * * *
(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
[[Page 23475]]
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. OPM also retains
sole jurisdiction to make a final suitability determination and take an
action under this part in any case involving an employee for post-
appointment conduct. 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 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.
0
4. Amend Sec. 731.104 by revising paragraph (c)(2)(i) to read as
follows:
Sec. 731.104 Investigation and reciprocity requirements
* * * * *
(c) * * *
(2) * * *
(i) The investigative record on file for the individual shows
conduct that is incompatible with the core duties of the relevant
position; or
* * * * *
0
5. Amend Sec. 731.105 by revising the introductory text of paragraph
(a), revising paragraphs (a)(1), (b), (d), and (e), and adding
paragraph (f) to read as follows:
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. In the case of an appointee, OPM or an agency may consider
conduct occurring prior to the appointment or occurring post-
appointment to serve as the basis for the action.
(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 appointee separates from employment. OPM's
authority to complete a suitability action continues when an employee
separates from employment.
* * * * *
(b) OPM may take a suitability action under this part against an
applicant or appointee based on the criteria in Sec. 731.202. When the
basis for the action is post-appointment conduct, OPM may take a
suitability action against an appointee only when there is a proper and
sufficient referral by the head of the appointee's employing agency.
* * * * *
(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. When the basis for the
action is post-appointment conduct, OPM may take a suitability action
against an employee only when there is a proper and sufficient referral
by the head of the employee's employing agency.
(e) An agency may not take a suitability action against an employee
in the competitive service or career Senior Executive Service. If the
agency has information that an employee's conduct warrants an
unfavorable suitability determination, the head of the agency, or
designee, must make a proper and sufficient referral to OPM, as
specified in OPM issuances as described in Sec. 731.102(b). OPM will
take a suitability action where warranted.
(f) Nothing in this part precludes an agency from taking an adverse
action under the procedures and standards of part 752 of this chapter
or terminating a probationer under the procedures of part 11 part 359
of this chapter or under agency specific authorities. An agency must
notify OPM to the extent required in Sec. 731.103(d) and (f) if it
wants to take, or has taken, action under these authorities. OPM
retains the right to take a suitability action even in those cases
where the agency makes an adjudicative determination under another
authority.
0
6. Amend Sec. 731.106 by revising paragraphs (d)(1) and (f) to read as
follows:
Sec. 731.106 Designation of public trust positions and investigative
requirements.
* * * * *
(d) * * * (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, to include requirements for
agencies to consider information related to the individual's conduct
available from internal agency sources, 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. If an agency makes an unfavorable determination based on
information from a continuous vetting check on an appointee, the agency
may take a suitability action subject to the limitations of Sec.
731.103(b), (d), and (f). If an agency makes an unfavorable
determination from a continuous vetting check on an employee, the
agency must refer the matter to OPM to take the suitability action on
the employee.
* * * * *
(f) Completed investigations. An investigation or continuous
vetting check under paragraphs (c), (d), and (e) of this section
support a determination by the employing agency of whether the findings
of the investigation may require referral to OPM for a potential
suitability action or would justify an action by the agency under this
part or under another applicable authority, such as part 359 or 752 of
this chapter. Sections 731.103 and 731.105(c) and (e) address whether
an agency may take an action under this part and whether the agency
must refer the matter to OPM for a suitability action including
debarment consideration.
* * * * *
Subpart B--Determinations of Suitability or Fitness; Suitability
Actions in Cases Involving the Competitive Service or Career Senior
Executive Service
0
7. In Sec. 731.202, revise and republish paragraph (b) and add
paragraph (d) to read as follows:
Sec. 731.202 Criteria for making suitability and fitness
determinations.
* * * * *
(b) Specific factors. Only OPM may take a suitability action
considering the factors in paragraph (b)(3) or (b)(9) of this section.
Agencies may use the factor in paragraph (b)(11) in applicant and
[[Page 23476]]
appointee suitability cases but not employee cases; however, OPM may
use this or any factor in employee cases. When making a suitability
determination, OPM or an agency will consider only the following
factors to determine if an individual is suitable. When making fitness
determinations, an agency must consider all of the following 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. This factor includes:
(i) Theft or misuse of government resources and equipment, or
negligent loss of material government resources and equipment during
employment with, or on behalf of, the Federal government or a state,
territorial, or local government;
(ii) Refusal to certify compliance with any applicable non-
disclosure obligations consistent with 5 U.S.C. 2302(b)(13) and failure
to adhere to those compliance obligations in the course of Federal
employment; and
(iii) Refusal to furnish testimony as required by Sec. 5.4 of this
chapter.
(2) Criminal conduct.
(3) Material, intentional false statement, or deception or fraud,
in examination or appointment.
(4) Dishonest conduct.
(5) Knowing and willful failure to comply with generally applicable
legal obligations, including timely filing of tax returns.
(6) Failure to comply with any provision that would preclude
Federal service, including citizenship or nationality requirements.
(7) Excessive alcohol use, without evidence of rehabilitation, of a
nature and duration that suggests the individual 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.
(8) Illegal use of narcotics, drugs, or other controlled
substances, without evidence of rehabilitation.
(9) Knowing and willful engagement in acts or activities designed
to overthrow the U.S. Government by force.
(10) Violent conduct.
(11) Any statutory or regulatory bar that prevents the lawful
employment of the individual in the position in question.
* * * * *
(d) All persons responsible for suitability screening, review, or
making suitability determinations under this part must be trained in
accordance with national training standards for suitability
adjudicators issued in supplemental issuances, as described in Sec.
731.102(b).
0
8. Amend Sec. 731.203 by revising paragraphs (e), (f), and (g) to read
as follows:
Sec. 731.203 Suitability actions by OPM and other agencies for the
competitive service or career Senior Executive Service.
* * * * *
(e) In taking a suitability action against an applicant, appointee,
or employee in the competitive service or career Senior Executive
Service pursuant to Sec. 731.105(a) and (d) and in accordance with 5
CFR 5.3, OPM may require an agency to execute the action.
(f) OPM may cancel any reinstatement eligibility obtained as a
result of a determination based on the criteria of Sec. 731.202.
(g) An action to remove an appointee or employee for suitability
reasons under this part is not an action under 5 CFR part 11, 359, or
752. Where conduct covered by this part may also form the basis for an
action under 5 CFR part 11, 359, or 752, an agency may take the action
under 5 CFR part 11, 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.
* * * * *
0
9. Revise Sec. 731.206 to read as follows:
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, to
include suitability actions, taken based on such investigation,
reinvestigation, Continuous Vetting, as required in supplemental
guidance. An agency must also report to the Central Verification System
or its successor any suitability determination and action taken based
on an internal agency investigation, such as a suitability action taken
as a result of an Employee and Labor Relations investigation.
Subpart C--OPM Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
0
10. Revise Sec. 731.301 to read as follows:
Sec. 731.301 Scope.
This subpart covers OPM-initiated suitability actions against an
applicant, appointee, or employee in the competitive service or career
Senior Executive Service and OPM suitability actions against an
appointee or employee in the competitive service or career Senior
Executive Service for post-appointment conduct when an agency has
referred the matter to OPM to take a suitability action.
0
11. Revise Sec. 731.304 to read as follows:
Sec. 731.304 Decision.
(a) The OPM Director, or designee, will make the final decision as
to whether to take a suitability action. In cases where the Director
delegates decision-making authority to subordinate employees, there
must be appropriate independence between the OPM employee authorized to
propose the suitability action and the employee authorized to make the
final decision regarding such suitability action. The OPM official
authorized to make the final decision is prohibited from ex parte
communications consistent with the requirements of 5 U.S.C. 557(d).
(b) If the final decision is that a suitability action shall be
taken, the OPM Director or designee will instruct the agency to remove
the individual or process a different suitability action. The decision
regarding the final suitability action must be in writing, be dated,
and inform the respondent of the reasons for the decision. If the
decision requires removal, the employing agency must remove the
appointee or employee from the rolls within 5 workdays of receipt of
OPM's final decision.
Subpart D--Agency Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
0
12. Revise Sec. 731.404 to read as follows:
Sec. 731.404 Decision.
(a) The agency head, or designee, makes the final decision as to
whether to take a suitability action. In cases where the agency head
delegates decision-making authority to subordinate employees, there
must be appropriate independence between the employee authorized to
propose the
[[Page 23477]]
suitability action and the employee authorized to make the final
decision regarding such suitability action. The official authorized to
make the final decision is prohibited from ex parte communications
consistent with the requirements of 5 U.S.C. 557(d).
(b) The decision regarding the final action must be in writing, be
dated, and inform the respondent of the reasons for the decision. If
the decision requires removal, the employing agency must remove the
appointee from the rolls within 5 workdays of the agency's decision.
[FR Doc. 2025-10067 Filed 6-2-25; 8:45 am]
BILLING CODE 6325-66-P
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</html>Indexed from Federal Register on June 3, 2025.
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.