Suitability and Fitness

<RULE> OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Parts 302 and 731</CFR> <RIN>RIN 3206-AO17</RIN> <SUBJECT>Suitability and Fitness</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective January 17, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Christine Bilunka at (202) 599-0090 or by email at <E T="03">SuitEA@opm.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> 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. ( <E T="03">See</E> 5 U.S.C. 1104(a)(1).) Amendments to the Civil Service Rules made by Executive Order (E.O.) 13764 of January 17, 2017, <E T="03">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,</E> 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, <E T="03">Granting Reciprocity on Excepted Service and Federal Contractor Employee Fitness and Reinvestigating Individuals in Positions of Public Trust,</E> 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, <E T="03">Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Classified National Security Information,</E> 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, “ <E T="03">Trusted Workforce 2.0</E> ” ( <E T="03">see https://www.performance.gov/trusted-workforce/</E> ), 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. <HD SOURCE="HD1">Explanation of OPM's Final Rule</HD> <HD SOURCE="HD2">Aligned Criteria</HD> 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 § 731.202. Additionally, OPM is revising § 731.202 so that these criteria will be used for making both suitability and fitness 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 §§ 731.104 and 731.202. <HD SOURCE="HD2">Aligned Position Designation Requirements, Investigative Standards, and Reciprocity</HD> 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 ( <E T="03">i.e.,</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 determi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 164k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━