Suitability and Fitness

OFFICE OF PERSONNEL MANAGEMENT <CFR>5 CFR Part 731</CFR> <RIN>RIN 3206-AO84</RIN> <SUBJECT>Suitability and Fitness</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Personnel Management. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before July 3, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments through the Federal eRulemaking Portal at <E T="03">http://www.regulations.gov.</E> 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 <E T="03">https://www.regulations.gov</E> 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 <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> For questions contact Joseph Knouff, Suitability Executive Agent Programs, by email at <E T="03">SuitEA@opm.gov</E> or by phone at (202) 599-0090. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Authority and Background</HD> 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, § 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)); <E T="03">see also</E> 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 § 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 § 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 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 § 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. <E T="03">See</E> 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. <E T="03">See</E> 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. <E T="03">See, e.g.,</E> 76 FR 69601 (Nov. 9, 2011) and 89 FR 102675 (Dec. 18, 2024) (discussing 5 CFR 731.106(d)). E.O. 13488, <E T="03">Granting Reciproci ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 73k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━