Suitability and Fitness Vetting, 6192-6209 [2023-01650]

Agencies

• Office of Personnel Management

[Federal Register Volume 88, Number 20 (Tuesday, January 31, 2023)]
[Proposed Rules]
[Pages 6192-6209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01650]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 88, No. 20 / Tuesday, January 31, 2023 / 
Proposed Rules

[[Page 6192]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 302 and 731

RIN 3206-AO17


Suitability and Fitness Vetting

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management (OPM) is proposing 
amendments to the Federal Government personnel vetting investigative 
and adjudicative processes for determining suitability and fitness. The 
purpose of OPM's work in this area is to establish requirements and 
standards for agencies to properly vet individuals to assess risk to 
the integrity and efficiency of the service. Nothing in this proposed 
rule shall be read in derogation of any individual's rights under Title 
VII. OPM is also proposing to update and streamline the language of 
several provisions to include conforming and minor editorial changes 
throughout.

DATES: Comments must be received on or before April 3, 2023.

ADDRESSES: You may submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. All submissions received must 
include the agency name and docket number or Regulation Identifier 
Number (RIN).
    Where possible, please arrange and identify your comments on the 
regulatory text by subpart and section number; if your comments relate 
to the supplementary information, please refer to the heading and page 
number. All comments received will be posted without change, including 
any personal information provided. Comments received after the close of 
the comment period will be marked ``late,'' and OPM is not required to 
consider them in formulating a final decision. If you cannot submit 
comments electronically, please contact the individual listed in the 
further information section.

FOR FURTHER INFORMATION CONTACT: For questions contact Christine 
Bilunka, Program Manager, Suitability Executive Agent Programs, 
Operations (Adjudications) by email at [email protected] or by phone at 
202-606-1800.

SUPPLEMENTARY INFORMATION: 

Authority and Background

    Under 5 U.S.C. 3301 and 7301, ``[t]he President may . . . prescribe 
such regulations for the admission of individuals into the civil 
service in the executive branch as will best promote the efficiency of 
that service,'' ``ascertain the fitness of applicants as to . . . 
character,'' and ``prescribe regulations for the conduct of employees 
in the executive branch.'' In addition to the President's authority to 
prescribe standards for suitability and fitness for civil service 
appointment based on character and conduct, 5 U.S.C. 3301 recognizes 
the President's authority to ``ascertain the fitness of applicants as 
to . . . knowledge, and ability for the employment sought,'' i.e., to 
prescribe qualification standards based on applicants' education and 
experience and to assess their relative knowledge, skill, and ability.
    Historically the President delegated to OPM and its predecessor, 
the Civil Service Commission, the authority to prescribe both 
qualification standards and suitability standards, and to conduct both 
examinations of applicants' qualifications and investigations of 
suitability for appointment and continuing employment. See 5 U.S.C. 
1104(a)(1). However, the delegation was generally limited to positions 
in the competitive service under the Civil Service Rules compiled in 
Executive Order (E.O.) 10577, Nov. 23, 1954, 19 FR 7521, as amended. 
See Civil Service Rules II, V, VI, as codified in 5 CFR parts 2, 5, 6.
    E.O. 13764 of January 17, 2017, Amending the Civil Service Rules, 
Executive Order 13488, and Executive Order 13467 to Modernize the 
Executive Branch-Wide Governance Structure and Processes for Security 
Clearances, Suitability and Fitness for Employment, and Credentialing 
and Related Matters amended the Civil Service Rules to expand OPM's 
responsibilities for establishing minimum standards of fitness based on 
character and conduct for appointment to positions in the excepted 
service of the executive branch. Previously, OPM's jurisdiction over 
suitability for appointment to positions in the excepted service was 
limited to positions in the excepted service where the incumbent could 
be non-competitively converted to the competitive service, consistent 
with OPM's jurisdiction over positions in the competitive service and 
career appointments to the Senior Executive Service. E.O. 13764 set 
forth requirements for the OPM Director to establish mutually 
consistent standards and procedures to determine the reliability, 
trustworthiness, and good character and conduct of those working for 
the Government in the executive branch regardless of appointment type. 
Additionally, E.O. 13764 expanded OPM's responsibilities by making OPM 
responsible for establishing investigative standards, risk designation 
procedures, and reciprocity rules for this additional population.
    E.O. 13488, as amended, Granting Reciprocity on Excepted Service 
and Federal Contractor Employee Fitness and Reinvestigating Individuals 
in Positions of Public Trust, establishes that contractor employee 
fitness or nonappropriated fund employee fitness is subject to the same 
position designation requirements and investigative standards, 
policies, and procedures as fitness determinations for civil service 
employees as prescribed by OPM under the Civil Service Rules. E.O. 
13467, as amended, Reforming Processes Related to Suitability for 
Government Employment, Fitness for Contractor Employees, and 
Eligibility for Classified National Security Information, establishes a 
requirement for continuous vetting for persons who perform, or who seek 
to perform, work for the executive branch in competitive service, 
excepted service, career Senior Executive Service, contractor, and 
nonappropriated fund positions that are included in covered positions 
as defined in the E.O. Furthermore, E.O. 13467 (section 2.1(c)) 
establishes that ``(t)he investigative and adjudicative standards for 
fitness shall, to the extent practicable, be consistent with the 
standards for suitability.''
    In May 2018, the OPM Director and the Director of National 
Intelligence, in their respective roles as Suitability and 
Credentialing Executive Agent and Security Executive Agent, launched an 
effort consistent with this direction,

[[Page 6193]]

``Trusted Workforce 2.0,'' to transform workforce vetting by employing 
a modernized and more efficient process for ensuring that only trusted 
individuals enter and remain in the Federal workforce. Key goals of the 
initiative are to capitalize on information technology capabilities 
that allow for the integration of automation and take advantage of a 
wider spectrum of data, reduce time-intensive manual processing, and 
promote greater mobility of the workforce by providing vetting 
processes that enable each individual's vetting status to be 
continuously up-to-date.
    On February 4, 2021, the President issued National Security 
Memorandum (NSM-) 3, Revitalizing America's Foreign Policy and National 
Security Workforce, Institutions, and Partnerships. See Daily Comp. 
Pres. Docs., DCPD No. 202100122. The Memorandum established an 
Interagency Working Group on the National Security Workforce (the 
Working Group), with one of its goals to ``[a]ssess implementation of 
security clearance reforms and reciprocity proposals, additional 
reforms to eliminate bias, and ensure efficient timelines for 
completion of security clearance investigations.'' Together with the 
Security, Suitability, and Credentialing Performance Accountability 
Council (PAC), the Working Group developed a set of follow-on policy 
goals and actions that were communicated to Executive departments and 
agencies on December 14, 2021 through a cabinet memorandum, 
Transforming Federal Personnel Vetting.
    Four actions implementing NSM-3 have informed OPM's policy choices 
in developing this proposed rule. Those actions state that the Director 
of OPM and the Director of National Intelligence, in their respective 
roles as the Suitability and Credentialing Executive Agent and the 
Security Executive Agent under E.O. 13467, will:
    (a) Issue, not later than 180 days from the date of this 
memorandum, investigative and adjudicative guidelines and standards for 
Federal personnel vetting, consistent with the Federal Personnel 
Vetting Core Doctrine, which became effective on February 13, 2021;
    (b) Transition from traditional periodic reinvestigations to U.S. 
Government-wide continuous vetting, as defined in E.O. 13467, as 
amended, to the maximum extent practicable, consistent with law and as 
further directed by the E.O., to assess security, suitability, fitness, 
and credentialing decisions on an ongoing basis;
    (c) Eliminate unnecessarily duplicative applications, 
investigations, adjudications, and access determinations and gain 
efficiencies and align, to the maximum extent practicable, the 
processes and criteria used for all Federal personnel vetting 
determinations as described in E.0. 13467, as amended; and
    (d) Enable efficient timelines for personnel vetting; improve 
mobility; promote equal treatment; streamline standards, to the maximum 
extent practicable, for background investigations; and maximize 
uniformity across all Federal personnel vetting.

What is suitability and fitness?

    Suitability and fitness refer to a decision by an agency that an 
individual does or does not have the required level of character and 
conduct necessary to perform work for a Federal agency. These 
determinations are based on whether a person's character or conduct may 
have an adverse impact on the integrity or efficiency of the service. 
The difference in terminology used, as to suitability or fitness, is 
based on the type of position being adjudicated. Suitability 
determinations are made in reference to positions in the competitive 
service or career Senior Executive Service, whereas fitness 
determinations are made for excepted service positions, contractor 
positions, or Department of Defense (DOD) nonappropriated fund 
positions.
    Suitability and fitness determinations are distinct from the 
assessment of an individual's job qualifications. With respect to 
suitability determinations, ``competitive service or career Senior 
Executive Service'' positions refer to positions in the competitive 
service, positions in the excepted service where the incumbent can be 
noncompetitively converted to the competitive service, and career 
appointments to positions in the Senior Executive Service.
    With respect to fitness determinations, in the context of this 
regulation ``excepted service'' positions are positions in the excepted 
service of the executive branch, except for (A) positions in any 
element of the intelligence community as defined in the National 
Security Act of 1947, as amended, to the extent they are not otherwise 
subject to OPM appointing authorities, (B) positions where OPM is 
statutorily precluded from prescribing such standards, (C) positions 
when filled by political appointment, and (D) excepted service 
positions where the incumbent can be noncompetitively converted to the 
competitive service, as noted above. For purposes of this regulation, a 
``contractor employee'' is an individual who performs work for or on 
behalf of any agency under a contract and who, in order to perform the 
work specified under the contract, will require access to Federal 
space, information, information technology systems, staff, or another 
asset of the Federal Government, and who could, by the nature of their 
access or duties, adversely affect the integrity or efficiency of the 
Government. Such contracts include, but are not limited to: a personal 
service contract; a contract between any non-Federal entity and any 
agency; and a subcontract between any non-Federal entity and another 
non-Federal entity to perform work related to the primary contract with 
the agency. Finally, DOD ``nonappropriated fund employee'' means an 
employee paid from non-appropriated funds of an instrumentality of the 
United States under the jurisdiction of the Armed Forces conducted for 
the comfort, pleasure, contentment, and mental and physical improvement 
of personnel of the Armed Forces as described in section 2105 of title 
5, United States Code.
    Title 5 CFR part 731 establishes and maintains OPM's policies and 
procedures governing suitability investigations and adjudications, 
including the procedures for taking suitability actions and the general 
process for appealing a suitability action. Title 5 CFR part 1201 
provides procedures for appeals of suitability actions to the Merit 
Systems Protection Board (MSPB).
    OPM's suitability program has been shaped by more than policy. 
Throughout the program's history, through precedential decisions made 
upon appeals of suitability actions, the suitability program has been 
impacted. For example, through case law, evidentiary standards have 
been shaped, standards for establishing intent with regard to making 
false statements have been made, impacts of employing an individual who 
has falsified information have been addressed, and authorities of MSPB 
have been affirmed.
    While the responsibility for suitability adjudication falls to OPM, 
OPM is authorized, in accordance with 5 U.S.C. 1104, to delegate this 
responsibility to other departments and agencies employing positions in 
the competitive service, positions where the incumbent can be 
noncompetitively converted to the competitive service, and career 
appointments to positions in the Senior Executive Service. As with all 
delegated functions, OPM must establish and maintain an oversight 
program to ensure that activities under any delegated authority are in 
accordance with merit

[[Page 6194]]

system principles and departments and agencies are following the 
standards established by OPM for the activity. For the most part, OPM 
delegates to departments and agencies authority to conduct their own 
suitability adjudications and take suitability actions, which may 
include imposing an agency-specific debarment. However, in cases 
involving evidence of material, intentional false statements; deception 
or fraud in examination or appointment; refusal to furnish testimony; 
or evidence of other egregious conduct; OPM retains jurisdiction to 
make the suitability determination and take suitability actions, which 
may include imposing a government-wide debarment.

What are the current elements of the suitability process?

    In order to properly vet an individual's suitability, agencies will 
generally follow these steps. First, agencies must properly designate 
the position an individual will occupy for risk and sensitivity. This 
is accomplished using the Position Designation System developed by OPM 
and ODNI. Known as ``position designation,'' this process allows 
agencies to determine the level of background investigation required of 
an incumbent. Upon an application and generally after conditional 
offer, agencies may collect information from the individual that they 
may use to conduct a suitability screening (i.e. Declaration for 
Federal Employment, Optional Form 306). Once completed, and as 
appropriate, the agency will validate the need for investigation by 
assessing whether a previous suitability determination may be 
reciprocally applied, and if not, whether a previously conducted 
investigation is available to use in making a suitability 
determination. If an investigation is needed, the agency will collect 
the appropriate investigative questionnaire (e.g., Standard Form 85, 
85P, or 86) and initiate the investigation with the investigative 
service provider. Upon receiving the results, the agency will make the 
suitability determination along with any other determination that may 
be required for the position (i.e. national security or credentialing). 
Agencies must follow OPM's guidance when making a suitability 
determination, using the criteria in this regulation as well as the 
additional considerations established by OPM that the agency deems 
pertinent to the individual case. With respect to appeals of 
suitability actions, the MSPB's review is limited to an agency's 
determination, so the MSPB cannot consider, as aggravating or 
mitigating, additional considerations that the agency did not deem 
pertinent. Therefore, when determining if OPM or an agency has met its 
burden in demonstrating that a suitability action protects the 
integrity and promotes the efficiency of the service, the MSPB, with 
respect to the charges and specifications brought by OPM or an agency 
as a basis for the suitability action(s) must consider only those 
additional considerations that were deemed pertinent by OPM or the 
agency. Subject to the current provisions in this regulation, 
subsequent to the initial investigation and determination, agencies 
will initiate re-investigations for public trust positions (i.e. 
moderate and high risk).

Significant Changes Proposed by This Rule

Aligned Criteria

    Per the amended Civil Service Rule II (5 CFR 2.1(a)), ``OPM shall 
be responsible for . . . (iii) Standards of suitability based on 
character and conduct for appointment to a position in the competitive 
service, for appointment to a position in the excepted service where 
the incumbent can be noncompetitively converted to the competitive 
service, and for career appointment to a position in the Senior 
Executive Service'' and ``(iv) Minimum standards of fitness based on 
character and conduct for appointment in any other position in the 
excepted service of the executive branch, except for (A) positions in 
any element of the intelligence community as defined in the National 
Security Act of 1947, as amended, to the extent they are not otherwise 
subject to OPM appointing authorities, and (B) positions where OPM is 
statutorily precluded from prescribing such standards.'' Consistent 
with E.O. 13467 of June 30, 2008, as amended by E.O. 13764, which 
states that standards for suitability for appointment in the 
competitive service and standards for fitness for appointment in the 
excepted service ``shall be aligned using consistent standards to the 
extent possible'' and that ``[t]he investigative and adjudicative 
standards for fitness shall, to the extent practicable, be consistent 
with the standards for suitability,'' OPM is proposing that the 
suitability criteria found at 5 CFR 731.202 be used for making both 
suitability and fitness determinations except as otherwise noted in the 
regulation.
    As is addressed within the proposed regulation at 5 CFR 
731.104(b)(2), suitability or fitness determinations are required, as 
follows: suitability determinations must be made for all appointments 
in the competitive service or career Senior Executive Service and 
fitness determinations must be made for all appointments to excepted 
service positions, unless an agency is required to reciprocally accept 
a prior suitability or fitness determination under the conditions 
prescribed in the proposed Sec.  731.104(b)(2)(ii). In accordance with 
changes proposed at Sec.  731.104(b)(2)(i) and (ii), agencies may make 
a new determination under the following conditions: when a prior 
investigation is reciprocally accepted but the record in the Central 
Verification System or its successor does not reflect a prior favorable 
suitability or fitness determination, the agency will need to review 
the prior investigation for the purpose of making a suitability or 
fitness determination; or when the investigative record on file was 
favorably adjudicated for suitability or fitness but shows conduct that 
is incompatible with the core duties of the relevant covered position; 
or, for fitness determinations, when the agency has prescribed 
additional factors under Sec.  731.202(b) that were not addressed in 
the prior favorable adjudication, and the agency will conduct an 
adjudication using only those additional factors. In the case of 
continuous vetting checks, agencies must also make a determination 
regarding continued employment that is based upon the results of those 
checks.

Aligned Position Designation Requirements, Investigative Standards, and 
Reciprocity

    OPM is also proposing a number of changes to improve consistency in 
the vetting process and to enhance mobility of the civil service, 
contractor, and nonappropriated fund workforces. Specifically, the 
proposed changes will align the requirements for position designation, 
investigations, and reciprocal acceptance of investigations and 
suitability or fitness determinations amongst these populations. Less 
the exceptions described below, agencies will use the same system for 
designating position risk (i.e., low, moderate, and high) for civil 
service, contractor and nonappropriated fund positions to determine the 
commensurate level of background investigation. Background 
investigations conducted for these positions will be done using the 
same investigative standards. Finally, agencies will apply the same 
rules for determining whether reciprocal acceptance of prior background 
investigations and suitability or fitness determinations are required.
    Civil Service Rule V (5 CFR 5.2 (a)), as amended by E.O. 13764 
section 1,

[[Page 6195]]

establishes that for ``positions in the excepted service of the 
executive branch for which the Director has standard-setting 
responsibility under Civil Service Rule II,'' the Director ``may cause 
positions to be designated based on risk to determine the appropriate 
level of investigation,'' ``may prescribe investigative standards, 
policies, and procedures,'' and ``may prescribe standards for 
reciprocal acceptance by agencies of investigations and adjudications 
of suitability and fitness, except to the extent authority to apply 
additional fitness standards is vested by statute in an agency.'' Civil 
Service Rule VI (5 CFR 6.3(b)), as amended by E.O. 13764 section 1, 
likewise provides that appointments and position changes in the 
excepted service are ``subject to the suitability and fitness 
requirements of the applicable Civil Service Rules and Regulations'' as 
prescribed by the Director.
    E.O. 13467, as amended, section 1.1 provides that policies and 
procedures for suitability and fitness ``shall be aligned using 
consistent standards to the extent possible'' and ``shall provide for 
reciprocal recognition.'' Further, ``agencies shall accept background 
investigations and adjudications conducted by other authorized agencies 
unless . . . a particular background investigation or adjudication does 
not sufficiently address the standards used by that agency in 
determining the fitness of its excepted service employees who cannot be 
noncompetitively converted to the competitive service.'' E.O. 13467, as 
amended, section 2.2. The Executive Order assigns responsibility to the 
Director of OPM, as the Suitability and Credentialing Executive Agent, 
to give effect to these requirements through regulations, guidance, and 
standards (E.O. 13467, as amended, section 2.5).
    Accordingly, OPM is proposing that agencies use the same system for 
designating position risk (i.e., low, moderate or high risk) for 
excepted service positions as is used for assessing risk to the Public 
Trust for positions in the competitive service, positions in the 
excepted service that non-competitively convert to the competitive 
service, and career appointments to the Senior Executive Service. This 
system is currently used to determine the appropriate level of 
suitability investigation for employment in the competitive service, 
and OPM is proposing the same standards, requirements, and reciprocity 
rules for fitness investigations for employment in the excepted 
service. As required by E.O. 13467, as amended, OPM is prescribing 
exceptions from reciprocity where agencies have additional adjudicative 
standards or investigative requirements for certain excepted service 
positions (E.O. 13467, as amended, section 2.2).
    E.O. 13488 of January 16, 2009, as amended by E.O. 13764, 
establishes that ``[c]ontractor employee fitness or nonappropriated 
fund employee fitness is subject to the same position designation 
requirements and investigative standards, policies, and procedures as 
fitness determinations for civil service employees, as prescribed by 
the Office of Personnel Management under the Civil Service Rules'' 
(E.O. 13488, as amended, section 3(b)). Likewise, ``[f]itness 
determinations and investigations for fitness determinations for 
contractor employees and nonappropriated fund employees are subject to 
the same reciprocity requirements as those for employment in the civil 
service, as prescribed by the Office of Personnel Management under the 
Civil Service Rules'' (E.O. 13488, as amended, section 3(c)). 
Therefore, OPM is proposing that contractor and nonappropriated fund 
populations, as they are defined in this proposed change, are subject 
to the same position designation, investigative, and reciprocity 
requirements as positions in the competitive service, the excepted 
service (including positions where the incumbent can non-competitively 
convert to the competitive service), and for career appointments to the 
Senior Executive Service.
    OPM's proposed rule does not, however, cover contractor populations 
in any element of the intelligence community or where OPM is 
statutorily precluded from prescribing standards. Nor does OPM's 
proposed rule specifically address investigative requirements for 
eligibility for access to classified information or for employment in 
sensitive (national security) positions, matters that are addressed in 
5 CFR part 1400 and in issuances by the Director of National 
Intelligence acting as the Security Executive Agent under E.O. 13467. 
However, the proposed rule continues the existing requirement (5 CFR 
731.106(c)(2)) that a position must be designated based both on its 
public trust risk and its national security sensitivity so that the 
appropriate level of investigation is conducted to address both 
suitability and national security concerns. Complementary language 
appears in 5 CFR 1400.201.
    The position designation, reciprocity, and investigation 
requirements for contractors that OPM is proposing to codify in part 
731 are not new. Since 2009, E.O. 13488 has covered contactor fitness, 
giving agency heads the discretion on the fitness criteria, but 
requiring them to take into account OPM guidance when considering if 
the criteria was equivalent for the purpose of making a reciprocally 
acceptable determination. Per E.O. 13488, reciprocity for fitness and 
suitability determinations applied to contractors, and agencies had to 
report the nature and results of background investigations and fitness 
determinations to the government-wide investigations and adjudications 
index.
    Likewise, the requirement for contractor \1\ employees to be 
subject to the same investigative requirements as apply to Federal 
employees has been in place since 2012. In a December 6, 2012, 
memorandum issued by the Security, Suitability, and Credentialing 
Performance Accountability Council \2\ (PAC) titled Assignment of 
Functions Relating to Coverage of Contractor Employee Fitness in the 
Federal Investigative Standards, the PAC ``in consultation with other 
affected agencies, including the Department of Defense, determined that 
contractor employees should be subject to the same Federal 
Investigative Standards (``Standards'') as apply to Federal 
employees.'' Consistent with E.O. 13467, which authorized the PAC to 
assign functions related to matters such as alignment and improvement 
of investigations and contractor employee fitness, the PAC via this 
memorandum, assigned the Director of OPM the function of prescribing 
investigative standards for ``contractor employee fitness'' which at 
that time was defined in section 1.3(f) of E.O. 13467 as ``fitness 
based on character and conduct for work for or on behalf of the 
Government as a contractor employee.''
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    \1\ Contractors, were defined in E.O. 13467 when issued on June 
30, 2009, as experts or consultants (not appointed under section 
3109 of title 5, United States Code, to an agency; an industrial or 
commercial contractor, licensee, certificate holder, or grantee of 
any agency, including all subcontractors; a personal services 
contractor, or any other category of person who performs work for or 
on behalf of an agency (but not a Federal employee).
    \2\ The PAC was previously referred to as the Suitability and 
Security Clearance Performance Accountability Council.
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    In December 2012, the Executive Agents issued the revised Federal 
Investigative Standards which ``apply to all individuals working for or 
on behalf of the executive branch and individuals with access to 
federally controlled facilities and information systems.'' The 
Standards were established for investigations to determine eligibility 
for logical and physical access, suitability for Government employment,

[[Page 6196]]

eligibility for access to classified information, eligibility to hold a 
sensitive position, and fitness to perform work for or on behalf of the 
Government as a contractor employee.
    When E.O. 13467 was amended in 2017, the definition of ``covered 
individual'' was revised to include ``a person who performs, or seeks 
to perform, work for or on behalf of the executive branch (e.g., 
Federal employee, military member, or contractor).'' The definition of 
``fitness'' was also revised to mean ``the level of character or 
conduct determined necessary for an individual to perform work for or 
on behalf of a Federal agency as an employee in the excepted service 
(other than a position subject to suitability), or a `contractor 
employee' or as a `nonappropriated fund employee' as those terms are 
defined in Executive Order 13488 of January 16, 2009, as amended.'' The 
definition of ``contractor employee'' in section 2(b) of E.O. 13488, 
was also amended, and now reads as ``an individual who performs work 
for or on behalf of any agency under a contract and who, in order to 
perform the work specified under the contract, will require access to 
space, information, information technology systems, staff, or other 
assets of the Federal Government, and who could, by the nature of his 
or her access or duties, adversely affect the integrity or efficiency 
of the Government. Such contracts include, but are not limited to: (i) 
personal services contracts; (ii) contracts between any non-Federal 
entity and any agency; and (iii) sub-contracts between any non-Federal 
entity and another non-Federal entity to perform work related to the 
primary contract with the agency.''
    Finally, with the amendments to E.O. 13488, agency heads retained 
the discretion to establish adjudicative criteria for determining 
fitness of contractor employees but with due regard to OPM prescribed 
regulations and guidance. Furthermore, the E.O. set forth in section 
3(b) and (c) that investigations for contractor employee fitness are 
subject to the same position designation requirements, investigative 
standards, policies, and procedures as fitness determinations for civil 
service employees, as prescribed under the Civil Service Rules and 
reciprocity of fitness determinations and investigations are subject to 
the same reciprocity requirements.

Continuous Vetting Requirements

    Continuous vetting refers to the process of ``reviewing the 
background of a covered individual at any time to determine whether 
that individual continues to meet applicable requirements.'' E.O. 
13467, as amended, Sec.  1.3. In the context of suitability and fitness 
for employment, continuous vetting is used to determine if an 
individual remains suitable or fit for a position over time. A covered 
individual, as defined in E.O. 13467, as amended, Sec.  1.3 is, with 
limited exceptions, ``. . . a person who performs, or who seeks to 
perform, work for or on behalf of the executive branch (e.g., Federal 
employee, military member, or contractor), or otherwise interacts with 
the executive branch such that the individual must undergo vetting.'' 
In accordance with E.O. 13467, as amended, section 2.1, ``[a]ll covered 
individuals shall be subject to continuous vetting under standards 
(including, but not limited to, the frequency of such vetting) as 
determined by the Security Executive Agent or the Suitability and 
Credentialing Executive Agent exercising its Suitability Executive 
Agent functions, as applicable.'' Further, E.O. 13467, as amended, 
section 2.5, requires the Director of OPM as the Suitability Executive 
Agent, to be responsible for ``prescribing applicable investigative 
standards, policies, and procedures.'' OPM is proposing changes in 
regulation to implement the continuous vetting requirement set forth in 
E.O. 13467, as amended, section 2.1, as amended. Specifically, any 
individual occupying a position that is subject to investigation, as 
described in the proposed Sec.  731.104(a)(1) through (3), will also be 
subject to continuous vetting. The nature and specificity of continuous 
vetting checks will be further defined in supplemental issuances, but 
requirements will account for position risk and sensitivity 
designations.

Elimination of Fixed, Five-Year Periodic Reinvestigation Requirement 
for Public-Trust Positions

    E.O. 13467, as amended, section 1.1, directs that, ``The 
Government's tools, systems, and processes for conducting . . . 
background investigations and managing sensitive investigative 
information should keep pace with technological advancements, regularly 
integrating current best practices to better anticipate, detect, and 
counter malicious activities, and threats posed by external or internal 
actors who may seek to do harm to the Government's personnel, property, 
and information.'' Further, E.O. 13467, as amended, section 1.1, 
directs that, ``Executive branch vetting policies and procedures shall 
be sustained by an enhanced risk-management approach that facilitates 
early detection of issues by an informed, aware, and responsible 
Federal workforce; results in quality decisions enabled by improved 
vetting capabilities; and advances Government-wide capabilities through 
enterprise approaches.'' These principles inform the design of 
continuous vetting, as described above.
    E.O. 13488 section 5 directed OPM to prescribe the standards for 
frequency of reinvestigations but does not itself impose a fixed cycle 
for reinvestigations.
    OPM's current regulations in 5 CFR 731.106 provide that 
reinvestigations of individuals in moderate- and high-risk public trust 
positions should be conducted at least every five years. Further, the 
2012 Federal Investigative Standards sections 7.4.1 and 9.4.2 
established that individuals in Tier 2 and Tier 4 positions 
(nonsensitive positions designated as moderate and high-risk public 
trust) ``shall be reinvestigated at least once every five years and as 
event driven, subject to implementing guidance.'' As such, excepted 
service and contractor employees covered by the Federal Investigative 
Standards have also been subject to reinvestigation requirements.
    Given the direction of E.O. 13467, as amended, section 2.1 that all 
covered individuals (as defined in the E.O.) undergo continuous 
vetting, OPM is proposing to amend part 731 to make clear that all 
individuals covered under this part, regardless of risk level (i.e., 
low risk, moderate risk, high risk) must undergo continuous vetting for 
suitability and fitness. At the same time, OPM is proposing to remove 
the existing requirement for a periodicity of at least once every five 
years for Public Trust reinvestigations and to establish that 
continuous vetting for individuals in public trust positions satisfies 
the requirement for periodic reinvestigations of individuals in public 
trust positions as directed in E.O. 13488, as amended.
    By removing the requirement for a five-year periodicity for Public 
Trust reinvestigations from the current regulations, OPM will be able 
to establish, through supplemental guidance, the periodicity of checks 
to be conducted under a continuous vetting framework based upon 
position risk and sensitivity. The nature of the continuous vetting 
checks are established in supplemental guidance issued by OPM, taking 
into account position risk and sensitivity when establishing the 
requirements. For example, continuous vetting checks of individuals in 
low risk positions will be minimal, whereas continuous vetting checks 
of

[[Page 6197]]

individuals in moderate and high risk positions will likely be more 
involved according to position risk. OPM anticipates that checks will 
be required at regular intervals as determined by the type of check 
(i.e., certain checks may be conducted daily while others may be 
yearly), with developed information being subject to expansion or 
follow-up, depending on the adjudicative relevance or significance. 
With this new model, the expectation is that checks will be conducted 
by authorized Investigative Service Providers (ISP) while other 
information may come from within the agency from complementary mission 
areas (e.g., Employee Relations, Counterterrorism/Counterintelligence 
units, etc.).
    The proposed change to implement continuous vetting for covered 
positions and in place of existing Public Trust reinvestigations has no 
bearing on requirements for agencies to conduct initial investigations 
as is prescribed in the regulations. OPM describes the major proposed 
changes in a section-by-section analysis below.
    This proposal parallels a separate forthcoming rulemaking by OPM 
and the Office of the Director of National Intelligence (ODNI) to amend 
5 CFR 1400.203 to remove a current requirement, parallel to the 
requirement in 5 CFR 731.106, that persons in sensitive positions must 
undergo a national security reinvestigation at least once every five 
years, thereby aligning the periodic reinvestigation requirements for 
public trust positions and for national security positions. Under 50 
U.S.C. 3352b, the Director of National Intelligence, as the Security 
Executive Agent, has the authority to prescribe a strategy such that 
individuals in national security sensitive positions are continuously 
vetted and reinvestigations for persons requiring security clearances 
will be conducted only as needed based on risk, with exceptions for 
designated national security populations requiring reinvestigation at 
more regular intervals.

Section by Section Analysis

Authorities

    OPM is proposing to add Civil Service Rule 6 and E.O. 13764 to the 
list of authorities and to address Presidential Memorandum--Enhancing 
Safeguards to Prevent the Undue Denial of Federal Employment 
Opportunities to the Unemployed and Those Facing Financial Difficulty 
Through no Fault of Their Own that resulted in previous changes to the 
regulation. OPM is anticipating additional changes to the authorities 
through a separate rule implementing provisions of 5 U.S.C. 9201-9206 
(The Fair Chance to Compete for Jobs Act).

Part 302

Section 302.108 Determinations of Fitness for Employment in an Excepted 
Service Position Based on Character and Conduct

    OPM is proposing to add section 302.108 to Subpart A to incorporate 
the requirements of E.O. 13764 section 1. This proposed section 
clarifies that positions filled in the excepted service are subject to 
the provisions of part 731. The title of the section emphasizes that 
the provision does not address qualifications for excepted service 
positions based on, for example, education and experience. Under Civil 
Service Rule VI (5 CFR 6.3), these matters are prescribed ``in 
accordance with such regulations and practices as the head of the 
agency concerned finds necessary,'' subject to general requirements of 
Federal employment law (e.g., that hiring practices be job-related and 
consistent with business necessity). Rather, this provision concerns 
fitness of character for appointment for a position in the excepted 
service.

Section 302.203 Standard and Criteria for Determining Fitness for 
Employment in an Excepted Service Position Based on Character and 
Conduct

    OPM is proposing to revise this section by replacing the non-
exclusive list of disqualifying factors for an excepted-service 
appointment with the minimum fitness standards that must be used when 
making fitness determinations under part 731 of this chapter. The 
current list of disqualifying factors in section 302.203 is not 
consistent with those in section 731.202 and includes obsolete criteria 
derived from E.O. 10450 of April 27, 1953 (revoked in 2017).

Part 731

Section 731.101 Purpose

    OPM is proposing to amend this section by reordering information 
and placing the definitions up front, and to revise the purpose to 
encompass the new requirements with respect to position designation, 
investigations, continuous vetting, and reciprocity for the excepted 
service, for contractor employees, and for nonappropriated fund 
employees under the jurisdiction of the Armed Forces. OPM is proposing 
to amend the definition for ``covered positions'' to make the 
distinction between (1) positions in the competitive service, positions 
in the excepted service where the incumbent can non-competitively 
convert to the competitive service, and career appointments in the 
Senior Executive Service, from (2) other positions that will now also 
be covered by the rule. The term ``covered positions'' is replaced with 
``competitive service or career Senior Executive Service'' positions 
throughout the regulation. As was explained in a prior Federal Register 
notice (72 FR 2203, January 18, 2007), positions that begin with an 
initial appointment in the excepted service when that appointment can 
lead to conversion to the competitive service through a continuous 
process are subject to OPM's suitability authority and are treated in 
the same manner as positions in the competitive service.
    OPM is proposing to define the ``excepted service,'' for purposes 
of its authority under part 731, as any position excepted from the 
competitive service or the Senior Executive Service of the of the 
executive branch, except for (A) positions in any element of the 
intelligence community as defined in the National Security Act of 1947, 
as amended, to the extent they are not otherwise subject to OPM 
appointing authorities, (B) positions where OPM is statutorily 
precluded from prescribing such standards, and (C) positions when 
filled by political appointment. These exceptions are in Civil Service 
Rule II, 5 CFR 2.1(a)(iv), as added by E.O. 13764. OPM is also 
excluding noncareer, limited term, and limited emergency appointments 
in the SES. These appointments are not currently subject to OPM's 
suitability jurisdiction under part 731 or under E.O. 13764.
    OPM is also excluding political appointees from its definition of 
the ``excepted service'' for purposes of suitability and fitness under 
part 731. OPM has determined that the Director of OPM does not have the 
authority to prescribe standards of fitness and related vetting 
requirements for political appointments. See Review of Agency Schedule 
C Appointments by the Exec. Office of the President, 6 U.S. Op. O.L.C. 
114, 116 (1982).
    OPM is proposing to also amend the definitions for ``appointee'' 
and ``employee'' to establish that individuals who meet the definition 
of appointee and who are also serving a probationary or trial period, 
will remain an ``appointee'' until the probationary or trial period 
ends. The proposed changes to the definition for ``employee'' are to 
reconcile with the proposed changes to the definition of ``appointee.'' 
OPM is also proposing to add definitions for ``contactor employee,'' 
``employment subject to investigation,'' ``fitness,''

[[Page 6198]]

``fitness determinations,'' and ``nonappropriated fund employees.'' 
Finally, OPM is proposing to amend the definitions for ``suitability 
action'' and ``suitability determination'' to reflect their application 
to positions in the ``competitive service or career appointments to the 
Senior Executive Service.''

Section 731.102 Implementation

    OPM is proposing to add a reference to ``fitness'' investigations 
and to clarify that policies, procedures, criteria, standards, quality 
control procedures, and supplementary guidance for implementation of 
this part may come in the form of OPM or joint Executive Agent 
issuances. OPM is also proposing to remove current Sec.  731.102(b), 
which refers to screening requirements for access to automated 
information systems that are no longer current. Under Office of 
Management and Budget (OMB) Circular A-130, as recently amended, 
agencies must follow OMB information security policies, and 
requirements issued by OPM, the Departments of Commerce and Homeland 
Security, and the General Services Administration on access to 
federally-controlled information systems, including personal identity 
verification. OPM will address personal identity verification in its 
role as Credentialing Executive Agent in separate rulemaking. OPM is 
adding a reference to section 1.1(e) of E.O. 13467, which addresses 
control and appropriate uses of reports of investigation and other 
material developed during the vetting process.

Section 731.103 Delegation to Agencies for Competitive Service 
Positions

    OPM is proposing to move the information currently in Sec.  
731.103(d) and (e) to Sec.  731.106 as it applies to all positions 
subject to position designation, investigation, continuous vetting, and 
reciprocity as defined in the proposed rule.
    OPM is also proposing to revise the delegation to agencies for 
making suitability determinations and taking suitability actions in the 
case of positions in the competitive service, positions in the excepted 
service that convert non-competitively to the competitive service, and 
career appointments to the Senior Executive Service. For such 
positions, OPM proposes to retain jurisdiction in cases where there is 
evidence of conduct that falls within any of four new suitability 
factors at Sec.  731.202(b)(7) (``Knowing engagement in an act or 
activity with the purpose of overthrowing Federal, State, local, or 
tribal government''), (8) (``An act of force, violence, intimidation, 
or coercion with the purpose of denying another individual the free 
exercise of rights under the U.S. constitution or any state 
constitution''), (9) (``Attempting to indoctrinate another or to incite 
another to action in furtherance of an illegal act''), and (10) 
(``Active membership or leadership in a group with knowledge of its 
unlawful aim, or participation in such a group with a specific intent 
to further its unlawful aim''), as proposed to be added further below. 
These four new factors would replace the current Sec.  731.202(b)(7), 
``Knowing and willful engagement in acts or activities designed to 
overthrow the U.S. Government by force.''
    In addition, OPM is proposing to add language to clarify that OPM 
retains jurisdiction under this part regardless of whether an agency 
may adjudicate the issue(s) under another authority.

Section 731.104 Investigation and Reciprocity Requirements

    OPM is proposing to address the subject-to-investigation 
requirement for ``competitive service or career Senior Executive 
Service'' and ``excepted service'' positions, as well as for 
``contractor employees'' and ``nonappropriated fund employees,'' in 
this section, and to move the requirements for reciprocity to this 
section. With respect to investigation and reciprocity requirements, 
OPM is proposing to amend the rule to reflect that a new investigation 
is not required when the individual appointed has undergone a 
background investigation that is at or above the level required for the 
position, removing existing provisions that have limited the ability of 
agencies to reciprocally accept prior investigations that were done for 
certain position types and/or were not adjudicated under suitability or 
equivalent criteria. OPM is also proposing to remove the 24-month 
break-in-service provision for applying reciprocity. A policy, issued 
by the Executive Agents as part of the Trusted Workforce 2.0 effort, 
establishes a new process for applying reciprocity to prior 
investigations upon a return to service. The new requirement will 
expand the window of time for which a break in service may last without 
requiring the individual to undergo a new investigation upon returning 
to service. OPM proposes that upon reentry into Federal service, 
individuals will need to be enrolled in continuous vetting consistent 
with new requirements that are being proposed in Sec.  731.106(d). With 
the implementation of continuous vetting, agencies can accept the 
return to service of an individual, without requiring another full 
background investigation, with a reduced amount of risk.
    In Sec.  731.104(a)(3), OPM proposes to remove ``seasonal'' 
positions from the list of positions that do not require a background 
investigation for suitability or fitness as described in Sec.  
731.106(c)(1). According to 5 CFR 340.401(a), ``(s)easonal employees 
are permanent employees who are placed in a nonduty/nonpay status and 
recalled to duty in accordance with preestablished conditions of 
employment.'' Because of the positions' permanent character, they 
implicate different risks than temporary appointments, and should not 
be treated the same.

Section 731.105 Authority To Take Suitability Actions in Cases 
Involving the Competitive Service or Career Senior Executive Service

    OPM proposes a change to clarify that OPM, or agencies with 
delegated authority, have authority to take suitability actions, in 
accordance with the procedures and provisions outlined elsewhere in 
this part, in cases where an applicant for or appointee to a 
``competitive service or career Senior Executive Service'' position is 
moving from another type of position, even if the applicant or 
appointee is not required to undergo a new investigation because a 
prior one is reciprocally accepted in accordance with the requirements 
outlined in Sec.  731.104(a).
    In Sec.  731.105(a), OPM proposes a clarifying edit in reference to 
the ability of OPM or an agency to pursue a suitability action against 
an individual whose status may change in the course of the suitability 
action process (for example, OPM or the agency may pursue an action 
against an appointee who resigns after receipt of the notice of 
proposed action).
    In Sec.  731.105(c), OPM proposes changes for correctness, and in 
Sec.  731.105(d), a change is proposed related to OPM's retained 
jurisdiction to make determinations and take actions against an 
``employee'' based upon conduct under the suitability factors proposed 
to replace the current factor at Sec.  731.202(b)(7).

Section 731.106 Designation of Public Trust Positions and Investigative 
Requirements

    OPM proposes a clarifying edit to Sec.  731.106(c) with regard to 
the timing of the initiation of investigations, which should be prior 
to appointment. In Sec.  731.106(c)(2), OPM proposes to update 
references to 5 CFR part 1400 for guidance on designating position

[[Page 6199]]

sensitivity. The current references to part 732 are obsolete.
    OPM proposes to move information from Sec.  731.103 that addresses 
the timing of collection of criminal and credit history to this 
section. In a separate notice, OPM is proposing to revise this language 
to implement changes required by the Fair Chance to Compete for Jobs 
Act (Pub. L. 11-92-Dec. 20, 2019). Finally, OPM proposes changes to 
implement continuous vetting for low-risk and public trust positions.
    In Sec.  731.106(f), OPM proposes edits to make the information 
current.

Subpart B--Determinations of Suitability or Fitness; Suitability 
Actions in Cases Involving the Competitive Service or Career Senior 
Executive Service

    OPM proposes changes to this subpart to implement the minimum 
standards of fitness for excepted service positions (those not subject 
to suitability determinations and actions) and to make changes aimed at 
increasing alignment between suitability and fitness criteria and those 
for other vetting domains. The minimum standards of fitness in part 731 
will supersede the disqualifying factors in part 302. While agencies 
may supplement the minimum standards of fitness when job-related and 
consistent with business necessity, OPM is proposing that agencies must 
make the additional factors a matter of record.

Section 731.201 Standard

    OPM proposes a change to reflect that the standard for both 
suitability and fitness determinations and for suitability actions is 
to protect the integrity and promote the efficiency of the service.

Section 731.202

    OPM proposes edits to clarify that the criteria in this section 
apply also to fitness determinations for excepted service positions 
covered by this part, unless otherwise noted, and that when used to 
make determinations for eligibility to hold a Personal Identity 
Verification Credential, agencies must also ensure they have verified 
the individual's identity as specified in OPM's credentialing 
procedures or subsequent regulation. Further, OPM proposes that while 
the factors will establish the minimum standards of fitness for the 
excepted service, agencies may prescribe additional factors to protect 
the integrity and promote the efficiency of the service when job-
related and consistent with business necessity. Additional factors 
shall be made a matter of record and furnished to the applicant, upon 
request.
    OPM proposes changes to the suitability factors at Sec.  
731.202(b), as follows:
     Separate criminal and dishonest conduct into two separate 
factors. Separating these considerations into two distinct factors will 
provide clarity that dishonest conduct need not be criminal to be 
considered relevant to a determination of suitability or fitness;
     Adjust the punctuation in factor (3) to clarify that 
falsification or deception or fraud occurs in connection with the 
examination or appointment process;
     Eliminate current factor (4) Refusal to furnish testimony 
as required by Sec.  5.4 of this chapter. Use of this factor was 
reserved by OPM. If eliminated, this change does not otherwise affect 
requirements established by Sec.  5.4 nor does it limit an agency's 
ability to appropriately deal with an employee's refusal to furnish 
testimony under other applicable authorities.
     Revise factors (5) and (6), by striking the requirement 
that evidence of rehabilitation must be ``substantial.'' The 
requirement that agencies must consider whether there is evidence of 
rehabilitation prior to making a determination that one is unsuitable 
based upon alcohol abuse or illegal drug use is long standing. The 
suitability criteria contain an additional consideration for 
rehabilitation at Sec.  731.202(c)(7) that must be considered along 
with the alcohol and drug factors. However, that consideration, the 
absence or presence of rehabilitation or efforts toward rehabilitation, 
does not qualify or emphasize the rehabilitation must be 
``substantial''; therefore, the change is to align the factor and 
additional consideration.
     Revise factor (5), to change ``alcohol abuse'' to 
``excessive alcohol use.'' OPM is proposing to revise the factor to 
address ``excessive alcohol use'' rather than ``alcohol abuse.'' We 
believe this change better represents the intent of the factor which is 
to account for an individual's problematic misuse of alcohol, such as 
by binge drinking or heavy drinking, over a period of time, and 
suggesting that the individual would be prevented from performing the 
duties of the position or would constitute a direct threat to the 
property or safety of themselves or others as a result.
     Replace factor (7), which currently reads: Knowing and 
willful engagement in acts or activities designed to overthrow the U.S. 
Government by force with four distinct factors:
    [cir] Knowing engagement in acts or activities with the purpose of 
overthrowing Federal, State, local, or tribal government.
    [cir] Acts of force, violence, intimidation, or coercion with the 
purpose of denying others the free exercise of their rights under the 
U.S. constitution or any state constitution.
    [cir] Attempting to indoctrinate others or to incite them to action 
in furtherance of illegal acts.
    [cir] Active membership or leadership in a group with knowledge of 
its unlawful aims, or participation in such a group with specific 
intent to further its unlawful aims.
    This proposed change is to broaden the types of conduct covered to 
include not only acts to attempt to overthrow the Federal Government 
but also to overthrow state, local, or tribal governments, to engage in 
violent and unlawful civil rights offenses, and to engage in 
association or advocacy to commit illegal acts. These more nuanced 
factors are narrowly tailored to address conduct that is not protected 
by the First Amendment, that has a clear nexus to the integrity and 
efficiency of the civil service, and that poses significant insider 
threat risks to Federal agencies and to the public they serve. Updating 
the suitability factors will help OPM fulfill the requirement of E.O. 
13467, as amended, section 1.1, that ``Executive branch vetting 
policies and procedures shall be sustained by an enhanced risk-
management approach that facilitates early detection of issues by an 
informed, aware, and responsible Federal workforce.''
    Adoption of the new factors also furthers Strategic Goal 3.3 of the 
National Strategy for Countering Domestic Terrorism to ``ensure that 
screening and vetting processes consider the full range of terrorism 
threats'' and to ``augment the screening process for . . . any 
government employee who receives a security clearance or holds a 
position of trust.'' \3\ Adoption of the factors will permit OPM to 
update related information collections consistent with Strategic Goal 
3.3, and to better address risks associated with, for example, 
racially- or ethnically-motivated unlawful acts of violent extremism 
and anti-government or anti-authority domestic terrorism,\4\

[[Page 6200]]

which have been identified as emergent threats posing a significant 
public safety challenge.\5\
---------------------------------------------------------------------------

    \3\ National Security Council, National Strategy for Countering 
Domestic Terrorism, Strategic Goal 3.3, at 26 (June 2021), available 
at https://www.whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-Domestic-Terrorism.pdf.
    \4\ A provision of Federal law, 18 U.S.C. 2331, defines domestic 
terrorism '' as ``activities that involve acts dangerous to human 
life that are a violation of the criminal laws of the United States 
or of any State ; appear to be intended to intimidate or coerce a 
civilian population, to influence the policy of a government by 
intimidation or coercion, or to affect the conduct of a government 
by mass destruction, assassination, or kidnapping ; and occur 
primarily within the territorial jurisdiction of the United 
States.''
    \5\ See National Strategy for Countering Domestic Terrorism at 
pages 8-11.
---------------------------------------------------------------------------

     Add a factor for Violent behavior. This proposed change is 
for clarity and specificity, to account for violent behavior that does 
not squarely fall under another factor, such as violent behavior that 
occurs outside of the workplace and may not be considered criminal or 
dishonest in nature. We believe that the current suitability factors 
for ``misconduct or negligence in employment'' and for ``criminal or 
dishonest conduct'' do not convey the gravity of the risk posed by 
violent behavior, particularly for positions in, for example, law 
enforcement, patient care, childcare, and front-line customer service. 
For the purposes of this regulation, the term ``violent'' means using 
or involving physical force intended to hurt, damage, or kill someone 
or something. Guidance for considering what may constitute violent 
behavior will be provided via supplemental issuance.
     Renumber the factors in accordance with the proposed 
changes.

Section 731.203 Suitability Actions by OPM and Other Agencies for the 
Competitive Service or Career Senior Executive Service

    The proposed change is to limit jurisdiction only to OPM for 
suitability determinations and actions in the case of ``competitive 
service or career Senior Executive Service'' positions that are based 
upon the factors proposed to replace the current factor at Sec.  
731.202(b)(7). Agencies must refer these cases to OPM for suitability 
determinations and suitability actions under this authority (though 
agencies are not prohibited from taking appropriate action under 
separate authorities). Conduct of this nature, if substantiated, would 
make one unsuitable for any position in the competitive service or for 
a career appointment to the Senior Executive Service. As such, OPM is 
reserving jurisdiction for taking suitability actions in these cases. 
The proposed changes also seek to clarify that OPM may take an action 
under this part even when an agency takes an action based upon another 
authority and to specify that agencies must report suitability 
determinations and actions on investigated individuals into the 
government-wide repository.

Section 731.204 Debarment by OPM in Cases Involving the Competitive 
Service and Career Senior Executive Service

    The proposed change clarifies that OPM may impose an additional 
period of debarment concurrent to an existing debarment when new 
conduct arises. OPM may pursue suitability actions, in accordance with 
the procedures outlined in this part, as appropriate when there is new 
conduct of suitability concern, even when the individual is already 
serving a period of debarment. For example, if an individual who is 
barred from applying to the competitive service and career Senior 
Executive Service makes application for a covered position and does not 
report the debarment, when required, OPM may consider imposing an 
additional period of debarment due to a material, intentional false 
statement.

Section 731.206 Reporting Requirements for Investigations and 
Suitability and Fitness Determinations

    The proposed change reflects that agencies must report the level, 
nature, and completion date of investigations and reinvestigations, as 
well as continuous vetting enrollment, into the government-wide central 
repository.

Section 731.302 Notice of Proposed Action and 731.402 Notice of 
Proposed Action

    OPM is proposing to expand the methods for delivery of a notice of 
proposed action to include secure email.

Subpart F--Savings Provision

    OPM is proposing to eliminate this Subpart as obsolete.

Expected Impact of This Proposed Rule

    The expected benefits of the proposed rule are to further establish 
standards and processes by which OPM and agencies efficiently and 
appropriately vet individuals to assess risk to the integrity and 
efficiency of the service. These changes promote a more trusted 
workforce to serve the American public through an enhanced risk 
management approach for personnel vetting, one which advances the 
mobility of the workforce to support agency mission needs. Establishing 
a continuous vetting approach for all populations subject to personnel 
vetting provides a framework for modernized investigative and 
adjudicated processes that leverage available, appropriate technology 
to replace costly and time-consuming labor-intensive processes that 
have burdened efforts by agencies to acquire top talent in a timely 
manner. Further, the new model assists agencies in managing and 
reducing risk by providing more timely information than was possible 
under the prior investigative model.
    This proposed rule provides greater consistency in vetting 
processes and where possible, is cost saving by reducing redundancy and 
duplication and using modernized processes for collecting information. 
By establishing minimum standards of fitness for the excepted service 
that align to OPM's suitability standards, there is a greater 
likelihood that individuals will be assessed using consistent 
standards, thus providing the basis for application of reciprocity when 
moving between positions. The impact to agencies' personnel vetting 
programs is reduced when they can reciprocally apply prior 
determinations rather than making new determinations or requesting new 
investigations.
    In particular, OPM anticipates reduced impacts to agencies as they 
transition from a full reinvestigation of every public trust employee 
every five years to reinvestigation only as needed and to continuous 
vetting that relies extensively on automated sources. Although agencies 
will also need to enroll their low risk population, which is not 
currently subject to reinvestigation requirements, into continuous 
vetting, the cost impacts may be offset by savings associated with the 
move from periodic reinvestigations to continuous vetting for their 
sensitive and nonsensitive public trust populations. Under the Trusted 
Workforce 2.0 initiative, the Security Executive Agent and the 
Suitability and Credentialing Executive Agent have directed agencies to 
begin enrolling the national security sensitive population into 
continuous vetting in lieu of the traditional periodic 
reinvestigations. Through a phased process, agencies are initiating 
their national security sensitive populations into continuous vetting 
and eventually, individuals will be enrolled into continuous vetting at 
the onset of their initial background investigation. We envision 
following a similar iterative approach for low risk and public trust 
populations, upon implementation.
    Further, since each individual's investigation will always be up to 
date through the continuous vetting approach, agencies will no longer 
need to await results of a new background investigation and will 
instead be able to onboard individuals more quickly into new positions, 
while only having to request investigation necessary to cover any 
investigative gaps that may be due

[[Page 6201]]

to changes in position risk and/or sensitivity.
    Agencies' populations of individuals subject to continuous vetting 
are those populations already subject to Federal personnel vetting 
investigative standards as described previously, including contractor 
employees with long term access to Federal facilities and information 
systems. Even prior to more recent Executive Orders and policy 
requirements requiring personnel vetting investigations and 
determinations on contractors, the FAR Council published a final rule 
in November 2006, amending the Federal Acquisition Regulation to 
require contracting officers to incorporate the requirement for 
contractors to comply with agency verification procedures--implementing 
Homeland Security Presidential-12 (HSPD-12), Office of Management and 
Budget (OMB) guidance M-05-24, and Federal Information Processing 
standards Publication (FIPS PUB) number 201 when applicable to be 
performed under the contract. Aside from the new requirement for 
individuals in low risk positions to be continuously vetted, agencies 
and contractor employees supporting agencies when long term access to 
Federal facilities and information systems is required should be 
familiar with personnel vetting requirements.

Cost

    This proposed rule will affect the operations of most Federal 
agencies in the Executive branch--ranging from cabinet-level 
departments to small independent agencies. In order to comply with the 
regulatory changes in this proposed rule, affected agencies will need 
to review the rule and update their policies and procedures. For the 
purpose of this cost analysis, the assumed average salary rate of 
Federal employees performing this work will be the rate in 2023 for GS-
14, step 5, from the Washington, DC, locality pay table ($150,016 
annual locality rate and $71.88 hourly locality rate). We assume that 
the total dollar value of labor, which includes wages, benefits, and 
overhead, is equal to 200 percent of the wage rate, resulting in an 
assumed labor cost of $143.76 per hour. We estimate that, in the first 
year following publication of the final rule, the effort to update 
policies and procedures will require an average of 250 hours of work by 
employees with an average hourly cost of $143.76. This effort would 
result in estimated costs in the first year of implementation of about 
$35,940 per agency, and about $2,875,200 in total Government-wide.
    The ongoing administrative costs to agencies for continuous vetting 
enrollment of existing and new individuals working for or on behalf of 
the Government will vary depending on the makeup of each agency's 
populations with regard to their affected Federal and contract 
positions and the risk levels of those positions. As noted, agencies' 
populations of individuals subject to continuous vetting are those 
populations already subject to Federal personnel vetting investigative 
standards as described previously, including contractor employees with 
long term access to Federal facilities and information systems. The 
extent to which such individuals have previously been subject to 
periodic reinvestigation requirements depended on the nature of their 
access or duties. Those in national security sensitive positions have 
long been subject to periodic reinvestigation requirements and more 
recently to continuous vetting requirements. Those in nonsensitive 
public trust positions have been subject to periodic reinvestigations 
for suitability, as described previously. Each agency is responsible 
for assessing the risk level at the low, moderate, or high level for 
each position within their agency. Each agency is therefore best 
positioned to know the number of employees in positions at each level 
and the number of individuals associated with the personnel vetting 
requirements at each respective investigative tier. Each agency will 
have different numbers of positions at each risk level and the 
proportion of low, moderate, and high risk positions will vary. 
Subsequently, the cost of continuous vetting for the low risk and 
public trust population will vary amongst the Federal agencies.\6\ To 
assist Federal agencies in budget development, the Defense 
Counterintelligence and Security Agency (DCSA) has released its fiscal 
year 2024 price estimates, including pricing for the initial continuous 
vetting capability for low risk and non-sensitive public trust 
positions. For fiscal year 2024, agencies can expect to pay a $3 
monthly subscription fee for active enrollees in low risk and 
nonsensitive public trust continuous vetting. By comparison, DCSA's 
price for a standard service, nonsensitive high risk public trust 
reinvestigation (Tier 4) in FY 2024 is $2400, which amortized over five 
years equates to approximately $40 monthly. Agencies utilizing 
continuous vetting in FY 2024 for their nonsensitive high risk public 
trust populations would avoid $2,220 in personnel vetting costs over 
five years for each such position. The delta between reinvestigation 
costs and initial continuous vetting checks for nonsensitive moderate 
risk positions is not as significant; still, agencies would avoid $180 
in personnel vetting costs over five years for such positions given the 
FY 2024 cost of $360 for each nonsensitive moderate risk public trust 
reinvestigation. Conversely, agencies enrolling low risk populations 
will pay $36 yearly, based upon DCSA's FY 2024 price estimates, for 
continuous vetting on a population that to date has not been subject to 
reinvestigation requirements. While DCSA's FY 2024 pricing reflects 
initial pricing for continuous vetting for this population, future 
costs for continuous vetting for the low risk population are not 
expected to rise to the cost of checks for the national security 
population, since checks on the low risk population will be much less 
expansive than those on the national security population. An additional 
factor that agencies will need to consider when assessing budget 
impacts of continuous vetting is the cost avoidance realized by the 
move from periodic reinvestigations to continuous vetting of their 
sensitive populations. To illustrate how the impacts to agency budgets 
will vary, the following examples are provided of a department, the 
Department of Veterans Affairs (VA), that is comprised mainly of 
nonsensitive positions and a department that is comprised mainly of 
sensitive positions, the Department of Defense (DoD). The VA has vastly 
more nonsensitive positions--approximately 513,400--than sensitive 
positions--approximately 9,000. Their positions are largely 
nonsensitive low risk, with approximately 455,000 Federal and 
contractor personnel in low risk positions, with some nonsensitive 
public trust positions, 41,200 in nonsensitive moderate risk public 
trust positions, and 17,200 in nonsensitive high risk public trust 
positions. Under the current requirement to request a reinvestigation 
for public trust positions every five years and considering FY 2024 
DCSA pricing, the VA should anticipate paying $56,112,000 \7\ in total 
for nonsensitive public trust reinvestigations over five years. With 
continuous vetting, the annual cost of enrolling the public trust 
population for fiscal year 2024 would be $2,102,400, or $10,512,000 
over five years, equating to

[[Page 6202]]

$45,600,000 in cost avoidance for the nonsensitive moderate and high 
risk positions over the five year cycle. For continuous vetting of the 
low risk population, VA would expect to pay DCSA $16,380,000 annually 
or $81,900,000 over five years. For any sensitive positions the VA has, 
they may also recognize the cost savings between the periodic 
reinvestigation products and continuous vetting product for sensitive 
positions. The cost implications for enrollment of VA's 9,000 sensitive 
positions into continuous vetting could range from an additional cost 
of $810,000 over five years to cost avoidance of $21,285,000 depending 
on the proportion of noncritical sensitive positions (Tier 3) and 
critical sensitive/special sensitive positions (Tier 5). Thus the total 
cost of the shift to continuous vetting for all of VA's populations 
subject to this requirement, using VA's anticipated payments to DCSA 
for these services, will depend on the makeup of VA's population. 
Compare this to the Department of Defense (DOD), which has a much 
higher sensitive population than non-sensitive, approximately 3.5 
million individuals in sensitive positions and approximately 283,000 in 
non-sensitive positions. With approximately 3,000 nonsensitive moderate 
risk positions and 560 nonsensitive high risk position, the DOD could 
plan to spend $2,424,000 on periodic reinvestigations over five years 
for their nonsensitive public trust positions whereas continuous 
vetting would result in a total cost of $640,800 and therefore 
$1,783,200 in cost avoidance over that same period. The cost of 
enrolling DoD's 280,000 Federal and contractor low risk positions 
subject to the requirement would equate to an annual cost of 
$10,080,000 or $50,400,000 over five years; however, this cost would be 
offset not only by the cost avoidance of $1,783,200 for the 
nonsensitive public trust population but also by the cost savings 
associated with the shift to continuous vetting from periodic 
reinvestigations for the sensitive population. Given that the DoD has 
approximately 3.5 million individuals in national security positions 
undergoing continuous vetting in lieu of periodic reinvestigations, the 
expected cost savings would be expected to offset the cost for 
enrollment of their low risk populations into continuous vetting.
---------------------------------------------------------------------------

    \6\ Federal agencies are responsible for appropriate vetting of 
their personnel according to standards set by the Security and 
Suitability & Credentialing Executive Agents and pay for background 
investigations and continuous vetting checks on contractor personnel 
as well as federal appointees and employees.
    \7\ This is based upon DCSA's FY24 pricing estimate.
---------------------------------------------------------------------------

    Thus, with respect to continuous vetting, agencies may recognize a 
cost savings by using continuous vetting rather than the traditional 
reinvestigation product that is currently required for public trust 
positions at a five-year periodicity, and the extent of the cost 
savings will vary depending on the proportion of their populations with 
regard to risk and sensitivity levels. Additionally, cost savings may 
be realized since continuous vetting provides that the vetting of 
enrolled individuals will always be up-to-date. This will result in 
further cost avoidance whenever an individual requires an upgrade of 
their vetting level or when an individual returns to a vetted position 
after a break in service. Agencies will be able to onboard individuals 
more quickly into new positions while requesting only the investigative 
elements necessary to cover any investigative gaps that may be due to 
changes in position risk and/or sensitivity. This cost avoidance will 
be borne out as agencies begin to implement the new TW 2.0 policies 
that leverage continuous vetting for risk management. On balance, while 
we anticipate there may be additional costs to agencies with much 
greater proportions of low risk positions than nonsensitive public 
trust or national security positions, we do not believe that this 
proposed rule will substantially increase the ongoing costs to most 
agencies, and the benefits outweigh the costs in providing agencies 
greater opportunities for timely talent acquisition and reduced risk to 
people, property, information systems, and mission through timely 
delivery of relevant information.

Alternatives

    OPM must comply with Executive Order direction, as previously 
described, to establish minimum standards of fitness based on character 
and conduct for appointment to positions in the excepted service of the 
executive branch that are to the extent practicable consistent with the 
standards for suitability. OPM is likewise responsible for establishing 
in its regulations that excepted service employee, nonappropriated fund 
DoD employee, and contractor employee fitness is subject to enterprise 
position designation requirements, investigative standards, and 
reciprocity requirements. Similarly, continuous vetting for all 
populations subject to personnel vetting has been directed by Executive 
Order to sustain an enhanced risk-management approach. Ultimately, the 
cost to agencies for establishing policies and procedures to conform to 
OPM's regulation in this regard are unavoidable. Such costs are offset, 
however, by savings and cost avoidance resulting from policy 
implementation. The expected impact of aligned investigative and 
adjudicative standards of fitness for excepted and competitive service 
positions is the increased application of reciprocity, which eliminates 
the need for a new investigation or new adjudication. Similarly, 
individuals enrolled in continuous vetting will not require periodic 
reinvestigations, nor will they require a repeat of initial vetting, as 
they have to date, when moving from one position level to a higher 
level or when returning to a vetted position after a break in service.
    Still, agencies with a greater proportion of individuals in low 
risk positions will incur costs as a result of the requirement for 
continuous vetting of this population when periodic reinvestigations 
were not previously required. As noted above, these costs may be offset 
by cost savings realized as agencies implement continuous vetting 
across all populations, particularly for agencies with large 
populations of individuals in high risk positions. However, not all 
agencies will realize cost savings. While there is no alternative to 
the policy requirement, agencies may realize some cost in the near term 
through phased implementation of continuous vetting for low risk 
populations. Such phased implementation could be accomplished through 
two approaches. First, implementation of the required continuous 
vetting checks for enrolled individuals could be eased through a phased 
introduction of the required checks over time. OPM anticipates 
utilizing this approach. Second, phased implementation could be 
accomplished through a phased implementation of the percent of the 
population required to be enrolled over time. This will enable agencies 
to adopt the necessary policy and procedural infrastructure necessary 
to execute requirements. OPM will consider this approach in developing 
requirements for the ongoing roll out of the Trusted Workforce 2.0 
Implementation Strategy, which the PAC has established to guide 
agencies in developing their agency-specific implementation plans under 
the direction of each agency's Senior Implementation Official. 
Currently, enrollment of all positions subject to personnel vetting in 
a continuous vetting capability is targeted by the end of FY 2024.

Executive Orders 13563 and 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory

[[Page 6203]]

approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. In accordance with the provisions 
of Executive Order 12866, this proposed rule was reviewed by the Office 
of Management and Budget as a significant, but not economically 
significant, rule as it does not meet the annual effect of $100 
million.

Regulatory Flexibility Act

    OPM certifies that this proposed rule will not have a significant 
economic impact on a substantial number of small entities.

E.O. 13132, Federalism

    This regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this proposed rule does not have 
sufficient federalism implications to warrant preparation of a 
Federalism Assessment.

E.O. 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in section 
3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local or tribal governments of more than $100 million annually. Thus, 
no written assessment of unfunded mandates is required.

Congressional Review Act

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 
801 et seq.) requires rules to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this proposed rule 
before its effective date, as required by 5 U.S.C. 801. The Office of 
Information and Regulatory Affairs in the Office of Management and 
Budget has determined that this proposed rule is not a major rule as 
defined by the CRA (5 U.S.C. 804).

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number.
    Depending on the population, currently suitability and vetting 
information is collected through the following OMB Control Numbers.

 3206-0261 (Standard Form 85, Questionnaire for Non-Sensitive 
Positions)
 3206-0258 (Standard Form 85P, Questionnaire for Public Trust 
Positions and SF 85P-S, Supplemental Questionnaire for Selected 
Positions)
 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 https://www.reginfo.gov/public/do/PRAMain by using the search function to enter 
either the title of the collection or the OMB Control Number. Data 
gathered through the information collection falls under the following 
systems of record notice: Personnel Vetting Records System, DUSDI 02-
DoD.
    In a parallel effort to this proposed rule, and as part of its work 
with the PAC, OPM proposed a new information collection, Personnel 
Vetting Questionnaire (PVQ) to streamline the existing information 
collections, as well as the renewal cycle for them, commensurate with 
on-going efforts to improve personnel vetting processes and the 
experience of individuals undergoing personnel vetting. OPM published a 
Federal Register Notice regarding the proposed collection on November 
23, 2022, and accepted comments until January 23, 2023. OPM plans to 
publish a Federal Register Notice in February 2023 announcing a thirty-
day period for public comment on the proposed collection. Once the new 
collection is finalized, OPM plans to discontinue the current 
information collections.
    For the populations subject to the existing collections that will 
be replaced by the Personnel Vetting Questionnaire, OPM does not 
anticipate any changes to the current total cost or burden estimates as 
a result of the changes in this proposed rule.
    However, some individuals or populations may be required to 
complete an updated questionnaire in order for continuous vetting to be 
conducted. OPM is interested in public comment on the cost and burden 
implications for this potential new population.

List of Subjects in 5 CFR Parts 302 and 731

    Administrative practices and procedure, Authority delegations 
(government agencies), Government contracts, Government employees, 
Investigations.

U.S. Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.

    Accordingly, for the reasons stated in the preamble, OPM is 
proposing to revise parts 302 and 731 of title 5, Code of Federal 
Regulations as follows:

PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE

0
1. Revise the authority citation to read as follows:

    Authority:  5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320, 
8151, E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); Sec.  302.105 also 
issued under 5 U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec.  302.501 
also issued under 5 U.S.C. 7701 et seq; Sec.  302.107 also issued 
under 5 U.S.C. 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1); Sec.  
302.108 and 302.203 also issued under E.O. 13764, 3 CFR, 2017 Comp., 
p. 243.

0
2. Add Sec.  302.108 to subpart A to read as follows:


Sec.  302.108   Determinations of fitness for employment in an excepted 
service position.

    (a) An agency must make fitness determinations for excepted 
positions in accordance with the applicable requirements of part 731 of 
this chapter.
    (b) An agency must record its reasons for making fitness 
determinations under part 731 of this chapter and shall furnish a copy 
of those reasons to an applicant upon their request.
0
3. Revise Sec.  302.203 to read as follows:


Sec.  302.203   Standard and criteria for determining fitness for 
employment in an excepted service position.

    (a) The minimum standard and criteria for determining fitness for 
employment based on character and conduct are prescribed in part 731, 
subpart B of this chapter.
    (b) Agencies may prescribe additional factors to protect the 
integrity and promote the efficiency of the service, when job-related 
and consistent with business necessity.

[[Page 6204]]

PART 731--SUITABILITY AND FITNESS

0
4. The authority citation for part 731 is revised to read as follows:

    Authority:  5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218, as amended; E.O. 13467, 3 CFR, 2009 Comp., p. 
198, as amended; E.O. 13488, 3 CFR, 2010 Comp., p. 189, as amended; 
E.O. 13764, 3 CFR, 2017 Comp. p. 243; 5 CFR, parts 1, 2, 5, and 6; 
Presidential Memorandum of January 31, 2014, 3 CFR, 2014 Comp., p. 
340.

0
5. Revise subpart A to read as follows:

Subpart A--Scope

Sec.
731.101 Purpose.
731.102 Implementation.
731.103 Delegation to agencies for the competitive service and 
career Senior Executive Service.
731.104 Investigation and reciprocity requirements.
731.105 Authority to take suitability actions in cases involving the 
competitive service and career Senior Executive Service.
731.106 Designation of public trust positions and investigative 
requirements.


Sec.  731.101   Purpose.

    (a) Definitions. In this part:
    Applicant means an individual who is being considered or has been 
considered for employment in the competitive service or career Senior 
Executive Service.
    Appointee means an individual who has entered on duty and is in the 
first year of employment in a competitive service or career Senior 
Executive Service position when it is employment subject to 
investigation. When the individual is serving a probationary or trial 
period, their status as an appointee will extend through the end of 
their initial probationary/trial period, if longer than one year.
    Core Duty means a continuing responsibility that is of particular 
importance to the relevant covered position or the achievement of an 
agency's mission.
    Competitive Service or career Senior Executive Service--For the 
purposes of this part, ``Competitive Service or career Senior Executive 
Service'' refers to a position in the competitive service, a position 
in the excepted service where the incumbent can be noncompetitively 
converted to the competitive service, and a career appointment to a 
position in the Senior Executive Service.
    Contractor Employee means an individual who performs work for or on 
behalf of any agency under a contract and who, in order to perform the 
work specified under the contract, will require access to space, 
information, information technology systems, staff, or other assets of 
the Federal Government, and who could, by the nature of their access or 
duties, adversely affect the integrity or efficiency of the Government. 
Such contracts include but are not limited to: personal service 
contracts; contracts between any non-Federal entity and any agency; and 
subcontracts between any non-Federal entity and another non-Federal 
entity to perform work related to the primary contract with the agency. 
The term contractor includes grantees of any agency or any other 
category of person who performs work for or on behalf of an agency (but 
not a Federal employee).
    Days means calendar days unless otherwise noted in this part.
    Employee means an individual who has completed the first year of an 
appointment in the Civil Service when it is employment subject to 
investigation and is no longer serving the initial probation or trial 
period, if applicable. In the case of an appointee whose initial 
probation or trial period is for more than one year, the individual 
will be considered an employee at the completion of their initial 
probation or trial period.
    Employment Subject to Investigation, except as described elsewhere 
in this part, includes an appointment to the competitive service or 
career senior executive service, an appointment to the excepted 
service, employment as a contractor employee, or employment as a 
nonappropriated fund employee.
    Excepted Service means any position excepted from the competitive 
service or the Senior Executive Service of the executive branch. For 
the purposes of this regulation, excepted service does not include:
    (1) positions in any element of the intelligence community as 
defined in the National Security Act of 1947, as amended, to the extent 
they are not otherwise subject to Office of Personnel Management (OPM) 
appointing authorities;
    (2) positions where OPM is statutorily precluded from prescribing 
such standards; and
    (3) positions when filled by political appointment. Senior 
Executive Service noncareer, limited term, and limited emergency 
appointments are excepted from the competitive service in this part. 
Excepted service does not mean any position excepted from the 
competitive service of the executive branch that could be 
noncompetitively converted to the competitive service.
    Fitness is the level of character or conduct determined necessary 
for an individual to perform work for a Federal agency as an employee 
in the excepted service, as a contractor employee, or as a 
nonappropriated fund employee.
    Fitness Determination means a decision by an agency that an 
individual has or does not have the required level of character and 
conduct necessary to perform work for a Federal agency as an excepted 
service employee. These determinations are based on whether an 
individual's character or conduct may have an adverse impact on the 
integrity or efficiency of the service.
    Material means, in reference to a statement, one that affects, or 
has a natural tendency to affect, or is capable of influencing, an 
official decision even if OPM or an agency does not rely upon it.
    Nonappropriated fund employee means an employee paid from non-
appropriated funds of an instrumentality of the United States under the 
jurisdiction of the Armed Forces conducted for the comfort, pleasure, 
contentment, and mental and physical improvement of personnel of the 
Armed Forces as described in section 2105 of title 5, United States 
Code.
    Political Appointment means an appointment by Presidential 
nomination for confirmation by the Senate, an appointment by the 
President without Senate confirmation (except those appointed under 5 
CFR 213.3102(c)); an appointment to a position compensated under the 
Executive Schedule (5 U.S.C. 5312 through 5316); an appointment of a 
White House Fellow to be assigned as an assistant to a top-level 
Federal officer (5 CFR 213.3102(z)); a Schedule C appointment (5 CFR 
213.3301, 213.3302); a noncareer, limited term, or limited emergency 
Senior Executive Service appointment (5 CFR part 317, subpart F); an 
appointee to serve in a political capacity under agency-specific 
authority; and a provisional political appointment.
    Suitability action means an outcome described in Sec.  731.203 and 
may be taken only by OPM or an agency with delegated authority in the 
case of the competitive service or career Senior Executive Service 
under the procedures in subparts C and D of this part.
    Suitability determination means a decision by OPM or an agency with 
delegated authority that an individual is suitable or is not suitable 
for employment in the competitive service or career Senior Executive 
Service in the Federal Government or a specific Federal agency. A 
determination is based on whether an individual's character or conduct 
may have an adverse impact on the integrity or efficiency of the 
service.

[[Page 6205]]

    (b) The purpose of this part is as follows:
    (1) To establish investigation, continuous vetting, and reciprocity 
requirements for an appointment to a position in the competitive 
service and excepted service, and for career appointment in the Senior 
Executive Service. Contractor employee fitness and nonappropriated fund 
employee fitness, as addressed in sections 3(b) and 3(c) of Executive 
Order (E.O.) 13488, are also subject to these position designation 
requirements, investigative standards, and reciprocity-requirements.
    (2) To establish the criteria for making a determination of 
suitability for the competitive service or career Senior Executive 
Service and a minimum standard of fitness for the excepted service.
    (3) To establish the procedures for taking suitability actions in 
the case of the competitive service or career Senior Executive Service.
    (4) An Agency shall exercise due regard to this regulation and 
supplemental guidance if determining fitness for employment as a 
contractor employee or as a nonappropriated fund employee.
    (c) Any determination made and action taken under this part are 
distinct from: an objection to an eligible or pass over of a preference 
eligible; OPM's or an agency's decision on a request, made under 5 
U.S.C. 3318 and 5 CFR 332.406; and any determination of eligibility for 
access to classified information or for assignment to, or retention in, 
sensitive national security positions made under, E.O. 12968, E.O. 
10865, or E.O. 13467, as amended, or similar authorities.


Sec.  731.102   Implementation.

    (a) An investigation conducted under this part may not be used for 
any other purpose except as provided in a Privacy Act system of records 
notice published by the agency conducting the investigation and section 
1.1(e) of Executive Order 13467, as amended.
    (b) OPM may set forth any policy, procedure, criteria, standard, 
quality control procedure, and supplementary guidance to implement this 
part in an OPM or joint Executive Agent issuance.


Sec.  731.103   Delegation to agencies for the competitive service and 
career Senior Executive Service.

    (a) Subject to the limitations and requirements of paragraphs (b), 
(d), and (f) of this section, OPM delegates to the head of an agency 
authority for making a suitability determination and taking a 
suitability action (including limited, agency-specific debarments under 
Sec.  731.205) in a case involving an applicant or appointee.
    (b) When an agency, acting under delegated authority from OPM, 
determines that a Government-wide debarment by OPM under Sec.  
731.204(a) may be an appropriate action, it must refer the case to OPM 
for debarment consideration. An agency must make a referral prior to 
any proposed suitability action, but only after sufficient resolution 
of the suitability issue(s) to determine if a Government-wide debarment 
appears warranted.
    (c) An agency exercising authority under this part by delegation 
from OPM must adhere to OPM requirements as stated in this part and 
issuances described in Sec.  731.102(b). An Agency must also implement 
policies and maintain records demonstrating that they employ reasonable 
methods to ensure adherence to these issuances.
    (d) OPM reserves the right to undertake a determination of 
suitability based upon evidence of falsification or fraud relating to 
an examination or appointment at any point when information giving rise 
to such a charge is discovered. OPM must be informed in all cases where 
there is evidence of material, intentional false statements, or 
deception or fraud, in examination or appointment, and OPM will take a 
suitability action where warranted.
    (e) OPM may revoke an agency's delegation to make suitability 
determinations and take suitability actions under this part if an 
agency fails to conform to this part or OPM issuances as described in 
Sec.  731.102(b).
    (f) OPM retains sole jurisdiction to make a final suitability 
determination and take an action under this part in any case where 
there is evidence that there has been a material, intentional false 
statement, or deception or fraud, in examination or appointment. OPM 
also retains sole jurisdiction to make a final suitability 
determination and take an action under this part in any case when there 
is evidence of an action or conduct that falls within any or all of the 
following factors: Knowing engagement in an act or activity with the 
purpose of overthrowing Federal, State, local, or tribal government by 
an unconstitutional mean; an Act of force, violence, intimidation, or 
coercion with the purpose of denying others the free exercise of their 
rights under the U.S. Constitution or any state constitution; 
Attempting to indoctrinate another or to incite another to action in 
furtherance of an illegal act; Active membership or leadership in a 
group with knowledge of its unlawful aim, or participation in such a 
group with a specific intent to further its unlawful aim. An Agency 
must refer these cases to OPM for suitability determinations and 
suitability actions under this authority. Although no prior approval is 
needed, notification to OPM is required if the agency wants to take, or 
has taken, action under its own authority (such as 5 CFR parts 315, 
359, or 752) in cases involving conduct fitting within any of these 
factors. In addition, paragraph (a) of this section notwithstanding, 
OPM may, in its discretion, exercise its jurisdiction under this part 
in any case it deems necessary regardless of whether the agency may 
adjudicate under another authority.


Sec.  731.104   Investigation and reciprocity requirements.

    (a) To establish an individual's suitability or fitness, employment 
subject to investigation identified in Sec.  731.101 requires the 
individual to undergo investigation by an agency with authority to 
conduct investigations, except as described in paragraphs (a)(1) 
through (3) of this section.
    (1) Promotion, demotion, reassignment, or transfer from employment 
subject to investigation to other employment subject to investigation 
without a break in service does not require the person to undergo a new 
investigation if the person has already undergone an investigation, 
unless the new employment is at a higher risk level.
    (2) When the person entering employment subject to investigation 
has undergone a background investigation that is at or above the level 
required for the position as determined by position designation and has 
a qualifying break in service specified in supplemental guidance, a new 
investigation need not be conducted unless the agency obtains new 
information in connection with the person's employment that calls into 
question the person's suitability or fitness under Sec.  731.202. 
Agencies will need to enroll individuals re-entering service after a 
break in service into continuous vetting, consistent with the 
requirements in Sec.  731.106(d).
    (3) Positions that are intermittent, per diem, or temporary in 
nature, not to exceed an aggregate of 180 days per year in either a 
single continuous appointment or series of appointments, do not require 
a background investigation for suitability or fitness. The employing 
agency, however, must conduct such checks as it deems appropriate to 
ensure the suitability or fitness of the person. The employing agency 
must conduct such vetting as required under OPM issuances.
    (b)(1) An individual does not have to serve a new probationary or 
trial period in the Civil Service merely because the individual's 
employment is subject to

[[Page 6206]]

investigation under this section. An individual's probationary or trial 
period in the Civil Service is not extended because the individual's 
employment is subject to investigation under this section.
    (2) A suitability determination must be made for each appointment 
in the competitive service or career Senior Executive Service and a 
fitness determination must be made for each appointment in the excepted 
service, except as described in paragraph (b)(2)(ii) of this section.
    (i) In the case of a prior investigation that is reciprocally 
accepted, if the record in the Central Verification System or its 
successor does not reflect a prior favorable suitability or fitness 
determination, the agency will need to review the prior investigation 
for the purpose of making a suitability or fitness determination.
    (ii) In the case of a prior investigation that is reciprocally 
accepted, if the prior investigation was favorably adjudicated for 
suitability or fitness, the agency shall accept the prior determination 
unless:
    (A) The investigative record on file for the individual shows 
conduct that is incompatible with the core duties of the relevant 
covered position; or
    (B) The agency has prescribed additional factors under section 
731.202(b) that were not addressed in the prior favorable adjudication, 
and the agency will conduct an adjudication using only those additional 
factors.
    (C) Reinvestigation or continuous vetting requirements under Sec.  
731.106 are not affected by this section.


Sec.  731.105   Authority to take suitability actions in cases 
involving the competitive service or career Senior Executive Service.

    (a) OPM or an agency acting under delegated authority may take a 
suitability action in connection with any application for, or 
appointment to, the competitive service or career Senior Executive 
Service.
    (1) OPM's or an agency's authority to take a suitability action 
continues when an application is withdrawn, when an offer of employment 
is withdrawn, or when an individual appointed separates from 
employment.
    (2) OPM's or an agency's authority to take a suitability action 
includes the case of an application for or appointment to the 
competitive service or career Senior Executive Service from another 
type of position when a prior investigation is being reciprocally 
accepted as described in Sec.  731.104(a).
    (b) OPM may take a suitability action under this part against an 
applicant or appointee based on the criteria in Sec.  731.202.
    (c) Except as limited by Sec.  731.103(b), (d), and (f), an agency, 
exercising delegated authority, may take a suitability action under 
this part against an applicant or appointee based on the criteria of 
Sec.  731.202;
    (d) Only OPM may take a suitability action under this part against 
an employee in the competitive service or career Senior Executive 
Service based on the criteria of Sec.  731.202(b)(3), (7), (8), (9), 
(10), or (11).
    (e) An agency may not take a suitability action against an employee 
in the competitive service or career Senior Executive Service. Nothing 
in this part precludes an agency from taking an adverse action against 
an employee under the procedures and standards of part 752 of this 
chapter or terminating a probationary employee under the procedures of 
part 315 or part 359 of this chapter or under agency specific 
authorities. An agency must notify OPM to the extent required in Sec.  
731.103(d) and (f) if it wants to take, or has taken, action under 
these authorities. OPM retains the right to take a suitability action 
even in those cases where the agency makes an adjudicative 
determination under another authority.


Sec.  731.106   Designation of public trust positions and investigative 
requirements.

    (a) Risk designation. An agency head must designate at high, 
moderate, or low risk level, as determined by the position's potential 
for adverse impact to the efficiency or integrity of the service, every 
position: in the competitive service; in the excepted service; to be 
filled with a career appointment in the Senior Executive Service; and 
in which the occupant performs a service as a contractor employee or as 
a nonappropriated fund employee. OPM provides a risk designation system 
for agency use in an issuance as described in Sec.  731.102(b).
    (b) Public Trust position. A position at the high or moderate risk 
level is designated as a ``Public Trust'' position. Such positions may 
involve policy making, major program responsibility, public safety and 
health, law enforcement duties, fiduciary responsibilities or other 
duties demanding a significant degree of public trust, and positions 
involving access to or operation or control of financial records, with 
significant risk for causing damage or realizing personal gain.
    (c) Investigative requirements. (1) An individual entering 
employment subject to investigation under this part must undergo a 
background investigation as described in Sec.  731.104. OPM establishes 
minimum investigative requirements correlating to the risk level. An 
investigation should be initiated before the individual is appointed or 
otherwise becomes employed by or on behalf of the agency; however, 
where an agency does not timely initiate the investigation, it must do 
so as soon as possible, even if the appointment has already occurred.
    (2) Any position subject to risk designation under this section 
must also receive a sensitivity designation of Special-Sensitive, 
Critical-Sensitive, Noncritical-Sensitive, or Nonsensitive, as 
appropriate. This designation is complementary to the risk designation 
and may have an effect on the position's investigative requirement. 
Part 1400 of this chapter details the various sensitivity levels and 
investigative requirements for positions designated as sensitive. 
Procedures for determining investigative requirements for a position 
based upon risk and sensitivity will be published in issuances, as 
described in Sec.  731.102(b) and part 1400 of this chapter.
    (3) If a suitability or fitness issue develops prior to the 
required investigation, OPM or the agency may request investigation 
from an authorized investigative service provider sufficient to resolve 
the issue and support an unfavorable suitability or fitness 
determination. However, inquiries into criminal or credit history 
cannot occur until a conditional offer has been made, as specified in 
Sec.  731.106(g). If warranted for positions in the competitive service 
or career Senior Executive Service, an agency may also take suitability 
action, in accordance with the authorities described in this part. If 
the individual is then appointed or otherwise becomes employed by or on 
behalf of the agency, the minimum level of investigation must be 
conducted as required by paragraph (c)(1) of this section.
    (d) Continuous vetting requirements. (1) Individuals occupying 
positions of employment subject to investigation are also subject to 
continuous vetting through periodic checks of their background at any 
time in accordance with standards issued by OPM. The nature of a 
continuous vetting check, and any additional requirement and parameter 
will be established in supplemental issuances as described in Sec.  
731.102(b). These requirements will take into account position risk and 
sensitivity, with a check being required at regular intervals depending 
on the type of check. An individual may be subject to continuous 
vetting only if they have signed an authorization for release of 
information permitting a disclosure for continuous vetting purposes. 
Continuous vetting for an

[[Page 6207]]

individual in a public trust position satisfies the requirement for a 
periodic reinvestigation of an individual in a public trust position as 
directed in E.O. 13488, as amended. An agency must ensure that each 
continuous vetting check is conducted and a determination made 
regarding continued employment.
    (2) An individual in a sensitive position who is continually vetted 
to standards established by the Security Executive Agent for satisfying 
periodic reinvestigation and/or continuous vetting requirements meets 
the continuous vetting requirements for a public trust position.
    (3) An agency must notify each employee covered by this section of 
the continuous vetting requirements under paragraph (d) of this 
section.
    (e) Risk level changes. If an individual in employment subject to 
investigation experiences a change to a higher position risk level due 
to promotion, demotion, reassignment, or transfer, or the risk level of 
the individual's position is changed to a higher level, the individual 
may remain in or encumber the position. Any upgrade in the 
investigation required for the new risk level should be initiated 
within 14 days after the promotion, demotion, reassignment, transfer or 
new designation of risk level is final or as otherwise required by part 
1400 of this chapter.
    (f) Completed investigations. An investigation or continuous 
vetting check under paragraphs (c), (d), and (e) of this section 
supports a determination by the employing agency of whether the 
findings of the investigation would justify an action under this part 
or under another applicable authority, such as part 315, 359, or 752 of 
this chapter. Section 731.103 addresses whether an agency may take an 
action under this part, and whether the matter must be referred to OPM 
for debarment consideration.
    (g) With respect to Civil Service employment, a hiring agency may 
not make specific inquiries concerning an applicant's criminal or 
credit background of the sort asked on the OF-306 or other forms used 
to conduct suitability investigations for Federal employment (i.e., 
inquiries into an applicant's criminal or adverse credit history) 
unless the hiring agency has made a conditional offer of employment to 
the applicant. An agency may make an inquiry into an applicant's 
Selective Service registration, military service, citizenship status, 
or previous work history, prior to making a conditional offer of 
employment to an applicant. However, in certain situations, an agency 
may have a business need to obtain information about the suitability or 
background of an applicant earlier in the process. If so, an agency 
must request an exception from the Office of Personnel Management, in 
accordance with the provisions of 5 CFR part 330, subpart M.
    (h) When an agency makes a suitability or fitness determination 
based on an investigation, the agency must:
    (1) Ensure that any record used in making the determination is 
accurate, relevant, timely, and complete to the extent reasonably 
necessary to ensure fairness to the individual in any determination;
    (2) Ensure that all applicable administrative procedural 
requirements provided by law, including the regulations in this part 
and issuances as described in Sec.  731.102(b) have been observed;
    (3) Consider all available information in reaching its final 
decision on a suitability or fitness determination or suitability 
action, except information furnished by a non-corroborated confidential 
source, which may be used only for limited purposes, such as 
information used to develop a lead or in interrogatories to a subject, 
if the identity of the source is not compromised in any way; and
    (4) Keep any record of the agency determination or action as 
required by issuances as described in Sec.  731.102(b).
0
6. Revise subpart B to read as follows:

Subpart B--Determinations of Suitability or Fitness; Suitability 
Actions in Cases Involving the Competitive Service or Career Senior 
Executive Service

Sec.
731.201 Standard.
731.202 Criteria for making suitability and fitness determinations.
731.203 Suitability actions by OPM and other agencies for the 
competitive service or career Senior Executive Service.
731.204 Debarment by OPM in cases involving the competitive service 
or career Senior Executive Service.
731.205 Debarment by agencies in cases involving the competitive 
service or career Senior Executive Service.
731.206 Reporting requirements for investigations and suitability 
and fitness determinations.


Sec.  731.201   Standard.

    The standard for a suitability and fitness determination and for a 
suitability action defined in Sec.  731.203 is that the action will 
protect the integrity or promote the efficiency of the service.


Sec.  731.202   Criteria for making suitability and fitness 
determinations.

    (a) General. OPM, or an agency to which OPM has delegated 
suitability authority, must base its suitability determination on the 
presence or absence of one or more of the specific factors in paragraph 
(b) of this section. An agency is responsible for making a fitness 
determination for an excepted service position covered by this part but 
must apply the specific factors in paragraph (b) of this section as the 
minimum standards for making the determination. When applying these 
criteria, an agency must also apply guidance in supplemental issuances, 
as described in Sec.  731.102(b). If using these factors to also make a 
Personal Identity Verification (PIV) Credential determination as 
outlined in OPM issuances regarding PIV credentialing eligibility, an 
agency must also ensure they have verified the individual's identity.
    (b) Specific factors. When making a suitability determination, OPM 
or an agency will consider only the following factors to determine if 
one is suitable. Only OPM may take a suitability action considering the 
factors in paragraphs (b)(3), (b)(7), (b)(8), (b)(9), or (b)(10) of 
this section. Agencies may use the factor in paragraph (b)(11) in 
applicant and appointee cases but not employee cases; however, OPM may 
use this factor in employee cases. When making fitness determinations, 
an agency must consider these factors as a minimum standard, but it may 
prescribe additional factors to protect the integrity and promote the 
efficiency of the service, when job-related and consistent with 
business necessity:
    (1) Misconduct or negligence in employment;
    (2) Criminal conduct;
    (3) Material, intentional false statement, or deception or fraud, 
in examination or appointment;
    (4) Dishonest conduct;
    (5) Excessive alcohol use, without evidence of rehabilitation, of a 
nature and duration that suggests the applicant or appointee would be 
prevented from performing the duties of the position in question, or 
would constitute a direct threat to the property or safety of the 
applicant, appointee, or others;
    (6) Illegal use of narcotics, drugs, or other controlled 
substances, without evidence of rehabilitation;
    (7) Knowing engagement in an act or activity with the purpose of 
overthrowing Federal, State, local, or tribal government;
    (8) An act of force, violence, intimidation, or coercion with the 
purpose of denying another individual

[[Page 6208]]

the free exercise of rights under the U.S. constitution or any state 
constitution;
    (9) Attempting to indoctrinate another or to incite another to 
action in furtherance of an illegal act;
    (10) Active membership or leadership in a group with knowledge of 
its unlawful aim, or participation in such a group with a specific 
intent to further its unlawful aim;
    (11) Any statutory or regulatory bar that prevents the lawful 
employment of the individual involved in the position in question; and
    (12) Violent conduct.
    (c) Additional considerations. OPM and an agency must consider any 
of the following additional considerations to the extent OPM or the 
relevant agency, in its sole discretion, deems any of them pertinent to 
the individual case:
    (1) The nature of the position for which the individual is applying 
or in which the individual is employed;
    (2) The nature and seriousness of the conduct;
    (3) The circumstances surrounding the conduct;
    (4) The recency of the conduct;
    (5) The age of the individual involved at the time of the conduct;
    (6) Contributing societal conditions; and
    (7) The absence or presence of rehabilitation or efforts toward 
rehabilitation.


 Sec.  731.203   Suitability actions by OPM and other agencies for the 
competitive service or career Senior Executive Service.

    (a) This section pertains only to the competitive service or career 
Senior Executive Service as defined in Sec.  731.101.
    (b) For purposes of this part, a suitability action is one or more 
of the following:
    (1) Cancellation of eligibility;
    (2) Removal;
    (3) Cancellation of reinstatement eligibility; and
    (4) Debarment.
    (c) A non-selection, or cancellation of eligibility for the 
competitive service based on an objection to an eligible or pass over 
of a preference eligible under 5 CFR 332.406, is not a suitability 
action even if it is based on reasons set forth in Sec.  731.202.
    (d) A suitability action may be taken against an applicant or an 
appointee to the competitive service or career Senior Executive Service 
when OPM or an agency exercising delegated authority under this part 
finds that the applicant or appointee is unsuitable for the reasons 
cited in Sec.  731.202, subject to the agency limitations of Sec.  
731.103(b), (d), and (f).
    (e) OPM may require that an employee in the competitive service or 
career Senior Executive Service be removed on the basis of one or more 
of the following:
    (1) A material, intentional false statement, deception or fraud in 
examination or appointment;
    (2) Knowing engagement in an act or activity with the purpose of 
overthrowing Federal, State, local or tribal government;
    (3) An act of force, violence, intimidation, or coercion with the 
purpose of denying another individual the free exercise of their rights 
under the U.S. constitution or any state constitution;
    (4) Attempting to indoctrinate another or to incite them to action 
in furtherance of an illegal act;
    (5) Active membership or leadership in a group with knowledge of 
its unlawful aim, or participation in such a group with a specific 
intent to further its unlawful aim; or
    (6) Statutory or regulatory bar that prevents the individual's 
lawful employment.
    (f) OPM may cancel any reinstatement eligibility obtained as a 
result of a material, intentional false statement, deception, or fraud 
in examination or appointment.
    (g) An action to remove an appointee or employee for suitability 
reasons under this part is not an action under part 315, 359, or 752 of 
this chapter. Where conduct covered by this part may also form the 
basis for an action under parts 315, 359, or 752 of this chapter, an 
agency may take the action under part 315, 359, or 752 of this chapter, 
as appropriate, instead of under this part. An agency must notify OPM 
to the extent required in Sec.  731.103(f) if it wants to take, or has 
taken, action under these authorities. OPM reserves the right to also 
take an action under this part.
    (h) An agency does not need approval from OPM before taking an 
unfavorable suitability action. However, it is required to report to 
the Central Verification System or its successor, each unfavorable 
suitability action taken under this part within 30 days after they take 
the action. Also, each suitability determination based on an 
investigation must be reported to the Central Verification System or 
its successor as soon as possible and in no event later than 90 days 
after receipt of the final report of investigation.


Sec.  731.204   Debarment by OPM in cases involving the competitive 
service and career Senior Executive Service.

    (a) When OPM finds an individual unsuitable for any reason listed 
in Sec.  731.202, OPM, in its discretion, may, for a period of not more 
than three calendar years from the date of the unfavorable suitability 
determination, deny that individual examination for, and appointment 
to, the competitive service and career appointment in the Senior 
Executive Service.
    (b) OPM may impose an additional period of debarment following the 
expiration of a period of OPM or agency debarment or when new conduct 
arises while under debarment, but only after the individual again 
becomes an applicant, appointee, or employee subject to OPM's 
suitability jurisdiction, and the individual's suitability is 
determined in accordance with the procedures of this part. An 
additional debarment period may be based in whole or in part on the 
same conduct on which the previous suitability action was based, when 
warranted, or new conduct.
    (c) OPM, in its sole discretion, determines the duration of any 
period of debarment imposed under this section.


Sec.  731.205   Debarment by agencies in cases involving the 
competitive service and career Senior Executive Service.

    (a) Subject to the provisions of Sec.  731.103, when an agency 
finds an applicant or appointee unsuitable based upon reasons listed in 
Sec.  731.202, the agency may, for a period of not more than 3 years 
from the date of the unfavorable suitability determination, deny that 
individual examination for, and appointment to, either all, or specific 
competitive service positions and career appointment to all, or 
specific Senior Executive Service positions within that agency.
    (b) The agency may impose an additional period of debarment 
following the expiration of a period of OPM or agency debarment, but 
only after the individual again becomes an applicant or appointee 
subject to the agency's suitability jurisdiction, and his or her 
suitability is determined in accordance with the procedures of this 
part. An additional debarment period may be based in whole or in part 
on the same conduct on which the previous suitability action was based, 
when warranted, or new conduct.
    (c) The agency, in its sole discretion, determines the duration of 
any period of debarment imposed under this section.
    (d) The agency is responsible for enforcing the period of debarment 
and taking appropriate action if an individual applies for a position 
at that agency during the debarment period, or is examined for or 
appointed to a position at that agency during the debarment period. 
This responsibility

[[Page 6209]]

does not limit OPM's authority to exercise jurisdiction itself and take 
any action OPM deems appropriate.


Sec.  731.206   Reporting requirements for investigations and 
suitability and fitness determinations.

    An agency must report to the Central Verification System or its 
successor the level or nature, result, and completion date of each 
background investigation, reinvestigation, or enrollment in Continuous 
Vetting; each agency decision based on such investigation, 
reinvestigation, or Continuous Vetting; and any personnel action taken 
based on such investigation or reinvestigation, as required in 
supplemental guidance.
0
7. Revise the subpart heading of subpart C to read as follows:

Subpart C--OPM Suitability Action Procedures for the Competitive 
Service or Senior Executive Service

0
8. Amend Sec.  731.302 by revising paragraph (c) to read as follows:


Sec.  731.302   Notice of proposed action.

* * * * *
    (c) OPM will serve the notice of proposed action upon the 
respondent by mail, secure email, or hand delivery no less than 30 days 
prior to the effective date of the proposed action to the respondent's 
last known residence or duty station.
* * * * *
0
9. Revise the subpart heading of subpart D to read as follows:

Subpart D--Agency Suitability Action Procedures for the Competitive 
Service or Career Senior Executive Service

0
10. Amend Sec.  731.402 by revising paragraph (c) to read as follows:


Sec.  731.402   Notice of proposed action.

* * * * *
    (c) The agency must serve the notice of proposed action upon the 
respondent by mail, secure email, or hand delivery no less than 30 days 
prior to the effective date of the proposed action to the respondent's 
last known residence or duty station.
* * * * *
0
11. Revise the subpart heading of subpart E to read as follows:

Subpart E--Appeal to the Merit Systems Protection Board of 
Suitability Actions in Cases Involving the Competitive Service or 
Career Senior Executive Service

[FR Doc. 2023-01650 Filed 1-30-23; 8:45 am]
BILLING CODE 6325-66-P