This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

102675 

Vol. 89, No. 243 

Wednesday, December 18, 2024 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 302 and 731 

RIN 3206–AO17 

Suitability and Fitness 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management (OPM) is issuing a final 

rule revising regulations governing the 

Federal Government personnel vetting 

investigative and adjudicative processes 

for determining suitability and fitness. 

This final rule establishes requirements 

and standards for agencies to properly 

vet individuals to assess risk to the 

integrity and efficiency of the service. 

The regulations establish the 

requirements for when investigations 

must be conducted for appointments to 

the civil service, to work as a contractor 

employee, or to work in a Department 

of Defense Non appropriated Fund 

position. This final rule establishes the 

requirement for enrolling these 

populations, including low, moderate, 

and high risk, into continuous vetting. 

Furthermore, this rule provides 

adjudicative criteria for assessing 

suitability and fitness for much of the 

civil service. Nothing in this rule shall 

be read in derogation of any individual’s 

rights under Title VII of the U.S. Code. 

DATES: Effective January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Christine Bilunka at (202) 599–0090 or 

by email at SuitEA@opm.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Under 5 U.S.C. 3301 and 7301, 

Congress authorizes the President to 

prescribe regulations to govern the 

admission into the civil service in the 

executive branch. The regulations must 

‘‘best promote the efficiency’’ of the 

executive branch civil service, 

‘‘ascertain the fitness of applicants with 

respect to character, and prescribe rules 

for the conduct of executive branch 

employees. In addition to the 

President’s authority to prescribe 

standards for suitability and fitness for 

civil service appointments based on 

character and conduct, 5 U.S.C. 3301 

recognizes the President’s authority to 

prescribe qualification standards based 

on applicants’ education and experience 

and to assess their relative knowledge, 

skill, and ability. 

OPM, as delegated by the President, 

has the authority to prescribe 

qualification standards and to conduct 

examinations of applicants’ 

qualifications. OPM also has the 

authority to prescribe suitability 

standards and to conduct investigations 

of suitability for appointment and 

continuing employment. (See 5 U.S.C. 

1104(a)(1).) Amendments to the Civil 

Service Rules made by Executive Order 

(E.O.) 13764 of January 17, 2017, 

Amending the Civil Service Rules, 

Executive Order 13488, and Executive 

Order 13467 to Modernize the Executive 

Branch-Wide Governance Structure and 

Processes for Security Clearances, 

Suitability and Fitness for Employment, 

and Credentialing and Related Matters, 

directed OPM to establish minimum 

standards of fitness based on character 

and conduct for appointment to 

positions in the excepted service of the 

executive branch. (82 FR 8115.) E.O. 

13764 required the OPM Director to 

establish mutually consistent standards 

and procedures to determine the 

reliability, trustworthiness, and good 

character and conduct of those working 

for the Government in the executive 

branch regardless of appointment type. 

Additionally, E.O. 13764 expanded 

OPM’s responsibilities by making OPM 

responsible for establishing 

investigative standards, risk designation 

procedures, and reciprocity rules for 

positions in the excepted service 

beyond those that could be 

noncompetitively converted to the 

competitive service. 

As amended by E.O. 13764, E.O. 

13488 of January 16, 2009, Granting 

Reciprocity on Excepted Service and 

Federal Contractor Employee Fitness 

and Reinvestigating Individuals in 

Positions of Public Trust, establishes 

that contractor employee fitness or 

nonappropriated fund employee fitness 

is subject to the same position 

designation requirements and 

investigative standards, policies, and 

procedures as fitness determinations for 

civil service employees as prescribed by 

OPM under the Civil Service Rules. (74 

FR 41111.) As amended by E.O. 13764, 

E.O. 13467 of June 30, 2008, Reforming 

Processes Related to Suitability for 

Government Employment, Fitness for 

Contractor Employees, and Eligibility 

for Classified National Security 

Information, establishes a requirement 

for continuous vetting for persons who 

perform, or who seek to perform, work 

for the executive branch in competitive 

service, excepted service, career Senior 

Executive Service, contractor employee, 

and nonappropriated fund positions 

that are included in covered positions as 

defined in the E.O. 73 FR 38103. 

Furthermore, E.O. 13467 (section 2.1(c)), 

as amended by E.O. 13764, requires 

that, to the extent practicable, the 

investigative and adjudicative standards 

for fitness be consistent with the 

suitability standards. 

In May 2018, the OPM Director and 

the Director of National Intelligence, in 

their respective roles as Suitability and 

Credentialing Executive Agent and 

Security Executive Agent, launched an 

effort consistent with this direction, 

‘‘Trusted Workforce 2.0’’ (see https://

www.performance.gov/trustedworkforce/), to transform workforce 

vetting by employing a modernized and 

more efficient process for ensuring that 

only trusted individuals enter and 

remain in the Federal workforce. Key 

goals of the initiative are to capitalize on 

information technology capabilities that 

allow for the integration of automation 

and take advantage of a wider spectrum 

of data, reduce time-intensive manual 

processing, and promote greater 

mobility of the workforce by providing 

vetting processes that enable each 

individual’s vetting status to be 

continuously up to date. This final rule 

helps advance the goals of the Trusted 

Workforce 2.0 initiative. 

Explanation of OPM’s Final Rule 

Aligned Criteria 

OPM is issuing revised suitability 

criteria at 5 CFR 731.202. The basis for 

the specific revisions to several of the 

existing suitability factors is explained 

in the section discussing § 731.202. 

Additionally, OPM is revising § 731.202 

so that these criteria will be used for 

making both suitability and fitness 


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102676 Federal Register / Vol. 89, No. 243 / Wednesday, December 18, 2024 / Rules and Regulations 

determinations except as otherwise 

noted in the regulation. Establishing the 

criteria as the minimum standards of 

fitness for much of the excepted service 

is done per the amended Civil Service 

Rule II (5 CFR 2.1(a)(iii) and (iv), 

making OPM responsible for setting 

standards of suitability for most Federal 

appointments and for setting minimum 

standards of fitness for positions in the 

excepted service, with certain 

exceptions.) Additionally, the aligned 

factors are consistent with E.O. 13467, 

as amended by E.O. 13764, which 

requires standards for suitability for 

appointment in the competitive service 

and standards for fitness for 

appointment in the excepted service be 

aligned ‘‘to the extent possible.’’ OPM is 

also revising 5 CFR 731.104 to specify 

the circumstances under which either a 

suitability or fitness determination is 

required. These changes are described 

in detail in the sections discussing 

§§ 731.104 and 731.202. 

Aligned Position Designation 

Requirements, Investigative Standards, 

and Reciprocity 

This final rule also implements 

several changes to improve consistency 

in the vetting process and to enhance 

mobility of the civil service, contractor 

employee, and nonappropriated fund 

workforces. Specifically, the rule aligns 

the requirements for position 

designation, investigations, and 

reciprocal acceptance of investigations 

and suitability or fitness determinations 

amongst these populations. Agencies 

will use the same system for designating 

position risk (i.e., low, moderate, and 

high) for civil service, contractor 

employee and nonappropriated fund 

positions to determine the 

commensurate level of background 

investigation. Background investigations 

conducted for these positions will be 

done using the same investigative 

standards, which prescribe the 

investigative checks to be conducted at 

low, moderate, and high tiers that 

correlate to position risk. Finally, 

agencies will apply the same rules for 

determining whether reciprocal 

acceptance of prior background 

investigations and suitability or fitness 

determinations are required, promoting 

efficient transfer of trust determinations. 

Civil Service Rule V (5 CFR 5.2(a)), as 

amended by E.O. 13764, section 1, 

establishes that, for positions in the 

excepted service for which the OPM 

Director has standard-setting 

responsibility under 5 CFR part 2, the 

Director may require agencies to 

designate positions based on risk in 

accordance with OPM guidance to 

determine the appropriate level of 

investigation, and may prescribe 

investigative standards, policies, and 

procedures, and reciprocity standards 

for investigations and adjudications of 

suitability and fitness, except to the 

extent statute vests authority to apply 

additional fitness standards in an 

agency. Civil Service Rule VI (5 CFR 

6.3(b)), as amended by E.O. 13764, 

section 1, likewise provides that 

appointments and position changes in 

the excepted service are ‘‘subject to the 

suitability and fitness requirements of 

the applicable Civil Service Rules and 

Regulations’’ as prescribed by the 

Director. 

Policies and procedures for suitability 

and fitness are required to be ‘‘aligned 

using consistent standards to the extent 

possible’’ and to ‘‘provide for reciprocal 

recognition.’’ (E.O. 13467, as amended, 

section 1.1.) Further, agencies are 

required to accept background 

investigations and adjudications 

conducted by other agencies except 

when an agency determines the prior 

investigation or adjudication does not 

meet its standards. (E.O. 13467, as 

amended, section 2.2.) The Director of 

OPM, as the Suitability and 

Credentialing Executive Agent, is 

responsible for establishing these 

requirements through regulations, 

guidance, and standards. (E.O. 13467, as 

amended, section 2.5.) 

E.O. 13488, as amended by E.O. 

13764, establishes that the same 

position designation requirements and 

investigative standards, policies, and 

procedures used for fitness 

determinations for civil service 

employees apply to contractor employee 

fitness and nonappropriated fund 

employee fitness. (E.O. 13488, as 

amended, section 3(b).) Likewise, 

section 3(c) of E.O. 13488, as amended, 

provides that fitness determinations for 

contractor employees and 

nonappropriated fund employees and 

their underlying investigations are 

subject to the same reciprocity 

requirements as those prescribed by 

OPM under the Civil Service Rules for 

employment in the civil service. 

Therefore, contractor employees, except 

those for which OPM is statutorily 

precluded from prescribing standards, 

and nonappropriated fund populations 

are subject to the same position 

designation, investigative, and 

reciprocity requirements as positions in 

the competitive service, the excepted 

service (including positions where the 

incumbent can noncompetitively 

convert to the competitive service), and 

for career appointments to the Senior 

Executive Service. 

The position designation, reciprocity, 

and investigation requirements for 

contractor employees that OPM is 

codifying in part 731 are not new. Since 

2009, E.O. 13488 has covered contractor 

employee fitness, giving agency heads 

discretion on fitness criteria, but 

requiring them to take into account 

OPM guidance when determining if the 

criteria was equivalent for the purpose 

of making a reciprocally acceptable 

determination. Per E.O. 13488, 

reciprocity for fitness and suitability 

determinations applied to contractor 

employees, and agencies have been 

required to report the nature and results 

of background investigations and fitness 

determinations to the government-wide 

investigations and adjudications index 

(Central Verification System or 

successor). Likewise, the requirement 

that contractor employees be subject to 

the same investigative requirements as 

apply to Federal employees has been in 

place since 2012. In a December 6, 2012, 

memorandum issued by the Security, 

Suitability, and Credentialing 

Performance Accountability Council 

(PAC) titled Assignment of Functions 

Relating to Coverage of Contractor 

Employee Fitness in the Federal 

Investigative Standards, the PAC 

determined, after consulting with the 

Department of Defense and other 

affected agencies, that contractor 

employees should be subject to the same 

Federal Investigative Standards as apply 

to Federal employees. Consistent with 

E.O. 13467, which authorized the PAC 

to assign functions related to matters 

such as alignment and improvement of 

investigations and contractor employee 

fitness, the PAC via this memorandum 

assigned the Director of OPM the 

function of prescribing investigative 

standards for ‘‘contractor employee 

fitness,’’ which at that time was defined 

in section 1.3(f) of E.O. 13467 as ‘‘fitness 

based on character and conduct for 

work for or on behalf of the Government 

as a contractor employee.’’ 

The Federal Investigative Standards, 

which were issued by the Executive 

Agents in December 2012, applied ‘‘to 

all individuals working for or on behalf 

of the executive branch and individuals 

with access to federally controlled 

facilities and information systems.’’ The 

Standards were established for 

investigations to determine eligibility 

for logical and physical access, 

suitability for Government employment, 

eligibility for access to classified 

information, eligibility to hold a 

sensitive position, and fitness to 

perform work for or on behalf of the 

Government as a contractor employee. 

This rule does not specifically address 

investigative requirements for eligibility 

for access to classified information or 

for employment in sensitive (national 


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security) positions. Those matters are 

addressed in 5 CFR part 1400 and in 

issuances by the Director of National 

Intelligence acting as the Security 

Executive Agent under E.O. 13467. 

However, this rule continues the 

existing requirement (5 CFR 731.106(a) 

and (c)(2)) that a position must be 

designated based both on its public trust 

risk and its national security sensitivity 

so that the appropriate level of 

investigation is conducted to address 

both suitability and national security 

concerns. Complementary language 

appears in 5 CFR 1400.201. 

Continuous Vetting Requirements 

Continuous vetting refers to the 

process of ‘‘reviewing the background of 

a covered individual at any time to 

determine whether that individual 

continues to meet applicable 

requirements.’’ (E.O. 13467, as 

amended, section 1.3.) In the context of 

suitability and fitness for employment, 

continuous vetting is used to determine 

if an individual remains suitable or fit 

for a position over time. A covered 

individual is, with limited exceptions, 

‘‘a person who performs, or who seeks 

to perform, work for or on behalf of the 

executive branch (e.g., Federal 

employee, military member, or 

contractor), or otherwise interacts with 

the executive branch such that the 

individual must undergo vetting.’’ (Id.) 

In accordance with section 2.1 of E.O. 

13467, as amended, all covered 

individuals are to be subject to 

continuous vetting under standards to 

be established by the Security Executive 

Agent or the Suitability and 

Credentialing Executive Agent 

exercising its Suitability Executive 

Agent functions, as applicable. Further, 

the Director of OPM as the Suitability 

Executive Agent is responsible for 

prescribing applicable investigative 

standards, policies, and procedures. 

With this final rule, any individual 

occupying a position that is subject to 

investigation, as described in revised 

§ 731.104(a), including both public trust 

positions and low risk positions, is 

subject to continuous vetting. The 

nature and specificity of continuous 

vetting checks will be further defined in 

supplemental issuances, and 

requirements will account for position 

risk and sensitivity designations. 

Elimination of Fixed, Five-Year Periodic 

Reinvestigation Requirement for PublicTrust Positions 

With this final rule and OPM’s 

implementation of the continuous 

vetting requirement set forth in E.O. 

13467, as amended, section 2.1, OPM 

has eliminated the fixed, five-year 

periodic reinvestigation requirement for 

public trust positions. 

Digest of Public Comments 

In response to the proposed rule (88 

FR 6192, January 31, 2023), OPM 

received 3,587 comments via the 

eRulemaking portal, one comment via 

email, and one comment by phone. All 

comments were received during the 60- 

day comment period. Comments 

received were from individuals, 

organizations, a labor union, and a 

Federal agency. Approximately 3,500 

identical form comments were 

submitted by about 3,400 commenters. 

In general, the comments ranged from 

categorical rejection of the proposed 

regulations to strong support. OPM 

carefully considered comments and 

arguments made in support of and in 

opposition to the proposed 

amendments. The comments are 

summarized and discussed in the 

subsequent sections. Comments are 

organized by general comments 

followed by comments specific to each 

section. A discussion of the suggested 

revisions that were considered and 

either adopted, adopted in part, or 

declined, and the rationale therefore is 

included. Comments beyond the scope 

of the proposed changes or which were 

vague or incomplete are not addressed. 

General Comments 

Some commenters offered support for 

the regulatory changes, believing that 

the changes to the regulation would 

serve to improve the Government’s 

ability to assess the integrity and 

efficiency of the service and streamline 

the process, while others suggested that 

the current process is sufficient and that 

changes are unnecessary. 

Several commenters took issue with 

the relevant terminology, suggesting that 

the terms ‘‘character,’’ ‘‘suitability and 

fitness,’’ and ‘‘conduct necessary’’ are 

vague and could allow for 

discrimination, including against 

individuals who do not have the same 

educational or cultural background as 

other job applicants. Others commented 

more generally that the rule would 

allow for discrimination without regard 

to an individual’s qualifications, 

asserting that hiring managers could 

determine the level of character 

required and reject candidates based on 

their own ideology. Other commenters 

called the rule unconstitutional and 

illegal, suggesting it may allow for 

discrimination based upon political 

beliefs or protected speech. 

In response to these comments, OPM 

agrees that this final rule advances 

important goals to strengthen and 

streamline personnel vetting. This rule 

implements vetting reform requirements 

and initiatives that span three 

Administrations and were first initiated 

in 2017 and distilled into the 

transformational Trusted Workforce 2.0 

framework beginning in 2018 with a 

focus on revamping the fundamental 

approach and supporting policy 

framework, overhauling business 

processes, and modernizing the 

information technology architecture. 

Effective Government operations require 

that the Government’s workforce be 

trusted to deliver on mission, provide 

excellent service, and demonstrate 

effective stewardship of taxpayer funds. 

Establishing and maintaining trust is a 

core goal of the Federal personnel 

vetting program. Further, as addressed 

in the previous sections (Background 

and Explanation of OPM’s Final Rule), 

the rule implements requirements 

established by the President via 

Executive orders. Therefore, the scope 

of the regulations with respect to the 

populations covered, including the 

excepted service, adheres to the 

direction of the Executive orders. As 

such, OPM will not make any revisions 

to the rule regarding the scope. 

OPM disagrees with comments 

suggesting the language in the 

regulation may allow for discrimination. 

The terms called out by the commenters 

are well-established and their 

application to personnel vetting is not 

changing through this rule. As outlined 

in the regulation and elaborated upon in 

a body of guidance, such as the 

Suitability Processing Handbook, the 

Trusted Workforce 2.0 policy, and the 

Investigative Standards, OPM and 

agencies must base suitability 

determinations on the presence or 

absence of one or more of the specific 

factors in 5 CFR 731.202(b) while 

considering the additional 

considerations in § 731.202(c) to the 

extent they are deemed pertinent. OPM 

also disagrees that agencies, when 

acting in accordance with the rule, are 

at liberty to determine the level of 

character that applicants must possess 

arbitrarily, nor do the requirements 

allow for suitability or fitness decisions 

that are based upon the decisionmaker’s personal ideology. 

With respect to the concerns raised 

that some of the proposed changes are 

vague and may be illegal or 

unconstitutional, OPM disagrees that 

the proposed changes are illegal and 

unconstitutional. OPM acknowledges 

the concerns regarding clarity and is not 

moving forward with some of the 

proposed changes. This is discussed in 

subsequent sections. 


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1See E.O. 13764, sec. 3(q), adding a new section 

2.2 ‘‘Reciprocity’’ to E.O. 13467. The provision 

cited by the commenter (‘‘Any additional 

requirements approved by the appropriate 

Executive Agent shall be limited to those that are 

necessary to address significant needs unique to the 

agency involved, to protect national security, or to 

satisfy a requirement imposed by law.’’) does not 

indicate that agency fitness factors are subject to 

this Executive Agent oversight. The preceding 

sentence states: ‘‘Except as described above and 

except to the extent authority to apply additional 

requirements is vested by statute in an agency, an 

agency may not establish additional . . . 

requirements . . . without the approval of the 

[appropriate Executive Agent].’’ This sentence 

applies to the suitability factors but does not apply 

to the fitness factors, which were ‘‘described 

above.’’ Accordingly, the ‘‘additional requirements 

approved by the appropriate Executive Agent’’ 

refers only to suitability factors. 

Part 302—Employment in the Excepted 

Service 

The final rule adds as an authority 

E.O. 13764, which amended the Civil 

Service Rules to extend authority by the 

OPM Director to establish the minimum 

standards of fitness for the excepted 

service, and amends the existing 

authority citations to comply with 1 

CFR part 21, subpart B. This final rule 

adds § 302.108 to refer readers to part 

731 for requirements on fitness 

determinations for excepted positions. 

Additionally, the section establishes 

that an agency must record its reason(s) 

for making fitness determinations under 

part 731 and must furnish a copy of 

those reasons to an applicant upon their 

request. Section 302.203 is revised to 

direct readers to part 731 for the 

minimum standards and criteria for 

determining fitness for employment 

based on character and conduct, 

allowing agencies to prescribe 

additional factors to protect the integrity 

and promote the efficiency of the 

service when job-related and consistent 

with business necessity. 

One commenter wrote that the 

disqualifying factors in the existing part 

302, which the commenter opines 

address an applicant’s ability to 

effectively work for the Government, 

their ability to faithfully service the 

Federal Government, and other possible 

statutory concerns, are far different from 

the new factors OPM proposed in part 

731. According to the commenter, the 

new factors in part 731 consider 

behavior that is entirely unrelated to the 

applicant’s proven history with the law 

and the Federal Government and the 

applicant’s capacity to perform the job. 

OPM agrees that the disqualifying 

factors in part 302, although similar, 

were not entirely consistent with those 

in § 731.202. OPM disagrees with the 

commenter’s notion that the intent of 

the disqualifying factors was far 

different than consideration of behavior 

as specified in part 731. As was 

explained in the notice of proposed 

rulemaking, the inconsistency is, in 

part, a basis for making the change in 

this rulemaking, as the President has 

called for an executive branch-wide 

vetting enterprise to use, to the greatest 

extent practicable, aligned and 

consistent vetting policies, procedures, 

and standards for determining 

suitability or fitness for Government 

employment. (See E.O. 13467, as 

amended.) Specifically, the President 

directed that the investigative and 

adjudicative standards for fitness must, 

to the extent practicable, be consistent 

with the standards for suitability. (E.O. 

13467, sec. 2.1(c).) Therefore, OPM is 

necessarily changing the way in which 

fitness is determined by aligning the 

factors and additional considerations 

used for fitness determinations with 

those used for suitability. OPM agrees 

that the President intended for the OPM 

Director to establish the minimum 

standards of fitness based upon 

character or conduct (see E.O. 13764, 

sec. 1(a)(iii), revising 5 CFR 2.1(a)(vi).); 

however, OPM disagrees with the 

suggestion that the fitness factors as 

aligned with the suitability factors 

evaluate fitness based on something 

other than an assessment of an 

individual’s character or conduct. Each 

of the factors is designed to allow 

agencies to consider different aspects of 

an individual’s past conduct, as 

identified during the vetting process, 

and how that conduct illustrates the 

individual’s character. See discussion of 

§ 731.202 for more information about 

the factors. 

This same commenter suggested that 

permitting agencies to prescribe 

additional fitness factors is an extreme 

change that grants agencies near 

limitless power. The commenter 

suggested that this delegation to 

agencies is inconsistent with the 

direction of E.O. 13764 to promote 

consistency between agencies. The 

commenter suggested the terms ‘‘jobrelated’’ and ‘‘business necessity’’ must 

be defined very clearly, agencies must 

be required to publicly post and explain 

potential factors, and OPM must oversee 

and assess these factors. 

OPM agrees that E.O. 13764 seeks to 

promote consistency between agencies. 

By aligning the minimum fitness factors 

with the suitability standards, 

application of reciprocity between 

agencies based on fitness determination 

should increase. Under the existing 

regulations, an agency has latitude for 

establishing reasons to deem an 

applicant unfit for an excepted service 

appointment. OPM regulations have 

provided a list of potential disqualifying 

reasons (which are referenced by the 

commenter) but have not required the 

use of any particular factors. This final 

rule, in establishing a specific list of 

factors that can be supplemented by an 

agency in making a fitness 

determination, is not a vast expansion of 

authority for agencies. Commenter’s 

suggestion to the contrary is simply 

incorrect. 

Nonetheless, the President amended 

the Civil Service Rules to make OPM 

responsible for the minimum standards 

of fitness based on character and 

conduct, and thus allowed agencies to 

supplement the fitness standards, where 

appropriate. (See E.O. 13764, amending 

5 CFR 2.1(a)(i) and (ii) to state that OPM 

is responsible for ‘‘Standards of 

suitability’’ for the competitive service 

but is responsible for ‘‘Minimum 

standards of fitness’’ for the excepted 

service.) The President also made clear 

that each agency is authorized to 

‘‘determine[ ] that a particular 

background investigation or 

adjudication does not sufficiently 

address the standards used by that 

agency in determining the fitness’’ of its 

excepted service employees. (E.O. 

13467, sec. 2.2, as amended (emphasis 

added).) Accordingly, OPM is not 

responsible for, nor is it required to 

approve or oversee, the establishment of 

additional fitness factors used by an 

agency in determining fitness for its 

excepted service positions.1 OPM 

agrees, however, that additional fitness 

factors should be made known to 

applicants when such factors are used 

in making an unfavorable fitness 

determination, and therefore has 

included a requirement in § 302.108(b) 

for agencies to make additional factors 

a matter of record and furnish them to 

an applicant, upon request, in such 

circumstances. 

OPM is not accepting the request to 

define what job-related and consistent 

with business necessity means because 

we do not agree it is needed in this 

context. This terminology is not unique 

to personnel vetting and is generally 

understood as the standard that agencies 

must meet to justify unique hiring 

requirements. These concepts appear in 

civil service hiring policy at least as 

early as the Uniform Guidelines on 

Employee Selection Procedures (1978), 

which the Civil Service Commission, 

the Equal Employment Opportunity 

Commission, the U.S. Department of 

Justice, and the U.S. Department of 

Labor helped develop. (See sec. 60–3, 

Uniform Guidelines on Employee 

Selection Procedure (1978); 43 FR 38295 

(Aug. 25, 1978).) OPM and agencies are 

well-versed in applying these concepts. 

(See, e.g., OPM’s Delegated Examining 


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Operations Handbook, available at 

https://www.opm.gov/policy-dataoversight/hiring-information/ 

competitive-hiring/deo_handbook.pdf.) 

Agencies also apply these concepts in 

administering Section 501 of the 

Rehabilitation Act of 1973, as amended 

(29 U.S.C. 791), which prohibits 

selection criteria and standards that 

tend to screen out people with 

disabilities unless the procedures have 

been determined through a job analysis 

to be job-related and consistent with 

business necessity. 

Part 731—Suitability and Fitness 

This final rule revises the authorities 

by adding E.O. 13764, Civil Service Rule 

6, and Presidential Memorandum— 

Enhancing Safeguards to Prevent the 

Undue Denial of Federal Employment 

Opportunities to the Unemployed and 

Those Facing Financial Difficulties 

Through no Fault of Their Own, January 

31, 2014. This rule also revises the 

formatting of existing authorities to 

comply with 1 CFR part 21, subpart B. 

Section 731.101 Purpose 

This section describes the purposes 

for this regulation, which are to 

establish investigation, continuous 

vetting, and reciprocity requirements; 

suitability requirements and the 

minimum standards of fitness; and the 

procedures for taking suitability actions. 

This section also provides definitions 

necessary for administration. Notably, 

OPM is adopting its proposed definition 

for the term ‘‘employment subject to 

investigation,’’ which is used 

throughout the revisions to part 731. 

This term captures the range of 

individuals subject to investigation by 

virtue of their appointment to the 

competitive service or career Senior 

Executive Service, an appointment to 

the excepted service, employment as a 

contractor employee, or employment as 

a nonappropriated fund employee. 

OPM received no comments on this 

section; however, OPM is making 

several changes in the final rule to 

improve clarity and readability. For 

example, OPM has made minor wording 

changes to the definition of excepted 

service (e.g., moving the clause ‘‘of the 

executive branch’’ to follow the word 

‘‘position,’’ which is the noun that the 

clause modifies). OPM is also revising 

the definition of suitability action, 

which referenced the list of actions in 

§ 731.203. OPM has moved that list into 

the definition. Conversely, the 

definition of a suitability action 

included regulatory information of 

relevance in Subpart B and included 

information that was redundant with 

§ 731.203(a); therefore, OPM has deleted 

the redundant information from the 

definition and moved the remaining 

language to § 731.203(b). OPM is 

adopting minor clarifying edits to the 

proposed definitions of appointee, 

contractor employee, and employee. 

OPM also is correcting a numbering 

error from the proposed rule. Proposed 

paragraph (b)(4) is not part of the 

‘‘purpose’’ sentence in paragraph (b) 

and is renumbered as paragraph (c). 

Proposed paragraph (c) is codified at 

paragraph (d) in this final rule. 

Section 731.102 Implementation 

This section addresses the 

requirement to use investigations 

conducted under part 731 only in 

accordance with the Privacy Act and 

section 1.1(e) of E.O. 13467, as 

amended, and it establishes that OPM 

may issue requirements for 

implementing the rule. OPM received 

no comments on this section and is 

adopting the language as proposed. 

Section 731.103 Delegation to 

Agencies for Competitive Service 

Positions 

This section describes the limited 

delegation and related requirements that 

OPM makes to agency heads for 

adjudicating the suitability of applicants 

or appointees for competitive service 

and career Senior Executive Service 

positions (as defined in § 731.101) 

within the agency. 

A commenter suggested OPM revise 

the rule to allow an agency head with 

delegated suitability authority to 

redelegate or convey outside of their 

agency the authority for making 

suitability adjudicative determinations 

for positions within their agency. OPM 

is not accepting this change. For the 

reasons described in the following 

paragraphs, OPM delegates limited 

authority for adjudicating suitability to 

agency heads. Agency heads may 

redelegate the function within their own 

agency, and agency records must show 

any redelegation. 

Congress and the President have 

assigned to OPM the responsibility for 

adjudicating the suitability of certain 

individuals applying to or holding 

positions in the competitive service. 

(See 5 CFR parts 2 and 5; see generally 

5 U.S.C. 3301 and 7301 and the Civil 

Service Rules established in E.O. 10577, 

as amended by E.O.s 12107 and 13764.) 

Congress has authorized the OPM 

Director to delegate any function vested 

in or delegated to the Director to heads 

of executive branch agencies and other 

agencies employing persons in the 

competitive service. (5 U.S.C. 

1104(a)(2).) When OPM delegates 

functions, it must establish standards 

that apply to OPM as well as to any 

agency under delegated authority, and 

OPM must oversee the performance of 

those delegated functions. And, when 

an agency does not wish to perform the 

function(s) delegated, the head of the 

agency may ask OPM to assist in 

performing the function on a 

reimbursable basis. (See 5 U.S.C. 

1104(b)(4).) Additionally, section 

2.5(b)(v) of E.O. 13467, as amended, 

requires the OPM Director, as the 

Suitability Executive Agent, to review 

agency suitability and fitness vetting 

programs on a continuous basis to 

determine whether they are meeting the 

executive order’s requirements. 

Suitability determinations are caseby-case decisions based upon the nature 

of the conduct, as applicable, and the 

functions and responsibilities of the 

position. In making the delegation for 

suitability adjudications to agency 

heads, OPM recognized the important 

role an agency plays in comparing the 

nature of the position against the issues 

in an individual’s background. The 

agency, armed with the understanding 

of the job duties and agency mission, is 

best positioned to determine when 

conduct warrants a finding of 

unsuitability and, in that instance, 

determine the best course of action— 

whether it be taking suitability action in 

accordance with the agency’s delegated 

authority or looking to another authority 

more appropriate or applicable to the 

situation. 

OPM retained the authority to 

adjudicate suitability in cases where the 

nature of the conduct causes the 

individual to be unsuitable for any 

position. Through suitability reviews, 

agency officials may identify cases that 

warrant referral to OPM for suitability 

review and action and can make those 

referrals as is required by the regulation. 

OPM proposed to retain authority to 

adjudicate suitability where there was 

evidence of conduct that fell within 

several proposed, new suitability 

factors. As addressed further in the 

pertinent section of this final rule, OPM 

is not proceeding with the four distinct 

factors that would have comprised 

§ 731.202(b)(7) through (10) and is 

instead retaining the current factor at 

§ 731.202(b)(7). Accordingly, OPM is 

modifying its proposed language at 

§ 731.103(f) to specify that OPM has sole 

jurisdiction to adjudicate cases 

involving evidence of conduct that falls 

within § 731.202(b)(7). 

Section 731.104 Investigation and 

Reciprocity Requirements 

This section establishes investigation 

requirements and reciprocity 

requirements for investigations and for 


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2An agency must consider the nature of the 

position in evaluating suitability or fitness if 

pertinent to a specific case. 5 CFR 731.202(c). This 

assessment, which considers the core duties of the 

position and the relevance of information 

discovered during an investigation, is called a ‘‘core 

duty determination.’’ 

suitability and fitness determinations. 

As an initial matter, a Federal agency 

recommended reorganizing the 

paragraphs in § 731.104(b) for clarity. 

OPM agrees and has made the following 

adjustments from the notice of proposed 

rulemaking: 

• Section 731.104(b)(1) is now 

§ 731.104(b). 

• Section 731.104(b)(2) is now 

§ 731.104(c). 

• Section 731.104(b)(2)(i) is now 

§ 731.104(c)(1). 

• Section 731.104(b)(2)(ii) is now 

§ 731.104(c)(2). 

• Section 731.104(b)(2)(ii)(C) is now 

§ 731.104(d). 

In addition, OPM has edited the 

proposed regulatory language to 

improve clarity and readability. For 

example, OPM modified paragraphs 

(a)(1) and (2) from the proposal to use 

more consistent terminology throughout 

the section. Specifically, paragraphs 

(c)(1) and (2) (as renumbered) referred to 

a prior investigation being reciprocally 

accepted. In contrast, paragraphs (a)(1) 

and (2) discussed the concept of 

reciprocal acceptance of a prior 

investigation but did not use that 

phrasing. In rephrasing paragraphs (a)(1) 

and (2) to use more consistent language, 

OPM has also restated the requirement 

in terms of providing direction to the 

employing agency. OPM also revised 

paragraph (c)(2)(ii) (as renumbered) to 

make clear that the additional factors 

are permitted, but not required, by 

§ 731.202(b). Finally, OPM revised 

paragraph (d) (as renumbered) to 

remove an inadvertent reference to 

reinvestigation. (See prior discussion in 

the Elimination of Fixed, Five-Year 

Periodic Reinvestigation Requirement 

for Public-Trust Positions section.) 

Section 731.104 explains the 

requirements for employment subject to 

investigation (see § 731.101 discussion 

of definitions) and reciprocity 

requirements for populations covered. 

OPM’s proposed revisions, which are 

adopted in this final rule, extend these 

requirements to include the ‘‘excepted 

service,’’ ‘‘contractor employees,’’ and 

‘‘nonappropriated fund employees’’ in 

addition to appointments in the 

competitive service, appointments to 

the excepted service that can 

noncompetitively convert to the 

competitive service, and career 

appointments to the career Senior 

Executive Service. In general, these 

types of employment are subject to 

background investigations for suitability 

or fitness. However, as described in the 

new § 731.104(a)(3), certain short-term 

positions are not subject to background 

investigations for suitability and fitness 

but checks to ensure suitability or 

fitness are still required. 

Per revised 5 CFR 731.104(c), 

suitability determinations must be made 

for all appointments in the competitive 

service, excepted service when the 

position can noncompetitively convert 

to the competitive service, or career 

Senior Executive Service; and fitness 

determinations must be made for all 

appointments to excepted service 

positions, except under specified 

circumstances. Under § 731.104(c)(2), 

however, an agency is generally 

required to reciprocally accept a prior 

favorable determination, except under 

certain circumstances. The conditions 

under which an agency is not required 

to reciprocally accept a prior favorable 

suitability or fitness determination are 

addressed in the new § 731.104(c)(2)(i) 

and (ii). Additionally, OPM clarifies that 

agencies may reciprocally accept a prior 

investigation that is at or above the 

appropriate tier but for which a new 

suitability or fitness determination is 

needed. Prior to this change, the 

regulation could be misread to require a 

new investigation in this scenario. 

The following are examples where an 

agency will reciprocally accept an 

existing background investigation while 

making a new suitability or fitness 

determination. 

Example 1: An individual is 

employed with Agency A in a position 

that required a Tier 5 level background 

investigation. Agency A reported a 

favorable national security 

determination for the Tier 5 

investigation and did not report a 

suitability determination. The 

individual is transferring to a position 

with Agency B which also requires a 

Tier 5 level background investigation. 

The new position is in the competitive 

service, so the agency is also required to 

make a suitability determination. 

Because there is no record of a favorable 

suitability or fitness determination, 

Agency B will request a copy of the 

existing Tier 5 background investigation 

and will review it to make a suitability 

determination. 

Example 2: An individual works for 

Agency A as a Program Analyst. The 

individual had a Tier 4 level 

background investigation for which 

Agency A made a favorable suitability 

determination. The individual has now 

been given a conditional offer for 

employment with Agency B in a 

Fiduciary Service Representative 

position. Agency B sees that the 

individual has a Tier 4 level background 

investigation, which is sufficient for the 

new position. Agency B also sees that 

Agency A made a favorable suitability 

determination; however, the background 

investigation record in the governmentwide repository reflects the individual 

had financial issues. Given the financial 

duties of the new position, Agency B 

determines that a core duty 

determination 2 is warranted. Agency B 

must reciprocally accept the existing 

Tier 4 background investigation but will 

request a copy of it for review to 

determine whether the individual is 

suitable for the position with their 

agency. 

With respect to break-in-service 

requirements, OPM is removing the 24- 

month break-in-service provision that 

applied to reciprocity (see current 

§§ 731.104(a)(5) and 731.202(d)). This 

requirement is replaced with a new 

process, established in the Federal 

Personnel Vetting Investigative 

Standards issued by the Suitability, 

Credentialing, and Security Executive 

Agents, which expands this window of 

time up to sixty months using a tiered, 

risk-based approach of graduated levels 

of investigation. Upon reentry, 

individuals will be enrolled into 

continuous vetting consistent with new 

requirements in § 731.106(d). 

Finally, OPM updates requirements 

for ‘‘seasonal’’ positions to require a 

background investigation as addressed 

in § 731.106(c)(1). Seasonal employees, 

in accordance with 5 CFR 340.401(a), 

are permanent employees who are 

placed in a nonduty/nonpay status and 

recalled to duty in accordance with 

preestablished conditions of 

employment. Because of the permanent 

characteristics of the positions, they 

implicate different risks than temporary 

appointments. 

An individual commented on the 

option for agencies to make a core duty 

determination, rather than reciprocally 

accept a prior favorable suitability or 

equivalent fitness determination. The 

commenter believes this option will 

require agencies to review the prior 

investigative record each time an 

individual changes positions and 

suggested instead that OPM consider 

stipulating a time period after which 

agencies would no longer need to 

consider the impact of past conduct, as 

indicated in a prior investigation, 

against the core duties of the new 

position. OPM does not agree with the 

commenter’s interpretation. Agencies 

are not required to make a core duty 

determination each time an individual 

changes positions. Core duty 


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determinations are only required when 

there is information in the individual’s 

investigative record as reflected in the 

government-wide repository that shows 

the individual has engaged in conduct 

that may be incompatible with the core 

duties of the position to which the 

person is applying or transferring into. 

That prior conduct may make that 

person unsuitable or unfit for the new 

position, though they were suitable or 

fit for the current position. It would be 

inconsistent with the manner in which 

suitability should be assessed if OPM 

were to establish deadlines after which 

an agency may not consider how 

conduct may impact suitability or 

fitness for a new position. Take for 

example an individual moving into a 

law enforcement position where 

conduct of a criminal nature, even if 

dated, may be incompatible. While OPM 

is not making a change as a result of this 

comment, we acknowledge that 

enhancements to information 

technology systems allowing agencies 

more clarity regarding the nature of 

conduct contained within the 

investigation record would streamline 

and reduce processing times for 

agencies. Additionally, future system 

enhancements could avoid the need for 

agencies to request copies of prior files 

as is often required currently to make a 

new determination. 

A labor union expressed support for 

the change to remove the 24-month 

break in service provision citing that 

investigations can be onerous and timeconsuming for employees. The 

organization agreed that the change is a 

reasonable step towards minimizing that 

burden. 

A Federal agency recommended that, 

as written, the proposed regulatory text 

requiring agencies to enroll individuals 

into continuous vetting when reentering 

service may not align with 

implementation guidance. 

Implementation guidance has not yet 

been made available for the full scope 

of this rule. OPM is revising the 

regulatory text in § 731.104(a)(2) for 

clarity by adding that agencies must 

request such checks as may be specified 

in implementing guidance and must 

enroll individuals re-entering service 

after a break in service into continuous 

vetting, consistent with the 

requirements in § 731.106(d). 

Additionally, OPM will continue to 

issue updated implementation guidance 

as continuous vetting is expanded to 

more populations. 

Section 731.105 Authority To Take 

Suitability Actions in Cases Involving 

the Competitive Service or Career Senior 

Executive Service 

This section specifies OPM and 

agency authorities with respect to taking 

suitability actions. Changes from the 

current rule are for clarity and to 

address the additional circumstances 

under which OPM retains jurisdiction 

when the nature of the conduct would 

make an individual unsuitable to hold 

any covered position. 

One commenter believed that, 

because the language in § 731.105(a)(1) 

was new (clarifying that suitability 

actions can be taken if an application is 

withdrawn, if an offer of employment is 

withdrawn, and if an appointed 

individual separates from employment), 

the authority to take suitability actions 

in these instances is also new. It is not. 

The authority to take suitability actions 

in these circumstances exists currently 

and updates to the regulation simply 

provide clarity and greater transparency 

on the situations when suitability 

actions can be taken. In regulatory 

changes made in 2008 (see 73 FR 

20149), OPM revised the definition of 

‘‘applicant’’ from ‘‘[a] person being 

considered for employment’’ to ‘‘a 

person who is being considered or has 

been considered for employment.’’ In a 

notice explaining the regulatory 

changes, OPM stated ‘‘[s]uitability 

actions may be warranted for 

individuals who are not currently, but 

were previously, under consideration. 

For instance, if an individual provided 

fraudulent information in an attempt to 

obtain a Federal job, he or she might no 

longer be actively under consideration 

because the qualification requirements 

were not met. In such a case, it is in the 

best interests of the Government to refer 

the case to OPM for suitability 

adjudication.’’ (See Federal 

Investigations Notice No. 09–06, 

available at https://www.dcsa.mil/ 

Portals/128/Documents/pv/GovHRSec/ 

FINs/FY09/fin-09-06.pdf.) The 

commenter also suggested that, by 

resigning from a position, the individual 

should be protected from a suitability 

action. However, if an individual who is 

undergoing a suitability review and 

whose suitability is in question has the 

job application or offer withdrawn or 

resigns or is terminated for reasons 

other than suitability, this will not 

prevent an agency or OPM from taking 

a suitability action, including the 

potential to impose a debarment so that 

the individual cannot serve in a position 

for a period of time. Imposing a 

debarment through the suitability action 

process not only stops an individual 

from holding a covered position, it also 

offers a period of time for the individual 

to potentially rehabilitate from the 

concerning conduct that caused them to 

be deemed unsuitable, raising the 

possibility that they could be found 

suitable for a future position after the 

period of debarment has concluded. To 

improve clarity, OPM is adopting 

revised text at § 731.105(a)(1) to reflect 

the intent of the rule, which is to allow 

OPM or an agency to continue with an 

action that is in process. Specifically, 

we are revising ‘‘take’’ in the proposed 

rule to ‘‘complete’’ in this final rule. 

At § 731.105(d), in addition to OPM 

having jurisdiction over material 

intentional falsification, OPM has added 

that only OPM is able to take a 

suitability action under part 731 against 

an employee in the competitive service 

or career Senior Executive Service based 

on the criteria of § 731.202(b)(3), (7), or 

(8). As addressed further in the 

pertinent section of this final rule, OPM 

is not proceeding with the four distinct 

factors that would have comprised 

§ 731.202(b)(7), (8), (9), or (10) and is 

instead retaining the current factors at 

§ 731.202(b)(7) and (8). An individual 

commented that the proposed change to 

also retain jurisdiction over the 

(previously proposed) four distinct 

additional factors is unjustified as it 

seems to exist for the exclusive purpose 

of targeting ideological enemies. The 

commenter’s concerns with the factors 

are moot now that OPM has decided not 

to proceed with those factors; but, with 

respect to the commenter’s objection to 

OPM retaining suitability jurisdiction, 

OPM does not agree with the 

commenter’s contention. OPM is 

assigned the authority to adjudicate 

suitability on behalf of the executive 

branch. Where OPM has determined 

that individual agencies are better 

positioned to make the suitability 

determination, OPM has delegated the 

responsibility to the respective agency 

head. However, where there is evidence 

of conduct that would make an 

individual unsuitable for any covered 

position, OPM retains jurisdiction as 

only OPM can impose a governmentwide debarment. 

Section 731.106 Designation of Public 

Trust Positions and Investigative 

Requirements 

This section addresses requirements 

for agencies to designate position risk 

and sensitivity. OPM is adding a 

reference to 5 CFR part 1400, which is 

the complementary regulation, issued 

jointly by OPM and the Office of the 

Director of National Intelligence (ODNI), 

addressing position sensitivity 

designations. Additionally, OPM 


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clarifies the timing of initiating 

background investigations, which 

should occur prior to appointment. This 

is consistent with OPM’s prior guidance 

for issuing personal identity verification 

credentials and with what is required 

for positions with a sensitivity 

designation, as specified in 5 CFR part 

1400. 

OPM is also moving the requirements 

regarding the timing of criminal and 

credit history collection from § 731.103 

to this section by including the language 

that was published in the final rule to 

implement the Fair Chance to Compete 

for Jobs Act of 2019 (see 88 FR 60317). 

Finally, this section adds the 

requirement for continuous vetting for 

the low risk population and replaces 

periodic reinvestigations for the public 

trust population. 

One commenter recommended that 

OPM should enhance training on 

position designation and provide 

additional guidance to agencies. The 

comment is outside the scope of the rule 

changes, but OPM will take the 

commenter’s suggestion under 

consideration. 

OPM received comments in support 

of and in opposition to continuous 

vetting. A labor union, in support of the 

change, acknowledged the importance 

of ensuring that the integrity and 

efficiency of the civil service is upheld 

but expressed concern with the current 

reinvestigation process, which they 

described as unnecessarily rigid and 

burdensome for employees. 

The same labor union and another 

commenter urged OPM to consider the 

burden on employees, while two 

commenters opined that the nature and 

periodicity of the continuous vetting 

checks needs to be specified. One 

commenter expressed concern that the 

investigative service provider could 

determine the scope of the checks, 

causing the checks to be too intrusive. 

OPM acknowledges that, even with the 

shift to continuous vetting, individuals 

will be required to provide self-reported 

information and may be subject to 

interviews or inquiries as a result of 

information revealed via checks. OPM 

recognizes that the Privacy Act of 1974 

requires collecting information, to the 

greatest extent practicable, from the 

individual and, accordingly, that there 

is a need to provide the individual with 

an opportunity to address issues an 

agency may determine to be 

adjudicatively relevant. OPM also agrees 

that the process should be designed in 

a way such that individuals undergoing 

vetting are not required to provide 

information or respond to requests 

unnecessarily. These individuals 

deserve transparency into the vetting 

process in a way that will not jeopardize 

the nation’s security. OPM and ODNI, in 

their respective roles as the Suitability 

and Security Executive Agents, establish 

the continuous vetting checks that are 

required, considering the positions’ risk 

and sensitivity levels. The requirements 

specify the types of checks conducted 

along with the periodicity. Heads of 

agencies must follow policies and 

issuances by the Executive Agents, 

including investigative standards (see 

E.O. 13467, sec. 2.7, as amended) and 

all Federal personnel vetting conducted 

by the executive branch must comply 

with the standards established by the 

Executive Agents. Therefore, the 

mechanisms will be better understood 

and widely followed, resulting in 

consistent and standardized checks 

across the covered populations. 

One commenter opined that, if 

periodic reinvestigations are replaced by 

continuous vetting, the initial check 

should only go back one year, while two 

commenters opined that individuals in 

positions designated as low risk should 

not be subject to continuous vetting or 

personnel vetting standards because 

they do not require security clearances, 

making it unfair for them to fall under 

the same scrutiny. Various commenters 

also expressed concern that the 

requirement is contrary to the 

Administration’s position on second 

chance hiring, will result in less talent 

competing for Government positions, 

could cause difficulty keeping jobs, and 

is too invasive. An organization objected 

to the reduction in suitability and 

fitness review from an objective, fiveyear reassessment to a continuous 

review process on the basis that the 

current rule already permits this and 

that doing away with the five-year 

requirement could weaken agency 

security. 

OPM agrees that the current rule 

permits checks for the public trust 

population at a higher periodicity if 

they take place at least once every five 

years but otherwise disagrees with these 

points. The requirement that 

individuals working for or on behalf of 

the Government be subject to some level 

of vetting dates back several decades. 

More recently, since 2008, under the 

Final Credentialing Standards for 

Issuing Personal Identity Verification 

Cards under Homeland Security 

Presidential Directive 12, a Tier 1 or 

equivalent investigation has been 

required to be granted a personal 

identity verification (PIV) credential. 

Investigative source and coverage 

requirements for full background 

investigations are established 

commensurate with the position risk 

and sensitivity designations and the 

same will be true with continuous 

vetting requirements. The President, by 

Executive order, established the 

requirement for continuous vetting for 

covered individuals, and therefore, 

OPM is implementing that requirement 

via this rule. OPM has revised the 

regulatory text to state that checks must 

be conducted at regular intervals based 

on the type of check and with 

consideration of position risk and 

sensitivity. These provisions were in the 

proposed regulatory text but are 

reorganized to clarify the agency 

requirements. Similarly, OPM has made 

minor changes to the examples of public 

trust positions in the regulatory text to 

improve readability. 

Another commenter raised questions 

about the authorities that agencies may 

consider when actionable information is 

returned as the result of continuous 

vetting checks. As has been the case 

with periodic reinvestigations, agencies 

will consider the substantive standards 

in § 731.202 when evaluating the 

results. A person’s employment status, 

however, will determine the applicable 

agency authority and procedures to be 

followed in any action taken based upon 

the results. In many instances, based 

upon the time on the job and/or the 

conduct occurring post appointment, a 

suitability action under part 731 will 

not be applicable. Nonetheless, conduct 

that surfaces could be the basis for an 

adverse action under 5 CFR part 752. 

Whether to propose or take an adverse 

action based on results from continuous 

vetting checks is a matter within the 

discretion of the employing agency. 

How the results of continuous vetting 

may be addressed when a favorable 

determination cannot be made is not 

different from how agencies currently 

manage the results of periodic 

reinvestigations. 

A commenter expressed concern with 

the language in the revised 

§ 731.106(d)(1) specifying that 

individuals may only be subject to 

continuous vetting if they have signed 

an authorization for release of 

information permitting a disclosure for 

continuous vetting purposes. The 

commenter is concerned the continuous 

vetting requirement addressed in part 

731 might be confused with other 

processes also referred to as continuous 

vetting where a release is not required. 

They asked that OPM replace the word 

‘‘individual’’ to state more clearly to 

whom the continuous vetting 

requirements apply. Section 

731.106(d)(1) addresses the continuous 

vetting requirements as being applicable 

to individuals occupying positions of 

employment subject to investigation 

and, under § 731.101, ‘‘employment 


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subject to investigation’’ generally 

includes an appointment to the 

competitive service or career Senior 

Executive Service, an appointment to 

the excepted service, employment as a 

contractor employee, or employment as 

a non-appropriated fund employee. 

Read as a whole, paragraph (d)(1) 

identifies the population to which 

continuous vetting and the 

corresponding requirements apply. In 

addition, the regulatory text explicitly 

states that continuous vetting may be 

conducted only after an individual has 

signed an authorization for release of 

information. Therefore, OPM is not 

making a change in response to this 

comment. 

OPM is making a clarifying edit to 

§ 731.106(g) with respect to the timing 

of credit history inquiries, consistent 

with OPM’s guidance since December 1, 

2016 (81 FR 86555). For competitive 

service and career Senior Executive 

Service positions, agencies may not 

make specific inquiries concerning an 

applicant’s credit background unless the 

hiring agency has made a conditional 

offer of employment to the applicant or 

has been granted an exception by OPM. 

(See 5 CFR 330.1300.) The requirement 

with respect to timing of collection of 

credit history does not apply to other 

positions, though agencies may 

determine it to be a best practice. 

Section 731.201 Standard 

Section 731.201 has long provided the 

standard for protecting the integrity and 

promoting the efficiency of the service. 

This final rule extends the standard to 

fitness determinations. 

OPM received comments from two 

individuals. One interpreted the change 

making the standard applicable to 

fitness determinations as suggesting that 

agencies may use part 752 procedures to 

take a removal action. The intent of the 

section, however, is to establish that, 

like suitability, fitness determinations 

must be based on the degree of impact 

an individual’s character or conduct 

may have on the integrity and efficiency 

of the service. As we explained in the 

response to comments regarding 

§ 731.106 and also addressed in the 

regulation at § 731.105(e), an agency has 

discretion to take adverse actions 

against individuals under authorities 

other than part 731, as appropriate and 

applicable. For populations subject to 

assessment of fitness, rather than 

suitability, OPM does not establish in 

part 731 procedures by which the 

agency may take an action based upon 

an unfavorable fitness determination. 

The other commenter suggested the 

standard is subject to interpretation by 

hiring officials and could lead to 

prohibited personnel practices, 

discrimination, civil rights violations, 

and potential legal action. The 

commenter asked OPM to develop a 

specific definition for suitability and 

fitness that applies to all agencies. OPM 

agrees that one suitability and fitness 

standard that applies to all agencies, to 

the extent feasible, is desirable. To that 

end, the standard that a suitability 

action ‘‘will protect the integrity or 

promote the efficiency of the service’’ 

has been in place since 2000 when it 

was last updated to add the phrase 

‘‘protect the integrity . . . of the 

service.’’ In addition to considering the 

risk to an agency’s accomplishment of 

its duties or responsibilities, or potential 

interference or prevention of effective 

service in the position, an important 

facet of the standard for suitability is the 

integrity of the merit system and fair 

and open competitions for positions. 

The standard, now applicable to fitness 

determinations, is consistent with the 

suitability standards to the extent 

practicable in accordance with E.O. 

13467, as amended. 

Section 731.202 Criteria for Making 

Suitability and Fitness Determinations 

This section establishes the suitability 

and fitness factors and additional 

considerations that collectively, and in 

consideration of the standard set forth 

in § 731.201, are used by agencies to 

determine if an individual is suitable or 

fit. 

OPM received comments on this 

section from one Federal agency, five 

organizations, one labor union, and 

numerous individuals. Comments were 

in support of and in opposition to the 

proposed changes. Some comments 

were general to the section while others 

related to specific factors. The general 

comments are summarized first. 

Comments on specific factors are 

discussed next. 

One individual opposed the 

application of the minimum standards 

of fitness to contractor employees. The 

individual stated that, because 

contractors are owners, members, or 

non-federal employees conducting their 

personal matters inside private 

businesses, the invasion of privacy and 

other rights is especially damaging and 

an overreach in comparison to the 

factors that had existed in part 302. 

OPM disagrees but offers a clarification. 

First, Government contractors are not 

‘‘conducting their personal matters 

inside private businesses.’’ The very 

reason that a contractor employee needs 

to be vetted is because they are working 

for or on behalf of the Federal 

Government. Second, the President 

directed that contractor employee 

fitness be subject to the same vetting 

requirements (e.g., position designation 

requirements; investigative standards, 

policies, and procedures; reciprocity) as 

civil service employees as prescribed by 

OPM. (See E.O. 13488, as amended.) 

Further, OPM notes that this is not a 

new requirement—contractors have 

been covered by E.O. 13488 since it was 

issued in 2009. Under this Executive 

Order, agency heads were required to 

take OPM guidance into account when 

considering if adjudicative criteria were 

equivalent for the purposes of making a 

reciprocally acceptable determination. 

Contractor employees have also been 

subject to the same investigative 

requirements as Federal employees 

since 2012. This was the result of a 

decision by Security, Suitability, and 

Credentialing Performance 

Accountability Council, as authorized 

by E.O. 13467. Finally, OPM notes that 

the additional authority given to OPM 

by the President to establish the 

minimum standards of fitness relates to 

the excepted service. (See E.O. 13764, 

sec. 2(c), amending E.O. 13488, sec. 

3(a).) As has been the case since 2009, 

agency heads retain the discretion to 

establish adjudicative criteria for 

determining fitness to perform work as 

a contractor employee but with due 

regard to the regulations and guidance 

prescribed by OPM for the civil service 

and directives of the Office of 

Management and Budget. 

A commenter suggested adding a 

factor covering emotional, mental, and 

personality disorders. They suggested 

that an individual’s mental health may 

have the propensity to affect their 

conduct and should be a factor for 

suitability or fitness as is done with 

national security determinations. 

Further, they pointed to medical 

qualification assessments that may be 

available to agencies for civil service 

positions, but not for contractors, as a 

basis for adding mental health concerns 

as a factor in the fitness determination 

process. OPM disagrees. Suitability and 

fitness determinations are decisions on 

whether an individual’s past conduct 

and actions may introduce risk to an 

agency’s mission or are contrary to the 

integrity required of individuals 

working for or on behalf of the 

Government. Additionally, the medical 

qualification determination process is 

addressed in 5 CFR part 339 and, 

therefore, is outside the scope of this 

rulemaking. 

Multiple individuals asked OPM to 

reconsider changes to the factors, stating 

they are inappropriate, vague, overly 

broad and open to personal 

interpretation which could lead to bias 

or discrimination. Several of these 


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3Available at https://www.chcoc.gov/content/ 

assessing-suitabilityfitness-applicants-orappointees-basis-marijuana-use-maintaining-drug. 

commenters suggested the proposed 

changes are illegal and would violate 

constitutional rights. A few commenters 

suggested that individuals should be 

hired based upon their qualifications 

without consideration of the types of 

conduct which the criteria address. 

OPM generally disagrees that any of the 

proposed factors give OPM or agencies 

the ability or authority to consider 

information in a way that is 

unconstitutional; however, OPM is not 

moving forward with some of the 

proposed changes. These changes are 

discussed as part of the discussion of 

each factor in the following sections. 

Further, OPM agrees that the process for 

assessing qualifications of applicants is 

essential, though separate from the 

process of vetting individuals, such as 

for suitability or fitness. In 5 U.S.C. 

chapter 73, Congress authorizes the 

President to prescribe regulations for the 

conduct of employees in the executive 

branch and, in chapter 33, authorizes 

the President to prescribe regulations for 

admission into the civil service that will 

best promote the efficiency of the 

service and to ascertain the fitness of 

applicants for employment sought. As 

such, via the Civil Service Rules, the 

President has made OPM responsible for 

establishing qualification standards and, 

separately, standards of suitability and 

fitness. 

Evaluating whether an individual is 

suitable or fit to work for the Federal 

Government (either directly or 

indirectly as a contractor employee) 

often occurs after a background 

investigation. Portions of that 

investigation are conducted by gathering 

information directly from the individual 

via personnel vetting forms and, in 

some cases, personal interviews. 

Additional information is gathered from 

other sources. 

Once the background investigation is 

complete, an adjudicator evaluates the 

information obtained against the factors. 

Only conduct falling within a factor 

may be the basis for finding one 

unsuitable or unfit. The adjudicator, 

through application of pertinent 

additional consideration, will determine 

whether the individual’s character or 

conduct may have an adverse impact on 

the integrity or efficiency of the service. 

Factor 4—Dishonest Conduct 

OPM proposed to split the existing 

factor regarding ‘‘criminal and dishonest 

conduct’’ into two separate factors to 

make it clear that dishonest conduct 

need not be criminal to be relevant to 

a determination of suitability or fitness. 

OPM is adopting ‘‘dishonest conduct’’ 

as Factor 4. 

A Federal agency noted that financial 

concerns can be easily overlooked under 

the criteria for ‘‘dishonest conduct.’’ 

That Federal agency acknowledged that 

financial irresponsibility may be a 

suitability issue falling under the 

dishonest conduct factor but suggested 

adding a factor specifically to address 

intentional disregard for debt in 

finances. The agency expressed the view 

that adding a factor would provide 

better clarity as the agency recognized 

that, to be a basis for unsuitability, an 

agency must establish financial 

irresponsibility demonstrated by 

evidence of the individual deliberately 

accumulating debt of a significant 

nature and/or intentionally disregarding 

those debts. OPM agrees that an 

important aspect of establishing 

financial irresponsibility as a suitability 

or fitness concern is the requirement to 

have evidence of the dishonest actions 

by the individuals. However, OPM 

believes that the current factor of 

‘‘dishonest conduct’’ sufficiently 

captures this intentional disregard. 

Therefore, the suggestion to add another 

factor, or to elaborate on the existing, is 

not adopted. 

Factor 5—Excessive Alcohol Use, 

Without Evidence of Rehabilitation, of a 

Nature and Duration That Suggests the 

Applicant or Appointee Would Be 

Prevented From Performing the Duties 

of the Position in Question, or Would 

Constitute a Direct Threat to the 

Property or Safety of the Applicant, 

Appointee, or Others 

OPM proposed to change ‘‘alcohol 

abuse’’ to ‘‘excessive alcohol use’’ to 

capture the intent that the relevance to 

suitability and fitness is the need to 

account for an individual’s problematic 

misuse of alcohol over a period of time. 

As OPM described in the proposed rule, 

excessive alcohol use may suggest that 

the individual would be prevented from 

performing the duties of the position or 

would constitute a direct threat to the 

property or safety of themselves or 

others as a result. OPM also proposed to 

remove the requirement that 

rehabilitation be ‘‘substantial’’ to align 

the suitability and fitness factors. 

A labor union agreed with the change 

to this factor as being more 

representative of the concern of 

accounting for an individual’s 

problematic misuse of alcohol, over 

time. The labor union also agreed with 

not requiring evidence that 

rehabilitation be substantial. An 

individual, who also expressed support 

for the change, asked OPM to provide 

additional guidance or examples for 

identifying and distinguishing conduct 

that may fall within this factor as well 

as what constitutes rehabilitation. The 

individual also asked that OPM 

emphasize the importance of following 

other laws which offer protections from 

discrimination based upon past alcohol 

use, such as the Americans with 

Disabilities Act. 

OPM agrees and will continue to 

provide guidance on this factor via 

supplemental issuances to agencies. 

Though outside the scope of this 

rulemaking, OPM also agrees that 

agency personnel involved in the hiring 

process must be familiar with and abide 

by laws and requirements meant to 

protect the rights of job applicants. 

Factor 6—Illegal Use of Narcotics, 

Drugs, or Other Controlled Substances, 

Without Evidence of Rehabilitation 

OPM proposed to remove the 

requirement for evidence of 

‘‘substantial’’ rehabilitation to provide 

consistency between Factors 5 and 6. A 

labor union and the individual 

commenting on Factor 5 in support of 

the change also commented on Factor 6. 

The labor union commended the 

changes to strike the requirement for 

evidence of rehabilitation to be 

substantial while the individual 

expressed support but asked OPM to 

provide additional guidance. 

Another individual suggested striking 

Factor 6, amend it to not apply to 

marijuana, or modify Factor 5 to focus 

on excess use of marijuana because of 

shifts in state laws regarding marijuana 

usage. OPM is not adopting this change. 

Factor 6 may be used by agencies to 

assess an individual’s illegal use of 

several substances, not only marijuana. 

Also, despite changes to state laws, 

marijuana continues to be classified as 

a controlled substance under the 

Controlled Substances Act (21 U.S.C. 

802(16)). But as is the case with any of 

the suitability factors, agencies and 

OPM must apply additional 

considerations, as pertinent, to assess 

the potential for the individual, based 

upon their conduct, to negatively 

impact the integrity and efficiency of 

the service. Marijuana use, alone, is not 

a basis for automatically finding one 

unsuitable or unfit. Instead, the agency 

or OPM must demonstrate how, 

considering the nature of the position, 

the past usage will have negative 

impact. This is the case with any illegal 

use of drugs. Recognizing that past 

marijuana usage may factor into the 

suitability determination of job 

applicants who are well qualified, OPM 

has issued guidance 3 for agencies on 


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how marijuana use may or may not 

adversely affect the integrity and 

efficiency of the service, thereby 

impacting an individual’s suitability or 

fitness for a position. Adjudicators will 

consider the person holistically, 

evaluating any impact to the integrity 

and efficiency of the service on a caseby-case basis. 

Comments Applicable to Proposed 

Factors 7, 8, 9, and 10 

OPM proposed to replace the existing 

Factor 7 with four distinct factors. Most 

of the comments received regarding 

OPM’s proposed changes to the 

suitability factors were on these 

proposed changes. Some commenters, 

including multiple organizations, 

expressed general opposition to the 

changes, asking OPM to leave the 

existing Factor 7 unchanged, while 

others expressed specific concerns. 

Several commenters suggested that, 

without a stricter delineation of 

allowable or disqualifying conduct, the 

factors may be misused and could lead 

to findings of unsuitability for actions 

such as membership in organizations or 

movements that peacefully seek changes 

to our Nation’s current laws and 

policies. The commenters offered other 

examples of conduct that they posited 

could lead to findings of unsuitability 

under the revised factors such as 

protesting at school board meetings or 

counseling a pregnant woman on her 

options. Finally, the commenters 

suggested the rule does not include any 

prohibition about applying the factors in 

a way that circumscribes an individual’s 

personal liberties and recommended 

that OPM include an assertion that the 

factors address conduct not protected by 

the First Amendment. OPM does not 

agree with the commenters’ assessment 

of how the factors could be applied or 

with the examples offered. As OPM 

explained in the proposed rule, the four 

new factors were intended to address 

conduct that has a clear nexus to the 

integrity and efficiency of the civil 

service, that poses significant insider 

threat risks to Federal agencies and the 

public and also is not protected by the 

First Amendment. (88 FR 6192, 6199.) 

OPM acknowledges the commenters’ 

concerns regarding clarity. OPM is not 

proceeding with the four distinct factors 

that would have comprised 

§ 731.202(b)(7), (8), (9), or (10) and is 

instead retaining at § 731.202(b)(7) the 

current factor, Knowing and willful 

engagement in acts or activities 

designed to overthrow the U.S. 

Government by force. 

Proposed Factor 7—Knowing 

Engagement in an Act or Activity With 

the Purpose of Overthrowing Federal, 

State, Local, or Tribal Government 

OPM is not moving forward with its 

proposed changes to Factor 7 and is 

retaining the existing provision at 5 CFR 

731.202(b)(7). Two individuals and two 

organizations supported this factor as 

was proposed, but not Factors 8, 9, and 

10 as were proposed. A Federal agency 

asked OPM to strike ‘‘knowing’’ to avoid 

agencies having to establish evidence of 

the individual’s thoughts and intentions 

and eliminate the risk of not being able 

to establish conduct if the individual 

claims to have not acted knowingly. 

OPM acknowledges that direct evidence 

of knowledge may not be readily 

available thus requiring circumstantial 

evidence. But requiring evidence that 

the individual participated in an act or 

activity with the purpose of 

overthrowing the Government 

knowingly is critical if the conduct is to 

be considered as a basis for finding an 

individual unsuitable or unfit. 

Requiring this element to establish the 

Factor helps demonstrate that the 

individual understood that the conduct 

was wrongful and better avoids 

scenarios where an individual is found 

unsuitable or unfit solely because they 

were in the wrong place at the wrong 

time or were misled about the purpose 

or intent of an event. 

Two organizations and an individual 

questioned the removal of the words 

‘‘by force’’ from § 731.202(b)(7) and 

recommended re-inserting it for clarity. 

As discussed, OPM is not moving 

forward with its proposed changes and 

will retain the existing factor. 

Proposed Factor (8)—An Act of Force, 

Violence, Intimidation, or Coercion 

With the Purpose of Denying Another 

Individual the Free Exercise of Rights 

Under the U.S. Constitution or any State 

Constitution 

A Federal agency suggested revising 

the factor to include attempted acts, and 

two individuals requested that the factor 

be removed because it could be used to 

discriminate against people who hold 

different views than those in 

government. Another commenter, who 

suggested the existing provision at 5 

CFR 731.202(b)(7) was sufficient, 

suggested the language in this factor is 

unclear, overreaches OPM’s authority, 

and could infringe on individuals’ 

rights. The commenter suggested that, 

with this factor, OPM or an agency 

could find someone unsuitable due to 

‘‘praying outside of an abortion clinic or 

marching in a Black Lives Matter protest 

march.’’ An organization suggested the 

factor parrots the ‘‘Klan Act’’ which 

would already be covered by the 

criminal conduct factor. 

OPM disagrees that the factor, as was 

proposed, could be used by an agency 

to find someone unsuitable for activity 

protected by the First Amendment. 

OPM agrees that conduct covered by the 

proposed factor includes conduct 

covered by another factor as applicable 

to the circumstances, such as criminal 

conduct (see 5 CFR 731.202(b)(2)). 

Therefore, OPM is not implementing 

this proposed factor in this final rule. 

Proposed Factor (9)—Attempting To 

Indoctrinate Another or To Incite 

Another to Action in Furtherance of an 

Illegal Act 

One individual requested that OPM 

remove this proposed factor because of 

its potential breadth—positing it could 

result in finding an individual 

unsuitable who sought to teach or 

influence another person in any context 

whatsoever. The individual commented 

that the language is vague and 

indoctrination must be defined. The 

commenter also suggested that this 

factor may be used to find unsuitable 

anyone who has ever attempted to 

persuade another person to lobby 

legislators to change laws and asked if 

even home schooling or holding 

political rights training sessions would 

be considered indoctrination. Two 

organizations commented that the factor 

is ambiguous with one asking if it makes 

it permissible for an agency to ask about 

all attempts to indoctrinate which could 

include serving as a youth group leader 

or posting about the pandemic on social 

media and another questioning whether 

indoctrination, a prolonged process, 

could lead to conduct in furtherance of 

an illegal act. OPM does not agree that 

the language is vague nor that 

‘‘indoctrinate’’ needs further definition. 

Indoctrinate when used as a verb is 

generally understood to mean teaching 

another the ideas, opinions, or beliefs of 

a particular group. Under this factor, the 

attempt to indoctrinate or incite another 

must be done in furtherance of an illegal 

act. It is this latter point regarding 

illegality that sufficiently narrows the 

factor to answer commenters’ various 

questions and hypotheticals and would 

be the relevant inquiry to be addressed 

in determining an individual’s 

suitability or fitness. As discussed, 

however, OPM is not implementing this 

proposed factor in this final rule. 


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Proposed Factor (10)—Active 

Membership or Leadership in a Group 

With Knowledge of its Unlawful Aim, or 

Participation in Such a Group With 

Specific Intent To Further Its Unlawful 

Aim 

A Federal agency suggested removing 

the element that the individual have 

knowledge of a group’s unlawful aim. 

Three individuals suggested that 

‘‘unlawful aim’’ will be difficult to 

prove and therefore, difficult to enforce. 

Two organizations suggested that the 

wording of the factor make it open to 

interpretation. 

Similar to OPM’s response relating to 

suggestions about Factor 7, this element 

helps demonstrate that the individual 

understood that the aim was wrongful 

and should be included t to better avoid 

scenarios where being misled about a 

group’s aim causes an individual to be 

found unsuitable or unfit. 

Further, suitability and fitness 

determinations are based upon evidence 

of an individual’s character or conduct 

and when that evidence supports a 

conclusion that the character or conduct 

will have an adverse impact on the 

integrity and efficiency of the service, 

OPM or the agency must not make a 

favorable suitability or fitness 

determination. The point of this factor 

was not to target individuals for holding 

views that may be in conflict with those 

of officials making adjudicative 

decisions or to find individuals 

unsuitable or unfit because of 

affiliations they may have with groups 

of others who share their opinions, for 

example. As specified in the text of the 

proposed factor, the factor required an 

unlawful aim or participation 

specifically for the purpose of furthering 

the unlawful aim. It is the knowing 

affiliation or intent to further illegal 

activities that raise the potential 

suitability or fitness concern. OPM 

agrees, though, that the nature of 

character or conduct that this tailored 

factor addresses, could be better 

addressed under another factor as 

applicable to the circumstances, such as 

criminal conduct (see 5 CFR 

731.202(b)(2)). Therefore, OPM is not 

implementing this proposed factor in 

this final rule. 

Factor (12)—Violent Conduct 

OPM also proposed to add a factor for 

violent behavior to account for behavior 

that does not squarely fall under another 

factor, such as violent behavior that 

occurs outside of the workplace and 

may not be considered criminal or 

dishonest in nature. For the purposes of 

this regulation, the term ‘‘violent’’ 

means using or involving physical force 

intended to hurt, damage, or kill 

someone or something. (88 FR 6192, 

6200.) 

For example, in certain jurisdictions, 

protection orders may be filed against 

individuals for sexual or physical 

violence regardless of whether the 

violent conduct constitutes a criminal 

act under the law of the relevant 

jurisdiction. The process for securing 

the protection order may be a civil 

matter. The addition of this factor gives 

agencies and OPM a way to consider, in 

such a scenario, if the individual’s 

conduct is a basis for finding the 

individual to be unsuitable or unfit. 

One individual expressed support for 

the factor but asked that the scope be 

limited to avoid application against, for 

example, those who participate in 

competitive boxing or recreational 

hunting as those activities could 

arguably fit with the definition of 

violent conduct, because they involve 

physical force intended to hurt, damage, 

or kill someone or something. Two 

commenters opposed to this factor 

expressed the same concern that the 

factor was vague and potentially 

covered those who use deadly force in 

self-defense, such as abused spouses or 

law enforcement officers. OPM 

appreciates these comments as another 

opportunity to elaborate on how 

suitability or fitness determinations are 

made. 

When evaluating information to 

consider if it may warrant an assessment 

for suitability or fitness, OPM or the 

agency must first consider whether the 

information falls within one of the 

factors. If so, OPM or the agency will 

consider the impact on the integrity and 

efficiency of the service through 

application of the additional 

considerations. For example, while the 

act of hunting wild game could 

technically fall within the definition of 

conduct that is ‘‘violent’’ as it involves 

physical force intended to kill 

something, lawful hunting would not 

have an adverse impact on the integrity 

and the efficiency of the service. First, 

an individual would not be required to 

report legal hunting activities during the 

course of a background investigation. If 

it were reported, such as by a co-worker, 

it is unlikely to be identified as a 

potential issue in the background 

investigation. Even in the unlikely event 

an adjudicator were to make the initial 

consideration that legal hunting could 

cause the individual to be unsuitable or 

unfit, the subsequent process of relating 

the conduct to the factor, assessing the 

applicable additional considerations 

under 5 CFR 731.202(c) (such as the 

nature and seriousness of the conduct 

and the circumstances surrounding the 

conduct), and ultimately assessing 

whether the conduct negatively impacts 

the integrity and efficiency of the 

service would yield a favorable 

determination. In sum, when evaluating 

the nature of the conduct or the 

circumstances surrounding it, OPM or 

the agency would conclude that it is not 

adjudicatively relevant. 

As another example, while deadly 

force in self-defense could be 

considered violent conduct, in the 

scenarios offered by the commenter, the 

surrounding circumstances would also 

be considered under § 731.202(c)(3) to 

determine if the conduct was mitigated, 

thus not leading to a finding of 

unsuitability. 

As discussed previously, OPM is 

retaining the existing Factor 7 without 

change. OPM is also retaining the 

existing Factor 8 without change. 

(Although OPM had proposed to 

renumber the factors, OPM did not 

propose any substantive changes to the 

existing Factor 8.) Accordingly, OPM is 

adopting this proposed Factor 12 as new 

Factor 9 at § 731.202(b)(9). 

Section 731.203 Suitability Actions by 

OPM and Other Agencies for the 

Competitive Service or Career Senior 

Executive Service 

OPM proposed to revise § 731.203 to 

limit the applicability of suitability 

actions to only individuals in the 

competitive service, in the excepted 

service that can noncompetitively 

convert to the competitive service, or 

the career Senior Executive Service. The 

change was necessary due to the 

implementation of the minimum 

standards of fitness for the excepted 

service. 

OPM did not receive any comments 

on this section. OPM is adopting its 

proposed changes with several 

modifications as discussed in more 

detail in the section regarding § 731.101. 

Specifically, OPM has moved the list of 

actions from the proposed § 731.203 

into the definition of a suitability action 

in § 731.101. OPM also moved the 

limitation that a suitability action may 

be taken only by OPM or an agency with 

delegated authority under the 

procedures in subparts C and D of the 

part from the proposed definition of a 

suitability action to § 731.203. 

Section 731.204 Debarment by OPM in 

Cases Involving the Competitive Service 

and Career Senior Executive Service 

This section explains OPM’s ability to 

impose debarment, including 

concurrent periods of debarment, when 

new conduct arises while an individual 

is under debarment. OPM also proposed 

to revise the text to explain that this 


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provision is limited to individuals in or 

seeking appointment to the competitive 

service or the career Senior Executive 

Service. 

OPM received no comments on this 

section and sees no reason to amend the 

proposal. OPM is adopting its proposed 

changes. 

Section 731.205 Debarment by 

Agencies in Cases Involving the 

Competitive Service and Career Senior 

Executive Service 

OPM proposed to revise the text to 

explain that this provision is limited to 

individuals in or seeking appointment 

to the competitive service or the career 

Senior Executive Service. 

OPM received no comments on this 

section and sees no reason to amend the 

proposal. OPM is adopting its proposed 

changes. 

Section 731.206 Reporting 

Requirements for Investigations and 

Suitability and Fitness Determinations 

This section specifies reporting 

requirements for agencies into the 

government-wide central repository. 

OPM proposed to revise this section to 

include references to continuous 

vetting. 

OPM received no comments on this 

section and sees no reason to amend the 

proposal. OPM is adopting its proposed 

changes. 

Sections 731.302 and 731.402 Notice 

of Proposed Action 

Sections 731.302 and 731.402 govern 

the issuance of a notice of proposed 

action in a suitability action by OPM or 

an agency, respectively. OPM proposed 

to amend these sections to also permit 

delivery of correspondence by secure 

email. 

OPM received no comments on these 

sections and sees no reason to amend 

the proposal. OPM is adopting its 

proposed changes. 

Subpart Headings 

OPM proposed to revise the headings 

of several subparts of part 731 to 

indicate that those provisions only 

apply to individuals in or applying to 

the competitive service, the excepted 

service that may noncompetitively 

convert to the competitive service, or 

career Senior Executive Service. OPM 

received no comments on those 

amendments, sees no reason to amend 

the proposal, and is adopting its 

proposed changes. 

Subpart F—Savings Provision 

OPM proposed to eliminate this 

subpart as obsolete. OPM received no 

comments on this subpart, sees no 

reason to amend the proposal, and is 

removing the subpart in this final rule. 

Expected Impact of This Final Rule 

1. Statement of Need 

OPM is issuing this final rule to 

establish standards and processes by 

which OPM and agencies efficiently and 

appropriately vet individuals to assess 

risk to the integrity and efficiency of the 

service. It implements several changes 

required by E.O. 13764. First, per the 

change to the Civil Service Rules 

expanding OPM’s responsibilities for 

fitness, it sets the minimum standards of 

fitness for the excepted service. This 

change results in the same adjudicative 

factors and additional considerations 

being applicable across much of the 

civil service. Consistent with 

amendments to E.O.s 13467 and 13488, 

the changes also align position 

designation requirements, investigative 

standards, and reciprocity rules between 

the civil service, contactor employees, 

and nonappropriated funds workforces. 

Now, agencies will use the same system 

for designating position risk and 

sensitivity, background investigations 

will be conducted using the same 

standards, and the same rules for 

determining whether reciprocal 

acceptance of prior background 

investigations and suitability or fitness 

determinations will be applied across 

the workforce. 

As required by E.O. 13467, as 

amended, the rule also implements 

continuous vetting for the low risk and 

public trust populations. 

2. Regulatory Alternatives 

OPM must comply with Executive 

order directions, as previously 

described, to establish minimum 

standards of fitness based on character 

and conduct for appointment to 

positions in the excepted service of the 

executive branch that are, to the extent 

practicable, consistent with the 

standards for suitability. OPM is 

likewise responsible for establishing in 

its regulations that excepted service 

employee, nonappropriated fund 

Department of Defense (DoD) employee, 

and contractor employee fitness is 

subject to enterprise position 

designation requirements, investigative 

standards, and reciprocity requirements. 

Similarly, continuous vetting for all 

populations subject to personnel vetting 

has been directed by Executive order to 

sustain an enhanced risk-management 

approach. 

In implementing this requirement, 

OPM considered the cost to agencies of 

establishing policies and procedures to 

conform to OPM’s regulation. There will 

be costs associated with implementing 

aspects of the policies required by the 

E.O.s; however, there are also 

efficiencies resulting from policy 

implementation. The expected impact of 

aligned investigative and adjudicative 

standards is the increased application of 

reciprocity, which eliminates the need 

for a new investigation or new 

adjudication. Similarly, individuals 

enrolled in continuous vetting will not 

require periodic reinvestigations, nor 

will they require a repeat of initial 

vetting, as they have to date, when 

moving from one position level to a 

higher level or when returning to a 

vetted position after a break in service. 

Still, agencies with a greater 

proportion of individuals in low risk 

positions will incur costs as a result of 

the requirement for continuous vetting 

of this population when periodic 

reinvestigations were not previously 

required. As noted in the section 4. of 

this preamble, these costs may be offset 

by cost savings realized as agencies 

implement continuous vetting across all 

populations, particularly for agencies 

with large populations of individuals in 

high risk positions. However, not all 

agencies will realize cost savings. While 

there is no alternative to the policy 

requirement, agencies may realize some 

cost avoidance in the near term through 

phased implementation of continuous 

vetting for low risk populations. As 

such, implementation of the required 

continuous vetting checks for enrolled 

individuals is eased through a phased 

introduction of the required checks over 

time. 

OPM considered not only the cost to 

agencies but the burden of preparing for 

enrollment of the low risk and public 

trust populations into continuous 

vetting. Recognizing that agencies must 

validate the need of their current 

workforce to be enrolled into 

continuous vetting in accordance with 

this new requirement, a process that 

could be time intensive in particular for 

the low risk population not previously 

subject to a reinvestigation requirement, 

we established a phased approach. 

Beginning with the public trust 

population, agencies, working with their 

investigative service providers, will 

gradually enroll their workforces into 

the new continuous vetting service. This 

iterative approach avoids agency vetting 

professionals from being faced with 

enrolling their covered workforce all at 

the same time and adjudicating any 

resulting hits from continuous vetting 

checks. This enables agencies to adopt 

the necessary policy and procedural 

infrastructure needed to execute 

requirements. 


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4 86 FR 2705 (January 13, 2021), available at 

https://www.federalregister.gov/documents/2021/ 

01/13/2021-00547/federal-personnel-vetting-coredoctrine. 

3. Impact 

The rule promotes a more trusted 

workforce to serve the American public 

through an enhanced risk management 

approach for personnel vetting, one 

which advances the mobility of the 

workforce to support agency mission 

needs. Establishing a continuous vetting 

approach for all populations subject to 

personnel vetting provides a framework 

for modernized investigative and 

adjudicative processes that leverage 

available, appropriate technology to 

replace costly and time-consuming 

labor-intensive processes that have 

burdened efforts by agencies to acquire 

top talent in a timely manner. Further, 

the new model assists agencies in 

managing and reducing risk by 

providing more timely information than 

was possible under the prior 

investigative model. 

OPM is implementing these 

requirements in the least burdensome 

way possible while still effectuating 

what the President set forth in Executive 

orders. Individuals subject to 

continuous vetting are those 

populations already subject to Federal 

personnel vetting investigative 

standards, including contractor 

employees with long term access to 

Federal facilities and information 

systems. Even prior to recent Executive 

orders and policy requirements 

requiring personnel vetting 

investigations and determinations on 

contractors, the Federal Acquisition 

Regulation (FAR) Council published a 

final rule in November 2006, amending 

the FAR to require contracting officers 

to incorporate the requirement for 

contractors to comply with agency 

verification procedures—implementing 

HSPD–12, Office of Management and 

Budget (OMB) guidance M–05–24, and 

Federal Information Processing 

Standards Publication (FIPS PUB) 

number 201 when applicable to be 

performed under the contract. Aside 

from the new requirement for 

individuals in low risk positions to be 

continuously vetted, agencies and 

contractor employees requiring long 

term access to Federal facilities and 

information systems to support agencies 

should already be familiar with 

personnel vetting requirements. 

This final rule provides greater 

consistency in vetting processes and, 

where possible, saves costs by reducing 

redundancy and duplication and 

modernizes processes for collecting 

information. By establishing minimum 

standards of fitness for the excepted 

service that align with OPM’s suitability 

standards, there is a greater likelihood 

that individuals will be assessed using 

consistent standards, thus providing a 

stronger basis for application of 

reciprocity when moving between 

positions. The impact to agencies’ 

personnel vetting programs is reduced 

when they can reciprocally apply prior 

determinations rather than making new 

determinations or requesting new 

investigations. 

OPM anticipates this final rule will 

reduce the burden on agencies as they 

transition from a full reinvestigation of 

every public trust employee every five 

years to reinvestigation only as needed 

and to continuous vetting that relies 

extensively on automated sources. 

Although agencies will also need to 

enroll their low risk population, which 

is not currently subject to 

reinvestigation requirements, into 

continuous vetting, the cost impacts 

may be offset by savings associated with 

the move from periodic reinvestigations 

to continuous vetting for their sensitive 

and non-sensitive public trust 

populations. Enrollment of the nonsensitive public trust population will 

occur throughout fiscal year 2025. 

Enrollment of the low risk population is 

projected to begin in fiscal year 2027. 

Through a phased process, agencies are 

initiating their populations into 

continuous vetting and, eventually, 

individuals will be enrolled into 

continuous vetting at the onset of their 

initial background investigations. 

Further, since each individual’s 

investigation will always be up to date 

through the continuous vetting 

approach, agencies will no longer need 

to await results of a new background 

investigation. Instead, agencies will be 

able to onboard individuals more 

quickly into new positions, while only 

having to request investigation 

necessary to cover any investigative 

gaps that may be due to breaks in 

service or changes in position risk and/ 

or sensitivity. 

One organization suggested OPM 

provide data demonstrating the number 

of Federal civil service employees who 

were delayed in transferring to another 

agency and the processing burden to 

agencies as a result. An individual 

suggested that more research into the 

benefit of the scope and frequency of 

vetting could be beneficial, especially in 

the case of suitability or fitness vetting, 

which the commenter opines is less 

studied and scrutinized than that of 

security vetting. The individual offered 

that there is little objective research to 

support that this degree of vetting is 

effective and that there is little 

discussion of the goals and objectives of 

conducting vetting to this extent. As is 

outlined at the onset of this rule, OPM 

is required by Executive order to 

establish continuous vetting 

requirements for the non-sensitive 

public trust and low risk populations to 

standardize investigative activities 

across the civil service, contractor 

employee, and DoD nonappropriated 

funds populations. OPM is not adopting 

substantial changes to the applicability 

of reciprocity requirements that have 

been in place since 2009. Further, by 

way of this rule, OPM is not increasing 

the scope of vetting requirements, 

though the periodicity of postappointment checks are changing for the 

non-sensitive public trust population. 

The Federal Personnel Vetting Core 

Doctrine,4 which defines the personnel 

vetting mission, its guiding principles, 

key supporting processes, and policy 

priorities, provides more explanation in 

support of the new approaches. 

4. Costs 

An organization asked for a costbenefit analysis of the change from 

periodic reinvestigations to continuous 

vetting. The organization recognized 

that the current regulation already 

authorizes a continuous reassessment so 

long as it occurs at least every five years. 

The organization suggested 

reassessments that decrease in 

periodicity may result in a cost savings 

but could weaken agency security. The 

commenter did not express questions or 

concerns with the cost analysis that was 

included in the notice of proposed 

rulemaking published in January 2023 

or with the explanation of anticipated 

benefits with the changes. Therefore, 

OPM adopts the economic assessment 

provided in the proposed rule with only 

two sets of changes. First, OPM updated 

pricing of products by the Defense 

Counterintelligence and Security 

Agency (DCSA), which was an estimate 

at the time the proposed rule was 

issued. Second, OPM also updated the 

cost analysis to use the 2024 pay rates. 

This rule will affect the operations of 

most Federal agencies in the executive 

branch—ranging from cabinet-level 

departments to small independent 

agencies. To comply with the regulatory 

changes, affected agencies will need to 

review the rule and update their 

policies and procedures. For this cost 

analysis, the assumed average salary 

rate of Federal employees performing 

this work will be the rate in 2024 for 

GS–14, step 5, from the Washington, 

DC, locality pay table ($157,982 annual 

locality rate and $75.70 hourly locality 

rate). We assume that the total dollar 


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5Federal 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. 

6Available at https://www.dcsa.mil/Portals/128/ 

Documents/about/err/FIN_24-01_FY25_and_FY26_

Billing-Rates.pdf. 

7 DCSA has established the FY 2025 cost for the 

interim continuous vetting product for the nonsensitive public trust population at $39 per year 

versus the full Trusted Workforce 2.0 product 

which is priced at $90. 

value of labor, which includes wages, 

benefits, and overhead, is equal to 200 

percent of the wage rate, resulting in an 

assumed labor cost of $151.40 per hour. 

We estimate that, in the first year 

following publication of the final rule, 

the effort to update policies and 

procedures will require an average of 

250 hours of work by employees with an 

average hourly cost of $151.40. This 

effort would result in estimated costs in 

the first year of implementation of about 

$37,850 per agency, and about 

$3,028,000 in total government-wide. In 

subsequent years, the costs of regulatory 

compliance associated with this rule 

will be folded into agencies’ routine 

costs. 

The ongoing administrative costs to 

agencies for continuous vetting 

enrollment of existing and new 

individuals working for or on behalf of 

the Government will vary depending on 

the makeup of each agency’s 

populations with regard to their affected 

Federal and contract positions and the 

risk levels of those positions. As noted, 

agencies’ populations of individuals 

subject to continuous vetting are those 

already subject to Federal personnel 

vetting investigative standards as 

described previously, including 

contractor employees with long term 

access to Federal facilities and 

information systems. The extent to 

which such individuals have previously 

been subject to periodic reinvestigation 

requirements depended on the nature of 

their access or duties. Those in national 

security sensitive positions have long 

been subject to periodic reinvestigation 

requirements and more recently to 

continuous vetting requirements. Those 

in non-sensitive public trust positions 

have been subject to periodic 

reinvestigations for suitability, as 

described previously. Each agency is 

responsible for assessing the risk level at 

the low, moderate, or high level for each 

position within their agency. Each 

agency is therefore best positioned to 

know the number of employees in 

positions at each level and the number 

of individuals associated with the 

personnel vetting requirements at each 

respective investigative tier. Each 

agency will have different numbers of 

positions at each risk level and the 

proportion of low, moderate, and high 

risk positions will vary. Consequently, 

the cost of continuous vetting for the 

low risk and public trust population 

will vary amongst the Federal agencies.5

To assist Federal agencies in budget 

development, DCSA released in August 

2024 its 2025 and 2026 products and 

services billing rates 6 including pricing 

for the initial continuous vetting 

capability for non-sensitive public trust 

positions. For fiscal year 2025, agencies 

can expect to pay a $3.25 monthly 

subscription fee for active enrollees in 

non-sensitive, public trust continuous 

vetting. By comparison, DCSA’s price 

for a standard service, non-sensitive, 

high risk public trust reinvestigation 

(Tier 4) in fiscal year (FY) 2025 is 

$2,505, which equates to $41.75 

monthly over five years. Agencies 

utilizing continuous vetting in FY 2025 

for their non-sensitive, high risk, public 

trust populations would avoid $2,310 in 

personnel vetting costs over five years 

for each such position. The difference 

between reinvestigation costs and initial 

continuous vetting checks for 

nonsensitive moderate risk positions is 

not as significant; still, agencies would 

avoid $180 in personnel vetting costs 

over five years for such positions given 

the FY 2025 cost of $375 for each nonsensitive moderate risk public trust 

reinvestigation. While DCSA’s pricing 

for FY 2025 and 2026 does not establish 

the cost of the continuous vetting 

product for the low risk population, it 

will not be more than $39–$40.20 per 

year which are the FY 2025 and FY 

2026 costs for the continuous vetting 

products for the non-sensitive, public 

trust populations.7 Future costs for 

continuous vetting for the low risk 

population are not expected to rise to 

the cost of checks for the national 

security population, since checks on the 

low risk population will be much less 

extensive than those on the national 

security population. 

An additional factor that agencies 

need to consider when assessing budget 

impacts of continuous vetting is the cost 

avoidance realized by the move from 

periodic reinvestigations to continuous 

vetting of their sensitive populations. To 

illustrate how the impacts to agency 

budgets will vary, the following 

examples are provided for a department 

that is comprised mainly of nonsensitive positions, the Department of 

Veterans Affairs (VA), and a department 

that is comprised mainly of sensitive 

positions, DoD. The VA has vastly more 

non-sensitive positions (approximately 

513,400) than sensitive positions 

(approximately 9,000). The VA’s 

positions are largely non-sensitive, low 

risk, with approximately 455,000 

Federal and contractor personnel in low 

risk positions; 41,200 in non-sensitive, 

moderate risk, public trust positions; 

and 17,200 in non-sensitive, high risk, 

public trust positions. Under the current 

requirement to request a reinvestigation 

for public trust positions every five 

years and considering FY 2025 DCSA 

pricing, the VA should anticipate 

paying $58,536,000 for non-sensitive, 

public trust reinvestigations over five 

years. With continuous vetting, the 

annual cost of enrolling the public trust 

population for fiscal year 2025 is 

$2,277,600, or $11,338,000 over five 

years, equating to $47,198,000 in cost 

avoidance for the non-sensitive, 

moderate and high risk positions over 

the five-year cycle. For continuous 

vetting of the low risk population, at a 

cost of $39 per low risk position per 

year, VA would expect to pay DCSA 

$17,745,000 annually or $88,725,000 

over five years. For any sensitive 

positions the VA has, they may also 

recognize the cost savings between the 

periodic reinvestigation products and 

continuous vetting product for sensitive 

positions. The cost implications for 

enrollment of VA’s 9,000 sensitive 

positions into continuous vetting could 

range from an additional cost of 

$810,000 over five years to cost 

avoidance of $29,286,000 depending on 

the proportion of noncritical sensitive 

positions (Tier 3) and critical sensitive/ 

special sensitive positions (Tier 5). 

Thus, the total cost of the shift to 

continuous vetting for all of VA’s 

populations subject to this requirement, 

using VA’s anticipated payments to 

DCSA for these services, will depend on 

the makeup of VA’s population. 

Compare this to DoD, which has a much 

higher sensitive population than nonsensitive with approximately 3.5 

million individuals in sensitive 

positions and approximately 283,000 in 

non-sensitive positions. With 

approximately 3,000 non-sensitive, 

moderate risk positions and 560 nonsensitive, high risk positions, the DoD 

could plan to spend $3,465,440 on 

periodic reinvestigations over five years 

for their non-sensitive public trust 

positions whereas continuous vetting 

would result in a total cost of 

$1,602,000 and therefore result in 

$1,863,440 in cost avoidance over that 

same period. The cost of enrolling DoD’s 

280,000 federal and contractor low risk 

positions at $39 per year subject to the 

requirement would equate to an annual 


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cost of $11,037,000 or $55,185,000 over 

five years; however, this cost would be 

offset not only by the cost avoidance of 

$1,863,440 for the non-sensitive, public 

trust population but also by the cost 

savings associated with the shift to 

continuous vetting from periodic 

reinvestigations for the sensitive 

population. Given that the DoD has 

approximately 3.5 million individuals 

in national security positions 

undergoing continuous vetting in lieu of 

periodic reinvestigations, the expected 

cost savings would be expected to offset 

the cost for enrollment of their low risk 

populations into continuous vetting. 

5. Benefits 

The standardization in vetting 

resulting from the changes in this rule 

will increase efficiency across the 

executive branch while allowing for 

faster identification of issues that may 

adversely affect trust determinations of 

individuals. Mobility of individuals is 

enhanced by reciprocal acceptance of 

investigations and adjudications thus 

allowing individuals to move more 

quickly between and within Federal 

agencies and Government contractors. 

Additionally, the revised rule enables a 

more efficient re-entry to Federal 

service. 

With respect to continuous vetting, 

agencies may recognize a cost savings 

by using continuous vetting rather than 

the traditional reinvestigation product 

that is currently required for public trust 

positions at a minimum five-year 

periodicity, and the extent of the cost 

savings will vary depending on the 

proportion of their populations with 

regard to risk and sensitivity levels. 

Additionally, cost savings may be 

realized since continuous vetting 

provides that the vetting of enrolled 

individuals will always be up to date. 

This will result in further cost 

avoidance whenever an individual 

requires an upgrade of their vetting level 

or when an individual returns to a 

vetted position after a break in service. 

Agencies will be able to onboard 

individuals more quickly into new 

positions while requesting only the 

investigative elements necessary to 

cover any investigative gaps that may be 

due to changes in position risk and/or 

sensitivity. This cost avoidance will be 

borne out as agencies begin to 

implement the new Trusted Workforce 

2.0 policies that leverage continuous 

vetting for risk management. On 

balance, while we anticipate there may 

be additional costs to agencies with 

much greater proportions of low risk 

positions than non-sensitive, public 

trust or national security positions, we 

do not believe that this rule will 

substantially increase the ongoing costs 

to most agencies, and the benefits 

outweigh the costs in providing 

agencies greater opportunities for timely 

talent acquisition and reduced risk to 

people, property, information systems, 

and mission through timely delivery of 

relevant information. 

Severability 

If any of the provisions of this final 

rule is held to be invalid or 

unenforceable by its terms, or as applied 

to any person or circumstance, it shall 

be severable from its respective 

section(s) and shall not affect the 

remainder thereof or the application of 

the provision to other persons not 

similarly situated or to other dissimilar 

circumstances, unless such holding is 

that the provision is invalid and 

unenforceable in all circumstances, in 

which event the provision shall be 

severable from the remainder of this 

part and shall not affect the remainder 

thereof. This final rule revises vetting 

requirements by broadening their 

applicability, establishing continuous 

vetting, and standardizing the way in 

which suitability and fitness 

determinations are made. As discussed 

elsewhere in this rule, there are various 

authorities for these provisions. The 

provisions of this final rule apply to 

different populations such as the 

competitive service, the excepted 

service, and contractor employees. 

Should provisions related to one of 

these populations be held to be invalid 

we believe that most of the provisions 

should be severable and would not be 

impacted. Similarly, many of the 

operational requirements have no 

bearing on other provisions and are 

severable. For example, a holding that a 

suitability or fitness factor is invalid 

should not impact other provisions 

related to how these decisions are made. 

In enforcing the provisions of this rule, 

OPM will comply with all applicable 

legal requirements. 

Regulatory Review 

OPM has examined the impact of this 

rule as required by Executive Orders 

12866, 13563, and 14094, which direct 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). A regulatory impact 

analysis must be prepared for major 

rules with effects of $200 million or 

more in any one year. This rulemaking 

does not reach that threshold but has 

otherwise been designated as a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866, as 

amended by Executive Order 14094. 

Regulatory Flexibility Act 

The Acting Director of the OPM 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the Federal 

Government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rule does not 

have sufficient federalism implications 

to warrant preparation of a Federalism 

Assessment. 

Civil Justice Reform 

This regulation meets the applicable 

standard set forth in Executive Order 

12988. 

Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule that would impose spending costs 

on State, local, or tribal governments in 

the aggregate, or on the private sector, 

in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

That threshold is currently 

approximately $183 million. This 

regulation will not result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, in excess of the 

threshold. Thus, no written assessment 

of unfunded mandates is required. 

Congressional Review Act 

The Office of Information and 

Regulatory Affairs in the Office of 

Management and Budget has 

determined that this rule does not 

satisfy the criteria listed in 5 U.S.C. 

804(2). 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521) 

Notwithstanding any other provision 

of law, no person is required to respond 

to, nor shall any person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.) (PRA), unless that collection of 

information displays a currently valid 

OMB Control Number. 


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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 systems of record notice Personnel 

Vetting Records System, DUSDI 02– 

DOD (83 FR 52420). 

In a parallel effort to this rule, and as 

part of its work with the PAC, OPM 

proposed a new information collection 

and renewal cycle, Personnel Vetting 

Questionnaire (PVQ), to streamline the 

existing information collections 

commensurate with on-going efforts to 

improve personnel vetting processes 

and the experience of individuals 

undergoing personnel vetting. OMB 

approved the PVQ information 

collection under control number 3206– 

0279 on November 15, 2023. See https:// 

www.reginfo.gov/public/do/ 

PRAViewICR?ref_nbr=202302-3206-005. 

Once the new collection is 

implemented, OPM plans to discontinue 

the current information collections. 

Some individuals or populations may 

be required to complete an updated 

questionnaire in order for continuous 

vetting to be conducted. In the notice of 

proposed rulemaking published in 

January 2023, OPM sought public 

comment on the cost and burden 

implications for this potential new 

population. However, no comments 

were received other than what has been 

addressed elsewhere within this rule. 

List of Subjects in 5 CFR Parts 302 and 

731 

Administrative practices and 

procedure, Authority delegations 

(Government agencies), Government 

contracts, Government employees, 

Investigations. 

Office of Personnel Management. 

Kayyonne Marston, 

Federal Register Liaison. 

Accordingly, for the reasons stated in 

the preamble, OPM amends 5 CFR parts 

302 and 731 as follows: 

PART 302—EMPLOYMENT IN THE 

EXCEPTED SERVICE 

■ 1. The authority citation for part 302 

is revised to read as follows: 

Authority: 5 U.S.C. 1302, 3301, 3302, 

3317, 3318, 3319, 3320, 8151. E.O. 10577, 19 

FR 7521, 3 CFR 1954–1958 Comp., p. 218. 

Sec. 302.105 also issued under 5 U.S.C. 1104; 

sec. 3(5), Pub. L. 95–454, 92 Stat. 1111. Sec. 

302.501 also issued under 5 U.S.C. ch. 77. 

Sec. 302.107 also issued under 5 U.S.C. 

9201–9206; sec. 1122(b)(1), Pub. L. 116–92, 

133 Stat. 1607. Secs. 302.108 and 302.203 

also issued under E.O. 13764, 82 FR 8115, 3 

CFR, 2017 Comp., p. 243. 

■ 2. Amend § 302.107 by revising the 

section heading to read as follows: 

§ 302.107 Suitability and fitness inquiries 

regarding criminal history. 

■ 3. Add § 302.108 to subpart A to read 

as follows: 

§ 302.108 Determinations of fitness for 

employment in an Excepted Service 

position. 

(a) An agency must make fitness 

determinations for excepted service 

positions in accordance with the 

applicable requirements of part 731 of 

this chapter. 

(b) An agency must record its reasons 

for making fitness determinations under 

part 731 of this chapter and must 

furnish a copy of those reasons to an 

applicant upon their request. 

■ 4. Revise § 302.203 to read as follows: 

§ 302.203 Standard and criteria for 

determining fitness for employment in an 

Excepted Service position. 

(a) The minimum standard and 

criteria for determining fitness for 

employment based on character and 

conduct are prescribed in part 731, 

subpart B, of this chapter. 

(b) Agencies may prescribe additional 

factors to protect the integrity and 

promote the efficiency of the service 

when job-related and consistent with 

business necessity. 

PART 731—SUITABILITY AND 

FITNESS 

■ 5. The authority citation for part 731 

is revised to read as follows: 

Authority: 5 U.S.C. 1302, 3301, 7301. E.O. 

10577, 19 FR 7521, 3 CFR, 1954–1958 Comp., 

p. 218, as amended. E.O. 13467, 73 FR 38103, 

3 CFR, 2009 Comp., p. 198, as amended. E.O. 

13488, 74 FR 4111, 3 CFR, 2010 Comp., p. 

189, as amended. E.O. 13764, 82 FR 8115, 3 

CFR, 2017 Comp. p. 243. Presidential 

Memorandum of January 31, 2014, 3 CFR, 

2014 Comp., p. 340. 5 CFR parts 1, 2, 5, and 

6. 

■ 6. Revise the heading for part 731 to 

read as set forth above. 

■ 7. Revise subpart A to read as follows: 

Subpart A—Scope 

Sec. 

731.101 Purpose. 

731.102 Implementation. 

731.103 Delegation to agencies for the 

competitive service and career Senior 

Executive Service. 

731.104 Investigation and reciprocity 

requirements. 

731.105 Authority to take suitability actions 

in cases involving the competitive 

service and career Senior Executive 

Service. 

731.106 Designation of public trust 

positions and investigative requirements. 

§ 731.101 Purpose. 

(a) The following definitions apply for 

the purposes of this part: 

Applicant means an individual who is 

being considered or has been considered 

for employment in the competitive 

service or career Senior Executive 

Service. 

Appointee means an individual who 

has entered on duty and is in the first 

year of employment in a competitive 

service or career Senior Executive 

Service position when it is employment 

subject to investigation. When the 

individual is serving a probationary or 

trial period, the individual’s status as an 

appointee will extend through the end 

of the initial probationary/trial period, if 

longer than one year. 

Competitive service or career Senior 

Executive Service, for the purposes of 

this part, refers to a position in the 

competitive service, a position in the 

excepted service where the incumbent 

can be noncompetitively converted to 

the competitive service, and a career 

appointment to a position in the Senior 

Executive Service. 

Contractor employee means an 

individual who performs work for or on 

behalf of any agency under a contract 

and who, to perform the work specified 

under the contract, will require access 

to space, information, information 

technology systems, staff, or other assets 

of the Federal Government, and who 

could, by the nature of their access or 

duties, adversely affect the integrity or 

efficiency of the Government. Such 

contracts include but are not limited to: 

personal service contracts; contracts 

between any non-Federal entity and any 

agency; and subcontracts between any 

non-Federal entity and another nonFederal entity to perform work related 


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to the primary contract with the agency. 

The term contractor employee includes 

employees of a grantee of any agency or 

any other category of person who 

performs work for or on behalf of an 

agency but does not include a Federal 

employee. 

Core duty means a continuing 

responsibility that is of particular 

importance to the relevant covered 

position or the achievement of an 

agency’s mission. 

Days means calendar days unless 

otherwise noted in this part. 

Employee means an individual who 

has completed the first year of an 

appointment in the competitive service 

or career Senior Executive Service when 

it is employment subject to investigation 

and is no longer serving the initial 

probation or trial period, if applicable. 

In the case of an appointee whose initial 

probation or trial period is for more than 

one year, the individual will be 

considered an employee at the 

completion of the initial probation or 

trial period. 

Employment subject to investigation, 

except as described elsewhere in this 

part, includes an appointment to the 

competitive service or career Senior 

Executive Service, an appointment to 

the excepted service, employment as a 

contractor employee, or employment as 

a nonappropriated fund employee. 

Excepted service means any position 

of the executive branch either excepted 

from the competitive service or which is 

not in the Senior Executive Service. 

(1) For the purposes of this part, 

excepted service does not include: 

(i) Any position in an element of the 

intelligence community as defined in 

the National Security Act of 1947, as 

amended, to the extent that the 

individual is not otherwise subject to 

OPM appointing authorities; 

(ii) Any position where OPM is 

statutorily precluded from prescribing 

such standards; and 

(iii) Any position when filled by 

political appointment. 

(2) Senior Executive Service 

noncareer, limited term, and limited 

emergency appointments are not subject 

to suitability actions under this part. 

(3) Excepted service does not mean 

any position excepted from the 

competitive service of the executive 

branch that could be noncompetitively 

converted to the competitive service. 

Fitness is the level of character or 

conduct determined necessary for an 

individual to perform work for a Federal 

agency as an employee in the excepted 

service, as a contractor employee, or as 

a nonappropriated fund employee. 

Fitness determination means a 

decision by an agency that an individual 

has or does not have the required level 

of character and conduct necessary to 

perform work for a Federal agency as an 

excepted service employee. These 

determinations are based on whether an 

individual’s character or conduct may 

have an adverse impact on the integrity 

or efficiency of the service. 

Material means, in reference to a 

statement, one that affects, or has a 

natural tendency to affect, or is capable 

of influencing, an official decision even 

if OPM or an agency does not rely upon 

it. 

Nonappropriated fund employee 

means an employee paid from 

nonappropriated funds of an 

instrumentality of the United States 

under the jurisdiction of the Armed 

Forces conducted for the comfort, 

pleasure, contentment, and mental and 

physical improvement of personnel of 

the Armed Forces as described in 5 

U.S.C. 2105. 

Political appointment means an 

appointment by Presidential nomination 

for confirmation by the Senate, an 

appointment by the President without 

Senate confirmation (except those 

appointed under 5 CFR 213.3102(c)); an 

appointment to a position compensated 

under the Executive Schedule (5 U.S.C. 

5312 through 5316); an appointment of 

a White House Fellow to be assigned as 

an assistant to a top-level Federal officer 

(5 CFR 213.3102(z)); a Schedule C 

appointment (5 CFR 213.3301 and 

213.3302); a noncareer, limited term, or 

limited emergency Senior Executive 

Service appointment (5 CFR part 317, 

subpart F); an appointee to serve in a 

political capacity under agency-specific 

authority; and a provisional political 

appointment. 

Suitability action means one or more 

of the following outcomes: 

(1) Cancellation of eligibility; 

(2) Removal; 

(3) Cancellation of reinstatement 

eligibility; and 

(4) Debarment. 

Suitability determination means a 

decision by OPM or an agency with 

delegated authority that an individual is 

suitable or is not suitable for 

employment in the competitive service 

or career Senior Executive Service in the 

Federal Government or a specific 

Federal agency. A suitability 

determination is based on whether an 

individual’s character or conduct may 

have an adverse impact on the integrity 

or efficiency of the service. 

(b) The purpose of this part is as 

follows: 

(1) To establish investigation, 

continuous vetting, and reciprocity 

requirements for an appointment to a 

position in the competitive service and 

excepted service and for career 

appointment in the Senior Executive 

Service. Contractor employee fitness 

and nonappropriated fund employee 

fitness, as addressed in sections 3(b) and 

3(c) of Executive Order 13488, are also 

subject to the position designation 

requirements, investigative standards, 

and reciprocity-requirements in this 

part. 

(2) To establish the criteria for making 

determinations of suitability for the 

competitive service or career Senior 

Executive Service and to establish a 

minimum standard of fitness for the 

excepted service. 

(3) To establish the procedures for 

taking suitability actions in the case of 

the competitive service or career Senior 

Executive Service. 

(c) An Agency shall exercise due 

regard to this part and supplemental 

guidance if determining fitness for 

employment as a contractor employee or 

as a nonappropriated fund employee. 

(d) Any determination made and 

action taken under this part are distinct 

from: an objection to an eligible or pass 

over of a preference eligible; OPM’s or 

an agency’s decision on a request, made 

under 5 U.S.C. 3318 and 5 CFR 332.406; 

and any determination of eligibility for 

access to classified information or for 

assignment to, or retention in, sensitive 

national security positions made under 

E.O. 12968, E.O. 10865, or E.O. 13467, 

as amended, or similar authorities. 

§ 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. 

§ 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 

§ 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 § 731.204(a) 

may be an appropriate action, it must 


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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 § 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 § 731.102(b). 

(f) OPM retains sole jurisdiction to 

make a final suitability determination 

and take an action under this part in any 

case where there is evidence that there 

has been a material, intentional false 

statement, or deception or fraud, in 

examination or appointment. OPM also 

retains sole jurisdiction to make a final 

suitability determination and take an 

action under this part in any case when 

there is evidence that there has been 

knowing and willful engagement in acts 

or activities designed to overthrow the 

U.S. Government by force. An Agency 

must refer these cases to OPM for 

suitability determinations and 

suitability actions under this authority. 

Although no prior approval is needed, 

notification to OPM is required if the 

agency wants to take, or has taken, 

action under its own authority (such as 

5 CFR part 315, 359, or 752) in cases 

involving conduct fitting within any of 

these factors. In addition, paragraph (a) 

of this section notwithstanding, OPM 

may, in its discretion, exercise its 

jurisdiction under this part in any case 

it deems necessary regardless of 

whether the agency may adjudicate 

under another authority. 

§ 731.104 Investigation and reciprocity 

requirements. 

(a) To establish an individual’s 

suitability or fitness, employment 

subject to investigation (see definitions 

§ 731.101(a)) requires the individual to 

undergo investigation by an agency with 

authority to conduct investigations 

except as described in paragraphs (a)(1) 

through (3) of this section. 

(1) An agency must reciprocally 

accept a prior background investigation 

in the event of promotion, demotion, 

reassignment, or transfer from 

employment subject to investigation to 

other employment subject to 

investigation without a break in service, 

unless the new employment is at a 

higher risk level. 

(2) An agency must reciprocally 

accept a prior background investigation 

when the person entering employment 

subject to investigation has undergone a 

background investigation that is at or 

above the level required for the position 

as determined by position designation 

and has a qualifying break in service 

specified in supplemental guidance, 

unless the agency obtains new 

information in connection with the 

person’s employment that calls into 

question the person’s suitability or 

fitness under § 731.202. Agencies must 

request such checks as may be specified 

in implementing guidance and must 

enroll individuals re-entering service 

after a break in service into continuous 

vetting, consistent with the 

requirements in § 731.106(d). 

(3) Positions that are intermittent, per 

diem, or temporary in nature, not to 

exceed an aggregate of 180 days per year 

in either a single continuous 

appointment or series of appointments, 

do not require a background 

investigation for suitability or fitness. 

The employing agency, however, must 

conduct such checks as it deems 

appropriate to ensure the suitability or 

fitness of the person. The employing 

agency must conduct such vetting as 

required under OPM issuances. 

(b) An individual does not have to 

serve a new probationary or trial period 

in the Civil Service merely because the 

individual’s employment is subject to 

investigation under this section. An 

individual’s probationary or trial period 

in the Civil Service is not extended 

because the individual’s employment is 

subject to investigation under this 

section. 

(c) A suitability determination must 

be made for each appointment in the 

competitive service or career Senior 

Executive Service and a fitness 

determination must be made for each 

appointment in the excepted service, 

except as described in paragraph (c)(2) 

of this section. 

(1) In the case of a prior investigation 

that is reciprocally accepted, if the 

record in the Central Verification 

System or its successor system does not 

reflect a prior favorable suitability or 

fitness determination, the agency must 

review the prior investigation for the 

purpose of making a suitability or 

fitness determination. 

(2) In the case of a prior investigation 

that is reciprocally accepted, if the prior 

investigation was favorably adjudicated 

for suitability or fitness, the agency 

must accept the prior determination 

except that the agency must make a new 

determination where: 

(i) The investigative record on file for 

the individual shows conduct that is 

incompatible with the core duties of the 

relevant covered position; or 

(ii) The agency has prescribed 

additional factors as permitted under 

§ 731.202(b) that were not addressed in 

the prior favorable adjudication, in 

which case the agency must conduct an 

adjudication using only those additional 

factors. 

(d) Continuous vetting requirements 

under § 731.106 are not affected by this 

section. 

§ 731.105 Authority to take suitability 

actions in cases involving the competitive 

service or career Senior Executive Service. 

(a) OPM or an agency acting under 

delegated authority may take a 

suitability action in connection with 

any application for, or appointment to, 

the competitive service or career Senior 

Executive Service. 

(1) OPM’s or an agency’s authority to 

complete a suitability action continues 

when an application is withdrawn, 

when an offer of employment is 

withdrawn, or when an individual 

appointed separates from employment. 

(2) OPM’s or an agency’s authority to 

take a suitability action includes the 

case of an application for or 

appointment to the competitive service 

or career Senior Executive Service from 

another type of position when a prior 

investigation is being reciprocally 

accepted as described in § 731.104(a). 

(b) OPM may take a suitability action 

under this part against an applicant or 

appointee based on the criteria in 

§ 731.202. 

(c) Except as limited by § 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 § 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 § 731.202(b)(3), (7), or 

(8). 

(e) An agency may not take a 

suitability action against an employee in 


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the competitive service or career Senior 

Executive Service. Nothing in this part 

precludes an agency from taking an 

adverse action against an employee 

under the procedures and standards of 

5 CFR part 752 or terminating a 

probationary employee under the 

procedures of 5 CFR part 315 or 359 or 

under agency specific authorities. An 

agency must notify OPM to the extent 

required in § 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. 

§ 731.106 Designation of public trust 

positions and investigative requirements. 

(a) Risk designation. For every 

position in the competitive service; in 

the excepted service; to be filled with a 

career appointment in the Senior 

Executive Service; or in which the 

occupant performs a service as a 

contractor employee or as a 

nonappropriated fund employee, an 

agency head must designate the position 

at high, moderate, or low risk level (in 

accordance with the risk designation 

system issued jointly by the Executive 

Agents; see § 731.102(b)), as determined 

by the position’s potential for adverse 

impact to the efficiency or integrity of 

the service. 

(b) Public trust position. A position at 

the high or moderate risk level is 

designated as a ‘‘public trust’’ position. 

Such positions may involve policy 

making, major program responsibility, 

public safety and health, law 

enforcement duties, fiduciary 

responsibilities, or other duties 

demanding a significant degree of 

public trust such as positions involving 

access to or control of financial records 

or with significant risk for causing 

damage or realizing personal gain. 

(c) Investigative requirements. (1) An 

individual entering employment subject 

to investigation under this part must 

undergo a background investigation as 

described in § 731.104. OPM establishes 

minimum investigative requirements 

correlating to the risk level. An 

investigation should be initiated before 

the individual is appointed or otherwise 

becomes employed by or on behalf of 

the agency; however, where an agency 

does not timely initiate the 

investigation, it must do so as soon as 

possible, even if the appointment has 

already occurred. 

(2) Any position subject to risk 

designation under this section must also 

receive a sensitivity designation of 

Special-Sensitive, Critical-Sensitive, 

Noncritical-Sensitive, or Non-sensitive, 

as appropriate. This designation is 

complementary to the risk designation 

and may have an effect on the position’s 

investigative requirement. Part 1400 of 

this title details the various sensitivity 

levels and investigative requirements for 

positions designated as sensitive. 

Procedures for determining investigative 

requirements for a position based upon 

risk and sensitivity will be published in 

issuances, as described in § 731.102(b) 

and 5 CFR part 1400. 

(3) If a suitability or fitness issue 

develops prior to the required 

investigation, OPM or the agency may 

request investigation from an authorized 

investigative service provider sufficient 

to resolve the issue and support an 

unfavorable suitability or fitness 

determination. However, inquiries into 

criminal or credit history cannot occur 

until a conditional offer has been made, 

as specified in § 731.106(g). If warranted 

for positions in the competitive service 

or career Senior Executive Service, an 

agency may also take suitability action, 

in accordance with the authorities 

described in this part. If the individual 

is then appointed or otherwise becomes 

employed by or on behalf of the agency, 

the minimum level of investigation 

must be conducted as required by 

paragraph (c)(1) of this section. 

(d) Continuous vetting requirements. 

(1) Individuals occupying positions of 

employment subject to investigation are 

also subject to continuous vetting 

through periodic checks of their 

background at any time in accordance 

with standards issued by OPM. Checks 

must be conducted at regular intervals, 

based on the type of check and with 

consideration of position risk and 

sensitivity. The nature of a continuous 

vetting check, and any additional 

requirements and parameters, are 

specified in supplemental issuances as 

described in § 731.102(b). An individual 

may be subjected to continuous vetting 

only if they have signed an 

authorization for release of information 

permitting a disclosure for continuous 

vetting purposes. Continuous vetting for 

an individual in a public trust position 

satisfies the requirement for a periodic 

reinvestigation of an individual in a 

public trust position as directed in E.O. 

13488, as amended. An agency must 

ensure that each continuous vetting 

check is conducted and a determination 

made regarding continued employment. 

(2) An individual in a sensitive 

position who is continually vetted to 

standards established by the Security 

Executive Agent for satisfying periodic 

reinvestigation and/or continuous 

vetting requirements meets the 

continuous vetting requirements for a 

public trust position. 

(3) An agency must notify each 

employee covered by this section of the 

continuous vetting requirements under 

this paragraph (d). 

(e) Risk level changes. If an individual 

in employment subject to investigation 

experiences a change to a higher 

position risk level due to promotion, 

demotion, reassignment, or transfer, or 

the risk level of the individual’s 

position is changed to a higher level, the 

individual may remain in or encumber 

the position. Any upgrade in the 

investigation required for the new risk 

level should be initiated within 14 days 

after the promotion, demotion, 

reassignment, transfer or new 

designation of risk level is final or as 

otherwise required by 5 CFR part 1400. 

(f) Completed investigations. An 

investigation or continuous vetting 

check under paragraphs (c) through (e) 

of this section supports a determination 

by the employing agency of whether the 

findings of the investigation would 

justify an action under this part or 

under another applicable authority, 

such as 5 CFR part 315, 359, or 752. 

Section 731.103 addresses whether an 

agency may take an action under this 

part, and whether the matter must be 

referred to OPM for debarment 

consideration. 

(g) Criminal or credit history 

inquiries. A hiring agency may not make 

specific inquiries concerning an 

applicant’s criminal background in oral 

or written form (including through the 

OF–306 or other forms used to conduct 

vetting for Federal employment, 

USAJOBS, or any other electronic 

means) unless the hiring agency has 

made a conditional offer of employment 

to the applicant. For criminal inquiries 

prior to a conditional offer, this 

prohibition does not apply to applicants 

for positions excepted under 5 CFR 

920.201(b). For competitive service or 

career Senior Executive Service, a hiring 

agency may not make specific inquiries 

concerning an applicant’s credit 

background in oral or written form 

(including through the OF–306 or other 

forms used to conduct vetting for 

Federal employment, USAJOBS, or any 

other electronic means) unless the 

hiring agency has made a conditional 

offer of employment to the applicant. 

Agencies may request an exception to 

the provision for making credit inquiries 

in advance of a conditional offer in 

accordance with the provisions in 5 CFR 

part 330, subpart M. Agencies may make 

an inquiry into an applicant’s Selective 

Service registration, military service, 

citizenship status, where applicable, or 

previous work history, prior to making 

a conditional offer of employment to an 

applicant. 


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(h) Recordkeeping and use of 

information. When an agency makes a 

suitability or fitness determination 

based on an investigation, the agency 

must: 

(1) Ensure that any record used in 

making the determination is accurate, 

relevant, timely, and complete to the 

extent reasonably necessary to ensure 

fairness to the individual in any 

determination; 

(2) Ensure that all applicable 

administrative procedural requirements 

provided by law, including the 

regulations in this part and issuances as 

described in § 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 § 731.102(b). 

■ 8. Revise subpart B to read as follows: 

Subpart B—Determinations of 

Suitability or Fitness; Suitability 

Actions in Cases Involving the 

Competitive Service or Career Senior 

Executive Service 

Sec. 

731.201 Standard. 

731.202 Criteria for making suitability and 

fitness determinations. 

731.203 Suitability actions by OPM and 

other agencies for the competitive 

service or career Senior Executive 

Service. 

731.204 Debarment by OPM in cases 

involving the competitive service or 

career Senior Executive Service. 

731.205 Debarment by agencies in cases 

involving the competitive service or 

career Senior Executive Service. 

731.206 Reporting requirements for 

investigations and suitability and fitness 

determinations. 

§ 731.201 Standard. 

The standard for a suitability and 

fitness determination and for a 

suitability action defined in § 731.203 is 

that the action will protect the integrity 

or promote the efficiency of the service. 

§ 731.202 Criteria for making suitability 

and fitness determinations. 

(a) General. OPM, or an agency to 

which OPM has delegated suitability 

authority, must base its suitability 

determination on the presence or 

absence of one or more of the specific 

factors in paragraph (b) of this section. 

An agency is responsible for making a 

fitness determination for an excepted 

service position covered by this part but 

must apply the specific factors in 

paragraph (b) as the minimum standards 

for making the determination. When 

applying these criteria, an agency must 

also apply guidance in supplemental 

issuances, as described in § 731.102(b). 

If using these factors to also make a 

Personal Identity Verification (PIV) 

Credential determination as outlined in 

OPM issuances regarding PIV 

credentialing eligibility, an agency must 

also ensure they have verified the 

individual’s identity. 

(b) Specific factors. Only OPM may 

take a suitability action considering the 

factors in paragraph (b)(3) or (7) of this 

section. Agencies may use the factor in 

paragraph (b)(8) of this section in 

applicant and appointee suitability 

cases but not employee cases; however, 

OPM may use this factor in employee 

cases. When making a suitability 

determination, OPM or an agency will 

consider only the following factors to 

determine if one is suitable. When 

making fitness determinations, an 

agency must consider these factors as a 

minimum standard, but it may prescribe 

additional factors to protect the integrity 

and promote the efficiency of the 

service, when job-related and consistent 

with business necessity. 

(1) Misconduct or negligence in 

employment; 

(2) Criminal conduct; 

(3) Material, intentional false 

statement, or deception or fraud, in 

examination or appointment; 

(4) Dishonest conduct; 

(5) Excessive alcohol use, without 

evidence of rehabilitation, of a nature 

and duration that suggests the applicant 

or appointee would be prevented from 

performing the duties of the position in 

question, or would constitute a direct 

threat to the property or safety of the 

applicant, appointee, or others; 

(6) Illegal use of narcotics, drugs, or 

other controlled substances, without 

evidence of rehabilitation; 

(7) Knowing and willful engagement 

in acts or activities designed to 

overthrow the U.S. Government by 

force; 

(8) Any statutory or regulatory bar 

that prevents the lawful employment of 

the individual in the position in 

question; and 

(9) Violent conduct. 

(c) Additional considerations. OPM 

and an agency must consider any of the 

following additional considerations to 

the extent OPM or the relevant agency, 

in its sole discretion, deems any of them 

pertinent to the individual case: 

(1) The nature of the position for 

which the individual is applying or in 

which the individual is employed; 

(2) The nature and seriousness of the 

conduct; 

(3) The circumstances surrounding 

the conduct; 

(4) The recency of the conduct; 

(5) The age of the individual involved 

at the time of the conduct; 

(6) Contributing societal conditions; 

and 

(7) The absence or presence of 

rehabilitation or efforts toward 

rehabilitation. 

§ 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 

§ 731.101. 

(b) A suitability action may be taken 

only by OPM or an agency with 

delegated authority under the 

procedures in subparts C and D of this 

part. 

(c) A non-selection, or cancellation of 

eligibility for the competitive service 

based on an objection to an eligible or 

pass over of a preference eligible under 

5 CFR 332.406, is not a suitability action 

even if it is based on reasons set forth 

in § 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 § 731.202, subject to the 

agency limitations of § 731.103(b), (d), 

and (f). 

(e) OPM may require that an 

employee in the competitive service or 

career Senior Executive Service be 

removed on the basis of one or more of 

the following: 

(1) A material, intentional false 

statement, deception, or fraud in 

examination or appointment; 

(2) Knowing and willful engagement 

in acts or activities designed to 

overthrow the U.S. Government by 

illegal or unconstitutional means; and/ 

or 

(3) Statutory or regulatory bar that 

prevents the individual’s lawful 

employment. 

(f) OPM may cancel any reinstatement 

eligibility obtained as a result of a 

material, intentional false statement, 

deception, or fraud in examination or 

appointment. 

(g) An action to remove an appointee 

or employee for suitability reasons 

under this part is not an action under 5 


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CFR part 315, 359, or 752. Where 

conduct covered by this part may also 

form the basis for an action under 5 CFR 

part 315, 359, or 752, an agency may 

take the action under 5 CFR part 315, 

359, or 752, as appropriate, instead of 

under this part. An agency must notify 

OPM to the extent required in 

§ 731.103(f) if it wants to take, or has 

taken, action under these authorities. 

OPM reserves the right to also take an 

action under this part. 

(h) An agency does not need approval 

from OPM before taking an unfavorable 

suitability action. However, it is 

required to report to the Central 

Verification System or its successor, 

each unfavorable suitability action taken 

under this part within 30 days after it 

takes the action. Also, each suitability 

determination based on an investigation 

must be reported to the Central 

Verification System or its successor as 

soon as possible and in no event later 

than 90 days after receipt of the final 

report of investigation. 

§ 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 

§ 731.202, OPM, in its discretion, may, 

for a period of not more than 3 calendar 

years from the date of the unfavorable 

suitability determination, deny that 

individual examination for, and 

appointment to, the competitive service 

and career appointment in the Senior 

Executive Service. 

(b) OPM may impose an additional 

period of debarment following the 

expiration of a period of OPM or agency 

debarment or when new conduct arises 

while under debarment, but only after 

the individual again becomes an 

applicant, appointee, or employee 

subject to OPM’s suitability jurisdiction, 

and the individual’s suitability is 

determined in accordance with the 

procedures of this part. An additional 

debarment period may be based in 

whole or in part on the same conduct on 

which the previous suitability action 

was based, when warranted, or new 

conduct. 

(c) OPM, in its sole discretion, 

determines the duration of any period of 

debarment imposed under this section. 

§ 731.205 Debarment by agencies in cases 

involving the competitive service and 

career Senior Executive Service. 

(a) Subject to the provisions of 

§ 731.103, when an agency finds an 

applicant or appointee unsuitable based 

upon reasons listed in § 731.202, the 

agency may, for a period of not more 

than 3 years from the date of the 

unfavorable suitability determination, 

deny that individual examination for, 

and appointment to, either all, or 

specific competitive service positions 

and career appointment to all, or 

specific Senior Executive Service 

positions within that agency. 

(b) The agency may impose an 

additional period of debarment 

following the expiration of a period of 

OPM or agency debarment, but only 

after the individual again becomes an 

applicant or appointee subject to the 

agency’s suitability jurisdiction, and his 

or her suitability is determined in 

accordance with the procedures of this 

part. An additional debarment period 

may be based in whole or in part on the 

same conduct on which the previous 

suitability action was based, when 

warranted, or new conduct. 

(c) The agency, in its sole discretion, 

determines the duration of any period of 

debarment imposed under this section. 

(d) The agency is responsible for 

enforcing the period of debarment and 

taking appropriate action if an 

individual applies for a position at that 

agency during the debarment period or 

is examined for or appointed to a 

position at that agency during the 

debarment period. This responsibility 

does not limit OPM’s authority to 

exercise jurisdiction itself and take any 

action OPM deems appropriate. 

§ 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. 

■ 9. Revise the heading of subpart C to 

read as follows: 

Subpart C—OPM Suitability Action 

Procedures for the Competitive 

Service or Senior Executive Service 

■ 10. Amend § 731.302 by revising 

paragraph (c) to read as follows: 

§ 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. 

* * * * * 

■ 11. Revise the heading of subpart D to 

read as follows: 

Subpart D—Agency Suitability Action 

Procedures for the Competitive 

Service or Career Senior Executive 

Service 

■ 12. Amend § 731.402 by revising 

paragraph (c) to read as follows: 

§ 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. 

* * * * * 

■ 13. Revise the heading of subpart E to 

read as follows: 

Subpart E—Appeal to the Merit 

Systems Protection Board of 

Suitability actions in cases involving 

the Competitive Service or Career 

Senior Executive Service 

Subpart F—[Removed] 

■ 14. Remove subpart F, consisting of 

§ 731.601. 

[FR Doc. 2024–29799 Filed 12–17–24; 8:45 am] 

BILLING CODE 6325–66–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 950 

Combined Federal Campaign: 

Authorization of Short-Term 

Regulatory Variation 

AGENCY: Office of Personnel 

Management. 

ACTION: Notification. 

SUMMARY: The Office of Personnel 

Management (OPM) is providing notice 

that the Acting Director is authorizing a 

variation from the regulatory public 

accountability standards to relieve 

practical difficulties and unnecessary 

hardships in complying with the strict 

letter of the regulation. The Acting 

Director has found that such a variation 

is within the spirit of the regulations 

and will ensure the achievement of 

campaign objectives. Specifically, for an 

18-month period, OPM is modifying 

certain revenue thresholds for the 

various public accountability standards 


khammond on DSK9W7S144PROD with RULES