Presidential Documents

Federal Register / Vol. 74, No. 13 / Thursday, January 22, 2009 / Presidential Documents 4111 

Executive Order 13488 of January 16, 2009 

Granting Reciprocity on Excepted Service and Federal Contractor Employee Fitness and Reinvestigating Individuals in 

Positions of Public Trust 

By the authority vested in me as President by the Constitution and the 

laws of the United States of America, including sections 1104(a)(1), 3301, 

and 7301 of title 5, United States Code, and in order to simplify and 

streamline the system of Federal Government personnel investigative and 

adjudicative processes to make them more efficient and effective, it is hereby 

ordered as follows: 

Section 1. Policy. (a) When agencies determine the fitness of individuals 

to perform work as employees in the excepted service or as contractor 

employees, prior favorable fitness or suitability determinations should be 

granted reciprocal recognition, to the extent practicable. 

(b) It is necessary to reinvestigate individuals in positions of public trust 

in order to ensure that they remain suitable for continued employment. 

Sec. 2. Definitions. For the purposes of this order: 

(a) ‘‘Agency’’ means an executive agency as defined in section 105 of 

title 5, United States Code, but does not include the Government Accountability Office. 

(b) ‘‘Contractor employee’’ means an individual who performs work for 

or on behalf of any agency under a contract and who, in order to perform 

the work specified under the contract, will require access to space, information, information technology systems, staff, or other assets of the Federal 

Government. Such contracts, include, but are not limited to: 

(i) personal services contracts; 

(ii) contracts between any non-Federal entity and any agency; and 

(iii) sub-contracts between any non-Federal entity and another nonFederal entity to perform work related to the primary contract with the 

agency. 

(c) ‘‘Excepted service’’ has the meaning provided in section 2103 of title 

5, United States Code, but does not include those positions in any element 

of the intelligence community as defined in the National Security Act of 

1947, as amended, to the extent they are not otherwise subject to Office 

of Personnel Management appointing authorities. 

(d) ‘‘Fitness’’ is the level of character and conduct determined necessary 

for an individual to perform work for or on behalf of a Federal agency 

as an employee in the excepted service (other than a position subject to 

suitability) or as a contractor employee. 

(e) ‘‘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 or on behalf of a Federal agency as an 

employee in the excepted service (other than a position subject to suitability) 

or as a contractor employee. A favorable fitness determination is not a 

decision to appoint or contract with an individual. 

(f) ‘‘Position of Public Trust’’ has the meaning provided in 5 CFR Part 

731. 

(g) ‘‘Suitability’’ has the meaning and coverage provided in CFR Part 

731. 


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4112 Federal Register / Vol. 74, No. 13 / Thursday, January 22, 2009 / Presidential Documents 

Sec. 3. Agency Authority to Set Fitness Criteria and Determine Equivalency. 

The authority to establish criteria for making fitness determinations remains 

within the discretion of the agency head. Agency heads also have the discretion to determine whether their criteria are equivalent to suitability standards 

established by the Office of Personnel Management. Agency heads shall 

take into account Office of Personnel Management guidance when exercising 

this discretion. 

Sec. 4. Reciprocal Recognition of Fitness and Suitability Determinations. 

(a) Except as provided by subsection (b) of this section, agencies making 

fitness determinations shall grant reciprocal recognition to a prior favorable 

fitness or suitability determination when: 

(i) the gaining agency uses criteria for making fitness determinations 

equivalent to suitability standards established by the Office of Personnel 

Management; 

(ii) the prior favorable fitness or suitability determination was based 

on criteria equivalent to suitability standards established by the Office 

of Personnel Management; and 

(iii) the individual has had no break in employment since the favorable 

determination was made. 

(b) Exceptions to Reciprocal Recognition. A gaining agency is not required 

to grant reciprocal recognition to a prior favorable fitness or suitability 

determination when: 

(i) the new position requires a higher level of investigation than previously conducted for that individual; 

(ii) an agency obtains new information that calls into question the 

individual’s fitness based on character or conduct; or 

(iii) the individual’s investigative record shows conduct that is incompatible with the core duties of the new position. 

Sec. 5. Reinvestigation of Individuals in Positions of Public Trust. Individuals in positions of public trust shall be subject to reinvestigation under 

standards (including but not limited to the frequency of such reinvestigation) 

as determined by the Director of the Office of Personnel Management, to 

ensure their suitability for continued employment. 

Sec. 6. Responsibilities. (a) An agency shall report to the Office of Personnel 

Management the nature and results of the background investigation and 

fitness determination (or later changes to that determination) made on an 

individual, to the extent consistent with law. 

(b) The Director of the Office of Personnel Management is delegated authority to implement this order, including the authority to issue regulations 

and guidance governing suitability, or guidance related to fitness, as the 

Director determines appropriate. 

Sec. 7. General Provisions. (a) Nothing in this order shall be construed 

to impair or otherwise affect: 

(i) authority granted by law to a department or agency, or the head 

thereof; or 

(ii) functions of the Director of the Office of Management and Budget 

relating to budget, administrative, or legislative proposals. 

(b) This order shall be implemented consistent with applicable law and 

subject to the availability of appropriations. 

(c) This order shall not suspend, impede, or otherwise affect Executive 

Order 10450 of April 27, 1953, as amended, or Executive Order 13467 

of June 30, 2008; 

(d) This order is intended only to improve the internal management of 

the executive branch and is not intended to, and does not, create any 

right or benefit, substantive or procedural, enforceable at law or in equity 

by any party against the United States, its agencies, instrumentalities, or 

entities, its officers, employees or agents, or any other person. 


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Federal Register / Vol. 74, No. 13 / Thursday, January 22, 2009 / Presidential Documents 4113 

Sec. 8. Effective Date and Applicability. This order is effective upon 

issuance and is applicable to individuals newly appointed to excepted service 

positions or hired as contractor employees beginning 90 days from the 

effective date of this order. 

THE WHITE HOUSE, 

January 16, 2009. 

[FR Doc. E9–1574 

Filed 1–21–09; 4:15 pm] 

Billing code 3195–W9–P 


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