[Federal Register Volume 74, Number 13 (Thursday, January 22, 2009)]
[Presidential Documents]
[Pages 4111-4113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1574]


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

[[Page 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 non-
Federal 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.

[[Page 4112]]

                 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.

[[Page 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.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    January 16, 2009.

[FR Doc. E9-1574
Filed 1-21-09; 4:15 pm]
Billing code 3195-W9-P