[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]
Presidential Documents
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