[Federal Register Volume 91, Number 124 (Tuesday, June 30, 2026)]
[Rules and Regulations]
[Pages 39361-39382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-13154]
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Rules and Regulations
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 91, No. 124 / Tuesday, June 30, 2026 / Rules
and Regulations
[[Page 39361]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 731
[Docket ID: OPM-2025-0007]
RIN 3206-AO84
Suitability and Fitness
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is amending the
Federal Government personnel vetting adjudicative processes for
determining suitability and taking suitability actions. The final rule
will improve the efficiency, rigor, and timeliness by which OPM and
agencies vet individuals for risk to the integrity and efficiency of
the service and make clear that individuals who engage in serious
misconduct while employed in Federal service are subject to the same
suitability procedures and actions as applicants for employment. It
also ensures that suitability determinations and actions are applied
consistently with Merit System Principles.
DATES: Effective July 30, 2026.
FOR FURTHER INFORMATION CONTACT: For questions, contact Joe Knouff,
Suitability Executive Agent Programs, by email at [email protected] or by
phone at (202) 599-0090.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
OPM is issuing a final rule to improve the efficiency, rigor, and
timeliness by which OPM and agencies vet individuals for risk to the
integrity and efficiency of the service. In June 2025, OPM proposed
updates to 5 CFR part 731 to the specific factors used to evaluate an
individual's suitability or fitness for Federal service, as directed by
E.O. 14210 of February 11, 2025, Implementing the President's
``Department of Government Efficiency'' Workforce Optimization
Initiative (90 FR 9669, Feb. 14, 2025). See 90 FR 23467 (June 3, 2025).
OPM also proposed updates to OPM's and agencies' delegated authority to
take suitability actions on post-appointment conduct as directed by the
March 20, 2025, Presidential Memorandum Strengthening the Suitability
and Fitness of the Federal Workforce (90 FR 13683, Mar. 25, 2025). This
final rule amends 5 CFR part 731, subparts A, B, C, and D, to update
the specific factors and OPM's and agencies' delegated authority to
take suitability actions on post-appointment conduct.
II. Authority and Background
Congress has long charged the President with ensuring that those
employed in the competitive service are suitable for Federal
employment. In 1871, Congress directed the President to ``prescribe
such regulations for the admission of persons into the civil service .
. . as may best promote the efficiency thereof, and ascertain the
fitness of each candidate in respect to . . . character''; appoint
individuals to investigate applicants' suitability for Federal
employment; and ``establish regulations for the conduct of [employees]
in the civil service.'' 1 Rev. Stat. 313, Sec. 1753 (1875) (enacted
Mar. 3, 1871). Today, 5 U.S.C. 3301 and 7301 provide similarly that
``[t]he President may . . . prescribe such regulations for the
admission of individuals into the civil service in the executive branch
as will best promote the efficiency of that service,'' ``ascertain the
fitness of applicants as to . . . character,'' and ``prescribe
regulations for the conduct of employees in the executive branch.''
Historically, the President has delegated to OPM and its
predecessor, the Civil Service Commission, the authority to prescribe
both qualification standards and suitability standards, and to conduct
both examinations of applicants' qualifications and investigations of
suitability for appointment and continuing employment. See 5 U.S.C.
1104(a)(1). The President charged OPM with, among other duties: (1)
``establish[ing] standards with respect to . . . suitability . . .
which applicants must meet to be admitted to or rated in
examinations''; (2) ``[i]nvestigating . . . the suitability . . . of
applicants for positions in the competitive service''; (3)
``requir[ing] appointments to be made subject to investigation to
enable the [Director] to determine, after appointment, that the
requirements of law or the Civil Service Rules and Regulations have
been met''; and (4) instructing an agency ``to remove'' an employee
found to be ``disqualified for Federal employment.'' E.O. 10577 (Nov.
22, 1954) (codified, in relevant part, as amended, at 5 CFR 2.1(a),
5.2(a), 5.3(a)(1), 5.3(b)); see also 5 U.S.C. 1103(a)(5) (the
Director's responsibility for ``executing, administering, and
enforcing'' these Civil Service Rules); 5 U.S.C. 1104(a)(1) (the
President's authority to ``delegate, in whole or in part, [his]
personnel management functions'' to OPM); 5 U.S.C. 3302 (the
President's authority to ``prescribe rules governing the competitive
service'').
Part 731 of title 5, Code of Federal Regulations, establishes and
maintains OPM's policies and procedures governing suitability and
fitness investigations and adjudications, including the procedures for
taking suitability actions and the general process for appealing a
suitability action. Suitability and fitness determinations examine
``character or conduct that may have an adverse impact on the integrity
or efficiency of the service,'' such as criminal or dishonest conduct,
and deception or fraud in examination or appointment. 5 CFR 731.101,
731.201, 731.202. If the suitability determination is unfavorable, the
adjudicator must then determine what ``suitability action'' is
appropriate. See Sec. 731.203(a). OPM's regulations define a
``suitability action'' to include ``[c]ancellation of eligibility,''
``[r]emoval,'' ``[c]ancellation of reinstatement eligibility,'' and
``[d]ebarment.'' See Sec. 731.101(a). OPM may also be subject to these
regulations in its capacity as an agency.
The objective of the suitability and fitness adjudicator is to
establish a reasonable expectation that employment or continued
employment of an individual either would or would not protect the
integrity and promote the efficiency of the service. When there is a
reasonable expectation employment would not do so, the individual
should be found unsuitable or unfit. This expectation is established
when an adverse nexus or connection can be shown between the character
or conduct in question and the integrity of the
[[Page 39362]]
service or the individual's capacity and fitness for employment or
continued employment.
These interests and objectives apply equally to applicants for
employment and current Federal employees, regardless of the employment
status as an ``appointee'' or ``employee'' as those terms are defined
in Sec. 731.101. Current Federal employees, no less than applicants,
must remain suitable for Federal employment. Employees who engage in
serious misconduct while in the Federal service are equally as
unsuitable for Federal employment as applicants who engaged in serious
misconduct before applying for Federal employment.
The statutory authorities that direct the President, and by
presidential delegation OPM, to take suitability actions apply to
employees, not just job applicants. See 5 U.S.C. 7301 (``The President
may prescribe regulations for the conduct of employees in the executive
branch.''). Consistent with this broad grant of statutory authority, it
has long been presidential and executive branch policy to assess post-
appointment conduct to determine an individual's ongoing suitability or
fitness to remain in their position and OPM has, under part 731 and
implementing guidance, required agencies to make suitability
determinations based on post-appointment conduct. See, e.g., 76 FR
69601 (Nov. 9, 2011) and 89 FR 102675 (Dec. 18, 2024) (discussing 5 CFR
731.106(d)).
OPM regulations have long applied suitability criteria to both
Federal employees and applicants. Under part 731 and implementing
guidance, OPM has required agencies to make suitability determinations
based on post-appointment conduct. OPM has established in its
regulations that ``OPM may take a suitability action under this part
against an employee'' of an agency and direct that agency to remove the
employee based on the suitability factors set forth in 5 CFR part 731,
subpart B. These factors are as follows: material, intentional false
statement, deception, or fraud, in examination or appointment; a
statutory or regulatory bar that prevents the individual's lawful
employment; and/or, knowing and willful engagement in acts or
activities designed to overthrow the U.S. Government by illegal or
unconstitutional means. 5 CFR 731.203(e). Another factor, refusal to
furnish testimony as required by 5 CFR 5.4, was a basis for OPM to take
a suitability action against an employee and was in place from 1996
until January 2025, when OPM removed this factor from the suitability
factors. See 61 FR 394 (Jan. 5, 1996) and 89 FR 102675 (Dec. 18, 2024).
OPM regulations have further allowed OPM to consider ``[t]he nature of
the position for which the person is applying or in which the person is
employed'' in applying the suitability criteria, making clear that
suitability actions might apply to incumbent employees, whether in an
appointee or employee status as defined in 5 CFR 731.101, as well as
applicants. 5 CFR 731.202(c).
Successive presidential administrations have emphasized that
suitability determinations apply not only to applicants and appointees
to competitive service or career SES positions but also to employees in
such positions. E.O. 13488, Granting Reciprocity on Excepted Service
and Federal Contractor Employee Fitness and Reinvestigating Individuals
in Positions of Public Trust, (74 FR 4111, Jan. 16, 2009) issued in
relevant part under 5 U.S.C. 7301, established a uniform,
governmentwide requirement for public trust suitability
reinvestigations to ensure persons in public trust positions remain
suitable for continued employment.
In January 2017, E.O. 13764 (82 FR 8115, Jan. 23, 2017) amended the
Civil Service Rules, E.O. 13488, and E.O. 13467, and established
continuous vetting for all positions subject to personnel vetting,
including positions subject to OPM's suitability regulations.
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.'' Sec. 1.3, E.O.
13467, as amended by E.O. 13764. A ``covered individual'' is ``a person
who performs, or who seeks to perform, work for or on behalf of the
executive branch.'' Id. In the context of suitability for employment,
continuous vetting is used to determine if an individual remains
suitable for a position over time.
E.O. 13764 also amended the Civil Service Rules at 5 CFR 5.2(a) to
permit the OPM Director to require appointments be made subject to
investigation so that the OPM Director can determine, post-appointment,
that Civil Service Rules and regulations have been met. E.O. 13764
clarified Civil Service Rule 5.3 to specify that the OPM Director could
instruct an agency to remove an employee when the Director finds that
the employee is unsuitable. 5 CFR 5.3(a)(1).
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
the ``Trusted Workforce 2.0'' initiative 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. A
key goal of the initiative is to provide vetting processes that enable
each individual's vetting status to be continuously up to date. Since
its launch, the initiative has enabled the enrollment into continuous
vetting of more than 4 million individuals serving the Government in
national security sensitive positions, including sensitive competitive
service and career SES positions, and enrollment is underway for those
serving in nonsensitive public trust positions.
OPM has established in its regulations that OPM itself may take a
suitability action against an employee in the competitive service or
the career Senior Executive Service and direct the employing agency to
remove the employee based on a narrow set of its suitability factors in
5 CFR part 731, subpart B. OPM regularly takes suitability actions
against such employees based on material, intentional false statement
or deception, or fraud, in examination or appointment. OPM has not
redelegated to agencies the authority to take suitability actions
against employees, even when the conduct occurred prior to employment.
OPM requires agencies to refer to OPM cases where there has been
evidence of such conduct and, should OPM decide to take a suitability
action, OPM directs the agency to remove the employee. OPM also
requires agencies to refer cases involving knowing and willful
engagement in acts or activities designed to overthrow the U.S.
Government by force.
Although OPM has required agencies to make suitability
determinations regarding employees based on post-appointment conduct,
OPM has not permitted agencies to take suitability actions when the
determination is unfavorable. Further, since the Merit Systems
Protection Board's (MSPB) decision in Scott v. OPM in 2011 (116
M.S.P.R. 356 (2011), modified by 117 M.S.P.R. 467 (2012)), which held
that suitability actions cannot be taken for post-appointment conduct,
OPM has not itself taken suitability actions regarding employees,
regardless of employment status as an ``appointee'' or ``employee'' per
5 CFR 731.101, for post-appointment conduct. OPM has recognized,
however, in its regulations, that an agency may employ other
authorities available to the agency when
[[Page 39363]]
an employee's post-appointment conduct renders the employee unsuitable
for continued employment in the position, such as Chapter 75 actions.
Agencies have reported frustration with not being able to take the next
logical step, a suitability action, after finding an employee
unsuitable for continued employment.
After Scott, Congress specifically legislated that agencies need
not proceed through Chapter 75 procedures when taking suitability
actions. OPM's regulations have long defined a ``suitability action''
to include ``[c]ancellation of eligibility,'' ``[r]emoval,''
``[c]ancellation of reinstatement eligibility,'' and ``[d]ebarment.'' 5
CFR 731.203. In 2015, Congress amended 5 U.S.C. 7512 to exclude ``a
suitability action taken by [OPM] under regulations prescribed by
[OPM], subject to the rules prescribed by the President under this
title for the administration of the competitive service'' from the
scope of actions subject to Chapter 75 procedures. 5 U.S.C. 7512(F);
see also Public Law 114-92, Div. A, Title X, Sec. 1086(f)(9), Nov. 25,
2015, 129 Stat. 1010. This legislation functionally overruled a Federal
Circuit case (Archuleta v. Hopper, 786 F.3d 1340 (Fed. Cir. 2015)),
which construed title 5 to subject suitability-based removals to
Chapter 75 procedures.
In Hopper, OPM argued that suitability-based removals derived from
a separate statutory authority than Chapter 75 removals--that is, the
presidential authority to regulate employee conduct implies authority
to remove employees who violate those regulations, and the President
had delegated that authority to OPM. Hopper, 786 F.3d at 1348-49. The
Federal Circuit in Hopper rejected OPM's position. Id. But Congress, in
adding 5 U.S.C. 7512(F), repudiated Hopper and excluded ``a suitability
action taken by [OPM] under regulations prescribed by [OPM], subject to
the rules prescribed by the President under this title for the
administration of the competitive service'' from the scope of Chapter
75. Congress thus expressly recognized the validity of suitability-
based removals from the Federal service and that this authority is
separate and distinct from Chapter 75 removal authority.
In addition to congressional action, presidential actions since
Scott have further established OPM's authority to take suitability
actions for post-appointment conduct against appointees and employees
in competitive and career SES positions, although OPM has not done so.
Notably, in Scott, a key element of the Board's rationale for deciding
OPM could not take suitability actions for post-appointment conduct was
that, while ``it may be that the President could, pursuant to 5 U.S.C.
7301, issue an Executive Order authorizing OPM to make suitability
determinations and take or direct suitability actions based on post-
admission or postappointment conduct . . ., the President has not
issued such an order.''
President Trump has now issued such an order, in the Presidential
Memorandum Strengthening the Suitability and Fitness of the Federal
Workforce, issued March 20, 2025 (``the Presidential Memorandum''). 90
FR 13683 (Mar. 25, 2025). President Trump further directed that the OPM
Director ``propose regulations, consistent with applicable law,
amending Part 731 of title 5, Code of Federal Regulations, to account
for the delegation'' and ``to implement appropriate rules and
procedures regarding suitability determinations and suitability actions
based on post-appointment conduct.''
Despite the clear intent from both Congress and the President--
stretching over decades now--that agencies should not rely on Chapter
75 procedures to address post-appointment conduct covered by the
factors described in 5 CFR 731.202(b), today agencies still largely
must rely on Chapter 75 procedures to remove employees who engage in
serious misconduct. This means that, illogically, the Government has
far greater ability to bar someone from Federal employment who has
committed a serious crime or misconduct in the past than it does to
remove someone who engages in the exact same behavior as a Federal
employee. This arbitrary state of affairs limits the tools available to
the Government to ensure the efficiency and integrity of the Federal
service.
OPM therefore is conforming its regulations to meet the
requirements of the Presidential Memorandum and rectifying this
irrational gap in the part 731 regulations. Specifically, the rule
satisfies the President's direction in the Presidential Memorandum to
``implement appropriate rules and procedures regarding suitability
determinations and suitability actions based on post-appointment
conduct.'' It also ensures that implementation of continuous vetting as
required by E.O. 13467, as amended, as part of the Trusted Workforce
2.0 initiative, is done in an efficient and effective manner. Under
this rule, when continuous vetting uncovers information that results in
a determination that an individual employed in the competitive service
or career Senior Executive Service is no longer suitable for service,
the situation can be remedied by the next logical step: a suitability
action.
This rulemaking also implements Sec. 3(d) of E.O. 14210 of February
11, 2025, Implementing the President's ``Department of Government
Efficiency'' Workforce Optimization Initiative, which specifies several
additional suitability criteria. 90 FR 9669 (Feb. 11, 2025). E.O. 14210
directed the OPM Director to initiate a rulemaking that would propose
to include four additional suitability criteria: ``failure to comply
with generally applicable legal obligations, including timely filing of
tax returns''; ``failure to comply with any provision that would
preclude regular Federal service, including citizenship requirements'';
``refusal to certify compliance with any applicable nondisclosure
obligations, consistent with 5 U.S.C. 2302(b)(13), and failure to
adhere to those compliance obligations in the course of Federal
employment''; and ``theft or misuse of Government resources and
equipment, or negligent loss of material Government resources and
equipment.'' OPM proposed these new factors in its Notice of Proposed
Rulemaking ``Suitability and Fitness'' 90 FR 23467. The final
disposition of these new factors is described in the following
sections. OPM and agencies must still 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 Sec.
731.202(c) to the extent they are deemed pertinent. The application of
the additional considerations ensures suitability determinations are
made case-by-case based upon the nature of the conduct, and the
conduct's potential impact on the individual's ability to protect the
integrity or promote the efficiency of the Federal service.
III. Digest of Public Comments
In response to the proposed rule, OPM received 1,479 comments \1\
during the 45-day public comment period from multiple individuals,
multiple labor organizations, and a professional organization
representing employment law lawyers. At the conclusion of the public
comment period, OPM reviewed and analyzed the comments. In general, the
comments on the rule change were mixed, with some expressing support,
others expressing opposition, and many comments that were outside the
scope of the rulemaking. The comments are
[[Page 39364]]
summarized below, including suggestions for revisions that OPM
considered and either adopted, adopted in part, or declined, along with
OPM's supporting rationale.
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\1\ Comments filed in response to this rulemaking are available
at https://www.regulations.gov/docket/OPM-2025-0007.
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The first section below addresses general or overarching comments.
The sections that follow address comments related to specific aspects
of OPM's proposed revisions. The discussion of these comments is
grouped by topic.
III.A General and Out-of-Scope Comments
OPM received many comments in response to its proposed rulemaking
that were either extremely broad in nature or related to matters that
were outside the scope of the proposed rule. A summary of these
comments follows.
Summarizing general comments first, some commenters offered support
for the regulatory changes, expressing appreciation for expanded OPM
oversight and intentions to unify and modernize Federal personnel
vetting. Supporters were optimistic the changes will address fraud,
waste, abuse, mismanagement, lack of accountability and enforcement,
perceptions of immunity, and long disciplinary proceedings incurred at
the expense of the taxpayer. Supporters believed conduct and ethical
standards should be high and applicable to all Federal employees.
Several agencies commented that the rulemaking will enhance their
ability to manage risk and make on-going efforts to implement
continuous vetting more effective. See, e.g., comments from U.S.
Department of Homeland Security and Department of Education.
General comments in opposition included basic expression of
displeasure with the proposed rule without specifying any reasons why,
and many others characterized the rule as an attack on the civil
service without further explanation. Multiple commenters in opposition
also expressed concern that OPM's proposed changes related to post-
appointment conduct suitability actions would alter how agencies handle
employee performance concerns. Unless directly related to a specific
factor used to evaluate an individual's suitability, conduct considered
as the basis for a suitability determination does not generally include
the inability to perform. Nothing in OPM's rule changes the authorities
under which performance matters are handled.
Included in comments in opposition to the rule were many comments
that addressed topics that were outside the scope of the proposed rule.
These out-of-scope comments touched on many different topics. OPM is
not addressing comments on topics that are outside the scope of this
rule. The topics commenters brought up that were outside the scope of
this rule include the Notice of Proposed Rulemaking, Improving
Performance, Accountability and Responsiveness in the Civil Service,
the Merit Hiring Plan initiative, the sale and management of Federal
public lands, the rehiring of park rangers, reductions in force, and
activities of the Department of Government Efficiency.
Some out-of-scope comments did address the proposed changes in the
rule more directly; however, they digressed into topics not covered or
impacted by the proposed changes. For example, a large number of
comments claimed that the proposed rule would eliminate an individual's
right to appeal a suitability action to the MSPB. OPM proposed no
changes in this rule that would change appeal rights for suitability
actions found in 5 CFR 731 subpart E. Other commenters recommended that
OPM revise which types of positions (e.g., competitive service,
excepted service, contractor) are subject to suitability determinations
and actions, with some recommending adding types of positions to be
subject to suitability and others recommending eliminating some types.
OPM proposed no changes to, and has limited authority to change, the
types of positions subject to suitability determinations and actions
and these comments are therefore out-of-scope. Additional out-of-scope
topics included requests to define terms or questioning the underlying
need for pre-appointment suitability investigations. The definitions
suggested were not relevant to this rulemaking, and OPM did not propose
any changes to pre-appointment suitability investigations in this
rulemaking.
Several commenters objected to continuous vetting, incorrectly
assuming that it was a new process OPM was proposing to add. Continuous
vetting requirements already exist in 5 CFR part 731, and OPM proposed
no changes to these requirements. As such, comments opposing continuous
vetting are outside the scope of this rule.
III.B Topical Analysis
In the following sections, we address the public comments related
to the specific topics of the regulation to which each comment applied.
III.B.1 Suitability Factors
Historically, 5 CFR part 731 identified the limited circumstances
in which OPM could take a suitability action against an employee, which
were based on a subset of the suitability factors considered in
evaluating an applicant or appointee's character and conduct, and only
when the conduct was connected to the individual's examination,
application, or appointment. In the proposed rulemaking, OPM explained,
``[b]ecause employees who engage in serious misconduct while in the
Federal service should not remain in Federal service, OPM should not
limit its ability to take action to a limited subset of factors.'' See
90 FR 23467, page 23470. OPM received several comments claiming that
OPM is broadly expanding the suitability factors that apply to
employees from a mere subset of the factors in Sec. 731.202(b).
Additionally, commenters suggested that OPM's proposal would allow OPM
to arbitrarily decide which factors apply, and when. See Comment
1055,\2\ as an example. OPM seeks to dispel this misconception.
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\2\ Comments cited are available in the docket for this
rulemaking and can be accessed at https://www.regulations.gov/comment/OPM-2025-0007-nnnn, where ``nnnn'' is the comment number.
Note that the number must be four digits, so insert preceding zeroes
as appropriate.
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While OPM is amending the specific factors used when making
suitability determinations and taking suitability actions, and
incorporating criteria as directed in E.O. 14210, OPM disagrees with
the contention that historically only a subset of factors were relevant
to evaluating whether employees' character and conduct made them
suitable for the Federal workforce, or that under these new regulations
OPM is at liberty to decide if or when factors apply. OPM has long
required agencies to assess information bearing on an individual's
continued suitability, including information that falls outside the
factors necessitating a referral to OPM. Historically, when employee
conduct raised suitability concerns, agencies addressed the matter
under other available authorities. The changes in this rule do not
suggest that previously, certain suitability factors were irrelevant to
evaluating employees; rather, the changes address the authority and
process for resolving such issues when conduct justifies a suitability
action.
As an example, previously, if an employee engaged in criminal
conduct, the agency was expected to assess the conduct and relevance to
the individual's suitability for continued employment, but neither the
agency nor OPM could take a suitability action based on the criminal
conduct, absent related conduct that did warrant an OPM referral (e.g.,
material, intentional false statement, or deception or fraud, in
examination or appointment). If the
[[Page 39365]]
agency determined actionable misconduct was present, it had to take an
administrative action under its own authority such as 5 CFR 752.
Essentially, OPM's ability to take a suitability action was limited to
a subset of the factors, but the necessity for the agency to measure
conduct against all factors and take appropriate punitive action was
not. This rule broadens OPM's and agencies' authorities to take
suitability actions against employees and appointees. However, conduct
associated with all suitability factors is, and has always been,
relevant, regardless of the authority available in different
circumstances, to address the misconduct.
As discussed in III.A., comments related to existing suitability
factors to which OPM has proposed no changes are outside the scope of
this rulemaking. Some comments raised concerns that the meaning of the
newly proposed factors is too vague. To address these concerns, the
following discussion will cover each proposed change to the factors.
First, OPM proposed amending Sec. 731.202(b)(1) to add examples to
the existing factor for misconduct or negligence in employment that may
be committed by current or former employees. The proposed additions
read:
(i) Theft or misuse of Government resources and equipment, or
negligent loss of material Government resources and equipment during
employment with, or on behalf of, the Federal Government or a state,
territorial, or local government;
(ii) Refusal to certify compliance with any applicable non-
disclosure obligations consistent with 5 U.S.C. 2302(b)(13) and failure
to adhere to those compliance obligations in the course of Federal
employment; and
(iii) Refusal to furnish testimony as required by Sec. 5.4 of this
chapter.
Numerous public responses questioned what type of conduct would be
captured under these examples. See Comment 571 for an example. In
general, this factor relates to conduct involving questionable
judgment, unreliability, dishonesty, or unwillingness to follow rules
or regulations in the context of employment. This factor does not
include performance (or inability to perform) concerns, failure to
complete training, or other qualification issues as long as such
concerns are not related to misconduct or negligence.
With regard to the first proposed example, Sec. 731.202(b)(1)(i),
some commenters requested OPM provide additional definitions or
criteria for words such as ``theft'', ``misuse'', ``negligent'',
``material'', and others. See Comment 812 for an example. OPM does not
agree that these words are vague or need further definition, as they
are all commonly understood terms of which OPM is not proposing any
novel uses. Commenters also requested that OPM set specific criteria or
thresholds for each type of conduct covered by this example. Again, OPM
does not agree that any thresholds need to be established, and notes
that doing so would amount to an almost impossible task of identifying
potentially endless possible scenarios. The suitability adjudication
process involves an examination of the evidence and takes into
consideration the unique circumstances for each individual case.
For the second proposed example related to compliance with non-
disclosure obligations at Sec. 731.202(b)(1)(ii), commenters raised
concerns requesting OPM better describe the conduct intended for
consideration under this example and expressed concerns that the
proposed language did not account for whistleblower protections. See
Comment 969 for an example of concerns raised. Federal employees and
contractors are subject to longstanding legal and ethical obligations
to safeguard nonpublic information obtained through their official
duties. These obligations arise under multiple authorities, including
the Standards of Ethical Conduct for Employees of the Executive Branch
(5 CFR part 2635), as well as statutes such as the Privacy Act of 1974.
Together, these requirements reflect the expectation that those working
for or on behalf of the Federal Government will handle official
Government information responsibly and refrain from disclosing
nonpublic information without authorization or through unauthorized
channels and, when required as a condition of employment, will express
their commitment to abiding by these obligations in writing. OPM notes
that the proposed language did also account for whistleblower
protections by including ``consistent with 5 U.S.C. 2302(b)(13)'' and
that commenters expressing this concern seemingly overlooked this
language, which requires a specific statement notifying employees of
their rights, obligations, or liabilities relating to classified
information, communications to Congress, whistleblowing to an Inspector
General, or any other whistleblower protection. OPM has proposed a new
form that agencies could elect to use to establish a non-disclosure
agreement with individuals (91 FR 31478, May 27, 2026). OPM expects the
form to help employees understand their responsibilities with respect
to release of information obtained through their official duties and
allows them to certify that they understand their obligations and agree
to comply with them.
For the third example of misconduct or negligence in employment
proposed at Sec. 731.202(b)(1)(iii), OPM has determined not to pursue
adding this proposed example to the regulation. As discussed
previously, the third example related to Sec. 5.4 of this chapter was
included in Sec. 731.202(b) before when OPM had authority to take
suitability actions against employees based on pre-appointment conduct.
OPM received many comments opposed to reintroducing this former
standalone factor as an example of misconduct or negligence in
employment. See Comment 1063 for an example. OPM disagrees with
comments suggesting the language is vague or that inclusion would
violate individuals' constitutional rights. Nevertheless, even though
OPM now has authority to take suitability actions against appointees
and employees for post-appointment conduct, the population most likely
to engage in the conduct described in the proposed example, OPM has
concluded that the alternative mechanisms for agencies to address such
conduct that supported removal of this factor remain. OPM is removing
this example from Sec. 731.202(b)(1) in the final rule.
The next factor proposed by OPM at Sec. 731.202(b) was Sec.
731.202(b)(5), which read, ``Knowing and willful failure to comply with
generally applicable legal obligations, including timely filing of tax
returns.'' Numerous comments criticized the language as vague,
questioned the meaning of ``generally applicable legal obligations,''
and expressed concern that, as written, the factor did not consider
nuances in tax compliance. See Comments 326 and 039 as examples. OPM
also received several comments expressing concern that this factor may
be difficult to apply consistently, emphasizing the definition of
``knowing and willful'' is unclear. See Comments 1277 and 1401 as
examples. OPM appreciates these comments and the opportunity to provide
further clarity surrounding this factor, to include clarifying the
distinction between the types of conduct that would be considered under
this factor from conduct that would be considered under the existing
criminal conduct factor. In response to the comments on this proposed
factor, OPM is revising this factor to read, ``Failure to comply
[[Page 39366]]
with financial obligations or generally applicable civil legal
obligations, such as timely filing of tax returns.'' This revised
language more precisely reflects the intent of the original proposed
factor.
OPM has determined that including an intent requirement in the text
of the factor is unnecessary and may create inconsistency and avoidable
administrative complexity. Suitability and fitness adjudications
already require a case-by-case assessment of the nature and seriousness
of the conduct, the circumstances surrounding the conduct, and other
pertinent considerations under Sec. 731.202(c). Accordingly, an
adjudicator may consider whether the individual acted knowingly,
willfully, inadvertently, reasonably, or with mitigating circumstances
as part of the overall adjudicative analysis. Removing ``knowing and
willful'' from the factor does not prevent consideration of intent;
rather, it avoids making intent a threshold element that must be
separately established before the factor may be considered.
Prior to proposing this new factor, conduct related to financial
responsibility or civil legal obligations was addressed under the
existing factor for dishonest conduct. The expectation of fiscal
responsibility and compliance with civil legal obligations, including
tax compliance, is not new to suitability adjudications. This factor is
focused on deliberate noncompliance with significant obligations, not
on financial hardship itself. Adjudicators must distinguish deliberate
disregard of an obligation from inadvertent error, inability to pay, or
noncompliance resulting from circumstances beyond the individual's
control. For example, serious medical issues, job loss, or other
extenuating circumstances may cause financial distress without
reflecting intentional irresponsibility. The suitability adjudication
process accounts for this nuance, and underscores the relevance of
materiality, by evaluating financial concerns in the context of the
additional considerations found at Sec. 731.202(c), including the
circumstances surrounding the conduct, its seriousness and recency,
contributing societal conditions, and rehabilitation or efforts toward
rehabilitation. OPM believes that creating a separate factor for this
conduct will help adjudicators focus on whether the individual failed
to comply with a material obligation, rather than treating financial
difficulty as synonymous with dishonesty.
Another area of concern on this proposed factor raised by multiple
commenters was the inclusion of language related to timely filing of
tax returns. Commenters noted that not all unfiled tax returns are
associated with unpaid taxes. Comment 039. An individual could even be
due a refund for a tax overpayment on an unfiled return. Commenters
also voiced concern that with the addition of this factor, tax
compliance issues that would typically result in modest IRS penalties
could be used as the potential basis for removal and debarment from
Federal employment, a much harsher penalty than that imposed by the
IRS. See Comment 015. OPM acknowledges that there may be no penalty
imposed by the IRS for an unfiled return when taxes are not owed;
however, the absence of a penalty does not negate the civil obligation
to timely file a tax return. Additionally, when an individual has
unpaid taxes, as discussed previously, the conduct would be evaluated
in the context of the additional considerations at Sec. 731.202(c).
The assessment would include evaluating the circumstances surrounding
the conduct, and efforts toward rehabilitation such as entering into
repayment plans.
Finally, many commenters expressed concern over the types of legal
obligations that may be considered under this factor and that it could
create overlaps with conduct considered under the criminal conduct
factor. See Comment 474 for an example. OPM appreciates these comments
and has revised the final language as noted above. The revisions
clarify this factor is scoped to civil legal obligations and ensures
there is a clear distinction between the type of conduct considered
under this factor versus under the criminal conduct factor. A civil
legal obligation is a duty imposed by law that requires a person or
entity to do something (or refrain from doing something) in relation to
another person or entity under civil law, as opposed to criminal law.
In many scenarios, there is a nexus between financial duties and civil
legal obligations. In addition to debts owed to the U.S. Government,
other examples of where civil legal obligations may arise include, but
are not limited to, contracts, torts, and statutes. Examples of such
obligations may include: performing according to a business contract;
making required payments under a loan and/or not defaulting on a loan;
or court orders or judgments requiring payment of child support,
alimony, or other repayment orders.
The next factor with a proposed change is the existing factor
related to alcohol use at Sec. 731.202(b)(7). OPM proposed no changes
to the type of conduct considered under this factor or the description
of the specific considerations to be applied when using it. OPM only
proposed to remove the words ``applicant or appointee'' from the factor
to clarify to agencies that it may be applied to all individuals
regardless of employment status. OPM received many comments related to
this factor; however, they did not address the specific nature of the
proposed change and are therefore considered outside the scope of this
rulemaking. See Comment 538 for an example. These comments did draw
attention to the fact that in the proposed regulatory text for Sec.
731.202(b)(7), the words ``applicant or appointee'' were only removed
in the first instance while being erroneously retained at the end of
the factor. OPM appreciates commenters drawing attention to this error
and is revising the text for this factor to read as follows: Excessive
alcohol use, without evidence of rehabilitation, of a nature and
duration that suggests the individual 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 individual or others.
The final proposed factor that received comment was the factor
proposed at Sec. 731.202(b)(6) concerning failure to comply with any
provision that would preclude Federal service. The original proposed
language read, ``Failure to comply with any provision that would
preclude Federal service, including citizenship or nationality
requirements.'' In reviewing comments, OPM determined both this factor,
and the existing factor, ``Any statutory or regulatory bar that
prevents the lawful employment of the individual in the position in
question,'' lead to the same conclusion--the individual is not suitable
for employment due to conduct or conditions that disqualify him or her
from lawful employment. Feedback from commenters also acknowledged this
overlap. See Comment 528. If OPM kept both the existing and new factors
separate, in most instances, an individual's failure to meet a
provision of law would need to be considered under both factors, and
articulating the differences between the two in an adjudication would
have been overly complicated due to similarities. OPM has decided to
combine these two factors into a single factor to clearly convey the
intent, eliminate confusion, and sufficiently cover impediments to
lawful employment. The combined factor reads: ``Any statutory or
regulatory bar or any other provision of law, regulation, Executive
order, or
[[Page 39367]]
other binding legal authority that prevents the lawful employment of
the individual in the position in question, such as citizenship or
nationality requirements.''
Some commenters focused on the references to citizenship and
nationality requirements, believing that persons lawfully admitted to
the United States for permanent residence and seeking U.S. citizenship
are eligible for Federal employment based on the definition of
``protected individual'' in 8 U.S.C. 1324b(a)(3)(B). See Comment 029.
This law explains the prohibition of discrimination based on national
origin or citizenship status. While the definition of protected
individuals in this law includes aliens who are lawfully admitted for
permanent residence, certain aliens admitted for temporary residence,
and certain refugees and asylees, 8 U.S.C. 1324b(a)(2)(C) includes an
exception for discrimination because of citizenship status which is
otherwise required in order to comply with law, regulation, or
executive order, or required by Federal, State, or local government
contract, or which the Attorney General determines to be essential for
an employer to do business with an agency or department of the Federal,
State, or local government. As explained in Executive Order 11935, an
individual cannot be admitted to competitive examination or given an
appointment in the competitive service unless he or she is a citizen or
national of the United States. In exceptional circumstances, including
temporary appointments, a foreign national may be appointed to
positions in the competitive service when necessary to promote the
efficiency of the service, as described in 5 CFR 316.601, unless the
appointment is prohibited by statute. Some statutes governing agencies
and positions, such as national security positions, mandate U.S.
citizenship by law. As such, OPM believes the reference to citizenship
and nationality requirements is appropriate and will retain the
examples.
III.B.2 OPM's Proposal for Post-Appointment Conduct-Based Suitability
Actions
OPM proposed changes to Sec. Sec. 731.103, 731.105, 731.106,
731.203, and 731.301 to exercise its authority to make final
suitability determinations and take suitability actions under part 731
in any case involving an employee in the competitive service or in a
career appointment to a position in the Senior Executive Service. OPM
proposed that it would retain sole jurisdiction to make these final
suitability determinations and take suitability actions in any case
involving an employee for post-appointment conduct. Although OPM
proposed to retain sole jurisdiction to make final suitability
determinations and take suitability actions in these cases, OPM
proposed that it would only make such determinations and take such
actions after an agency has identified post-appointment conduct that
appears to warrant an unfavorable suitability determination and has
referred the matter to OPM.
Comments in response to OPM's proposed changes to implement post-
appointment conduct-based suitability determinations and actions were
numerous and addressed many different sub-topics related to this
proposal. These sub-topics are addressed in the discussion that
follows.
III.B.2.a Lack of Authority
Numerous comments claimed that OPM lacks authority to take 5 CFR
part 731 suitability actions based on post-appointment conduct for
employees in the competitive service or career Senior Executive
Service, and that doing so would constitute an unlawful overreach of
its statutory and delegated authorities. See Comment 1393 for an
example of such comments. OPM disagrees with this assessment of its
authorities. As noted above in section II, Authority and Background,
Congress has directed the President to prescribe regulations for the
conduct of employees in the executive branch and authorized him to
delegate his authority over personnel management functions.
Specifically, the President has delegated to OPM the authority to
prescribe suitability standards and to conduct investigations of
suitability for appointment and continuing employment.
OPM's authority to require agencies to assess employees' post-
appointment conduct to determine their ongoing suitability to remain in
their positions is not new and this rulemaking proposed no substantive
changes to this long-standing requirement. See, e.g., 76 FR 69601 (Nov.
9, 2011) and 89 FR 102675 (Dec. 18, 2024) (discussing 5 CFR
731.106(d)). The proposed change primarily addresses how agencies
should resolve situations when their assessment of an employee's post-
appointment conduct appears to warrant an unfavorable suitability
determination. Although it is true that, since the MSPB's decision in
Scott v. OPM, noted above, OPM has not taken suitability actions
against employees for post-appointment conduct, this does not mean that
OPM lacks authority to do so. Quite the contrary, OPM's proposal to
make final suitability determinations and take suitability actions
against employees based on post-appointment conduct aligns OPM's
regulations and the suitability process with congressional and
presidential intent to manage risk in the civil service.
Many of the commenters questioning OPM's authority to make final
suitability determinations and take suitability actions for post-
appointment conduct claimed that employee misconduct must be addressed
under Chapter 75 procedures and that OPM has no authority to remove an
employee for post-appointment misconduct under suitability. See Comment
1373 for an example. OPM disagrees and finds this viewpoint to
represent a misunderstanding of congressional intent related to
suitability actions. As noted above, in 2015, Congress added 5 U.S.C.
7512(F) to clarify that ``a suitability action taken by the Office
under regulations prescribed by the Office, subject to the rules
prescribed by the President under this title for the administration of
the competitive service'' \3\ is not within the scope of Chapter 75.
This clarifying addition was part of a larger package of reforms in the
Fiscal Year 2015 National Defense Authorization Act (FY 2015 NDAA)
designed to improve the speed and effectiveness of Government personnel
security, suitability, and credentialing reviews. These reforms were
heavily influenced by Congress' response to tragic, potentially
avoidable events had the Government had more robust personnel vetting
processes in place. Following the Washington Navy Yard shooting in
September 2013, when a trusted insider tragically killed 12 individuals
at a Government facility, Congress held hearings examining necessary
improvements to vetting processes highlighted by this event and other
high-profile leaks of information (e.g., the unauthorized disclosure
and subsequent public release of classified U.S. Government information
leaked by Edward Snowden to the media \4\), and crafted legislation to
improve the Government's ability to protect against risk posed by
trusted insiders. For example, the same section of the FY 2015 NDAA
that excluded suitability actions from the scope of Chapter 75 also
directed action to develop strategies and capabilities to enable real-
time, risk-managed personnel vetting decisions, increase access to
criminal history information when determining
[[Page 39368]]
an individual's suitability or fitness for employment, and improve
insider threat detection and prevention. In passing this amendment,
Congress meant to improve the Government's ability to mitigate risk by
clarifying that suitability actions were never intended to follow
Chapter 75 procedures.
---------------------------------------------------------------------------
\3\ National Defense Authorization Act (NDAA) for Fiscal Year
2016, Public Law 11492, div. A, title X, Sec. 1086(f)(9), Nov. 25,
2015, 129 Stat.1010.
\4\ See https://www.congress.gov/event/113th-congress/house-event/LC1115/text.
---------------------------------------------------------------------------
In addition to congressional interest and action to improve the
Government's ability to mitigate risk posed by employees whose post-
appointment conduct renders them unsuitable, as noted above, the
President has now delegated this authority to OPM. Through issuance of
the Presidential Memorandum Strengthening the Suitability and Fitness
of the Federal Workforce (90 FR 13683, Mar. 25, 2025), President Trump
delegated authority to the OPM Director to make final suitability
determinations and take suitability actions regarding employees in the
executive branch based on post-appointment conduct.
Some comments portrayed OPM's position that it could take
suitability actions based on post-appointment conduct as new and
potentially politically motivated. See Comment 160 for an example.
While the President's delegation of this authority to OPM is recent,
OPM's position that such actions are under its authority is not new. In
fact, in Scott v. OPM, OPM's position was that its authorities included
the authority to take a suitability action based on post-appointment
conduct. OPM notes that it argued that position when OPM was under
leadership of an Administration representing a different political
party than the current Administration. OPM therefore disagrees with
characterizations of this policy as new or politically motivated.
Some commenters claimed that OPM lacks authority to take post-
appointment conduct suitability actions for persons in career
appointments to the SES. OPM disagrees. Although section 7543 does not
include language akin to section 7512(F), Congress adopted subsection
(F) to reverse an incorrect judicial interpretation of section 7512 and
specified that subsection (F) was a clarification of congressional
intent. Public Law 114-92, div. A, title X, sec. 1086(f)(9) (129 Stat.
1010) (identifying the amendment under the heading ``Clarification
regarding adverse actions'').
OPM does not interpret 5 U.S.C. 7543 to displace the President's
and OPM's separate suitability authority when OPM acts under
regulations prescribed under 5 U.S.C. 3301 and 7301 and the Civil
Service Rules. Section 7543 governs actions covered by subchapter V of
chapter 75. A suitability action under part 731 is taken under separate
suitability authority, is subject to the procedures in this part, and
is limited by the requirements of Sec. 731.202 and the procedural
protections in subpart C. OPM recognizes the SES-specific statutory
scheme and therefore retains sole jurisdiction over any such action
involving a career SES employee.
III.B.2.b Sufficiency of Chapter 75 Procedures
Generally, many commenters expressed a preference for current
Chapter 75 procedures over OPM's proposal to make final suitability
determinations and take suitability actions for employee post-
appointment conduct. One commenter recommended OPM add consideration of
what are commonly referred to as the ``Douglas factors,'' referring to
a set of factors prescribed by the Merit Systems Protection Board for
determining the appropriateness of penalties under Chapter 75, to the
suitability determination process. See Comment 1053. OPM disagrees with
the recommendation. The suitability determination process already
provides a similar approach to evaluating conduct using additional
considerations at Sec. 731.202(c). The commenter's recommendation
attempts to misapply a non-suitability process to suitability
procedures and offers no explanation for how the additional
considerations at Sec. 731.202(c), which are already part of the
suitability process, would fail to provide protections similar to the
``Douglas factors.''
Many comments argued that OPM's proposal to make final suitability
determinations and take suitability actions for employee post-
appointment conduct is unnecessary because current Chapter 75
procedures provide an effective mechanism for agencies to address
employee misconduct. See Comment 1373 for an example. OPM disagrees.
First, OPM's proposed changes are necessary to bring suitability
procedures in alignment with congressional intent and to carry out the
President's directive in the March 20, 2025, Presidential Memorandum.
Second, post-appointment conduct-based suitability actions provide a
more effective tool for protecting the integrity and efficiency of the
service from employee misconduct. A key distinction between Chapter 75
procedures and suitability actions is that suitability actions allow
OPM to impose a rehabilitative governmentwide debarment from any
position in the competitive service or appointment to the career SES
for a period of up to three years. The ability to impose such a
debarment better protects the integrity and efficiency of the service
by preventing an employee who has engaged in serious misconduct from
immediately re-entering the competitive service or career SES at
another agency, a feature not found in Chapter 75 actions.
Another feature that makes OPM's proposal to take post-appointment
conduct-based suitability actions more effective than Chapter 75
procedures relates to proposed updates to Sec. 731.105(a)(1) that
received comments. In Sec. 731.105(a)(1), OPM proposed amendments to
clarify that its authority to complete a suitability action continues
when an employee, as defined in Sec. 731.101, separates from
employment. Several commenters stated that it appears inefficient to
pursue a suitability action after an individual has withdrawn an
application, an agency has withdrawn an offer of employment, or an
appointee or employee has separated from employment. See Comment 487
for an example. OPM notes in response that the authority to complete a
suitability action in the case of an applicant, appointee, or employee
is not a change from current authorities in Sec. 731.105(a)(1). OPM's
proposed change simply clarifies that the distinction between an
appointee or employee does not matter with respect to OPM's authority
to complete an action after the individual has separated from
employment. OPM disagrees, however, that it would be inefficient to
complete a suitability action against an individual after he or she has
separated. This is a key feature of suitability actions that make them
more effective at managing risk than Chapter 75 actions. Under Chapter
75, an employee facing an action because of serious misconduct can
escape being held accountable for his or her conduct by resigning or
transferring to a new agency. OPM's ability to complete a suitability
action and impose a governmentwide debarment in these situations
provides better protection for all of Government by holding employees
accountable and preventing someone who engages in serious misconduct
from being held accountable by simply resigning or transferring to a
new agency. This same approach is used presently in suitability actions
to ensure that an individual whose conduct makes him or her unsuitable
for Federal employment cannot avoid accountability and attempt to
bounce from agency to agency. Applying this same principle to post-
appointment conduct suitability actions fills this gap in the Chapter
75 process.
These considerations result in OPM concluding that the proposal to
make
[[Page 39369]]
post-appointment conduct-based suitability determinations and take
suitability actions is necessary because current Chapter 75 procedures
fall short. If an individual has engaged in serious misconduct that
would result in a determination he or she is unsuitable for employment,
posing a risk to either the efficiency or integrity of the service, the
Government's ability to pursue an action and the penalty it may impose
should not be determined by when the misconduct took place--either pre-
appointment or post-appointment. Prior to this rulemaking, if the
misconduct took place post-appointment, a trusted insider had more
opportunity to avoid being held accountable for his or her conduct and
even if held accountable, faced a lesser penalty than an individual who
engaged in misconduct prior to Government service. Several agencies
submitted comments directly on this point, indicating that Chapter 75
procedures are overly complex and often result in agencies choosing not
to act and allowing unsuitable individuals to remain employed. See, for
example, comments from Department of Homeland Security and Department
of Education. Governmentwide, the Merit Principles Survey reports that
only 41 percent of supervisors are confident they could remove an
employee who committed serious misconduct.\5\ This rulemaking addresses
this gap. Suitability actions based on post-appointment conduct provide
a better tool for holding Federal employees accountable for serious
misconduct, ensuring Federal employees maintain high standards of
integrity, conduct, and concern for the public interest.
---------------------------------------------------------------------------
\5\ See Merit Sys. Prot. Bd., Remedying Unacceptable Employee
Performance in the Federal Civil Service at 6 (June 18, 2019),
https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.
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III.B.2.c Agency Input in Post-Appointment Conduct Actions
OPM's proposal to retain sole jurisdiction for final suitability
determinations and suitability actions for employee cases involving
post-appointment conduct received several comments expressing concern
that agencies would be better positioned to make these determinations
and take any necessary suitability actions because they would be most
familiar with the individual and his or her conduct, duties, and any
unique circumstances. These commenters raised two primary concerns
related to agency discretion: first, that OPM would act against another
agency's employee without any input from the agency; and second, that
the requirement to refer employee post-appointment conduct cases to OPM
deprives agencies of their discretion to manage their personnel and
resolve personnel matters under their own authorities. See Comments 067
and 452 for examples.
OPM recognizes that agencies are uniquely positioned to identify
situations where an employee's conduct may warrant an unfavorable
suitability determination and suitability action. This is why in Sec.
731.105(b) and (d) OPM proposed a limit on its authority to take a
post-appointment conduct suitability action against appointees or
employees. OPM proposed that it would only make final suitability
determinations and take suitability actions based on post-appointment
conduct if the employing agency first made a proper and sufficient
referral to OPM. The referral would include sufficient details of the
facts of the conduct and circumstances, obtained via a background
investigation or from internal agency records or information. This
limitation on OPM's authority ensures that the employing agency retains
autonomy and discretion in identifying those situations where an
individual's conduct appears to warrant an unfavorable suitability
determination. The agency will have the benefit of relying on its
unique knowledge of the individual and the circumstances surrounding
the conduct when evaluating it against the specific factors at Sec.
731.202(b). This was the intent of the proposed language in Sec.
731.103(b) that makes the employing agency responsible for assessing
whether the employee's conduct would appear to warrant an unfavorable
suitability determination.
Next, OPM notes that any impression that the proposed updates to 5
CFR part 731 would preclude an agency from discretionary authority to
act on misconduct was a misunderstanding of the proposed rule. There is
nothing in the proposed rulemaking that prohibits an agency from
pursuing a disciplinary matter against an employee using Chapter 75
procedures or any other authority available to it. Agencies may still
resolve disciplinary matters under Chapter 75 procedures. OPM
acknowledges that not all post-appointment misconduct would warrant an
unfavorable suitability determination and that agencies may prefer to
resolve misconduct matters using an alternative authority. Under the
proposed rule, agencies retain this discretion to identify when the
level of misconduct would appear to warrant an unfavorable suitability
determination and refer those matters to OPM for potential action. To
further clarify that agencies retain discretion to resolve employee
misconduct under alternative authorities, OPM in this final rule has
clarified in Sec. Sec. 731.103(b) and (g), 731.105(e), and 731.106(d)
that agencies may make a referral to OPM when an employee's post-
appointment conduct appears to warrant an unfavorable suitability
determination for OPM to review and potentially take a suitability
action.
When proposing in Sec. 731.103(g) that OPM would retain sole
jurisdiction to make a final suitability determination and take an
action under this part in any case involving an employee for post-
appointment conduct, OPM did not intend to prohibit agencies from
acting on post-appointment conduct under another authority in
situations where OPM decides not to pursue a suitability action after
receiving an agency referral. OPM intended only to retain sole
jurisdiction to take a suitability action in any case involving an
employee for misconduct. OPM has clarified this intent by revising
Sec. 731.103(g) to state simply that it retains sole jurisdiction to
take a suitability action in any case involving an employee for
misconduct. In the event OPM were to decide not to make an unfavorable
determination and take a suitability action based on an agency
referral, this would not preclude an agency from pursuing an action
under another authority for the same conduct. An OPM decision not to
make an unfavorable determination and take a suitability action does
not imply OPM finds the individual suitable. It is only a decision by
OPM based on its review of the information available not to exercise
its jurisdiction to make a determination and take an action under this
part.
Most of the commenters who raised these concerns recommended that
OPM instead delegate to agencies the authority to make final
suitability determinations and take suitability actions in employee
cases involving post-appointment conduct. See Comment 473 for an
example. OPM notes that in the case of an appointee, in Sec.
731.105(a), OPM proposed that both OPM or an agency acting under
delegated authority could take a suitability action based on post-
appointment conduct, with the limitation noted above that OPM would
only take such an action on an appointee if the employing agency first
made a referral to OPM. OPM has determined to retain sole jurisdiction
over suitability actions for employees based on post-appointment
conduct to ensure governmentwide uniformity in the application of this
now explicitly expressed delegated authority from the
[[Page 39370]]
President. As noted above, a suitability action includes the
possibility of a debarment from positions at a specific agency or
governmentwide, both representing significant consequences not included
in Chapter 75 actions. Of note, Sec. 731.205(a) limits debarment by
agencies to positions within that agency, whereas OPM can debar the
individual from examination for, and appointment to, the competitive
service and career appointment in the Senior Executive Service, i.e.,
governmentwide. See Sec. 731.204. As such, OPM has determined that in
cases of post-appointment conduct suitability actions against employees
it is most prudent to retain sole authority for this responsibility
during the initial implementation. While it is true, as pointed out by
some commenters, that the process of agencies reviewing cases and then
referring them for a secondary review by OPM may introduce some
duplication, OPM finds this preferable because it ensures uniformity
and consistency in decisions. See Comment 1045. Additionally, agencies
will not proceed through the suitability action procedures, and
therefore the amount of duplicated effort should be minimal. After
initial implementation of suitability actions based on post-appointment
conduct OPM may revisit this decision later to assess whether agencies
should be delegated authority to take such actions.
Some commenters recommending that OPM delegate authority for post-
appointment conduct suitability actions to agencies raised concerns
over whether OPM could manage the potential increased workload
associated with agency referrals for these actions. See Comment 473.
These commenters noted that under the current processes for pre-
appointment conduct suitability actions, OPM timelines on processing
agency referrals can vary and sometimes appear protracted. While OPM
acknowledges these concerns, OPM believes these commenters have
overlooked a crucial distinguishing characteristic of the work required
to process a pre-appointment conduct action versus a post-appointment
conduct action. For pre-appointment conduct referrals made by agencies
to OPM, OPM must almost always further investigate the matter to obtain
evidence substantiating the conduct. This involves obtaining evidence
from sources outside of the Federal Government and adds days of
processing time waiting for external sources to reply with information.
In contemplating the nature of conduct most likely to result in a post-
appointment conduct suitability referral from an agency, OPM believes
that the evidence substantiating the conduct will already be available
at the employing agency, thus greatly reducing any need for OPM to
obtain additional evidence. OPM will require agency referrals to
contain fully developed evidence relating to the post-appointment
conduct. By mostly eliminating the need for OPM to conduct additional
investigation upon receipt of the referral, OPM believes that the total
labor hours and calendar days needed to process these actions will be
shorter than those for pre-appointment conduct suitability actions.
Finally, one commenter raised a concern that agencies may face
confusion on how to proceed when an individual newly appointed to a
competitive service or career Senior Executive Service position and
subject to investigation has already converted to an employee in
another competitive service or career Senior Executive Service
appointment. Comment 574. The commenter provided the example of an
individual who is promoted from a non-supervisory competitive service
position to a supervisory competitive service position and serves a new
period of probation as a supervisor. It is OPM's intent that only OPM
have authority to take a suitability action in the case of an
individual who meets, or has met, the definition of an employee under 5
CFR 731.101. OPM has clarified Sec. 731.103(a) to state that in a case
involving an appointee where the individual has converted to an
employee in a prior competitive service or career Senior Executive
Service appointment, agency heads will consider the individual to be an
employee and may make a proper and sufficient referral to OPM if the
employee's conduct appears to warrant an unfavorable suitability
determination.
III.B.2.d Political Patronage
Many commenters expressed concern that OPM's proposal to make final
suitability determinations and take suitability actions based on post-
appointment conduct would introduce political patronage and undermine
the civil service merit system, recreating a ``spoils'' system, in
violation of the Pendleton Act of 1883 and the Civil Service Reform Act
of 1978 (CSRA). See Comment 104 for an example. In addition, many
commenters suggested the rule would conflict with the Hatch Act by
encouraging partisan political activities of Federal employees. See
Comment 218 for an example.
This rulemaking will not undermine merit-based hiring practices,
nor will it undermine the prohibition of civil service employees from
using their positions for political purposes. The significant number of
responses reflecting these concerns warrants emphasis that suitability
determinations and actions are not subject to, nor do they have any
bearing on, partisan political activities or coercion. Further,
contrary to one commenter's concern that individuals seeking to work or
working in the Federal civil service would be required to disclose
their voting history and any political party preferences, this is
simply not true. Comment 1189. Applicants, appointees, and employees
are not asked about their voting patterns or political preferences
during any personnel vetting process, except for the unique
circumstance of voting in a foreign election when under consideration
for eligibility for a national security sensitive position or
eligibility for access to classified information. Nothing in OPM's
rulemaking changes this. Any consideration of partisan political
preferences in suitability procedures remains unlawful under the Merit
Systems Principles codified at 5 U.S.C. 2301, and this rule does not
alter those protections in any manner. In fact, it strengthens the
application of Merit Systems Principles by providing a mechanism to
ensure that ``[a]ll employees'' will ``maintain high standards of
integrity, conduct, and concern for the public interest.'' 5 U.S.C.
2301(b)(4).
To further clarify this point, OPM has inserted a new Sec.
731.102(c) stating expressly that suitability determinations and
actions must be applied consistent with the Merit Systems Principles
set forth in 5 U.S.C. 2301 and the prohibition against unlawful
employment practices set forth in 5 U.S.C. 2302(b). This new provision
underscores that determining an individual's suitability for Federal
service is based on whether an individual's identifiable character and
conduct may have an adverse impact on the integrity or efficiency of
the service--not partisan political considerations. In making this
assessment, OPM or an agency must base its suitability determination on
the presence or absence of one or more of the specific factors in Sec.
731.202(b)--again, not based on politics.
In this context, OPM considers its proposal to retain sole
jurisdiction over suitability actions for employees based on post-
appointment conduct to provide additional protections for employees (in
addition to the express protections that OPM is reinforcing via the new
Sec. 731.102(c)). As noted above, the
[[Page 39371]]
employee's agency must first identify misconduct that appears to
warrant an unfavorable determination and then it may refer the matter
to OPM. If referred to OPM, staff at OPM will review the evidence,
assess the misconduct against the specific factors at Sec. 731.202(b),
and make a final determination. This referral process creates a degree
of separation between the employing agency and the final authority to
take a suitability action, allowing for an objective review of the
evidence presented by the employing agency and eliminating the concerns
raised by commenters related to politicization of the suitability
process. Finally, this rulemaking supports the spirit of the CSRA by
improving Government operations and productivity through removal of
individuals who no longer support the integrity and efficiency of the
service.
OPM notes that the proposed language in Sec. 731.103(a) did state
that the head of an agency would make post-appointment conduct
referrals to OPM, and this language may have contributed to commenters
who read the proposed rule believing the suitability determinations
would be predominantly made by political appointees. OPM recognizes
that within an appointee's or employee's agency it is unlikely the head
of an agency will be directly involved in making a referral to OPM, as
this function is typically carried out by staff delegated this duty
within the agency. As such, to add clarity to this point, OPM will add
language to Sec. Sec. 731.103(b) and 731.105(b) and (d) making it
clear that the referral from the agency may be made by the agency head
or one or more people the agency head designates.
Some commenters reacted to the requirement for agencies to send
referrals to OPM as a new process that appears vague. See Comment 156.
OPM notes that the requirement for agencies to refer suitability cases
to OPM has existed for decades and is not new. OPM provides clear
instructions to agencies on submitting referrals in supplemental
guidance issued under Sec. 731.102(b). OPM makes this guidance
available to the public on its website.
III.B.2.e Due Process Concerns
A large number of commenters opposed OPM's proposal to introduce
post-appointment conduct-based suitability actions to the suitability
and fitness regulations because of concerns that allowing such actions
would strip employees of due process rights. The concerns surrounding
the topic of due process varied. Some commenters claimed that employees
would have no due process rights under the proposed rule. Others
misunderstood proposed changes at 5 CFR 731.304(b) and 731.404(b).
Finally, some opposed the proposal for post-appointment conduct
suitability actions because they believe suitability action procedures
do not provide sufficient due process when compared to the due process
afforded to individuals for Chapter 75 actions. For examples, see
Comments 038, 025, and 017, respectively.
OPM disagrees with commenters who claimed that individuals subject
to a post-appointment conduct suitability action would have no due
process under OPM's proposed rule. For this claim to be true it would
require 5 CFR part 731 to provide no procedures to protect for fairness
and impartiality prior to the Government taking a suitability action.
This is simply false. The suitability regulations provide several
procedural safeguards. The first procedural protection is the
limitation placed on OPM and agencies regarding the type of conduct
that can be considered when determining an individual's suitability.
Section 731.202(a) requires that OPM or an agency must base its
suitability determination on the presence or absence of one or more of
the specific factors in Sec. 731.202(b). In the event OPM or an agency
makes an unfavorable determination, subparts C and D of 5 CFR part 731
provide the following procedural protections:
Notification in writing of the proposed action, including
the specific reasons for the proposed action;
The right to review the materials OPM or the agency relied
upon to reach the unfavorable determination;
The right to respond to the proposed action in writing;
The right to representation; and,
Notification in writing of the decision regarding the
final suitability action.
When OPM or an agency takes a suitability action at the end of this
process, individuals subject to a suitability action also have the
right to appeal the action as described in 5 CFR part 731, subpart E.
OPM notes that it proposed no changes to the right to appeal a
suitability action contained in subpart E in this rulemaking. Many of
the commenters who claimed there was no due process for suitability
actions under the proposed rulemaking also claimed there was no right
to appeal a suitability action. This claim is also wholly false.
Many commenters voicing concern about due process focused on
language contained in the proposed paragraphs at 5 CFR 731.304(b) and
731.404(b) that states the employing agency of an appointee or employee
subject to a suitability action requiring removal must remove the
individual from its rolls within 5 workdays from the final decision.
See Comment 579 as an example. These commenters appear to have read
this language out of context and to have misunderstood OPM's proposed
changes to these sections. The requirement to remove an appointee or
employee subject to a suitability action within 5 workdays from the
final decision was not a proposed change from the existing requirements
in Sec. Sec. 731.304 and 731.404. Commenters claimed that under OPM's
proposed rule an agency could discover an appointee or employee's
misconduct and the individual could be subject to a suitability action
and removed 5 workdays later with no due process. These commenters
appear to have failed to understand that the requirement for removal
from the rolls after the final decision included in Sec. Sec. 731.304
and 731.404 comes after the suitability actions procedures contained in
Sec. Sec. 731.301-303 or 731.401-403, namely, the procedures described
in the preceding paragraph.
One commenter did note that existing language at 5 CFR 731.304 and
731.404 at the time of the proposed changes included a requirement that
when notifying an individual in writing of a final decision, the
notification must include informing the individual of the right to
appeal an unfavorable decision in accordance with subpart E of this
part. See Comment 937. The commenter noticed that the requirement to
notify individuals of the right to appeal was absent from the proposed
Sec. Sec. 731.304(a) and (b) and 731.404(a) and (b) and recommended it
be restored. OPM agrees that a requirement to include notification of
the right to appeal should be included in the suitability action
procedures. The omission was inadvertent, and OPM has included it in
the final rule at Sec. Sec. 731.304(b) and 731.404(b).
The proposed changes at Sec. Sec. 731.304 and 731.404 instead were
intended to clarify decision-making authority for suitability actions
and to require independence in decision-making. Specifically, in Sec.
731.304 OPM proposed to clarify that the OPM Director, or designee,
will make the final decision regarding a suitability action. When the
OPM Director delegates such decision-making, the OPM employee
authorized to make the decision would be required to be appropriately
independent from the employee who made the suitability determination
and proposed the action. For example, the employee adjudicating the
suitability determination (i.e.,
[[Page 39372]]
proposing a suitability action) may not participate in discussions with
or advise the OPM official authorized to make the final suitability
decision. OPM also proposed to prohibit ex parte communication with the
OPM official authorized to make the final decision, applying procedural
protections akin to those provided by 5 U.S.C. 554(d). Although 5
U.S.C. 554 and 557 do not apply to suitability actions, OPM believes
that the type of legal protections provided by those procedures are
appropriate for suitability actions, given the potential significant
consequences. In Sec. 731.404 OPM proposed to amend the process by
which a final decision on a suitability action is made by an agency, in
cases where agencies are permitted to take suitability actions. OPM
proposed that the agency head, or designee, will make the final
decision regarding a suitability action. OPM proposed the same
requirements for independence in decision-making and prohibiting ex
parte communication.
Some commenters raised concerns about the regulation placing final
decision authority in the OPM Director or an agency head and instead
recommended that OPM revise the regulations to require decisions be
made by lower-level career civil servants. OPM views this decision
process as necessary to ensure that the OPM Director or agency head can
supervise adjudicators sufficiently to avoid the constitutional
concerns that vesting subordinate officials with final executive
authority would engender. Article II of the Constitution vests the
executive power in the President, who must rely upon subordinates to
exercise his authority. The Supreme Court has held that only principal
officers who are appointed by the President with Senate consent can
make unreviewable decisions for the executive branch. See United States
v. Arthrex, Inc., 594 U.S. 1 (2021). Adjudicators assigned to make
suitability determinations under this rule exert significant authority
and thus, under Arthrex, must be properly supervised by a principal
officer (such as the OPM Director). For that reason, OPM is not
adopting the recommendation made by some commenters that the
regulations be amended to require suitability determinations be made
only by career Federal staff. See Comment 009. Finally, one commenter
recommended that OPM require deciding officials be individuals who have
no intention of leaving Federal service within one year of making the
final decision. Comment 528. OPM also is not accepting this
recommendation as it would be impractical to implement: there is no
existing mechanism by which the agencies could reliably predict when an
employee may decide to leave Federal service.
OPM did receive one comment related to the requirement to remove an
appointee or employee within 5 workdays from the final decision when
the suitability action includes removal under a post-appointment
conduct suitability action. The commenter highlighted that in the
context of post-appointment conduct suitability actions, there is a
much higher likelihood that an appointee or employee subject to a
suitability action may be working for the Government outside of the
United States or a United States territory. Comment 030. The commenter
noted that it may be impractical in these instances for an employing
agency to remove an individual from its rolls within 5 workdays due to
the potential need for additional planning to transition the individual
out of the workforce. Although OPM appreciates this comment, OPM does
not believe any change to the requirement is required. In these
situations, the agency will have ample advance notice of a potential
unfavorable suitability determination and action to allow for planning
for the individual's removal and transition out of the workforce.
Notably, in cases involving post-appointment conduct, it will be the
agency that first identifies the conduct that may warrant an
unfavorable determination and then refers the matter to OPM and the
agency also receives notice in the event OPM proposes to take a
suitability action. While OPM agrees that any post-appointment conduct
suitability action on an appointee or employee working outside of the
U.S. or a U.S. territory will require careful planning by the employing
agency, OPM does not believe the need for such planning should delay
the Government's ability to protect the integrity and efficiency of the
service by removing the individual promptly.
As noted, the final concern commenters raised related to OPM's
proposal to include post-appointment conduct suitability actions in the
regulation is that employees subject to a post-appointment conduct
suitability action would receive diminished due process compared to
what individuals receive under Chapter 75. While OPM acknowledges that
there are differences in procedures between adverse action procedures
under Chapter 75 and suitability actions procedures, to include
differences in the scope of reviews, OPM disagrees that its proposal to
allow for suitability actions based on post-appointment conduct would
diminish the individuals' due process rights. Due process is simply the
right to the process, or procedures, due to the individual based on the
action taken. OPM has not proposed any changes that would diminish the
process an individual receives under the suitability action procedures.
The only proposed changes to the suitability actions procedures are the
additional requirements for independence in decision-making and the
prohibition against ex parte communications noted above. Individuals,
whether applicants, appointees, or employees, will receive the same due
process they receive today for suitability actions based on pre-
appointment conduct, to include appeal rights contained in 5 CFR part
731, subpart E. It is true that some suitability actions for post-
appointment misconduct may be actions that would have previously been
processed under Chapter 75. In these instances, the process an
individual receives may be different than what the individual would
have received under Chapter 75. The individual will still, though,
receive the process that is due under 5 CFR part 731. Prior to this
rulemaking, OPM is unaware of any substantial claims that individuals
were not afforded sufficient due process in suitability actions when
taking such actions under 5 CFR part 731 against applicants,
appointees, or employees based on pre-appointment conduct, even when
such actions required removal. OPM disagrees that individuals subject
to a suitability action based on post-appointment conduct suffer
diminished due process, because they will experience the same process
that has been due for suitability actions previously with no
substantial change. To strengthen due process protections, in the Final
Rule, OPM is expanding the restrictions on ex parte communications in
Sec. 731.304(a) and Sec. 731.404(a) to ensure that the official
authorized to make the final decision may not consult with, receive
advice from, or communicate with the employee who proposed the
suitability action concerning the merits of the proposed action, except
on notice to the respondent and as part of the record.
III.B.3 Reporting to Governmentwide Systems
OPM proposed amendments to this regulation clarifying that
suitability determinations and actions taken based on an internal
agency investigation fall under the scope of determinations and actions
already required to be reported into the Central Verification System or
its successor as part of continuous
[[Page 39373]]
vetting. Several commenters raised concerns that incorrectly
interpreted the amendments to expand suitability reporting requirements
and potentially raise new privacy concerns. See Comment 017 as an
example. This is a misreading and misunderstanding of existing
requirements. Commenters suggested the rule fails to specify adequate
safeguards concerning data accuracy, security, necessity, and
permissible use, and recommend stringent compliance standards to avoid
liability. These matters are outside the scope of 5 CFR part 731 and
are instead addressed, as required by the Privacy Act of 1974, in the
System of Records Notice (SORN) covering these records. The Central
Verification System or any successor system is operated by the
Department of War (DoW) and is covered by the DoW's Personnel Vetting
Records System. The SORN for this system may be found at 83 FR 52420.
OPM received one request seeking a method for agencies to report
suitability actions on uninvestigated applicants in the Central
Verification System, or its successor. See Comment 004. OPM proposed no
changes to reporting suitability actions on uninvestigated applicants
but may consider this concern as part of future personnel vetting
reform efforts.
III.B.4 Continuous Vetting
OPM received many comments that incorrectly believed that OPM's
proposed rule was establishing a new requirement for continuous
vetting. The requirement for individuals covered by the 5 CFR part 731
to be subjected to continuous vetting existed within the rule prior to
OPM's proposed rule and OPM proposed no changes to this requirement. As
such, these comments are considered outside the scope of this
rulemaking. OPM did propose clarifying language at Sec. 731.106(d)(1)
to identify where requirements for handling internal agency information
in the context of continuous vetting may be found. One commenter
expressed concerns with the reference to ``internal agency sources''
and asked for clarification on what kind of internal agency information
would be deemed credible. See Comment 960. The commenter worried that
hearsay or gossip might be considered as evidence for a suitability
determination and action. A suitability action must be supported by
preponderant evidence, that is, the degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as
sufficient to find that a contested fact is more likely true than
untrue. OPM proposed no changes that would alter the way evidence is
evaluated in the suitability adjudication process. The language
identified by the commenter serves only to point agencies to
requirements for handling internal agency information in continuous
vetting.
One commenter raised questions of the need for post-appointment
conduct suitability actions to help implement the Trusted Workforce 2.0
initiative and continuous vetting. See Comment 1065. The commenter
referenced a Government Accountability Office (GAO) May 9, 2025, report
(https://www.gao.gov/assets/gao-25-107325.pdf) of a qualitative survey
it conducted with some agencies on their perceptions of improved risk
management delivered by the initiative at the time of the report. The
commenter focused on the report's finding that, while most agencies
reported some improvement in risk management, the improvement was not
yet substantial. The commenter questioned whether a need for post-
appointment conduct suitability actions truly exists if the reform
initiative has not yet had a significant governmentwide impact on risk
management. OPM disagrees with the commenter's conclusions. OPM
acknowledges that the Trusted Workforce 2.0 initiative launched in
2018; however, the reliance on that date by the commenter fails to
acknowledge that the initial stages of reform focused on eliminating a
backlog of investigations, securing vulnerable IT systems, and
establishing a new vetting policy framework. At this time, enrollment
of the Federal workforce into continuous vetting is still underway for
individuals occupying positions that are non-sensitive, meaning not
involving national security duties. The true benefit of post-
appointment conduct suitability actions will be realized as continuous
vetting identifies concerning post-appointment conduct. Establishing
post-appointment conduct suitability actions now positions the
Government to fully protect the integrity and efficiency of the service
through suitability actions once continuous vetting is fully
implemented.
III.B.5 References to Probationer Authorities
OPM received comments related to its proposal to remove references
to 5 CFR part 315 throughout the rule. One of the comments on this
topic failed to properly understand the references to part 315,
believing they applied to reductions in force, which is found in part
351. See Comment 1402. Another comment described OPM's proposal to
remove the reference as premature before E.O. 14284 has been fully
implemented. See Comment 415. OPM has completed the rulemaking required
by E.O. 14284. (90 FR 26727, June 24, 2025). Commenters appear to have
misunderstood the prior inclusion of the reference in the context of
the rule. See, e.g., Comment 474. The rule previously only referenced 5
CFR part 315 as an example of non-suitability authorities an agency may
use to take an action. The inclusion or exclusion of the reference in
the rule has no impact on authorities related to probationary status
for Federal employment nor does it impact the types of positions
subject to suitability. As such, OPM finds it prudent to remove the
reference to 5 CFR part 315 as an example of an authority under which
an agency may take an action pursuant to E.O. 14284.
III.B.6 Training Standards
OPM received comments on its proposal at Sec. 731.202(d) to
require persons responsible for suitability screening, review, or
making suitability determinations under this part to be trained in
accordance with national training standards for suitability
adjudicators issued in supplemental issuances, as described in Sec.
731.102(b). The comments collectively questioned when the training
standards would be developed, how agencies would obtain training for
staff, the timeline for requiring compliance with new training
standards, and costs associated. See Comment 1053 for an example.
National training standards for suitability adjudicators and the
requirement for persons performing suitability adjudication-related
duties to be trained in accordance with these standards have existed
since August 2012 when first established by supplemental issuance in
accordance with Sec. 731.102(b). OPM provides governmentwide training
that complies with these standards to agency staff under existing
interagency agreements covered by existing budgets. OPM is adding this
requirement in the final rule to move the requirement from supplemental
issuance to regulation, formalizing the existing requirement. OPM has
not adjusted the cost impact as the establishment of this previously
existing requirement in the rule will not impact costs at agencies.
III.B.7 Length of Comment Period/Extension Request
OPM received several comments that the comment period afforded for
comment on the proposed rule violated the Administrative Procedure Act
(APA). See Comment 028 for an example. They argued that the comment
period following the proposed rule,
[[Page 39374]]
which extended to July 18, 2025, was unlawfully short, in violation of
the APA. The commenters based this argument on multiple sources--first,
the APA's mandate that an ``opportunity to participate'' on proposed
rules be provided following a notice of proposed rulemaking; second,
E.O.s 12866 and 13563, which specify that comment periods should
``generally'' be at least 60 days; and, third, the Supreme Court's
holding in Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015),
and related caselaw, which generally stipulate that the same procedures
be used to amend a rule as were used to enact that rule.
Respectfully, OPM rejects the argument that the comment period was
inadequate as a matter of law or policy. As multiple appellate courts
have held, a 30-day comment period is generally the minimum needed to
comply with the APA.\6\ In Chamber of Commerce of United States v. U.S.
Securities and Exchange Commission, the Fifth Circuit upheld a 45-day
comment period against the charge that it was legally insufficient.\7\
It simply is not the case that the APA requires longer than 45 days for
the public to provide comment.
---------------------------------------------------------------------------
\6\ See Chamber of Com. of the U.S. v. U.S. Sec. & Exch. Comm'n,
85 F.4th 760, 779 (5th Cir. 2023) (``. . . the APA generally
requires only a minimum thirty-day comment period.''); see also
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir.
1992) (``Although the APA mandates no minimum comment period, some
window of time, usually thirty days or more, is . . . allowed for
interested parties to comment.''); Nat'l Lifeline Ass'n v. Fed.
Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (``When
substantial rule changes are proposed, a 30-day comment period is
generally the shortest time period sufficient for interested persons
to meaningfully review a proposed rule and provide informed
comment.'').
\7\ 85 F.4th at 779-80.
---------------------------------------------------------------------------
The commenters' reliance on E.O.s 12866 and 13563 is similarly
misplaced. E.O.s 12866 and 13563 only specify that comment periods
should ``generally'' be at least 60 days. The policy rationale is that
stakeholders should have adequate opportunity to meaningfully
participate in the notice-and-comment process. Concerning the present
rulemaking, OPM received over one thousand four hundred distinct
comments, offering nuanced perspectives on virtually every aspect of
the proposed rule. Factually, it cannot be said that the comment period
was insufficient to allow for meaningful feedback on the proposed rule
given the voluminous feedback that OPM did receive.\8\ In its proposed
rule, OPM decided that a 30-day comment period would be adequate.
However, at the request of commenters, OPM extended the comment period
for an additional fifteen days. (90 FR 29512, July 3, 2025).
---------------------------------------------------------------------------
\8\ OPM additionally notes that the present rulemaking largely
implements an authority that was contemplated by the Merit Systems
Protection Board in Scott v. OPM in 2011 (116 M.S.P.R. 356 (2011).
The Presidential Memorandum Strengthening the Suitability and
Fitness of the Federal Workforce delegating authority to OPM for
post-appointment conduct suitability actions was also issued in
March 2025, several months before OPM's proposed rule. Thus, the
relevant concepts are not new. Consequently, OPM does not believe
extending the comment period by 14 additional days would have
meaningfully enhanced the public's ability to comment on the
proposed rule.
---------------------------------------------------------------------------
Accordingly, the 45-day comment period provided by OPM, which
included a 15-day extension from the usual APA-required minimum at
commenters' request, provided a reasonable opportunity for public
comment.
Further, nothing in Perez stands for the proposition that the
length of comment periods to initially promulgate and then amend a
regulation must be identical. OPM promulgated 5 CFR part 731 through
notice and comment rulemaking and is amending it through the same
procedures. This comports fully with Perez.
III.B.8 Hiring and/or Retention
Many commenters expressed concerns that OPM's proposal to make
final suitability determinations and take suitability actions based on
post-appointment conduct and to modify several of the specific factors
at Sec. 731.202(b) would dissuade qualified individuals from
attempting to join the Federal workforce and prompt attrition among
experienced staff. The commenters provided several different reasons
they believe the proposed changes will negatively impact hiring and
retention. See Comments 042, 060, and 1054 for examples.
OPM disagrees that its rule will negatively impact retention or
morale. Many of these negative comments appear to be based on an
incorrect understanding of OPM's proposal. Commenters cited the
elimination of appeal rights and a five-day removal period with no
opportunity to respond as negatively impacting employee morale. As
discussed in section III.B.2.e, Due Process Concerns, these reasons
reflect a fundamental misunderstanding of OPM's proposals and thus this
final rule. Some commenters also imply that a very large number of
employees will be removed under this rule. OPM notes that, while it
estimates a portion of actions taken under Chapter 75 will be taken as
suitability actions in the future, OPM did not estimate a significant
increase in the number of individuals that would be removed whether
under Chapter 75 or suitability actions. A proper understanding of
revisions to this regulation should not deter qualified applicants from
seeking Federal employment or discourage Federal employees from
maintaining their positions. In fact, OPM expects the shift in post-
appointment suitability actions to improve the integrity of, and public
confidence in, the Federal workforce. OPM also notes that the failure
to address unsuitable conduct by agency employees can create a toxic
work environment that itself harms recruitment and retention. The audit
of the Federal Deposit Insurance Corporation, which revealed
longstanding and gross abuses of authority by senior leaders which were
rarely addressed, is a recent example of this phenomenon.\9\ The audit
noted employees would quit or move within the agency rather than endure
abusive behavior.\10\ OPM believes that post-appointment suitability
actions will improve the integrity of the Federal workforce and thereby
make agency employment more attractive to prospective employees.
---------------------------------------------------------------------------
\9\ Joon H. Kim, Jennifer K. Park, and Abena Mainoo, ``Report
for the Special Review Committee of the Board of Directors of the
Federal Deposit Insurance Corporation,'' April 2024, https://www.fdic.gov/sites/default/files/2024-05/cleary-report-to-fdic-src.pdf.
\10\ See, e.g., id. at 69.
---------------------------------------------------------------------------
OPM acknowledges commenters' concerns that some applicants may
perceive post-appointment suitability actions as increasing the risks
associated with Federal employment. However, OPM notes that this
rulemaking is being implemented alongside broader governmentwide
efforts to strengthen merit-based recruitment and hiring, including
implementation of OPM's Merit Hiring Plan.\11\ These initiatives are
designed to attract highly qualified candidates and improve the
applicant experience. OPM therefore does not agree that this final rule
will deter qualified individuals from seeking Federal employment.
Rather, OPM believes that maintaining appropriate standards of
suitability and conduct supports public confidence in the Federal
workforce while remaining fully consistent with ongoing efforts to
recruit and retain talented employees.
---------------------------------------------------------------------------
\11\ OPM-Executive Office of the President (EOP) joint
memorandum, ``Merit Hiring Plan'' (May 29, 2025), https://www.chcoc.gov/content/merit-hiring-plan.
---------------------------------------------------------------------------
III.B.9 Miscellaneous
OPM received individual or small sets of comments on several other
miscellaneous topics. One commenter recommended that OPM amend Sec.
731.202 to include a provision that suitability determinations and
actions must be applied consistent with 5
[[Page 39375]]
U.S.C. 2302(b), which establishes prohibited personnel practices. OPM
agrees with this comment and is adding a new Sec. 731.102(c) that
provides that suitability determinations and actions must be applied
consistent with the Merit Systems Principles set forth in 5 U.S.C. 2301
and with 5 U.S.C. 2302(b), setting forth prohibited personnel
practices. OPM also is revising the Authority citations for part 731 to
reflect this addition.
OPM received no comments on the proposed changes to the definitions
at Sec. 731.101 and is adopting them as proposed.
III.B.10 Implementation
Some commenters requested OPM provide guidance on how this rule
will be implemented. See Comment 1319 for an example. This rulemaking
is prospective starting at the effective date. That means that agencies
cannot apply the updated language in the specific factors at Sec.
731.202(b) when proposing or taking an action until the effective date
of this rule. Similarly, agencies cannot make referrals to OPM for
consideration of post-appointment conduct suitability actions until the
effective date of this rule. Post-appointment conduct occurring prior
to the effective date of this rule but that is referred to OPM on or
after the effective date may be considered for a suitability action by
OPM consistent with applicable law. Finally, conduct that was
previously known by an agency at the time it made a favorable
suitability determination may not be used as the sole basis for a post-
appointment conduct suitability action against an appointee or
employee.
IV. Expected Impact of This Rule
IV.A Statement of Need
This rule is needed to improve the efficiency, rigor, and
timeliness by which OPM and agencies vet individuals for risk to the
integrity and efficiency of the service. An agency currently must rely
on the protracted Chapter 75 process when the agency identifies conduct
that poses risk to the efficiency and integrity of the service.
Agencies and managers report frustration with not being able to take a
suitability action after finding an employee unsuitable for continued
employment. Agencies reported they often decline to act because the
Chapter 75 process is perceived as too difficult, leaving unsuitable
employees in the workplace. Allowing employees who engage in gross--and
at times criminal--misconduct to remain in their positions undermines
the integrity of the Federal service.
This final rule also brings suitability processes into alignment
with presidential direction and congressional intent. The suitability
factors that are being introduced by this rulemaking are needed to
emphasize that individuals serving for, or on behalf of, the Government
are expected to comply with legal and ethical obligations. Specifying
these factors in the regulations will provide greater clarity to
agencies as well as to applicants and employees as to the types of
conduct by which an individual may be found unsuitable.
IV.B Impact
This rule permits OPM to take suitability actions for post-
appointment conduct on specified positions, revises suitability action
procedures, and incorporates additional suitability criteria used in
making suitability determinations and taking suitability actions.
Applicants, appointees, and employees in the competitive service, in
the excepted service where the incumbent can be noncompetitively
converted to the competitive service, and in the career Senior
Executive Service will be impacted by these changes. Applicants,
appointees, and employees in the excepted service will be impacted by
changes incorporating new factors at Sec. 731.202(b) as these factors
are required to be used as the minimum standards of fitness for
excepted service positions. Contractors and nonappropriated fund
employees will also be impacted by the updated factors, as agencies
must exercise due regard to the minimum fitness standards in 5 CFR part
731 and supplemental guidance for these populations as well.
OPM will also be impacted by the proposed changes as the final rule
will increase the number of suitability actions OPM will be required to
conduct. OPM anticipates the impact to MSPB to be neutral. Any removal
action on an employee for post-appointment conduct currently processed
under Chapter 75 that results in an appeal to MSPB and might be
processed instead as a suitability action will still likely result in
an appeal to MSPB. OPM assumes an individual willing to appeal a
Chapter 75 action to MSPB would be equally willing to appeal a
suitability action to MSPB. OPM acknowledges that it proposed to move
the venue for suitability action appeals from the MSPB to OPM in the
rulemaking Suitability Action Appeals. See 91 FR 5352 (February 6,
2026). Any impacts of that proposed change would, if adopted, be
addressed in a final rule in that rulemaking.
Commenter 939 suggested that OPM's acknowledgement that the number
of MSPB appeals will not meaningfully change is a tacit admission that
this rule will not change the number of removals. The commenter also
asserted that implementing new processes would ``create disruption with
no real benefit.'' Id.
OPM disagrees. OPM made no admission nor gave any estimate on the
total number of removals, whether stemming from Chapter 75 or
suitability actions, that would result from its rulemaking. OPM simply
presented the rationale for why it believes this rule will have a
neutral impact on MSPB. In fact, OPM believes there are many types of
adverse actions taken under Chapter 75 today that do not result in
removals, such as suspensions for more than 14 days, reductions in
grade, or reductions in pay, that could potentially result in a post-
appointment conduct suitability action under this final rule. Because
the authority to take a suitability action for the types of misconduct
that result in non-removal Chapter 75 actions is new, there is
insufficient data to permit OPM to reliably predict how many of those
non-removal Chapter 75 actions may become removals under suitability.
For that reason, OPM did not attempt to quantify how many non-removals
under Chapter 75 may become removals under suitability. Additionally,
many of those non-removal actions under Chapter 75 still result in
appeal rights to the MSPB. Even if OPM had attempted to quantify the
number of net new removals resulting from this rule, the impact on MSPB
would still be neutral: an appeal to MSPB of a suspension for more than
14 days that changes to an appeal of a suitability action still counts
as a single appeal to MSPB. As such, OPM disagrees with the commenter's
conclusion that OPM claimed there would be no more removals with this
final rule or that there would be no benefit from the rule.
Commenter 939 also suggested that the rule would not change how
quickly removals can be effected as demonstrated by OPM's admission
that the number of MSPB appeals would not significantly change. OPM is
not certain how the commenter reached the conclusion that the speed
with which an agency could effectuate a removal would be unchanged
simply because the number of MSPB appeals would not meaningfully
change. OPM continues to believe that the suitability action process
run by OPM is faster compared to adverse action processes at agencies.
There are only four potential suitability
[[Page 39376]]
actions, whereas adverse actions under Chapter 75 come with a multitude
of various possible penalties an agency must debate internally and
compare to its table of penalties, if applicable. These successive
reviews and deliberations take time and slow down the process.
Moreover, permitting OPM to take suitability actions against employees
for post-appointment conduct, consistent with the President's
direction, will allow agencies to address risk to the integrity or
efficiency of the service with the process designed to protect the
Government from such risk: suitability actions.
Focusing solely on the benefits of the rulemaking tied to
streamlining processes and reducing costs fails to account for the
rule's positive impact on the rigor of vetting processes and risk
mitigation. Using suitability actions when an employee has engaged in
serious misconduct instances will achieve better risk protection than
Chapter 75 procedures because if the employee's conduct warrants an
action, it always results in removal, instead of a lesser penalty.
Suitability actions also allow for debarments to prevent individuals
from immediately re-entering Federal service in a competitive service
position with another agency.
Although not quantified in the analysis, debarments also deliver
agencies cost savings by avoiding the costs associated with managing
individuals who bounce from agency to agency with a track record of
misconduct that would make them unsuitable for Federal service. The
intangible benefits of holding the workforce accountable with
suitability actions for serious post-appointment misconduct and not
permitting individuals to avoid consequences by simply resigning or
transferring agencies will provide better protection of the integrity
and efficiency of the service than is currently afforded under Chapter
75 procedures. As discussed throughout this rule, OPM is unpersuaded
that these changes will not have a positive impact on the efficiency
and integrity of the service. OPM expects this rule to reduce time and
costs while promoting an impartial and effective suitability process
that produces sound decisions, adding rigor to vetting processes.
IV.C Costs
One commenter expressed concerns with OPM's impact and cost
analysis, stating that the analysis did not appear to meet the
requirements of OMB Circular A-4 and therefore fails to justify the
rulemaking. See comment 1065. OPM disagrees. Agencies, working with the
White House, have a great deal of discretion in assessing impacts and
costs based on the facts of the situation. As courts have repeatedly
held, ``executive orders are not judicially enforceable.'' \12\ That
is, as a general matter, executive orders and other White House
guidance on the regulatory process bind executive agencies only as a
matter of the internal management of the executive branch. Thus,
several Federal courts have specifically held that there is no legal
requirement that agencies comply with the requirements specified in
E.O. 12866 and related guidance.\13\
---------------------------------------------------------------------------
\12\ Sierra Club v. U.S. Dep't of Energy, 134 F.4th 568, 573
(D.C. Cir. 2025) (citing Marin Audubon Soc'y v. Fed. Aviation
Admin., 121 F.4th 902, 913 (D.C. Cir. 2024)); see also Chen Zhou
Chai v. Carroll, 48 F.3d 1331, 1338-39 (4th Cir. 1995) (no private
right of action to enforce executive order unless issued pursuant to
a statutory mandate or delegation by Congress).
\13\ Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309,
1326-27 (11th Cir. 2021) (holding that E.O. 12866 and E.O. 13563
specifically are not judicially enforceable); Miller v. Garland, 674
F.Supp.3d 296, 307 (E.D. Va. 2023), appeal dismissed, No. 23-1604,
2024 WL 4973474 (4th Cir. July 30, 2024) (holding that E.O. 12866 is
not judicial enforceable).
---------------------------------------------------------------------------
One-time Implementation Cost: 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 in this rule, 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 is the rate in 2026 for GS-14, step 5, from the
Washington, DC, locality pay table ($163,104 annual locality rate and
$78.15 hourly locality rate). We assume that the total dollar value of
labor, which includes wages, benefits, and overhead, is equal to 200
percent of the wage rate, resulting in an assumed labor cost of $156.30
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 $156.30. This effort will result in estimated costs in
the first year of implementation of about $39,075 per agency, and about
$3.1 million in total governmentwide.
Savings from Fewer Chapter 75 Removals: In permitting OPM to take
suitability actions for post-appointment conduct, OPM anticipates a
decreased level of effort for agencies as they will refer employee
cases to OPM for suitability action rather than pursue Chapter 75
removals. In fiscal years 2022 and 2023, an average of 2,452 Federal
employees were removed under Chapter 75, or Chapter 75 equivalent,
procedures for post-appointment misconduct.\14\ OPM estimates that
approximately 50 percent, or 1,226, of these Chapter 75, or Chapter 75
equivalent, removal actions presently taken by agencies could be
referred to OPM for suitability actions instead. Some commenters
questioned OPM's estimate or speculated whether additional employees
would be subject to suitability determinations and actions, while
others noted that the net estimated savings could increase or decrease
depending on the accuracy of this estimate and portrayed the estimate
as arbitrary. See Comments 156, 533, and 1393 for examples. This rule
does not change the types of positions subject to suitability
determinations and actions. Positions subject to suitability
determinations and actions will continue to be those in the competitive
service, in the excepted service where the incumbent can be
noncompetitively converted to the competitive service, or a career
appointment to a position in the SES. As such, OPM disagrees with
commenters portraying the estimate as illogical or arbitrary. Moreover,
the commenters appear to fail to appreciate that OPM is providing only
an estimate to demonstrate that its rule provides an opportunity for
cost savings. OPM acknowledges that the extent to which agencies adopt
the opportunity to refer cases to OPM for removal under suitability
will ultimately determine the amount of cost savings realized. If a
higher percentage of removals move from being taken under Chapter 75 to
being taken under suitability, the cost savings will increase. If a
lower percentage of removals move from being taken under Chapter 75 to
being taken under suitability, the cost savings will decrease. The
estimate serves simply to demonstrate the magnitude of potential
savings. OPM also believes that because Chapter 75, or Chapter 75
equivalent, removals generally involve such serious conduct that the
individual would fairly likely also be unsuitable, it is possible that
the estimate of 50% is conservative. OPM believes, therefore, that
estimating 50% of employees subject to Chapter 75, or Chapter 75
equivalent, removals would be individuals who were also
[[Page 39377]]
subject to suitability is fair and fully logical.
---------------------------------------------------------------------------
\14\ This data comes from OPM's Enterprise Human Resources
Integration Program's (EHRI) Data Warehouse and is analyzed using
nature of action codes for terminations to identify Chapter 75
removals for misconduct. Certain data from EHRI is available to the
public in summarized form on Federal Workforce Data, accessible at
https://data.opm.gov/. However, complete raw data from EHRI is not
available due to concerns about identifying employees at the
individual level.
---------------------------------------------------------------------------
Another commenter who took issue with OPM's estimates of potential
increased workload for OPM referenced a number of potential suitability
actions that were not substantiated by any source and also suggested,
without any basis, that each suitability case be required to be
reviewed by three suitability staff members. See Comment 462. OPM is
not adjusting its cost estimate based on these comments. The average
number of collective hours for supervisory and HR personnel to take a
Chapter 75 action is 600 hours. The cost analysis assumes an average
salary rate of Federal supervisors and senior HR personnel performing
this work at the 2026 rate for a GS-15, step 5, from the Washington,
DC, locality pay table ($191,850 annual locality rate and $91.93 hourly
locality rate). OPM received some comments questioning the use of the
Washington, DC locality for personnel performing these functions. See
Comment 533. Commenters noted that Federal employees are stationed
across the country. OPM acknowledges that some personnel performing
these functions may be outside of the Washington, DC locality; however,
at present most Federal agencies are headquartered in the Washington,
DC locality. These actions require several layers of approval that most
often involve personnel at the agency headquarters. OPM assumes the
total value of labor is 200 percent of the hourly wage rate, for a
total average hourly cost of $183.86. While a portion of the 600 hours
would still fall to the agency to establish a fulsome referral to OPM
for a suitability action, OPM anticipates that referring the matter to
OPM for a suitability action would relieve the agencies of at least
thirty percent of the work involved in taking a Chapter 75 action,
prior to appeals. This implies total savings of $33,095 per case and a
total annual savings of $40.6 million.
Some commenters questioned the assumption that agencies would save
at least thirty percent of the work involved in taking a Chapter 75
action, prior to appeals. See Comment 156 for an example. Agencies will
still be required to develop and prepare the evidence of conduct
believed to warrant an unfavorable suitability determination prior to
making a referral to OPM. Once a referral is made, the agencies will be
relieved of the requirements, for example, to draft, review, and
approve a proposed action, review and respond to any response by the
employee, and draft, review, and approve a final decision. Based on
OPM's own experience, OPM believes that the labor hours required for
these activities represent at least thirty percent, or approximately
180 hours, of the total estimated hours for agencies to process a
Chapter 75 action, prior to appeals.
Cost Increase to Handle Agency Post-Appointment Conduct Referrals:
OPM would likely need to increase the number of resources to handle the
new workload from agencies' referrals for suitability determinations
and actions on employees based on post-appointment conduct. Even if
some agency referrals for determinations and actions on employees for
post-appointment conduct do not result in a suitability action, OPM
estimates it would likely need eighteen additional adjudicators
performing the work at the 2026 rate for a GS-13, step 5, from the
Pittsburgh, PA locality pay table ($124,720 annual locality rate and
$59.76 hourly locality rate). OPM assumes the total value of labor is
200 percent of the hourly wage rate, for a total average hourly cost of
$119.52 and a collective annual cost of $4.5 million for all eighteen
additional employees. OPM received comments questioning the grade level
and locality assumptions used for this estimate, as well as questioning
whether 18 additional staff would be sufficient to handle the increased
workload. See Comments 533, 004, and 938 for examples. OPM used the GS-
13 grade level for its assumption because this is the grade level of
OPM suitability adjudications staff currently processing suitability
actions. OPM used the Pittsburgh, PA locality for its analysis because
that is the primary location of OPM's suitability adjudications staff.
OPM is not altering these assumptions in its analysis. In calculating
the number of additional staff needed, OPM used information on the
amount of labor hours needed by staff to process a suitability action
along with the estimated increased number of suitability actions to
determine the equivalent full-time-equivalent staff it would need. OPM
appreciates the recommendations in Comment 938 to consider adding staff
at a lower grade level, where possible, and will take this into
consideration in refining its staffing plan to accommodate this new
workload. OPM agrees with comments that the rate of agencies' adoption
of the opportunity to submit post-appointment conduct suitability
referrals could alter OPM's staffing needs. See, e.g., Comment 473. OPM
does not, however, believe those concerns warrant instead delegating
authority for post-appointment conduct suitability actions to agencies,
as recommended by commenters. As previously explained in section
III.B.2.c, Agency Input in Post-Appointment Conduct Actions, OPM
believes that retaining this authority will allow for the most
impartial process that protects individuals and ensures consistency in
implementation across the Federal Government.
Taking into account both decreases and increases in levels of
effort associated with the proposed rule, on balance OPM anticipates
one-time implementation costs of approximately $3.1 million and
recurring annual net cost savings governmentwide of approximately $36.1
million.
IV.D Benefits
The expected benefits of the rule are that OPM and agencies will be
able to more efficiently and appropriately vet individuals for risk to
the integrity and efficiency of the service. More expeditious removal
of individuals found to negatively impact the integrity or efficiency
of the service will reduce risks posed by such individuals as well as
costs to agencies, allowing them to spend resources on mission services
rather than administrative processes. In addition, providing the option
for a suitability action for post-employment conduct when an employee
has engaged in serious misconduct instances will achieve better risk
protection than Chapter 75 procedures because it will allow the
Government to pursue debarment. Debarments prevent individuals from
immediately re-entering Federal service in a competitive service
position with another agency, holding individuals more accountable for
misconduct and preventing them from avoiding consequences by simply
resigning or transferring agencies. Post-appointment conduct
suitability actions will provide better protection of the integrity and
efficiency of the service than is currently afforded under Chapter 75
procedures and adds rigor to vetting processes.
In addition, OPM believes that the final rule will reinforce Merit
Systems Principles, in at least two ways. First, the rule change
creates a new Sec. 731.102(c) which expressly states that suitability
determinations and actions must be applied consistent with the Merit
Systems Principles set forth in 5 U.S.C. 2301 and the prohibition
against unlawful personnel practices in 5 U.S.C. 2302(b). Second, the
rule change reinforces Merit Systems Principle 4, ``[a]ll employees
should maintain high standards of integrity, conduct, and concern for
the public interest,'' by providing a mechanism to swiftly remove
employees who fail to uphold
[[Page 39378]]
baseline standards of integrity, conduct, and concern for the public
interest.
IV.E Alternatives
OPM must comply with the direction of E.O. 14210 and the
Presidential Memorandum, as described in section II, Authority and
Background, to establish specific suitability factors and to take
suitability actions on employees when warranted and referred by
agencies based on post-appointment conduct. OPM could have delegated to
agencies the authority to take suitability actions against employees
for post-appointment conduct. However, at this time, OPM believes
reserving jurisdiction for these actions for itself will provide for
governmentwide consistency in decision-making. OPM may at a later time
determine to delegate this authority to the heads of agencies. See
discussion in section III.B.2.c., Agency Input in Post-Appointment
Conduct Actions.
For the updates to the suitability factors, OPM could have elected
to establish each new criterion from E.O. 14210 as its own separate
suitability factor under 5 CFR 731.202(b). The current suitability
factors employ a hierarchical approach where the factors establish
broad categories of conduct or behavior where discrete examples of such
conduct may then fit within the general categories. For example, the
criminal conduct factor establishes a broad category under which a wide
range of criminal behavior may be considered, regardless of whether the
conduct resulted in an arrest or conviction. Therefore, where
appropriate, OPM believes adding some of the new suitability criteria
required by E.O. 14210 as examples of conduct under an existing factor
will be more intuitive and easier for agency suitability staff to apply
in making suitability determinations.
Many commenters recommended that OPM work to improve training for
Federal supervisors and HR offices on using Chapter 75 processes and
suggested that doing so would eliminate the need to introduce post-
appointment conduct suitability actions. See Comment 1042 for an
example. OPM disagrees that such training would deliver the same
benefits as gained from this rule. As noted, post-appointment conduct
suitability actions provide for better protection against risk by
allowing the Government to complete actions even after an individual
resigns or withdraws an application and also prevents immediate re-
entry through debarment. Additional training on Chapter 75 actions
would not close these gaps or deliver the same benefits as this rule.
V. 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. For example, if a court were to invalidate
any portions of this final rule revising the suitability factors, the
other portions of the rule--including the portions providing that OPM
may make suitability determinations for post-appointment conduct--would
independently remain workable and valuable.
VI. Regulatory Compliance
VI.A Regulatory Review
OPM has examined the impact of this rule as required by Executive
Orders 12866 and 13563, 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 rules with effects of $100 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.
This rule is considered an Executive Order 14192 deregulatory
action. We estimate that this rule generates $30.3 million in
annualized cost savings at a 7% discount rate, discounted relative to
year 2024, over a perpetual time horizon.
VI.B Regulatory Flexibility Act
The Director of OPM certifies that this rule will not have a
significant economic impact on a substantial number of small entities
because this rule affects suitability and fitness regulations which
apply primarily to Federal agencies and employees. Although some
Federal contractors may be small entities, the nature of the changes in
this rulemaking are not expected to result in economic impacts to non-
agency entities.
VI.C Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with E.O. 13132,
it is determined that this rule does not have sufficient Federalism
implications to warrant preparation of a Federalism Assessment.
VI.D Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of E.O. 12988.
VI.E 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 $206 million. This rulemaking
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.
VI.F Paperwork Reduction Act
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. chapter 35) (PRA),
unless that collection of information displays a currently valid Office
of Management and Budget (OMB) Control Number.
Depending on the population, currently suitability and vetting
information is collected through the following OMB Control Numbers.
3206-0261 (Standard Form 85, Questionnaire for Non-Sensitive
Positions)
3206-0258 (Standard Form 85P, Questionnaire for Public Trust
Positions and SF 85P-S, Supplemental Questionnaire for Selected
Positions)
3206-0005 (SF 86, Questionnaire for National Security
Positions)
Additional information regarding these collections of information--
including all current supporting materials--can be found at https://www.reginfo.gov/public/do/PRAMain by using the search function to enter
either the title of the collection or the OMB Control Number.
[[Page 39379]]
On November 15, 2023, a new information collection, the Personnel
Vetting Questionnaire (PVQ), was approved (OMB Control Number 3206-
0279). The Defense Counterintelligence and Security Agency (DCSA) is
working to implement the new information collection. OPM plans to
discontinue the current information collections once the PVQ is
operational.
OPM believes this rulemaking does not require any changes in any of
these collections. Data gathered through these information collections
fall under the system of records notice (SORN) Personnel Vetting
Records System, DUSDI 02-DoD (83 FR 52420 and 83 FR 52317).
OPM's system of records titled CENTRAL-9, Personnel Investigations
Records (81 FR 70191), previously covered both background investigation
records and suitability adjudication records. OPM has transferred the
background investigation mission and associated records to DCSA (now
under DUSDI 02-DoD). Because the personnel investigations records are
no longer maintained in OPM/CENTRAL-9, OPM is renaming CENTRAL-9 ``OPM
Suitability Adjudications Files'' and is modifying it to reflect the
changes in this rulemaking. (See 91 FR 38737 for more information.)
In addition, individual agencies should each have a SORN that
covers the agency adjudication and referral records. Agencies should
evaluate whether the agency-specific SORNs must be updated to permit
sharing information with OPM for suitability referrals, OPM suitability
adjudications, debarment consideration, reporting to the Central
Verification System or successor systems, and any related appeal.
List of Subjects in 5 CFR Part 731
Administrative practice and procedure, Authority delegations
(Government agencies), Government contracts, Government employees,
Investigations.
Signing Statement
The Director of OPM, Scott Kupor, reviewed and approved this
document and has authorized the undersigned to electronically sign and
submit this document to the Office of the Federal Register for
publication.
Office of Personnel Management
Jerson Matias,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM amends
part 731 of title 5, Code of Federal Regulations as follows:
PART 731--SUITABILITY AND FITNESS
0
1. The authority citation for part 731 is revised to read as follows:
Authority: 5 U.S.C. 1302, 2301, 2302, 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. E.O. 14210, 90 FR 9669.
Presidential Memorandum of January 31, 2014, 3 CFR, 2014 Comp., p.
340. Presidential Memorandum of March 20, 2025, 90 FR 13683. 5 CFR
parts 1, 2, 5, and 6.
Subpart A--Scope
0
2. Amend Sec. 731.101 by
0
a. Revising the section heading; and
0
b. In paragraph (a), revising the definitions for ``Competitive service
or career Senior Executive Service'' and ``Core duty''.
The revisions read as follows:
Sec. 731.101 Definitions and purpose.
(a) * * *
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, or a career
appointment to a position in the Senior Executive Service.
* * * * *
Core duty means a continuing responsibility that is of particular
importance to the relevant position or the achievement of an agency's
mission.
* * * * *
0
3. Amend Sec. 731.102 by adding paragraph (c) to read as follows:
Sec. 731.102 Implementation.
* * * * *
(c) Suitability determinations and actions under this part must be
applied consistent with both the Merit Systems Principles set forth in
5 U.S.C. 2301 and with 5 U.S.C. 2302(b), which sets forth prohibited
personnel practices.
0
4. Amend Sec. 731.103 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (f) as paragraphs (c) through
(g);
0
c. Adding new paragraph (b); and
0
d. Revising newly redesignated paragraphs (c) and (g).
The addition and revisions read as follows:
Sec. 731.103 Delegation to agencies for the competitive service and
career Senior Executive Service.
(a) Subject to the limitations and requirements of paragraphs (c),
(e), and (g) of this section, OPM delegates to the head of an agency
authority for making a suitability determination and taking a
suitability action (including limited, agency-specific debarments under
Sec. 731.205) in a case involving an applicant or appointee. In a case
involving an appointee where the individual has converted to an
employee in a prior competitive service or career Senior Executive
Service appointment, agency heads must consider the individual to be an
employee.
(b) In a case involving an employee, the head of the employee's
employing agency, or designee, may, in its sole and exclusive
discretion, make a proper and sufficient referral to OPM, as specified
in OPM issuances as described in Sec. 731.102(b), if the employee's
conduct appears to warrant an unfavorable suitability determination.
(c) When an agency, acting under delegated authority from OPM,
determines that a governmentwide debarment by OPM under Sec.
731.204(a) may be an appropriate action, whether on an applicant,
appointee, or employee, it must refer the case to OPM for debarment
consideration. An agency must make a referral, but only after
sufficient resolution of the suitability issue(s) to determine if a
governmentwide debarment appears warranted.
* * * * *
(g) 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. OPM also retains sole
jurisdiction to take a suitability action under this part in any case
involving an employee for post-appointment conduct. 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 359 or 752) in cases involving conduct fitting within any of these
factors or involving an employee for post-appointment conduct. In
addition, except as limited by Sec. 731.105(d), OPM may, in its
discretion, exercise its jurisdiction
[[Page 39380]]
under this part in any case it deems necessary regardless of whether
the agency may adjudicate under another authority.
0
5. Amend Sec. 731.104 by revising paragraph (c)(2)(i) to read as
follows:
Sec. 731.104 Investigation and reciprocity requirements.
* * * * *
(c) * * *
(2) * * *
(i) The investigative record on file for the individual shows
conduct that is incompatible with the core duties of the relevant
position; or
* * * * *
0
6. Revise Sec. 731.105 to read as follows:
Sec. 731.105 Authority to take suitability actions in cases
involving the competitive service or career Senior Executive Service.
(a) OPM or an agency acting under delegated authority may take a
suitability action in connection with any application for, or
appointment to, the competitive service or career Senior Executive
Service. In the case of an appointee, OPM or an agency may consider
conduct occurring prior to the appointment or occurring post-
appointment to serve as the basis for the action.
(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 appointee separates from employment. OPM's
authority to complete a suitability action continues when an employee
separates from employment.
(2) OPM's or an agency's authority to take a suitability action
includes the case of an application for or appointment to the
competitive service or career Senior Executive Service from another
type of position when a prior investigation is being reciprocally
accepted as described in Sec. 731.104(a).
(b) OPM may take a suitability action under this part against an
applicant or appointee based on the criteria in Sec. 731.202. When the
basis for the action is post-appointment conduct, OPM may take a
suitability action against an appointee only when there is a proper and
sufficient referral by the head of the appointee's employing agency, or
designee.
(c) Except as limited by Sec. 731.103(c), (e), and (g), an agency,
exercising delegated authority, may take a suitability action under
this part against an applicant or appointee based on the criteria of
Sec. 731.202.
(d) Only OPM may take a suitability action under this part against
an employee in the competitive service or career Senior Executive
Service based on the criteria of Sec. 731.202. When the basis for the
action is post-appointment conduct, OPM may take a suitability action
against an employee only when there is a proper and sufficient referral
by the head of the employee's employing agency, or designee.
(e) An agency may not take a suitability action against an employee
in the competitive service or career Senior Executive Service. If the
agency has information that an employee's conduct warrants an
unfavorable suitability determination, the head of the agency, or
designee, may make a proper and sufficient referral to OPM, as
specified in OPM issuances as described in Sec. 731.102(b). OPM will
review the referral and may take a suitability action if warranted
under this part.
(f) Nothing in this part precludes an agency from taking an adverse
action under the procedures and standards of part 752 of this chapter,
or from terminating a probationer under the procedures of part 11 or
part 359 of this chapter or under agency specific authorities. An
agency must notify OPM to the extent required in Sec. 731.103(e) and
(g) 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.
0
7. Amend Sec. 731.106 by revising paragraphs (d)(1) and (f) to read as
follows:
Sec. 731.106 Designation of public trust positions and investigative
requirements.
* * * * *
(d) * * *
(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, to include requirements for
agencies to consider information related to the individual's conduct
available from internal agency sources, are specified in supplemental
issuances as described in Sec. 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. If an agency makes an unfavorable determination based on
information from a continuous vetting check on an appointee, the agency
may take a suitability action subject to the limitations of Sec.
731.103(c), (e), and (g). If post-appointment conduct discovered in a
continuous vetting check on an employee appears to warrant an
unfavorable suitability determination, the agency may, in its sole and
exclusive discretion, refer the matter to OPM for review and possible
suitability action.
* * * * *
(f) Completed investigations. An investigation or continuous
vetting check under paragraphs (c), (d), and (e) of this section
supports a determination by the employing agency of whether the
findings of the investigation may require referral to OPM for a
potential suitability action or would justify an action by the agency
under this part or under another applicable authority, such as part 359
or 752 of this chapter. Sections 731.103 and 731.105 address whether an
agency may take an action under this part and whether the agency must
refer the matter to OPM for a suitability action including debarment
consideration.
* * * * *
Subpart B--Determinations of Suitability or Fitness; Suitability
Actions in Cases Involving the Competitive Service or Career Senior
Executive Service
0
8. In Sec. 731.202, revise and republish paragraph (b) and add
paragraph (d) to read as follows:
Sec. 731.202 Criteria for making suitability and fitness
determinations.
* * * * *
(b) Specific factors. Only OPM may take a suitability action
considering the factors in paragraph (b)(3) or (b)(8) of this section.
Agencies may use the factor in paragraph (b)(10) in applicant and
appointee suitability cases but not employee cases; however, OPM may
use this or any factor in employee cases. When making a suitability
determination, OPM or an agency will consider only the following
factors to determine if an individual is suitable. When making fitness
determinations, an agency must consider all of the following factors as
a minimum standard, but it may prescribe additional factors to protect
the integrity
[[Page 39381]]
and promote the efficiency of the service, when job-related and
consistent with business necessity.
(1) Misconduct or negligence in employment. This factor includes:
(i) Theft or misuse of Government resources and equipment, or
negligent loss of material Government resources and equipment during
employment with, or on behalf of, the Federal Government or a state,
territorial, or local government; and
(ii) Refusal to certify compliance with any applicable non-
disclosure obligations consistent with 5 U.S.C. 2302(b)(13) and failure
to adhere to those compliance obligations in the course of Federal
employment.
(2) Criminal conduct.
(3) Material, intentional false statement, or deception or fraud,
in examination or appointment.
(4) Dishonest conduct.
(5) Failure to comply with financial obligations or generally
applicable civil legal obligations, such as timely filing of tax
returns.
(6) Excessive alcohol use, without evidence of rehabilitation, of a
nature and duration that suggests the individual 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 individual
or others.
(7) Illegal use of narcotics, drugs, or other controlled
substances, without evidence of rehabilitation.
(8) Knowing and willful engagement in acts or activities designed
to overthrow the U.S. Government by force.
(9) Violent conduct.
(10) Any statutory or regulatory bar or any other provision of law,
regulation, Executive order, or other binding legal authority that
prevents the lawful employment of the individual in the position in
question, such as citizenship or nationality requirements.
* * * * *
(d) All persons responsible for suitability screening, review, or
making suitability determinations under this part must be trained in
accordance with national training standards for suitability
adjudicators issued in supplemental issuances, as described in Sec.
731.102(b).
0
9. Amend Sec. 731.203 by revising paragraphs (d), (e), (f), and (g) to
read as follows:
Sec. 731.203 Suitability actions by OPM and other agencies for the
competitive service or career Senior Executive Service.
* * * * *
(d) A suitability action may be taken against an applicant or an
appointee to the competitive service or career Senior Executive Service
when OPM or an agency exercising delegated authority under this part
finds that the applicant or appointee is unsuitable for the reasons
cited in Sec. 731.202, subject to the agency limitations of Sec.
731.103(c), (e), and (g).
(e) In taking a suitability action against an applicant, appointee,
or employee in the competitive service or career Senior Executive
Service pursuant to Sec. 731.105(a) and (d) and in accordance with 5
CFR 5.3, OPM may require an agency to execute the action.
(f) OPM may cancel any reinstatement eligibility obtained as a
result of a determination based on the criteria of Sec. 731.202.
(g) An action to remove an appointee or employee for suitability
reasons under this part is not an action under 5 CFR part 11, 359, or
752. Where conduct covered by this part may also form the basis for an
action under 5 CFR part 11, 359, or 752, an agency may take the action
under 5 CFR part 11, 359, or 752, as appropriate, instead of under this
part. An agency must notify OPM to the extent required in Sec.
731.103(g) if it wants to take, or has taken, action under these
authorities. OPM reserves the right to also take an action under this
part.
* * * * *
0
10. Revise Sec. 731.206 to read as follows:
Sec. 731.206 Reporting requirements for investigations and
suitability and fitness determinations.
An agency must report to the Central Verification System or its
successor the level or nature, result, and completion date of each
background investigation, reinvestigation, or enrollment in Continuous
Vetting; each agency decision based on such investigation,
reinvestigation, or Continuous Vetting; and any personnel action, to
include suitability actions, taken based on such investigation,
reinvestigation, or Continuous Vetting, as required in supplemental
guidance. An agency must also report to the Central Verification System
or its successor any suitability determination and action taken based
on an internal agency investigation, such as a suitability action taken
as a result of an Employee and Labor Relations investigation.
Subpart C--OPM Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
0
11. Revise Sec. 731.301 to read as follows:
Sec. 731.301 Scope.
This subpart covers OPM-initiated suitability actions against an
applicant, appointee, or employee in the competitive service or career
Senior Executive Service and OPM suitability actions against an
appointee or employee in the competitive service or career Senior
Executive Service for post-appointment conduct when an agency has
referred the matter to OPM to take a suitability action.
0
12. Revise Sec. 731.304 to read as follows:
Sec. 731.304 Decision.
(a) The OPM Director, or designee, will make the final decision as
to whether to take a suitability action. In cases where the Director
delegates decision-making authority to subordinate employees, there
must be appropriate independence between the OPM employee authorized to
propose the suitability action and the employee authorized to make the
final decision regarding such suitability action. The OPM official
authorized to make the final decision may not consult with, receive
advice from, or communicate with the OPM employee who proposed the
suitability action concerning the merits of the proposed action, except
on notice to the respondent and as part of the record. The OPM official
authorized to make the final decision is also prohibited from ex parte
communications consistent with the requirements of 5 U.S.C. 557(d).
(b) If the final decision is that a suitability action shall be
taken, the OPM Director or designee will instruct the agency to remove
the individual or process a different suitability action. The decision
regarding the final suitability action must be in writing, be dated,
and inform the respondent of the reasons for the decision and that an
unfavorable decision may be appealed in accordance with subpart E of
this part. If the decision requires removal, the employing agency must
remove the appointee or employee from the rolls within 5 workdays of
receipt of OPM's final decision.
Subpart D--Agency Suitability Action Procedures for the Competitive
Service or Career Senior Executive Service
0
13. Revise Sec. 731.404 to read as follows:
Sec. 731.404 Decision.
(a) The agency head, or designee, makes the final decision as to
whether to take a suitability action. In cases where the agency head
delegates
[[Page 39382]]
decision-making authority to subordinate employees, there must be
appropriate independence between the employee authorized to propose the
suitability action and the employee authorized to make the final
decision regarding such suitability action. The official authorized to
make the final decision may not consult with, receive advice from, or
communicate with the employee who proposed the suitability action
concerning the merits of the proposed action, except on notice to the
respondent and as part of the record. The official authorized to make
the final decision is also prohibited from ex parte communications
consistent with the requirements of 5 U.S.C. 557(d).
(b) The decision regarding the final action must be in writing, be
dated, and inform the respondent of the reasons for the decision and
that an unfavorable decision may be appealed in accordance with subpart
E of this part. If the decision requires removal, the employing agency
must remove the appointee from the rolls within 5 workdays of the
agency's decision.
[FR Doc. 2026-13154 Filed 6-29-26; 8:45 am]
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