Federal Investigations Notice

Attachment to FIN 01-08
Comparison of Prior and Current Versions of 5 CFR 731 - Suitability Regulations

Subpart A – Scope

Subpart A – Scope

731.101 
Purpose

731.101 
Purpose

1. No change.
2. Defines terms. Note: new definition of "material" statement is "one that is capable of influencing, or has a natural tendency to affect, an official decision."

731.102 
Implementation

731.102 
Implementation

1. No change.
2. New section about Federal automated information systems.
3. Previously "(b)" – references to Federal Personnel Manual (FPM) replaced with "OPM issuances."  Provides for revocation of delegation if agency fails to conform to OPM guidance.

731.103 
Delegation to agencies

731.103 
Delegation to agencies

1. Agency delegation to take suitability actions expanded.  OPM retains:
   • Competitive service cases with material false statement or deception or fraud in examination or appointment  (agencies must request prior approval to take actions in these cases under other authority).
   • Refusal to furnish testimony.
   • Passover requests involving persons with 30% or higher compensable disabilities.
2. Any agency adjudication in which an extended across agency lines debarment may be warranted should be referred to OPM for debarment consideration  (referral before adjudication but after sufficient issue resolution).
3. Agencies must keep records to show compliance with procedures.
4. Outlines timing for making suitability determinations (suitability review/determination should occur after qualification determination).
5. Outlines agency responsibilities for consideration of information in a suitability determination, including addressing information obtained from a confidential source (previously in the FPM).
6. Previously (c) in the prior regulations – despite delegation, OPM may still exercise its jurisdiction when necessary.
7. Previously (d) in the prior regulations - all suitability actions may be appealed to the Merit Systems Protection Board (MSPB).

731.104
Appointments subject to investigation

Previously part of the "Jurisdiction" section (731.301 in prior regs), along with new section on "Authority to take suitability actions" (731.105 in current regs).

1. Outlines exceptions to the "subject to investigation" rule.
2. No time limit on authority to conduct investigation of applicant who has been appointed; does not eliminate need to investigate for public trust positions.

731.105
Authority to take suitability actions

Previously part of the "Jurisdiction" section (731.301 in prior regs), along with new section on "Appointments subject to investigation" (731.104 in current regs).

1. OPM suitability actions in applicant/appointee cases.
2. Agency suitability actions in applicant/appointee cases.
3. OPM actions in employee cases. Clarifies a statement may be "material" even if an agency did not rely upon it.
4. Clarifies that 731 does not preclude agencies from taking appropriate actions under 5 CFR 752 or 315.

731.106 
Designation of public trust positions and investigative requirements

Previously at 731.302.

1. Refers to "risk designation system" example to be issued in OPM's supplemental guidance.
2. Gives examples of public trust positions.
3. Refers to minimum investigative requirements to be issued in supplemental guidance.  Indicates investigations should be started before appointment or, at most, within 14 days after placement.
4. Requirement for suitability reinvestigations previously in regulations at 731.302 (c) eliminated.  Agencies must rely on other authorities such as the Computer Security Act, etc., to conduct reinvestigations.
5. Requirements for upgraded investigations for risk level changes.
6. Addresses adjudication when reinvestigation/new investigation due to risk level change (authority to use depends on employment status).

Subpart B – Suitability Determinations

Subpart B – Suitability Determinations

731.201 Standard

731.201 Standard

Minor wording changes.

731.202  Criteria

731.202  Criteria

1. General criteria in current regulations refers to more specific factors and additional considerations outlined in (b) and (c) rather than outlining general info about efficient service and effective accomplishment of agency duties and responsibilities.
2. Changes to specific factors to simplify and clarify

   • Misconduct and negligence in employment – "prior" deleted, and specific nexus language taken out to avoid redundancy with additional considerations

   • criminal or dishonest conduct - specific nexus language taken out to avoid redundancy with additional considerations
   • "material" added to falsification disqualification.
3. Minor wording changes only.

731.203 
Actions by OPM and other agencies

Previously at 731.303.

1. Defines the "actions" that can be taken under 5 CFR 731.
2. Applicant/appointee actions.
3. OPM employee actions. Points out ability to cancel reinstatement rights.
4. Clarifies that behavior covered by 731 may also form the basis for an action under 5 CFR 752 or 315.
5. New reporting requirement.  Agencies must report any unfavorable adjudicative action under 5 CFR 731 (added to allow OPM oversight).

731.204 
Debarment by OPM

Previously at 731.304.

1. No change.
2. Re-determination requirement after debarment changed to "may re-determine".
3. Specifies OPM has sole discretion to determine length of debarment (up to 3 years).

731.205 
Debarment by agencies

New section.  Agencies may impose up to 1 year debarment within their agency and must enforce bar.

Subpart C –
Suitability Rating Actions

(Now split between A and B)

731.301 
Jurisdiction

731.104
Appointments subject to investigation

731.105
Authority to take suitability actions

New sections created to more adequately differentiate between the two different concepts previously part of the "Jurisdiction" section.  See notes above.

731.302 
Risk designation and investigative requirements

731.106 
Designation of public trust positions and investigative requirements

See notes above.

731.303 
Actions by OPM and other agencies

731.203 
Actions by OPM and other agencies

See notes above.

731.304 
Debarment

731.204
Debarment by OPM

731.205
Debarment by agencies

See notes above.

Subpart D –
Suitability Actions

Subpart C –
OPM Suitability Action Procedures

731.401 
Scope

731.301 
Scope

Minor wording changes.

731.402 
Notice of proposed action

731.302 
Notice of proposed action

Some reorganization/simplification in wording.  No material changes.

731.403 
Answer

731.303 
Answer

No material changes.

731.404 
Decision

731.304 
Decision

Date employing agency is required to remove changed from 30 days following the date of the decision to within 5 days of receipt of final decision.

Subpart D – Agency Suitability Action Procedures

New subpart.  Added to provide specific procedures to follow in agency suitability actions.

731.401 
Scope

731.402 
Notice of proposed action

No specific time for response cited (must give reasonable notice and notify of time limits for response).  Still required to give notice in writing, chance to get materials relied upon, state specific reasons for decision.

731.403 
Answer

Respondent may answer in writing and provide affidavits.

731.404 
Decision

Decision must be in writing and may be appealed.  Appointee removal within 5 days of the final decision.

Subpart E – Appeal to the Merit Systems Protection Board

Subpart E – Appeal to the Merit Systems Protection Board

731.501 
Appeal to the Merit Systems Protection Board

731.501 
Appeal to the Merit Systems Protection Board

Added that MSPB must affirm decision if one or more of the charges are sustained but may remand to determine if action taken is still appropriate if not all charges are sustained.  No further appeal after remand.

Subpart F – Reemployment Eligibility

(Deleted)

731.601 
Reemployment eligibility of certain former Federal employees

(Deleted)

Entire Subpart deleted.  Since agencies are delegated authority to determine suitability in most cases, no longer makes sense to have OPM re-determine suitability.

SubpartF –
Savings Provision

Subpart E –
Savings Provision

731.701 
Savings provision

731.601 
Savings provision

Follow prior regulations in any case in which a proposed action letter has been sent before implementation date of new regulations.