81_FR_26257 81 FR 26173 - Recruitment, Selection, and Placement (General) and Suitability

81 FR 26173 - Recruitment, Selection, and Placement (General) and Suitability

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 84 (May 2, 2016)

Page Range26173-26175
FR Document2016-10063

The U.S. Office of Personnel Management (OPM) is proposing to revise its regulations pertaining to when, during the hiring process (unless an exception is granted), a hiring agency can request information typically collected during a background investigation from an applicant for Federal employment. OPM is proposing this change to promote compliance with Merit System Principles as well as the goal of the Federal Interagency Reentry Council and the President's Memorandum of January 31, 2014, ``Enhancing Safeguards to Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own.'' The intended effect of this proposal is to better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.

Federal Register, Volume 81 Issue 84 (Monday, May 2, 2016)
[Federal Register Volume 81, Number 84 (Monday, May 2, 2016)]
[Proposed Rules]
[Pages 26173-26175]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-10063]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 81, No. 84 / Monday, May 2, 2016 / Proposed 
Rules

[[Page 26173]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 330 and 731

RIN 3206-AN25


Recruitment, Selection, and Placement (General) and Suitability

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to 
revise its regulations pertaining to when, during the hiring process 
(unless an exception is granted), a hiring agency can request 
information typically collected during a background investigation from 
an applicant for Federal employment. OPM is proposing this change to 
promote compliance with Merit System Principles as well as the goal of 
the Federal Interagency Reentry Council and the President's Memorandum 
of January 31, 2014, ``Enhancing Safeguards to Prevent the Undue Denial 
of Federal Employment Opportunities to the Unemployed and Those Facing 
Financial Difficulty Through No Fault of Their Own.'' The intended 
effect of this proposal is to better ensure that applicants from all 
segments of society, including those with prior criminal histories, 
receive a fair opportunity to compete for Federal employment.

DATES: Comments must be received on or before July 1, 2016.

ADDRESSES: You may submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. All submissions received through 
the Portal must include the agency name and docket number or Regulation 
Identifier Number (RIN) for this proposed rulemaking. You may also 
send, deliver, or fax comments to Kimberly A. Holden, Deputy Associate 
Director for Recruitment and Hiring, U.S. Office of Personnel 
Management, Room 6351D, 1900 E Street NW., Washington, DC 20415-9700; 
email at [email protected]; or fax at (202) 606-4430.

FOR FURTHER INFORMATION CONTACT: Mr. Mike Gilmore by telephone on (202) 
606-2429, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: Current regulations at 5 CFR part 731.103(d) 
allow agencies to begin to determine an applicant's suitability at any 
time during the hiring process. Agencies use a variety of methods to 
determine an applicant's suitability for Federal employment. Criminal 
conduct is one of several criteria agencies consider in the course of 
making suitability determinations. Many agencies administer the 
Optional Form (OF) 306, ``Declaration for Federal Employment,'' to 
applicants in order to collect information about an applicant's 
history, as an advance screening process prior to the suitability 
investigation that is required for appointment in a covered position. 
The OF-306 contains a variety of questions about background 
information. Among these are several questions about an applicant's 
criminal history, including past convictions or current arrests that 
were not yet the subject of a final disposition.
    Currently, there is nothing in OPM's regulations to prevent hiring 
agencies from requiring an applicant to complete and submit the OF-306 
or equivalent information collection as part of the job-seeker's 
initial application package. The better practice, and one that many 
agencies already employ, is to wait until the later stages of the 
hiring process to collect this kind of information.
    Early inquiries into an applicant's background, including his or 
her criminal or credit history (such as at the point at which an 
applicant submits his or her application materials) could have the 
effect of discouraging motivated, well-qualified individuals from 
applying for a Federal job. In particular, collecting such information 
from those who have a criminal record, but who have served their time 
and been rehabilitated, might discourage them from applying for a 
Federal job and limit their opportunities to obtain the means to secure 
stable housing, provide support for their families, and contribute to 
their communities. Early inquiries could also result in the 
disqualification of an otherwise eligible and qualified applicant 
solely on the basis of his or her criminal history--regardless of 
whether an arrest has actually resulted in charges or a conviction, and 
regardless of whether consideration of the applicant's criminal history 
is justified by business necessity, i.e., in the suitability context, 
whether the suitability action will protect the integrity or promote 
the efficiency of the service. Therefore, OPM is proposing to amend 
parts 330 and 731 of its regulations to prevent agencies, unless an 
exception is granted from OPM, from administering the OF-306 to 
applicants, or otherwise making inquiries into an applicant's 
background of the sort asked on the OF-306's `Background Information' 
section or other forms used to conduct suitability investigations for 
Federal employment, unless the hiring agency has made a conditional 
offer of employment to the applicant. Though agencies generally defer 
collecting this information until the end of the process, it is a good 
practice to take steps to affirmatively prevent misuse of such 
information earlier in the process--either inadvertent or intentional.
    Under the proposed rule, agencies will not be permitted to make 
specific inquiries concerning an applicant's background of the sort 
asked on the OF-306's `Background Information' section or other forms 
used to conduct suitability investigations for Federal employment 
unless the hiring agency has made a conditional offer of employment to 
an applicant. This will preclude agencies, in most cases, from making a 
referral or initial selection decision on the basis of adverse criminal 
or credit history or other factors normally developed through the OF-
306. The proposed rule will permit the agency to make an objection, 
pass-over request, or suitability determination on the basis of 
criminal history record information or other information normally 
collected on the OF-306 only after the applicant's qualifications for 
the position being filled have been fairly assessed and the hiring 
agency has made a conditional offer of employment to the applicant. The 
proposed rule provides a mechanism for agencies to request exceptions 
from this prohibition where there are legitimate, specifically job-
related reasons why agencies might wish to disqualify candidates based 
on their criminal history. Nothing in this

[[Page 26174]]

proposed rule affects the timing of pre-employment medical examinations 
or inquiries as required by section 501 of the Rehabilitation Act.
    OPM is proposing this change to continue to encourage applicants 
from all segments of society to seek Federal employment, and to ensure 
that for most Federal jobs, individuals with prior criminal or other 
adverse history are given the opportunity to demonstrate their 
knowledge, skills, and ability in a fair and open competition. The 
proposed rule will strengthen the enforceability of OPM's regulations 
while preserving necessary processes that ensure the efficiency, 
integrity and safety of the service.
    The Merit System Principles provide that ``Recruitment should be 
from qualified individuals from appropriate sources in an endeavor to 
achieve a workforce from all segments of society, and selection and 
advancement should be determined solely on the basis of relative 
ability, knowledge, and skills, after fair and open competition which 
assures that all receive equal opportunity.'' 5 U.S.C. 2301(b)(1). The 
Director of OPM is charged with ``executing, administering, and 
enforcing'' the Civil Service laws, including the Merit System 
Principles, and ``securing . . . justice in the functions of the 
Office.'' 5 U.S.C. 1103(a)(1), (a)(5).
    In addition, the Director of OPM is a member of the Federal 
Interagency Reentry Council chaired by the Attorney General. OPM is 
committed to the Council's stated goal of ``remov[ing] Federal barriers 
to successful reentry, so that motivated individuals--who have served 
their time and paid their debts--are able to compete for a job, attain 
stable housing, support their children and their families, and 
contribute to their communities . . . to not only reduce recidivism and 
high correctional costs, but also to improve public health, child 
welfare, employment, education, housing and other key reintegration 
outcomes.'' See Federal Interagency Reentry Council, https://csgjusticecenter.org/nrrc/projects/firc/ (last visited March 15, 2016).
    Finally, prompted, in part, by the recent Presidential Memorandum, 
``Enhancing Safeguards to Prevent the Undue Denial of Federal 
Employment Opportunities to the Unemployed and Those Facing Financial 
Difficulty Through No Fault of Their Own,'' 79 FR 7045 (Feb. 5, 2014), 
OPM has determined that it would be good policy to require agencies to 
defer the collection of the types of background information collected 
on the OF-306 until the hiring agency has made a conditional offer of 
employment to an applicant, with appropriate exceptions, so that there 
is less opportunity for this information to be misused at the 
preliminary screening stage. Below is an explanation of the proposed 
rule:
    Specifically, OPM is proposing to amend 5 CFR parts 330 and 731 to 
require that, unless an exception has been requested by the hiring 
agency and granted by OPM, agencies cannot begin collecting background 
information unless the hiring agency has made a conditional offer of 
employment to an applicant. This change would limit the flexibility 
currently granted to agencies to administer the OF-306, and any other 
form of inquiry into an applicant's background, at any time during the 
hiring process.
    The proposed language, in new subpart M of 5 CFR part 330 and 
731.103(d), will require agencies to defer the collection of background 
information required by the OF-306 until the hiring agency has made a 
conditional offer of employment to an applicant. This change in 
requirements will further the objective that most applicants would have 
the opportunity to apply and be fully considered and evaluated before 
any action can be taken by the hiring official in reliance on that 
information. This will preclude agencies, in most cases, from making 
referral or initial selection decisions on the basis of criminal 
history or other information normally collected on the OF-306's 
background information section, and will permit the agency to make an 
objection, pursue a pass-over of, or make a suitability-based decision 
on a candidate on the basis of such information only after the 
applicant's qualifications have been fairly assessed and the applicant 
has received a conditional job offer.
    The proposed rule allows agencies to request from OPM an exception 
to collect background information earlier in the hiring process. OPM 
recognizes there are legitimate, job/position-related reasons why a 
hiring agency may have a need to disqualify candidates with significant 
issues, including, e.g., criminal history, from particular types of 
positions they are seeking to fill. These exceptions could include, for 
example, certain law enforcement or public trust positions where the 
ability to testify as a witness is an aspect of the work, and thus a 
clean criminal history record would be essential to the ability to 
perform one of the duties of the position effectively. In these cases, 
the agency will need to demonstrate the validity of its conclusion that 
the presence of certain background information should be disqualifying.
    It could also include positions where the expense of completing the 
examination makes it appropriate to adjudicate suitability at the 
outset of the process (e.g., a position that requires that an applicant 
complete a rigorous training regimen and pass an examination based upon 
the training before he or she may be selected).
    In any event, the applicant would have notice of the process, an 
opportunity to rebut any issue(s) that arose, and the ability to appeal 
any adverse suitability action to the Merit Systems Protection Board.
    OPM is proposing to consider requests for exceptions on a case-by-
case basis (rather than prescribe specific criteria for an exception) 
in order to provide maximum flexibility to hiring agencies and account 
for the many unique circumstances that agencies face. In determining 
whether an exception is justified, OPM will consider, among other 
things: The occupation, and grade level(s) of the position(s) being 
filled; the basis for any conclusion that certain information is 
appropriately considered to be disqualifying; for requests based upon 
expense, at what point in the hiring process the agency has been 
conducting suitability screening for the position(s) for which an 
exception is being sought; and the specific need for the exception. OPM 
is prepared to consult with agencies and to receive requests for 
exceptions prior to the effective date of the final rule. In 
appropriate cases, OPM will be prepared to grant exceptions immediately 
upon effect of the final rule.
    OPM is proposing the new subpart M to part 330 in order to impact 
all forms of placement in the Competitive service (e.g., hiring under 
the competitive examining process, reinstatement of a former Federal 
employee, or the transfer of a current employee from one agency to 
another). Many agencies administer the OF-306, ``Declaration for 
Federal Employment,'' to applicants in order to collect information 
about an applicant's history, as an advance screening process prior to 
the suitability investigation that is required for appointment in a 
covered position. The OF-306 contains a variety of questions about 
background information. Among these are several questions about an 
applicant's criminal history, including past convictions or current 
arrests that were not yet the subject of a final disposition. OPM is 
proposing to limit the discretion agencies have in collecting this 
information from Federal job applicants, whether through the OF-306 or 
through other similar inquiries or investigative inquiries, such as 
fingerprint records

[[Page 26175]]

checks, before the hiring agency makes a conditional offer of 
employment to an applicant.

Executive Order 13563 and Executive Order 12866, Regulatory Review

    The Office of Management and Budget has reviewed this rulemaking in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that these proposed regulations will not have a 
significant economic impact on a substantial number of small entities 
because the regulations pertain only to Federal agencies and employees.

E.O. 13132, Federalism

    This proposed 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 Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

E.O. 12988, Civil Justice Reform

    This proposed regulation meets the applicable standard set forth in 
section 3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rulemaking will not result in the expenditure by State, local 
or tribal governments of more than $100 million annually. Thus, no 
written assessment of unfunded mandates is required.

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This proposed regulatory action will not impose any additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

List of Subjects in Title 5 CFR Parts 330 and 731

5 CFR Part 330

    Armed forces reserves, District of Columbia, Government employees.

5 CFR Part 731

    Administrative practices and procedures, Government employees.

    U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    Accordingly, OPM is proposing to revise 5 CFR parts 330 and 731 as 
follows:

PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)

0
1. The authority citation for part 330 continues to read as follows:

    Authority: 5 U.S.C. 1104, 1302, 3301, 3302, 3304, and 3330; E.O. 
10577, 3 CFR, 1954-58 Comp., p. 218; Section 330.103 also issued 
under 5 U.S.C. 3327; Subpart B also issued under 5 U.S.C. 3315 and 
8151; Section 330.401 also issued under 5 U.S.C. 3310; Subparts F 
and G also issued under Presidential Memorandum on Career Transition 
Assistance for Federal Employees, September 12, 1995; Subpart G also 
issued under 5 U.S.C. 8337(h) and 8456(b).

0
2. Add subpart M, consisting of Sec.  330.1300 to read as follows:

Subpart M--Timing of Background Investigations


Sec.  330.1300  Timing of suitability inquiries in competitive hiring.

    A hiring agency may not make specific inquiries concerning an 
applicant's background of the sort asked on the OF-306's `Background 
Information' section or other forms used to conduct suitability 
investigations for Federal employment unless the hiring agency has made 
a conditional offer of employment to the applicant. However, in certain 
situations, agencies may have a business need to obtain information 
about the background of applicants earlier in the hiring process to 
determine if they meet the qualifications requirements or are suitable 
for the position being filled. If so, agencies must request an 
exception from the Office of Personnel Management in order to determine 
an applicant's ability to meet qualifications or suitability for 
Federal employment prior to making a conditional offer of employment to 
the applicant(s). OPM will grant exceptions only when the agency 
demonstrates specific job-related reasons the agency wishes to evaluate 
suitability earlier in the process or consider the disqualification of 
candidates with criminal backgrounds or other conduct issues from 
particular types of positions. OPM will consider such factors as, but 
not limited to, the nature of the position being filled (e.g., a law 
enforcement position) and whether a clean criminal history record would 
be essential to the ability to perform one of the duties of the 
position effectively. OPM may also consider positions for which the 
expense of completing the examination makes it appropriate to 
adjudicate suitability at the outset of the process (e.g., a position 
that requires that an applicant complete a rigorous training regimen 
and pass an examination based upon the training before he or she may be 
selected).

PART 731--SUITABILITY

0
3. The authority citation continues to read as follows:

    Authority: 5 U.S.C. 1302, 3301, 7301; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218, as amended; E.O. 13467, 3 CFR 2009 Comp., p. 
198; E.O. 13488, 3 CFR 2010 Comp., p. 189; 5 CFR parts 1, 2 and 5.

0
4. Revise Sec.  731.103(d) to read as follows:


Sec.  731.103  Delegation to agencies.

* * * * *
    (d)(1) A hiring agency may not make specific inquiries concerning 
an applicant's background of the sort asked on the OF-306's `Background 
Information' section or other forms used to conduct suitability 
investigations for Federal employment unless the hiring agency has made 
a conditional offer of employment to the applicant. However, in certain 
situations, agencies may have a business need to obtain information 
about the suitability or background of applicants earlier in the 
process. If so, agencies must request an exception from the Office of 
Personnel Management, in accordance with the provisions of 5 CFR part 
330 subpart M.
    (2) OPM reserves the right to undertake a determination of 
suitability based upon evidence of falsification or fraud relating to 
an examination or appointment at any point when information giving rise 
to such a charge is discovered. OPM must be informed in all cases where 
there is evidence of material, intentional false statements, or 
deception or fraud in examination or appointment, and OPM will take a 
suitability action where warranted.
* * * * *
[FR Doc. 2016-10063 Filed 4-29-16; 8:45 am]
 BILLING CODE 6325-39-P



                                                                                                                                                                                                      26173

                                                    Proposed Rules                                                                                                Federal Register
                                                                                                                                                                  Vol. 81, No. 84

                                                                                                                                                                  Monday, May 2, 2016



                                                    This section of the FEDERAL REGISTER                    20415–9700; email at employ@opm.gov;                  basis of his or her criminal history—
                                                    contains notices to the public of the proposed          or fax at (202) 606–4430.                             regardless of whether an arrest has
                                                    issuance of rules and regulations. The                  FOR FURTHER INFORMATION CONTACT: Mr.                  actually resulted in charges or a
                                                    purpose of these notices is to give interested          Mike Gilmore by telephone on (202)                    conviction, and regardless of whether
                                                    persons an opportunity to participate in the                                                                  consideration of the applicant’s criminal
                                                    rule making prior to the adoption of the final
                                                                                                            606–2429, by fax at (202) 606–4430, by
                                                    rules.                                                  TTY at (202) 418–3134, or by email at                 history is justified by business
                                                                                                            Michael.Gilmore@opm.gov.                              necessity, i.e., in the suitability context,
                                                                                                            SUPPLEMENTARY INFORMATION: Current                    whether the suitability action will
                                                    OFFICE OF PERSONNEL                                     regulations at 5 CFR part 731.103(d)                  protect the integrity or promote the
                                                    MANAGEMENT                                              allow agencies to begin to determine an               efficiency of the service. Therefore,
                                                                                                            applicant’s suitability at any time                   OPM is proposing to amend parts 330
                                                    5 CFR Parts 330 and 731                                 during the hiring process. Agencies use               and 731 of its regulations to prevent
                                                    RIN 3206–AN25                                           a variety of methods to determine an                  agencies, unless an exception is granted
                                                                                                            applicant’s suitability for Federal                   from OPM, from administering the OF–
                                                    Recruitment, Selection, and Placement                   employment. Criminal conduct is one of                306 to applicants, or otherwise making
                                                    (General) and Suitability                               several criteria agencies consider in the             inquiries into an applicant’s background
                                                                                                            course of making suitability                          of the sort asked on the OF–306’s
                                                    AGENCY:  U.S. Office of Personnel                       determinations. Many agencies                         ‘Background Information’ section or
                                                    Management.                                             administer the Optional Form (OF) 306,                other forms used to conduct suitability
                                                    ACTION: Proposed rule with request for                  ‘‘Declaration for Federal Employment,’’               investigations for Federal employment,
                                                    comments.                                               to applicants in order to collect                     unless the hiring agency has made a
                                                                                                            information about an applicant’s                      conditional offer of employment to the
                                                    SUMMARY:    The U.S. Office of Personnel                                                                      applicant. Though agencies generally
                                                                                                            history, as an advance screening process
                                                    Management (OPM) is proposing to                                                                              defer collecting this information until
                                                                                                            prior to the suitability investigation that
                                                    revise its regulations pertaining to                                                                          the end of the process, it is a good
                                                                                                            is required for appointment in a covered
                                                    when, during the hiring process (unless                                                                       practice to take steps to affirmatively
                                                                                                            position. The OF–306 contains a variety
                                                    an exception is granted), a hiring agency                                                                     prevent misuse of such information
                                                                                                            of questions about background
                                                    can request information typically                                                                             earlier in the process—either
                                                                                                            information. Among these are several
                                                    collected during a background                                                                                 inadvertent or intentional.
                                                                                                            questions about an applicant’s criminal
                                                    investigation from an applicant for                                                                              Under the proposed rule, agencies
                                                                                                            history, including past convictions or
                                                    Federal employment. OPM is proposing                                                                          will not be permitted to make specific
                                                                                                            current arrests that were not yet the
                                                    this change to promote compliance with                                                                        inquiries concerning an applicant’s
                                                                                                            subject of a final disposition.
                                                    Merit System Principles as well as the                     Currently, there is nothing in OPM’s               background of the sort asked on the OF–
                                                    goal of the Federal Interagency Reentry                 regulations to prevent hiring agencies                306’s ‘Background Information’ section
                                                    Council and the President’s                             from requiring an applicant to complete               or other forms used to conduct
                                                    Memorandum of January 31, 2014,                         and submit the OF–306 or equivalent                   suitability investigations for Federal
                                                    ‘‘Enhancing Safeguards to Prevent the                   information collection as part of the job-            employment unless the hiring agency
                                                    Undue Denial of Federal Employment                      seeker’s initial application package. The             has made a conditional offer of
                                                    Opportunities to the Unemployed and                     better practice, and one that many                    employment to an applicant. This will
                                                    Those Facing Financial Difficulty                       agencies already employ, is to wait until             preclude agencies, in most cases, from
                                                    Through No Fault of Their Own.’’ The                    the later stages of the hiring process to             making a referral or initial selection
                                                    intended effect of this proposal is to                  collect this kind of information.                     decision on the basis of adverse
                                                    better ensure that applicants from all                     Early inquiries into an applicant’s                criminal or credit history or other
                                                    segments of society, including those                    background, including his or her                      factors normally developed through the
                                                    with prior criminal histories, receive a                criminal or credit history (such as at the            OF–306. The proposed rule will permit
                                                    fair opportunity to compete for Federal                 point at which an applicant submits his               the agency to make an objection, pass-
                                                    employment.                                             or her application materials) could have              over request, or suitability
                                                    DATES: Comments must be received on                     the effect of discouraging motivated,                 determination on the basis of criminal
                                                    or before July 1, 2016.                                 well-qualified individuals from                       history record information or other
                                                    ADDRESSES: You may submit comments                      applying for a Federal job. In particular,            information normally collected on the
                                                    through the Federal eRulemaking Portal                  collecting such information from those                OF–306 only after the applicant’s
                                                    at http://www.regulations.gov. All                      who have a criminal record, but who                   qualifications for the position being
                                                    submissions received through the Portal                 have served their time and been                       filled have been fairly assessed and the
                                                    must include the agency name and                        rehabilitated, might discourage them                  hiring agency has made a conditional
mstockstill on DSK3G9T082PROD with PROPOSALS




                                                    docket number or Regulation Identifier                  from applying for a Federal job and                   offer of employment to the applicant.
                                                    Number (RIN) for this proposed                          limit their opportunities to obtain the               The proposed rule provides a
                                                    rulemaking. You may also send, deliver,                 means to secure stable housing, provide               mechanism for agencies to request
                                                    or fax comments to Kimberly A. Holden,                  support for their families, and                       exceptions from this prohibition where
                                                    Deputy Associate Director for                           contribute to their communities. Early                there are legitimate, specifically job-
                                                    Recruitment and Hiring, U.S. Office of                  inquiries could also result in the                    related reasons why agencies might
                                                    Personnel Management, Room 6351D,                       disqualification of an otherwise eligible             wish to disqualify candidates based on
                                                    1900 E Street NW., Washington, DC                       and qualified applicant solely on the                 their criminal history. Nothing in this


                                               VerDate Sep<11>2014   17:43 Apr 29, 2016   Jkt 238001   PO 00000   Frm 00001   Fmt 4702   Sfmt 4702   E:\FR\FM\02MYP1.SGM   02MYP1


                                                    26174                      Federal Register / Vol. 81, No. 84 / Monday, May 2, 2016 / Proposed Rules

                                                    proposed rule affects the timing of pre-                conditional offer of employment to an                    It could also include positions where
                                                    employment medical examinations or                      applicant, with appropriate exceptions,               the expense of completing the
                                                    inquiries as required by section 501 of                 so that there is less opportunity for this            examination makes it appropriate to
                                                    the Rehabilitation Act.                                 information to be misused at the                      adjudicate suitability at the outset of the
                                                       OPM is proposing this change to                      preliminary screening stage. Below is an              process (e.g., a position that requires
                                                    continue to encourage applicants from                   explanation of the proposed rule:                     that an applicant complete a rigorous
                                                    all segments of society to seek Federal                    Specifically, OPM is proposing to                  training regimen and pass an
                                                    employment, and to ensure that for most                 amend 5 CFR parts 330 and 731 to                      examination based upon the training
                                                    Federal jobs, individuals with prior                    require that, unless an exception has                 before he or she may be selected).
                                                    criminal or other adverse history are                   been requested by the hiring agency and                  In any event, the applicant would
                                                    given the opportunity to demonstrate                    granted by OPM, agencies cannot begin                 have notice of the process, an
                                                    their knowledge, skills, and ability in a               collecting background information                     opportunity to rebut any issue(s) that
                                                    fair and open competition. The                          unless the hiring agency has made a                   arose, and the ability to appeal any
                                                    proposed rule will strengthen the                       conditional offer of employment to an                 adverse suitability action to the Merit
                                                    enforceability of OPM’s regulations                     applicant. This change would limit the                Systems Protection Board.
                                                    while preserving necessary processes                    flexibility currently granted to agencies                OPM is proposing to consider
                                                    that ensure the efficiency, integrity and               to administer the OF–306, and any other               requests for exceptions on a case-by-
                                                    safety of the service.                                  form of inquiry into an applicant’s                   case basis (rather than prescribe specific
                                                       The Merit System Principles provide                  background, at any time during the                    criteria for an exception) in order to
                                                    that ‘‘Recruitment should be from                       hiring process.                                       provide maximum flexibility to hiring
                                                    qualified individuals from appropriate                     The proposed language, in new                      agencies and account for the many
                                                    sources in an endeavor to achieve a                     subpart M of 5 CFR part 330 and                       unique circumstances that agencies face.
                                                    workforce from all segments of society,                 731.103(d), will require agencies to                  In determining whether an exception is
                                                    and selection and advancement should                    defer the collection of background                    justified, OPM will consider, among
                                                    be determined solely on the basis of                    information required by the OF–306                    other things: The occupation, and grade
                                                    relative ability, knowledge, and skills,                until the hiring agency has made a                    level(s) of the position(s) being filled;
                                                    after fair and open competition which                   conditional offer of employment to an                 the basis for any conclusion that certain
                                                    assures that all receive equal                          applicant. This change in requirements                information is appropriately considered
                                                    opportunity.’’ 5 U.S.C. 2301(b)(1). The                 will further the objective that most                  to be disqualifying; for requests based
                                                    Director of OPM is charged with                         applicants would have the opportunity                 upon expense, at what point in the
                                                    ‘‘executing, administering, and                         to apply and be fully considered and                  hiring process the agency has been
                                                    enforcing’’ the Civil Service laws,                     evaluated before any action can be taken              conducting suitability screening for the
                                                    including the Merit System Principles,                  by the hiring official in reliance on that            position(s) for which an exception is
                                                    and ‘‘securing . . . justice in the                     information. This will preclude                       being sought; and the specific need for
                                                    functions of the Office.’’ 5 U.S.C.                     agencies, in most cases, from making                  the exception. OPM is prepared to
                                                    1103(a)(1), (a)(5).                                     referral or initial selection decisions on            consult with agencies and to receive
                                                       In addition, the Director of OPM is a                the basis of criminal history or other                requests for exceptions prior to the
                                                    member of the Federal Interagency                       information normally collected on the                 effective date of the final rule. In
                                                    Reentry Council chaired by the Attorney                 OF–306’s background information                       appropriate cases, OPM will be
                                                    General. OPM is committed to the                        section, and will permit the agency to                prepared to grant exceptions
                                                    Council’s stated goal of ‘‘remov[ing]                   make an objection, pursue a pass-over                 immediately upon effect of the final
                                                    Federal barriers to successful reentry, so              of, or make a suitability-based decision              rule.
                                                    that motivated individuals—who have                     on a candidate on the basis of such                      OPM is proposing the new subpart M
                                                    served their time and paid their debts—                 information only after the applicant’s                to part 330 in order to impact all forms
                                                    are able to compete for a job, attain                   qualifications have been fairly assessed              of placement in the Competitive service
                                                    stable housing, support their children                  and the applicant has received a                      (e.g., hiring under the competitive
                                                    and their families, and contribute to                   conditional job offer.                                examining process, reinstatement of a
                                                    their communities . . . to not only                        The proposed rule allows agencies to               former Federal employee, or the transfer
                                                    reduce recidivism and high correctional                 request from OPM an exception to                      of a current employee from one agency
                                                    costs, but also to improve public health,               collect background information earlier                to another). Many agencies administer
                                                    child welfare, employment, education,                   in the hiring process. OPM recognizes                 the OF–306, ‘‘Declaration for Federal
                                                    housing and other key reintegration                     there are legitimate, job/position-related            Employment,’’ to applicants in order to
                                                    outcomes.’’ See Federal Interagency                     reasons why a hiring agency may have                  collect information about an applicant’s
                                                    Reentry Council, https://                               a need to disqualify candidates with                  history, as an advance screening process
                                                    csgjusticecenter.org/nrrc/projects/firc/                significant issues, including, e.g.,                  prior to the suitability investigation that
                                                    (last visited March 15, 2016).                          criminal history, from particular types               is required for appointment in a covered
                                                       Finally, prompted, in part, by the                   of positions they are seeking to fill.                position. The OF–306 contains a variety
                                                    recent Presidential Memorandum,                         These exceptions could include, for                   of questions about background
                                                    ‘‘Enhancing Safeguards to Prevent the                   example, certain law enforcement or                   information. Among these are several
                                                    Undue Denial of Federal Employment                      public trust positions where the ability              questions about an applicant’s criminal
                                                    Opportunities to the Unemployed and                     to testify as a witness is an aspect of the           history, including past convictions or
mstockstill on DSK3G9T082PROD with PROPOSALS




                                                    Those Facing Financial Difficulty                       work, and thus a clean criminal history               current arrests that were not yet the
                                                    Through No Fault of Their Own,’’ 79 FR                  record would be essential to the ability              subject of a final disposition. OPM is
                                                    7045 (Feb. 5, 2014), OPM has                            to perform one of the duties of the                   proposing to limit the discretion
                                                    determined that it would be good policy                 position effectively. In these cases, the             agencies have in collecting this
                                                    to require agencies to defer the                        agency will need to demonstrate the                   information from Federal job applicants,
                                                    collection of the types of background                   validity of its conclusion that the                   whether through the OF–306 or through
                                                    information collected on the OF–306                     presence of certain background                        other similar inquiries or investigative
                                                    until the hiring agency has made a                      information should be disqualifying.                  inquiries, such as fingerprint records


                                               VerDate Sep<11>2014   17:43 Apr 29, 2016   Jkt 238001   PO 00000   Frm 00002   Fmt 4702   Sfmt 4702   E:\FR\FM\02MYP1.SGM   02MYP1


                                                                               Federal Register / Vol. 81, No. 84 / Monday, May 2, 2016 / Proposed Rules                                                  26175

                                                    checks, before the hiring agency makes                  List of Subjects in Title 5 CFR Parts 330             disqualification of candidates with
                                                    a conditional offer of employment to an                 and 731                                               criminal backgrounds or other conduct
                                                    applicant.                                                                                                    issues from particular types of positions.
                                                                                                            5 CFR Part 330
                                                                                                                                                                  OPM will consider such factors as, but
                                                    Executive Order 13563 and Executive                       Armed forces reserves, District of                  not limited to, the nature of the position
                                                    Order 12866, Regulatory Review                          Columbia, Government employees.                       being filled (e.g., a law enforcement
                                                      The Office of Management and Budget                   5 CFR Part 731                                        position) and whether a clean criminal
                                                    has reviewed this rulemaking in                                                                               history record would be essential to the
                                                                                                              Administrative practices and                        ability to perform one of the duties of
                                                    accordance with E.O. 13563 and 12866.                   procedures, Government employees.                     the position effectively. OPM may also
                                                    Regulatory Flexibility Act                                U.S. Office of Personnel Management.                consider positions for which the
                                                                                                            Beth F. Cobert,                                       expense of completing the examination
                                                      I certify that these proposed                                                                               makes it appropriate to adjudicate
                                                                                                            Acting Director.
                                                    regulations will not have a significant                                                                       suitability at the outset of the process
                                                    economic impact on a substantial                          Accordingly, OPM is proposing to
                                                                                                            revise 5 CFR parts 330 and 731 as                     (e.g., a position that requires that an
                                                    number of small entities because the                                                                          applicant complete a rigorous training
                                                    regulations pertain only to Federal                     follows:
                                                                                                                                                                  regimen and pass an examination based
                                                    agencies and employees.                                 PART 330—RECRUITMENT,                                 upon the training before he or she may
                                                    E.O. 13132, Federalism                                  SELECTION, AND PLACEMENT                              be selected).
                                                                                                            (GENERAL)
                                                       This proposed regulation will not                                                                          PART 731—SUITABILITY
                                                    have substantial direct effects on the                  ■ 1. The authority citation for part 330
                                                    States, on the relationship between the                 continues to read as follows:                         ■ 3. The authority citation continues to
                                                    National Government and the States, or                    Authority: 5 U.S.C. 1104, 1302, 3301, 3302,         read as follows:
                                                    on distribution of power and                            3304, and 3330; E.O. 10577, 3 CFR, 1954–58              Authority: 5 U.S.C. 1302, 3301, 7301; E.O.
                                                    responsibilities among the various                      Comp., p. 218; Section 330.103 also issued            10577, 3 CFR 1954–1958 Comp., p. 218, as
                                                    levels of government. Therefore, in                     under 5 U.S.C. 3327; Subpart B also issued            amended; E.O. 13467, 3 CFR 2009 Comp., p.
                                                                                                            under 5 U.S.C. 3315 and 8151; Section                 198; E.O. 13488, 3 CFR 2010 Comp., p. 189;
                                                    accordance with Executive Order 13132,
                                                                                                            330.401 also issued under 5 U.S.C. 3310;
                                                    it is determined that this rule does not                                                                      5 CFR parts 1, 2 and 5.
                                                                                                            Subparts F and G also issued under
                                                    have sufficient federalism implications                 Presidential Memorandum on Career                     ■ 4. Revise § 731.103(d) to read as
                                                    to warrant preparation of a Federalism                  Transition Assistance for Federal Employees,
                                                                                                                                                                  follows:
                                                    Assessment.                                             September 12, 1995; Subpart G also issued
                                                                                                            under 5 U.S.C. 8337(h) and 8456(b).                   § 731.103   Delegation to agencies.
                                                    E.O. 12988, Civil Justice Reform
                                                                                                            ■ 2. Add subpart M, consisting of                     *      *    *     *     *
                                                      This proposed regulation meets the                    § 330.1300 to read as follows:
                                                                                                                                                                     (d)(1) A hiring agency may not make
                                                    applicable standard set forth in section
                                                                                                            Subpart M—Timing of Background                        specific inquiries concerning an
                                                    3(a) and (b)(2) of Executive Order 12988.                                                                     applicant’s background of the sort asked
                                                                                                            Investigations
                                                    Unfunded Mandates Reform Act of                                                                               on the OF–306’s ‘Background
                                                    1995                                                    § 330.1300 Timing of suitability inquiries in         Information’ section or other forms used
                                                                                                            competitive hiring.                                   to conduct suitability investigations for
                                                      This rulemaking will not result in the                  A hiring agency may not make                        Federal employment unless the hiring
                                                    expenditure by State, local or tribal                   specific inquiries concerning an                      agency has made a conditional offer of
                                                    governments of more than $100 million                   applicant’s background of the sort asked              employment to the applicant. However,
                                                    annually. Thus, no written assessment                   on the OF–306’s ‘Background                           in certain situations, agencies may have
                                                    of unfunded mandates is required.                       Information’ section or other forms used              a business need to obtain information
                                                                                                            to conduct suitability investigations for             about the suitability or background of
                                                    Congressional Review Act                                Federal employment unless the hiring                  applicants earlier in the process. If so,
                                                       This action pertains to agency                       agency has made a conditional offer of                agencies must request an exception from
                                                    management, personnel and                               employment to the applicant. However,                 the Office of Personnel Management, in
                                                    organization and does not substantially                 in certain situations, agencies may have              accordance with the provisions of 5 CFR
                                                                                                            a business need to obtain information                 part 330 subpart M.
                                                    affect the rights or obligations of non-
                                                                                                            about the background of applicants
                                                    agency parties and, accordingly, is not                                                                          (2) OPM reserves the right to
                                                                                                            earlier in the hiring process to
                                                    a ‘‘rule’’ as that term is used by the                                                                        undertake a determination of suitability
                                                                                                            determine if they meet the qualifications
                                                    Congressional Review Act (Subtitle E of                                                                       based upon evidence of falsification or
                                                                                                            requirements or are suitable for the
                                                    the Small Business Regulatory                                                                                 fraud relating to an examination or
                                                                                                            position being filled. If so, agencies
                                                    Enforcement Fairness Act of 1996                        must request an exception from the                    appointment at any point when
                                                    (SBREFA)). Therefore, the reporting                     Office of Personnel Management in                     information giving rise to such a charge
                                                    requirement of 5 U.S.C. 801 does not                    order to determine an applicant’s ability             is discovered. OPM must be informed in
mstockstill on DSK3G9T082PROD with PROPOSALS




                                                    apply.                                                  to meet qualifications or suitability for             all cases where there is evidence of
                                                                                                            Federal employment prior to making a                  material, intentional false statements, or
                                                    Paperwork Reduction Act of 1995 (44                                                                           deception or fraud in examination or
                                                    U.S.C. Chapter 35)                                      conditional offer of employment to the
                                                                                                            applicant(s). OPM will grant exceptions               appointment, and OPM will take a
                                                      This proposed regulatory action will                  only when the agency demonstrates                     suitability action where warranted.
                                                    not impose any additional reporting or                  specific job-related reasons the agency               *      *    *     *     *
                                                    recordkeeping requirements under the                    wishes to evaluate suitability earlier in             [FR Doc. 2016–10063 Filed 4–29–16; 8:45 am]
                                                    Paperwork Reduction Act.                                the process or consider the                           BILLING CODE 6325–39–P




                                               VerDate Sep<11>2014   17:43 Apr 29, 2016   Jkt 238001   PO 00000   Frm 00003   Fmt 4702   Sfmt 9990   E:\FR\FM\02MYP1.SGM   02MYP1



Document Created: 2016-04-30 13:35:27
Document Modified: 2016-04-30 13:35:27
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule with request for comments.
DatesComments must be received on or before July 1, 2016.
ContactMr. Mike Gilmore by telephone on (202) 606-2429, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by email at [email protected]
FR Citation81 FR 26173 
RIN Number3206-AN25
CFR Citation5 CFR 330
5 CFR 731
CFR AssociatedArmed Forces Reserves; District of Columbia; Government Employees and Administrative Practices and Procedures

2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR