[Federal Register Volume 81, Number 84 (Monday, May 2, 2016)]
[Proposed Rules]
[Pages 26173-26175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10063]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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.
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 

  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.

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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