[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Rules and Regulations]
[Pages 86555-86561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28782]
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Rules and Regulations
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Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 /
Rules and Regulations
[[Page 86555]]
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: Final rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is issuing a
final rule revising its regulations pertaining to when, during the
hiring process, a hiring agency can request information typically
collected during a background investigation from an applicant for
Federal employment. OPM is making this change to promote compliance
with Merit System Principles as well as the goals 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.'' In addition, the final rule
will help agencies comply with the President's Memorandum of April 29,
2016, ``Promoting Rehabilitation and Reintegration of Formerly
Incarcerated Individuals.'' The intended effect of this rule is to
encourage more individuals with the requisite knowledge, skills, and
ability to apply for Federal positions by making it more clear that the
Government provides a fair opportunity to compete for Federal
employment to applicants from all segments of society, including those
with prior criminal histories or who have experienced financial
difficulty through no fault of their own.
DATES: Effective date: This final rule is effective January 3, 2017.
Compliance date: March 31, 2017. As discussed below, OPM recognizes
that there are legitimate, job/position-related reasons why a hiring
agency may need to determine suitability at an earlier stage in the
employment process. As such, this rule allows agencies to request from
OPM an exception to accommodate such circumstances. Requests for an
exception must be submitted to OPM by the agency's Chief Human Capital
Officer (or equivalent) at the agency headquarters level. To permit
agencies time to request exceptions where appropriate, this rule will
have a compliance date of March 31, 2017.
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: On May 2, 2016, OPM issued a proposed rule
at 81 FR 26173, to amend 5 CFR parts 330 and 731. Specifically, OPM
proposed revisions to its regulations that would prohibit a hiring
agency from making specific inquiries concerning an applicant's
criminal or adverse credit background of the sort asked on the Optional
Form (OF) 306, ``Declaration for Federal Employment'' in its
``Background Information'' section, or in other forms used to determine
suitability or conduct background investigations for Federal
employment, until the hiring agency has made a conditional offer of
employment to the applicant. The proposed rule also 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 need to disqualify
candidates with significant issues (including criminal history) from
particular types of positions they are seeking to fill or to determine
suitability at an earlier stage in the employment process. OPM received
a total of 25 sets of comments: 17 from individuals, three from federal
agencies, two from professional organizations, one from a trade
association, one from a coalition of civic advocacy groups, and one
from a private corporation. OPM's responses to the comments are
discussed below.
Discussion of Comments
Comments Generally Opposed to the Proposed Rule
Several individuals provided general comments opposing the proposed
rule (two of these comments were not specific). These comments are as
follows:
One individual commented that Federal agencies should always
consider an applicant's criminal background, and that all job
announcements should advise anyone with a conviction record not to
apply. A second commenter likewise stated that all resumes for Federal
employment be ``unblemished'' by criminal history. OPM is not adopting
these suggestions.
While OPM agrees that Federal agencies must consider an applicant's
criminal background as part of the suitability determination required
for positions covered by part 731 of this chapter, agencies should not
prohibit the consideration of applications from persons with conviction
records during the selection process itself. Moreover, in most cases,
the separate suitability determination can and should occur after the
selection process and a conditional offer have been made, thereby
separating criminal history as an aspect of the suitability
determination from the factors that are relevant at the time of the
initial assessment process. This aligns actual requirements with what
we believe to be the predominant current practice, so that they better
comport with the Merit System Principle stating that selection should
be based solely on knowledge, skill, and ability, 5 U.S.C. 2301, and
thus will encourage more individuals with the requisite knowledge,
skills, and ability to apply for Federal positions.
There are some positions for which Federal statute bars the
employment of persons convicted of certain offenses. There may also be
circumstances where a clean criminal history record must itself be one
of the qualifications for a particular position, in light of the duties
to be performed, and, therefore, becomes part of the examination for
testing applicants for appointment in the competitive service that the
President (and, in turn, through presidential redelegation, OPM) is
entitled to prescribe. 5 U.S.C. 3301, 3302, 3304; E.O. 10577, as
amended. Where criminal history-based disqualifications have a
disparate
[[Page 86556]]
impact, the agency will need to be prepared to demonstrate that they
are job-related and consistent with business necessity in order to
defend its decisions from a challenge related to equal employment
opportunity. Moreover, applicants cannot be found unsuitable on the
basis of criminal conduct unless there is a nexus between that conduct
and the efficiency of the service. Agencies have ample guidance
relating to how to determine that nexus. Consistent with these
principles, the proposed rule was intended to provide applicants from
all segments of society, including those with prior criminal histories,
a fair opportunity to compete for Federal employment.
One commenter stated that some applicants should be eliminated from
consideration at the start of the hiring process based on the severity
of their criminal offense, the nature of the offense vis-a-vis the
duties of the position being filled, and whether the position being
filled requires a security clearance. OPM agrees that certain positions
may require inquiries into applicants' criminal or adverse credit
history to be conducted at the start of the hiring process, and the
proposed rule allows agencies to request an exception from OPM to
accommodate such circumstances. But OPM cannot agree that it is
appropriate, as a general rule, to eliminate applicants from
consideration based upon their criminal history, before the assessment
process has even occurred. The purpose of this rule is to defer the
suitability process, where criminal history must and will be considered
as part of an overall assessment of character and conduct, until after
the assessment of relative knowledge, skills, and abilities that leads
to selection of the best-qualified candidate and the conditional offer
of employment. The suitability rules expressly provide for the nature
of the position and the nature and seriousness of the offense to be
taken into account as additional considerations during the suitability
process. See 5 CFR 731.202(c). Permitting agencies to consider criminal
history information in isolation, outside of the suitability process,
could result in an initial selection process not exclusively based upon
each candidate's qualifications and relative level of knowledge,
skills, and ability with respect to the position. And it might result
in non-selection without the procedural protections that a final
suitability action provides, which is not ideal. Accordingly, OPM
rejects this comment, in part.
Comments in Support of the Proposed Rule
A coalition representing criminal justice reform groups and civil
and human rights advocates strongly supported the proposed rules,
stating that when inquiries into criminal history are deferred until
the conditional offer of employment, there is more clarity for the
agency and the job applicant concerning the reason for a hiring
decision based on a background check, and less opportunity for bias in
the hiring process.
A professional association cast its general support for the
proposed changes, noting that requesting criminal history information
on the OF-306, Declaration for Federal Employment, only after a
conditional offer of employment has been extended constituted ``a
sensible compromise'' between promoting fair hiring practices and
adhering to the suitability requirements pertaining to Federal
employment. This organization also supported the proposal to allow OPM
to grant limited exceptions to these rules on a position-by-positon
basis. We note that OPM would characterize what it is doing not as a
``compromise,'' but rather as separating more clearly the process for
assessing relative knowledge, skills, and abilities from the process
for determining suitability for appointment to a position in a position
covered by part 731 of this chapter.
Two individuals also provided comments in general support of the
proposed rule.
Comments Pertaining to the Safety, Risk, Integrity of the Civil
Service, and Hiring Efficiency
Three Federal agency commenters, one professional association, one
trade association, and four members of the general public commented
that the proposed rule would waste government resources, as well as
applicants' time, because the hiring agency must begin the employment
process but later may have to rescind a conditional offer of employment
upon a determination that the applicant is ineligible for federal
employment on the basis of suitability, security, facility access, or
qualifications criteria. Some of these commenters noted that this could
result in further delays because checks would then have to be performed
on remaining candidates, or because other candidates would seek
employment elsewhere due to the length of the hiring process. Some of
these commenters expressed general concern that delaying applicant
background screening could lengthen an already-lengthy Federal hiring
process, and could have adverse effects on certain applicants with
criminal histories by requiring them to proceed all the way through the
application process before learning of their disqualification, and by
giving them an unrealistic expectation of their prospects as
candidates. In related comments, one individual stated that the
proposal would make the federal hiring process more complex and
cumbersome.
One of the commenters from a Federal agency had calculated that
over 10 percent of its law enforcement applicants who go through its
pre-employment screening process are ultimately removed from
consideration based on factors such as criminal history, delinquent
debt, susceptibility to coercion, illegal use of drugs, and immigration
violations, so that deferring the screening process would result in a
significant unnecessary expenditure of agency time and resources in
examination and qualifications assessment. The agency noted that these
expenditures are significant because of its unique, agency- and
position-related requirements, including the agency's significant
volume of vacancies and applicants; its pre-employment polygraph and
medical examination requirements; its law enforcement and national
security mission; and its need for its employees to credibly testify in
criminal proceedings. Another agency commenter emphasized that the
nature, seriousness, recency, and job-relatedness of certain criminal
violations would almost certainly be disqualifying for certain
positions under OPM's suitability regulations, making deferral of an
unfavorable decision especially unfair. The agency cited specific
criminal conduct that would render an applicant unsuitable for
firefighter, educator, child care worker, motor vehicle operator, or
financial/budget positions.
OPM acknowledges there may be instances in which an agency must
rescind a job offer based on an applicant's criminal or adverse credit
history, and then select another candidate, which could conceivably
require that the agency screen and consider additional candidates in
certain circumstances. But the commenters present no empirical evidence
that changing the timing of background screening will have a general
impact on time-to-hire, on the cost of background screening once it
occurs, or on the efficiency of the Federal hiring process generally.
As noted in the Notice of Proposed Rulemaking (81 FR at 26173), many
agencies already wait until the later
[[Page 86557]]
stages of the hiring process to collect criminal history information.
We also note that these comments do not adequately take into account
OPM's concern that early inquiries into an applicant's background,
including his or her criminal or credit history, could have the effect
of discouraging motivated, well-qualified individuals from applying for
a Federal job because they have an arrest record, when the arrest did
not result in a conviction or when, following a conviction, they have
fully complied with the penalty and have been rehabilitated in the eyes
of the law. This discouragement also could impose a cost on the hiring
process, by presenting hiring officials with a less competitive
candidate pool.
OPM does agree there may be limited circumstances or positions for
which it is appropriate for a hiring agency to collect information
about applicants' criminal or adverse credit history earlier in the
hiring process, rather than at the point at which a conditional offer
of employment is made to an applicant. The proposed rule allows for
agencies to request an exception from OPM to accommodate such
circumstances.
With respect to these commenters' concerns about fairness to
applicants, the intent of the proposed rule is to conform regulatory
requirements to what we believe is the predominant agency practice and
thus better serve the broader public policy ideal of providing
applicants from all segments of society, including those with prior
criminal histories, a fair opportunity to compete for Federal
employment. Deferring consideration of this information to the stage at
which suitability is adjudicated separates examining and assessment
process from suitability, thereby encouraging applicants with criminal
history to join the competition for vacant positions. It also means
that the agency defers collection of criminal history information until
the stage at which the agency is in a position to undertake a
suitability determination, which makes the final decision reviewable
and provides certain procedural protections.
Two individuals commented that the proposed rule may have adverse
national security implications because it could result in convicted
felons having access to sensitive information. A third individual
opposed the proposed rule and questioned the wisdom of hiring ex-
offenders who may then have access to employees' personal information
and to sensitive taxpayer records. OPM disagrees, noting that the
proposed rule is not eliminating the need for, nor mitigating the
thoroughness of, background investigations and appropriate related
adjudicative processes for applicants for Federal jobs. The proposed
rule simply impacts when during the hiring process inquiries into an
applicant's criminal or adverse credit history can begin.
Another individual commented that delaying preliminary background
screening could also delay the commencement of the full suitability
background investigation required before appointment (or to finalize a
contingent appointment) in the competitive service or the national
security background investigation required to adjudicate eligibility
for access to classified information. It is true that it could, in some
cases, defer the commencement of the full investigation, but we
believe, based upon earlier discussion with agencies, that most
agencies already wait until the end of the selection process to
commence those investigations. The proposed rule does not, in fact,
change the current standard under 736.201(c) that a personnel
background investigation may commence no later than the 14th day after
placement, but that if the investigation is for a national security-
sensitive position, it must both commence and be completed prior to
appointment unless one of the waiver or exception conditions described
in 5 CFR 1400.202 applies. The proposed rule is fully consistent with
the requirement in E.O. 12968 of Aug. 4, 1995, governing investigations
for eligibility for access to classified information, which provides
that ``[a]pplicants . . . required to provide relevant information
pertaining to their background and character for use in investigating
and adjudicating their eligibility for access'' are those who have
``received an authorized conditional offer of employment for a position
that requires access to classified information.'' E.O. 12968, 3 CFR,
1995 Comp., p. 391, secs. 1.1(b), 3.2(a), reprinted as amended in 5
U.S.C. 3161 note.
One commenter mistakenly believes the proposed rule will weaken
background checks, and thus poses a threat to the security of Federal
employees, the American people, and U.S. government assets and secrets.
The proposed rule does not, in any way, change the need to collect
background information after the conditional job offer has been made
and to evaluate any known issues prior to appointment (or after an
appointment that is contingent upon a favorable adjudication).
Similarly, it does not impact the integrity or thoroughness of the
background investigation process. The proposed rule only affects the
point at which an agency may collect information about an applicant's
criminal or adverse credit history.
Another individual believes the proposed rule will give the
perception that the Federal government is establishing a hiring
preference for ex-convicts or using Federal jobs as a relief-work or
program for ex-convicts, which could demoralize the Government's
workforce and discourage talented applicants from applying. This
comment does not pertain to the merits of the rule but rather,
expresses a concern that the rule will be misperceived to the detriment
of the Federal hiring process. OPM believes that this concern is
speculative. The proposed rule does not provide a hiring or selection
priority for ex-convicts, nor does it allow individuals to be appointed
who should be adjudicated unsuitable for Federal employment. Similarly,
it has no bearing on whether an individual requires eligibility for
access to classified information, and, if so, should be deemed eligible
under the adjudicative guidelines for such decisions. The rule simply
addresses at which point during the selection process an agency may
make inquiries into an applicant's background, thereby helping to
support a process where selections and conditional offers follow a fair
and open competition based on applicants' relative knowledge, skill,
and ability. In doing so, the rule is intended to attract all qualified
applicants by making it more clear that, subject to certain exceptions,
adverse background information will not be collected until after
applicants' competencies are assessed, thereby reinforcing the notion
that the Federal government is a model employer.
Three commenters supported deferring the collection of applicants'
criminal history information until later in the hiring process, but
proposed alternative approaches that they believed would achieve a
better balance between fairness versus timeliness, and efficiency. A
commenter from a Federal agency suggested the rule be modified to allow
agencies to administer the OF-306 when an employee is determined to be
within reach for selection. Another commenter from a Federal agency
suggested that the rule be modified to allow agencies to administer the
OF-306 at the time of scheduling an interview, i.e., after preliminary
qualifications screening but before selection. A professional
association recommended following an example from state government, of
conducting criminal history screening after an interview as part of the
final selection process. While all of these approaches have merit, OPM
is not adopting them
[[Page 86558]]
at this time because assessment instruments are not uniform across
civil service examinations. Some examinations have an interview
component while others do not; some employ multiple interviews.
Permitting criminal history screening at the time of a conditional
offer provides a uniform standard that is not dependent on the specific
instruments that are being used in a competitive examination to assess
applicant competencies.
Exception Based on Location or Type of Position
A professional organization commented that the process by which
agencies may seek exceptions to collect information earlier in the
process about applicants' criminal or credit history (on a case-by-case
basis) could result in additional delays. OPM will provide further
guidance after the publication of this final rule, but notes that an
agency will not have to wait until it has a vacant position to request
an exception. If there is a position or group of positions within the
agency for which there is a legitimate need to collect information
earlier in the process, the hiring agency may request an exception at
any time. Once an agency receives an exception from OPM to collect
background information from applicants for a particular position or
group of positions earlier in the hiring process, the agency will not
be required to request an exception subsequently, or each time, the
position is being filled thereafter.
Another professional organization suggested that OPM make clear in
the final rule that exceptions from the proposed changes must be
requested prior to the posting of any vacancy announcement to which it
will apply. Of course if an agency requests an exception on the ground
that it is necessary to ask for certain background information as an
aspect of determining whether a particular applicant is qualified for
the position, then, the agency, of necessity, would be required to make
that clear in advance of posting the job opportunity announcement. OPM
agrees with this suggestion, however, even when the exception is to be
requested in order to enable the agency to adjudicate suitability in
advance, and has amended proposed 5 CFR part 330 subpart M accordingly.
This organization suggested OPM modify 5 CFR 330.1300 by including
specific conditions under which OPM may grant an exception to these
provisions. OPM is not adopting this suggestion. OPM is not yet in a
position to anticipate all of the circumstances that could warrant an
exception, and wishes to gain experience with the regulation, and
explore further the sorts of situations agencies may bring to its
attention, before it limits its discretion to a list of specific
conditions. Therefore we prefer, at least for now, to provide examples
of the types of factors OPM will consider in determining whether to
grant an exception.
The same organization also suggested that the final rule include a
provision requiring agencies which are granted an exception to provide
notice of the exception in their job announcements for positions for
which the exception was granted. OPM agrees that agencies which receive
exceptions should provide notice of the exception in their job
announcements. Among other things, an agency that receives an exception
in order to use background information as an aspect of assessing
qualifications will, of necessity, need to disclose the qualifications
and how they will be assessed as part of the job opportunity
announcement. We do not believe a requirement in the final rule is
necessary; OPM will require notice in its approval letters granting
such exceptions.
One commenter from an agency and one individual suggested that OPM,
in the final rule, specifically exempt from these provisions positions
with law enforcement and national security duties. We see no reason why
an agency filling a position that is national security sensitive cannot
defer the collection of background information until after a putative
selection, based upon relative degree of knowledge, skills, and
abilities, has been made. Many agencies already do this. Moreover, even
as to law enforcement positions, OPM is not adopting this suggestion.
Because specific duties and agency requirements may differ, we prefer
to rely on the mechanism for exceptions described in the proposed rule
which allows agencies to request an exception for specific positions to
collect background information pertaining to an applicant's criminal or
adverse credit history earlier in the hiring process.
A coalition representing criminal justice reform groups and civil
and human rights advocates recommended that OPM permit no exception
allowing agencies to collect information about applicants' criminal or
adverse credit history prior to a conditional offer of employment. OPM
is not adopting this suggestion. OPM leaves open the possibility that
for certain positions there may be valid, job and position-related
reasons why an agency may seek to disqualify applicants with
significant criminal or adverse credit history backgrounds early in the
process (such as law enforcement positions requiring the eventual
appointee to be in a position to testify in legal proceedings). For
these reasons OPM is retaining the exception provision.
The coalition commented that, in the event the exception provision
is retained in the final rule, OPM should place the burden of proof on
agencies seeking exceptions, should adjudicate requests under a
rigorous standard of proof, and should give the public the opportunity
to respond in opposition to an agency's request for exception. OPM does
not adopt this suggestion. Currently, there are no limitations on the
point at which agencies may initiate the collection of background
information. The decision to impose the restriction is a policy
decision, not a legal requirement. Accordingly, we do not believe that
a uniform burden and standard of proof or a public notice-and-comment
process is necessary or would assist us in our decision-making process,
and it would be likely to unnecessarily delay the hiring process. The
manner in which OPM grants exceptions must be flexible.
Other Comments
One agency commented that asking applicants whether they have been
fired from a job, as is asked on the OF-306, in connection with
competitive hiring is a valid question and that restricting employers
from doing so before making a selection hinders the employer from fully
evaluating applicants and choosing the best candidate. Another agency
commented that it needs to use the OF-306 prior to a conditional offer
of employment because it is not just a background screening form, but
is also used to collect important applicant information related to an
applicant's citizenship, Selective Service registration status,
military service and type of discharge, and relatives. This information
is needed to ensure that candidates meet legal requirements for
appointment in competitive hiring. OPM agrees that inquiries into an
applicant's prior employment may have a bearing on his or her fitness
for the job and points out that the proposed rule does not restrict
agencies from collecting information about an applicant's prior
employment prior to making a selection. The context of the proposed
rule is information of the sort asked on the OF-306's `Background
Information' section specific to an applicant's criminal or adverse
credit history. These provisions also do not prevent a hiring agency
from collecting information about prior work history earlier in the
hiring process. OPM has
[[Page 86559]]
amended the final rule to provide greater clarity with respect to this
issue.
OPM notes in this regard that agencies are not required to sponsor
or conduct separate information collections subject to Office of
Management and Budget (OMB) clearance in order to ask these kinds of
questions to applicants as part of the competitive Civil Service hiring
process. Under OMB's regulations implementing the Paperwork Reduction
Act (PRA), ``[e]xaminations designed to test the aptitude, abilities,
or knowledge of the persons tested and the collection of information
for identification or classification in connection with such
examinations'' do not constitute information collections subject to the
PRA's requirements. See 5 CFR 1320.3(h)(7).
One individual asked whether the proposed rule was ``politically
motivated'' for an electoral purpose. It was not. The origins of the
proposed rule began several years ago. OPM proposed this rule to better
harmonize the the requirements concerning the timing and objectives of
the merit selection process and the suitability function.
One professional organization supports the proposal to include
these rules under 5 CFR part 731 to ensure that any non-selections
based on information from the OF-306 are appealable to the Merit
Systems Protection Board (MSPB) under 5 CFR part 731.501. It appears
the commenter may have misinterpreted the proposed rule. Only
suitability actions as defined in 5 CFR part 731.203 (cancellation of
eligibility, removal, cancellation of reinstatement rights, and
debarment) are appealable to the MSPB. Nonselection is not appealable,
as stated in 5 CFR 302.406(g) and 731.203(b).
The same organization recommended that OPM codify in the final
rules the mitigating factors described in section 2(b)(i-iii) of the
Presidential memorandum titled, ``Promoting Rehabilitation and
Reintegration of Formerly Incarcerated Individuals'' (81 FR 26993,
26995). OPM is not adopting this suggestion because these criteria
pertain to occupational licensure, not to whether an individual is
suitable for Federal employment. The purpose of the proposed rule is to
affect at what point in the hiring process an agency may make inquiries
into an applicant's background, not to impact the criteria used to
determine an applicant's suitability for employment. However, we note
that separate sections of this Memorandum are relevant to this rule.
Section 1 formally reconstitutes the Federal Interagency Reentry
Council as a Presidentially-established Council; section 1(a)(xvii)
formalizes OPM's membership; and section 2(a) directs that ``Agencies
making suitability determinations for Federal employment shall review
their procedures for evaluating an applicant's criminal records to
ensure compliance with 5 CFR part 731 and any related, binding guidance
issued by the Office of Personnel Management, with the aim of
evaluating each individual's character and conduct.'' OPM expects that
this rule will assist agencies in complying with the President's
mandate.
This organization also asked that OPM amend its suitability
regulations to require an agency to include a record of any exception
granted by OPM, permitting it to conduct suitability screening prior to
a conditional offer of employment, as part of the ``materials relied
upon'' in charging an individual. OPM does not accept this
recommendation, because the timing of a suitability inquiry is
unrelated to the charges brought against an applicant, appointee, or
employee in a proposed suitability action.
A coalition representing criminal justice reform groups and civil
and human rights advocates recommended that OPM implement a centralized
means of collecting data on the impact of the proposed rule by
documenting the number of conditional offers and final hiring decisions
of persons with prior convictions. The coalition believes this data
would help maintain the integrity of the background check process and
also help with oversight. OPM is not adopting this suggestion as part
of the rulemaking but will oversee agencies' compliance with the rule,
as part of the merit system audit and compliance process under Civil
Service Rules V and X.
The coalition also suggested the proposed rules should apply to
positions filled in the excepted service. OPM notes these provisions do
apply to certain positions in the excepted service. OPM is not
accepting this recommendation as to all excepted service positions, but
notes that under the current suitability regulations at 5 CFR
731.101(b), the definition of ``Covered Position'' includes a small
subset of excepted service positions within OPM's jurisdiction, namely
positions in the excepted service ``where the incumbent can be
noncompetitively converted to the competitive service. . . .''
For other positions in the excepted service, OPM generally lacks
the authority to prescribe qualification, fitness, or suitability
standards or to regulate the timing of employer inquiries. For those
positions excepted from the competitive service by Acts of Congress,
hiring procedures and standards for making qualification or fitness
determinations may be prescribed by statute. Where the statute is
silent, or where the exception from the competitive service is made by
the President (or by OPM under presidential delegation), Civil Service
Rule VI, Sec. 6.3(b) states that ``[t]o the extent permitted by law
and the provisions of this part, appointments and position changes in
the excepted service shall be made in accordance with such regulations
and practices as the head of the agency concerned finds necessary.''
See 5 CFR 6.3(b) (codifying this section of the Rule). Agency heads
have the discretion to decide whether or not to establish criteria for
making fitness determinations and determine whether their standards are
equivalent to suitability standards established by OPM (but must
consider OPM guidance when exercising this discretion). See Section 3
of E.O. 13488 of January 16, 2009, 3 CFR, 2009 Comp., p. 189.
The coalition notes, in support of its comment, that under Civil
Service Rule VI, Sec. 6.3(a), ``OPM, in its discretion, may by
regulation prescribe conditions under which excepted positions may be
filled in the same manner as competitive positions are filled and
conditions under which persons so appointed may acquire a competitive
status in accordance with the Civil Service Rules and Regulations.''
The coalition cites this provision as ``clear authority'' for OPM to
impose identical hiring requirements on the excepted service. However,
the cited provision is not authority for OPM to override the discretion
given to agencies in filling positions in the excepted service. Rather,
it is a mechanism for OPM to permit agencies to hire for the excepted
service in the same manner as for the competitive service and upon
doing so, to give competitive status (i.e., the ability to be
noncompetitively assigned to positions in the competitive service) to
excepted service employees who have been hired in that manner. See 5
CFR 212.301, 302.102(c).
The coalition suggested that OPM include language in the final rule
that requires agencies to comply with title VII of the Civil Rights Act
of 1964, and Equal Employment Opportunity Commission (EEOC) guidelines
pertaining to the use of conviction records in hiring decisions,
including an individualized assessment of applicants' criminal history.
OPM is not adopting this suggestion because these rules only pertain to
the timing of inquiries into an applicant's criminal or adverse credit
history, not to the selection process for
[[Page 86560]]
Federal employment, and agencies have an independent obligation to
comply with title VII.
Changes to the OF-306
One agency and a coalition representing criminal justice reform
groups and civil and human rights advocates suggested OPM also make
changes to the OF-306 to facilitate the rule's implementation. OPM is
not addressing these comments at this time because the OF-306 and other
investigative questionnaires are not promulgated through rulemaking,
but through the separate PRA process. The comments may be resubmitted
when the information collections are up for renewal under the PRA.
One individual suggested that OPM remove the requirement to provide
a Social Security number (SSN) on the OF-306. OPM is not adopting this
suggestion because it is beyond the scope of the proposed rule, which
pertains to when during the hiring process an agency may collect
information about an applicant's criminal or adverse credit history.
Comments Outside the Scope of the Proposed Rule
A private company commented that the proposed rule will
inadvertently deter private sector employers from taking advantage of
the Work Opportunity Tax Credit (WOTC), which is designed to encourage
private employers to hire people with criminal histories, among others.
This company requests that OPM clarify in the final rule that private
employers can use the WOTC credit without violating these provisions.
This comment is beyond the scope of the proposed regulations, which
only pertain to Federal employment. OPM suggests private companies
consult the Internal Revenue Service for information concerning the
WOTC.
The same company suggested that OPM make clear in the final rule
that these provisions only pertain to Federal employment. OPM is not
adopting this suggestion because we do not believe such clarification
is necessary. By statute and under the Civil Service Rules, OPM's
jurisdiction in these matters is limited to Federal employment.
One organization similarly expressed concern that the proposed rule
may persuade state and local governments to enact regulatory or
contractual measures which, in turn, impose burdensome requirements on
private investigative and security firms. The comment is not
accompanied by a specific recommendation related to the rulemaking, and
is speculative, so there is no basis for OPM to consider the comment.
A coalition representing criminal justice reform groups and civil
and human rights advocates recommended that OPM also extend these rules
to its contractors. OPM cannot adopt this suggestion as part of the
rulemaking, which pertains only to competitive Federal hiring, not
contracting.
One individual asked whether there is evidence that ``many''
agencies administer the Optional Form (OF) 306, ``Declaration for
Federal Employment'' prior to the point at which a tentative job offer
is made. OPM stated in the Supplementary Information section of the
proposed rule that to the contrary ``many agencies already . . . wait
until the later stages of the hiring process to collect this kind of
information.'' (81 FR at 26173.) This assertion is based upon the
results of a survey we conducted on this matter. This survey was
developed and issued to all Chief Human Capital Officers Act agencies.
Eighteen (18) agencies/sub-agencies responded to the survey. The
comment was not accompanied by a recommendation related to the
rulemaking, so there is no basis to consider the comment.
Two commenters opposed the proposed rule in the mistaken belief
that the rule's purpose was to improve employment opportunities for
individuals who had become criminals ``through no fault of their own.''
The commenters were apparently confused by a citation, in the proposed
rule's Supplementary Information (81 FR at 26174), to a 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). OPM
cited the memorandum as a basis to defer the collection of certain
applicant employment or credit information until the later stages of
the hiring process, not for the reasons the commenters suggested.
Because the comments were based on a faulty premise, OPM did not
consider them.
One commenter asked that OPM revise the proposed rule to improve
the formula for cost-of-living allowances for annuities. The comment
was outside the scope of the proposal and was not considered.
Executive Order 13563 and Executive Order 12866, Regulatory Review
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and 12866.
Regulatory Flexibility Act
I certify that these 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 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 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 rule 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 final regulatory action will not impose any additional
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
List of Subjects
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 amending 5 CFR parts 330 and 731 as follows:
[[Page 86561]]
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 criminal or credit background of the sort asked on the OF-
306 or other forms used to conduct suitability investigations for
Federal employment (i.e., inquiries into an applicant's criminal or
adverse credit history) unless the hiring agency has made a conditional
offer of employment to the applicant. Agencies may make inquiries into
an applicant's Selective Service registration, military service,
citizenship status, or previous work history, prior to making a
conditional offer of employment to an 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 why the agency needs to evaluate an applicant's criminal or
adverse credit history 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 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 his or her selection
can be finalized). A hiring agency must request and receive an OPM-
approved exception prior to issuing public notice for a position for
which the agency will collect background information prior to
completion of the assessment process and the making of a conditional
offer of employment.
PART 731--SUITABILITY
0
3. The authority citation for part 731 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. In Sec. 731.103, revise paragraph (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 criminal or credit background of the sort asked on the
OF-306 or other forms used to conduct suitability investigations for
Federal employment (i.e., inquiries into an applicant's criminal or
adverse credit history) unless the hiring agency has made a conditional
offer of employment to the applicant. Agencies may make inquiries into
an applicant's Selective Service registration, military service,
citizenship status, or previous work history, prior to making a
conditional offer of employment to an 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. 2016-28782 Filed 11-30-16; 8:45 am]
BILLING CODE 6325-39-P