[Federal Register Volume 82, Number 71 (Friday, April 14, 2017)]
[Notices]
[Pages 18020-18023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07609]


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OFFICE OF PERSONNEL MANAGEMENT


Notice of Submission for Approval: Questionnaire for Public Trust 
Positions (SF 85P) and Supplemental Questionnaire for Selected 
Positions (SF 85P-S)

AGENCY: U.S. Office of Personnel Management.

ACTION: 30-Day notice and request for comments.

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SUMMARY: The National Background Investigation Bureau (NBIB), U.S. 
Office of Personnel Management (OPM) is notifying the general public 
and other Federal agencies that OPM is seeking Office of Management and 
Budget (OMB) approval of a revised information collection, 
Questionnaire for Public Trust Positions (SF 85P) and Supplemental 
Questionnaire for Selected Positions (SF 85P-S).

DATES: Comments are encouraged and will be accepted until May 15, 2017. 
This process is conducted in accordance with 5 CFR 1320.10.

[[Page 18021]]


ADDRESSES: Interested persons are invited to submit written comments on 
the proposed information collection to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, Attention: Desk Officer for the Office of 
Personnel Management or sent via electronic mail to 
[email protected] or faxed to (202) 395-6974.

FOR FURTHER INFORMATION CONTACT:  A copy of this information 
collection, with applicable supporting documentation, may be obtained 
by contacting NBIB, U.S. Office of Personnel Management, 1900 E Street 
NW., Washington, DC 20415, Attention: Donna McLeod or by electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION: As required by the Paperwork Reduction Act 
of 1995, 44 U.S.C. 3507(a)(1), OPM is providing an additional 30 days 
for public comments. OPM previously solicited comments for this 
collection, with a 60-day public comment period, at 81 FR 16224 (March 
25, 2016).
    This notice announces that OPM has submitted to OMB a request for 
review and clearance of a revised information collection (OMB No. 3206-
0258) Questionnaire for Public Trust Positions (SF 85P) and 
Supplemental Questionnaire for Selected Positions (SF 85P-S). The 
public has an additional 30-day opportunity to comment.
    The SF 85P and SF 85P-S are completed by applicants for, or 
incumbents of, Federal Government civilian positions, or positions in 
private entities performing work for the Federal Government under 
contract. For applicants to Federal positions, the SF 85P and SF 85P-S 
are to be used only after a conditional offer of employment has been 
made. The SF 85P-S is supplemental to the SF 85P and is used only as 
approved by OPM, for certain positions such as those requiring carrying 
of a firearm. Electronic Questionnaires for Investigations Processing 
(e-QIP) is a web-based system application that houses the SF 85P and SF 
85P-S. A variable in assessing burden hours is the nature of the 
electronic application. The electronic application includes branching 
questions and instructions which provide for a tailored collection from 
the respondent based on varying factors in the respondent's personal 
history. The burden on the respondent is reduced when the respondent's 
personal history is not relevant to particular question, since the 
question branches, or expands for additional details, only for those 
persons who have pertinent information to provide regarding that line 
of questioning. Accordingly, the burden on the respondent will vary 
depending on whether the information collection relates to the 
respondent's personal history.
    The 60-day Federal Register Notice was published on March 25, 2016 
(81 FR 16224). Comments were received from the U.S. Postal Inspection 
Service (USPIS), Alcohol, Tobacco and Firearms (ATF HQ-DoJ), an 
individual from VHA Servicing HR Office (VSHO), the National Treasury 
Employees Union (NTEU), and the Electronic Privacy Information Center 
(EPIC).
    A commenter from VSHO provided that initiating background 
investigations after conditional offer of employment led to significant 
delays with onboarding new employees and executing the agency's 
mission. According to the commenter, mandating limits on an agency's 
ability to collect investigative documents within its own timeframes 
can negatively impact the speed of hiring. OPM did not accept the 
recommendation. An agency's internal hiring procedures are established 
by policies for the agency and do not fall under the intended purpose 
of this information collection. Also, the agency should note that in 
accordance with recent changes found in 5 CFR 731.103, 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 employment unless the hiring 
agency has made a conditional offer of employment to the applicant. 
Requests for an exception to this requirement must be submitted to the 
Office of Personnel Management, in accordance with the provision of 5 
CFR part 330 subpart M.
    A commenter from USPIS recommended that another authorization 
paragraph be added to the release form to accommodate the IRS tax-payer 
consent requirement needed to search tax-payer records. OPM did not 
accept this comment. IRS has indicated that a separate distinct release 
apart from an authorization form is needed to conduct such record 
searches when necessary and appropriate.
    A commenter from ATF HQ-DoJ submitted a recommendation that the 
Alien Registration Number should be mandatory if applicant indicates 
being a naturalized United States Citizen, a legal permanent resident, 
or a person applying for legal status. OPM did not accept this comment. 
While use of the alien registration number may yield better results for 
confirming citizenship status, it is possible for a person born outside 
of the United States not to have an alien registration number. For this 
reason providing the alien registration number cannot be mandatory. 
Another recommendation from a commenter with ATF HQ-DoJ indicated that 
section13a (Employment Activities-Employment & Unemployment Record) 
should have more detailed instructions when listing employment with the 
same employer but at different locations. OPM acknowledged the need for 
this change as part of the proposed changes identified in the 60 day 
Federal Register notice publication for this collection.
    Comments were received from NTEU and EPIC regarding recent 
activities surrounding the data breach experienced at the U.S. Office 
of Personnel Management. Concerns were expressed regarding OPM's 
ability to secure the information collected from the standard forms. No 
action is taken in reference to the comments because they are outside 
the purpose of this information collection request. OPM notes that 
information has been communicated through many forums regarding work 
underway at OPM and across the government to safeguard personnel 
records and enhance the security and effectiveness of federal 
background investigations. OPM also notes that information regarding 
the cybersecurity incidents is available at www.opm.gov/cybersecurity.
    EPIC commented that OPM's proposal to collect information from 
social media activity as part of the employment background 
investigation raises significant privacy and civil liberty concerns and 
that this information should not be collected as part of the employment 
background investigation. OPM did not accept this comment as it is 
outside the purpose of the information collection request. OPM has 
already determined that background investigations may appropriately 
collect publicly available electronic information, including public 
posts on social media. The change to the information collection request 
is to more explicitly convey to the individual whose consent is 
required in order for OPM to conduct the investigation that the 
investigation may include collection of publicly available electronic 
information.
    EPIC commented on OPM's proposal to revise instructions in section 
21 (Illegal Use of Drugs and Drug Activity) to include the advisement 
that ``the following questions pertain to the illegal use of drugs or 
controlled substances or drug or controlled substance activity not in 
accordance with Federal laws, even though permissible under state 
laws.''

[[Page 18022]]

EPIC claims that 20 states have legalized medical marijuana and that 
requiring individuals to disclose their use of medical marijuana 
implicates significant privacy interests in medical information and 
treatment confidentiality. OPM did not accept this comment because 
knowing or intentional possession of marijuana, even for personal use, 
is illegal under Federal law. Unlawful possession of marijuana, or 
marijuana abuse without evidence of substantial rehabilitation, can 
raise questions about an applicant's or employee's reliability, 
judgment, and trustworthiness or ability or willingness to comply with 
laws, rules, and regulations, thus indicating his or her employment 
might not promote the efficiency or protect the integrity of the 
service. Further, from a credentialing perspective, an agency must 
evaluate whether an applicant's or employee's abuse of drugs may put 
people, property, or information systems at risk.
    However, in response to EPIC's concerns, OPM notes that it recently 
issued government-wide guidance that an individual's marijuana-related 
conduct must be evaluated on a case-by-case basis, and explaining that 
a suitability determination based on unlawful marijuana possession must 
include consideration of the nature and seriousness of the conduct, the 
circumstances surrounding the conduct, and contributing societal 
conditions. In the same guidance OPM reminded Federal agencies of 
responsibilities for appropriate prevention, treatment, and 
rehabilitation programs and services for Federal civilian employees 
with drug problems. See https://www.chcoc.gov/content/federal-laws-and-policies-prohibiting-marijuana-use.
    EPIC also commented that OPM's proposal to revise ``defendant in'' 
to ``party to'' any public record civil court action(s) in section 26 
(Involvement in Non-Criminal Court Actions) could encompass child 
custody disputes and divorce proceedings, and require domestic abuse 
survivors to provide details about restraining orders they have 
obtained and could reveal highly personal and sensitive information 
that is unrelated to employment eligibility. OPM did not accept this 
comment as the collection of information regarding civil and criminal 
records is required for OPM to meet federal investigative standards 
designed to provide relevant information to support adjudication of the 
background investigation.
    The Privacy Act Routine Uses provided on the form were updated to 
conform to the most recent publication of routine uses by OPM.
    Changes were made to the authorization release pages to maintain 
consistency, as applicable, with authorization forms used for 
conducting background investigations.
    OPM added clarifying language to the ``Authorization for Release of 
Information'' to specify that information collected during the 
background investigation may include publicly available social media 
information. OPM also added an explanation that publicly available 
social media information includes any electronic social media 
information that has been published or broadcast for public 
consumption, is available on request to the public, is accessible on-
line to the public, is available to the public by subscription or 
purchase, or is otherwise lawfully accessible to the public. The 
respondent is further advised that consent provided through the 
authorization does not require the respondent to provide passwords; log 
into a private account; or take any action that would disclose non-
publicly available social media information.
    OPM amended the ``Authorization for Release of Information'' to 
include the addition of other entities (Department of Homeland Security 
and the Office of the Director of National Intelligence) that are 
authorized to request criminal record information from criminal justice 
agencies for the purpose of determining the respondent's eligibility 
for assignment to, or retention in, a public trust position. This 
change is in accordance with the recent amendment to 5 U.S.C. 9101.
    OPM added language to the ``Authorization for Release of Medical 
Information Pursuant to the Health Insurance Portability and 
Accountability Act'' to provide explanatory information as to the need 
for information about respondents' mental health conditions, in certain 
circumstances, to assist in assessing suitability for positions of 
public trust with the Federal government. The release was also amended 
to inform the respondent that (1) should the respondent seek to revoke 
the authorization, the respondent should write to the respondent's 
health care provider or entity, and (2) revocation of the authorization 
would not be effective until received by the respondent's health care 
provider or entity.
    OPM amended the ``Fair Credit Reporting Disclosure and 
Authorization'' to provide additional information regarding the impact 
of a security freeze on the respondent's consumer or credit report file 
on the investigation process. Information regarding the need for the 
respondent's Social Security number was removed as the information was 
duplicative of information already provided in the SF 85P instructions.
    OPM proposes changes to the SF 85P-S, Question 5, ``Your Medical 
Record'' to include re-titling to ``Psychological and Emotional 
Health.'' The new section will clarify support for mental health 
treatment and encourage pro-active management of mental health 
conditions to support wellness and recovery.
    The proposed revision to the SF 85P-S, Question 5 will inquire as 
to whether a court or administrative agency has ever issued an order 
declaring the respondent mentally incompetent; whether a court or 
administrative agency has ever ordered the respondent to consult with a 
mental health professional; and whether the respondent has ever been 
diagnosed by a physician or other health professional with psychotic 
disorder, schizophrenia, schizoaffective disorder, delusional disorder, 
bipolar mood disorder, borderline personality disorder, or antisocial 
personality disorder. A respondent who answers affirmatively to the 
latter question is asked whether, in the last five years, there have 
been any occasions when the respondent did not consult with a medical 
professional before altering or discontinuing, or failing to start a 
prescribed course of treatment for any of the listed diagnoses. A 
respondent who answers ``no'' to each of the previous questions is 
asked whether the respondent has a mental health or other health 
condition that substantially adversely affects his or her judgment, 
reliability, or trustworthiness even if he or she is not experiencing 
such symptoms today. These questions are necessary to satisfy 
adjudicative decision-making regarding suitability or fitness 
determinations for the population of individuals required to complete 
the SF 85PS. As noted, the SF 85P-S form, and this question, is only 
used for certain public trust positions that pose special risks, such 
as law enforcement positions in which the incumbents are required to 
carry firearms.

Analysis

    Agency: NBIB, U.S. Office of Personnel Management.
    Title: Questionnaire for Public Trust Positions (SF 85P) and 
Supplemental Questionnaire for Selected Positions (SF 85P-S).
    OMB Number: 3206-0258.
    Affected Public: Completed by applicants for, or incumbents of, 
Federal Government civilian positions, or positions in private entities 
performing

[[Page 18023]]

work for the Federal Government under contract.
    Number of Respondents: 112,894 (SF 85P); 11,717 (SF 85P-S).
    Estimated Time per Respondent: 155 minutes (SF 85P); 10 minutes (SF 
85P-S).
    Total Burden Hours: 291,643 (SF 85P); 1,953 (SF 85P-S).

U.S. Office of Personnel Management.
Kathleen M. McGettigan,
Acting Director.
[FR Doc. 2017-07609 Filed 4-13-17; 8:45 am]
 BILLING CODE 6325-53-P