[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Notices]
[Pages 10923-10925]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4353]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF PERSONNEL MANAGEMENT


Submission for Review: Extension of an Expiring Information 
Collection 3206-0165; General Request for Investigative Information 
(INV 40) on Employment Data and Supervisor Information (INV 41), 
Personal Information (INV 42), Educational Registrar and Dean of 
Students Record Data (INV 43), and Law Enforcement Data (INV 44)

AGENCY: U.S. Office of Personnel Management.

ACTION: 30-Day notice and request for comments.

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

SUMMARY: The Federal Investigative Services (FIS), U.S. Office of 
Personnel Management (OPM) offers the general public and other Federal 
agencies the opportunity to comment on the extension of an expiring 
information collection request (ICR), Office of Management and Budget 
(OMB) Control No. 3206-0165, for the General Request for Investigative 
Information (INV 40), the Investigative Request for Employment Data and 
Supervisor Information (INV 41), the Investigative Request for Personal 
Information (INV 42), the Investigative Request for Educational 
Registrar and Dean of Students Record Data (INV 43), and the 
Investigative Request for Law Enforcement Data (INV 44). As required by 
the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter 
35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is 
soliciting comments for this collection. The Office of Management and 
Budget (OMB) is particularly interested in comments that:
    1. Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    2. Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submissions of responses.

DATES: Comments are encouraged and will be accepted until March 30, 
2011. This process is conducted in accordance with 5 CFR 1320.1.

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 oira_submission@opm.eop.gov or faxed to (202) 395-6974; and Federal 
Investigative Services, U.S. Office of Personnel Management, 1900 E 
Street, NW., Washington, DC 20415, Attention: Lisa Loss or sent via 
electronic mail to FISFormsComments@opm.gov.

FOR FURTHER INFORMATION CONTACT: A copy of this ICR, with applicable 
supporting documentation, may be obtained by contacting the Federal 
Investigative Services, U.S. Office of Personnel Management, 1900 E. 
Street, NW., Washington, DC 20415, Attention:

[[Page 10924]]

Lisa Loss or sent via electronic mail to FISFormsComments@opm.gov.

SUPPLEMENTARY INFORMATION: Section 3(a) of Executive Order (E.O.) 
10450, as amended, states that with specified exceptions, ``the 
appointment of each civilian officer or employee in any department or 
agency of the Government shall be made subject to investigation,'' and 
that ``in no event shall the investigation consist of less than a 
national agency check * * * and written inquiries to appropriate local 
law enforcement agencies, former employers and supervisors, references, 
and schools attended by the persons under investigation.'' This minimum 
investigation for appointment in the civil service is called the 
National Agency Check with Inquiries (NACI).
    The INV 40, 41, 42, 43, and 44 are used to conduct the ``written 
inquiries'' portion of the NACI. They are also used in any 
investigation requiring the same written inquiries, including 
suitability investigations under E.O. 10577, as amended and 5 CFR part 
731, for employment in positions defined in 5 CFR 731.101(b); 
investigations for employment in a sensitive national security position 
under E.O. 10450, as amended and 5 CFR part 732; certain investigations 
for eligibility for access to classified information pursuant to 
standards promulgated under E.O. 12968, as amended; certain 
investigations for fitness for employment in the excepted service or as 
a contract employee, pursuant to investigative requirements prescribed 
by employing and contracting agencies; and investigations for identity 
credentials for long-term physical and logical access to Federally-
controlled facilities and information systems, pursuant to standards 
promulgated under the Federal Information Security Management Act. The 
INV forms 40 and 44, in particular, facilitate OPM's access to criminal 
history record information under 5 U.S.C. 9101.
    The content of the INV forms is also designed to meet notice 
requirements for personnel investigations specified by 5 CFR 
736.102(c). These notice requirements apply to any ``investigation * * 
* to determine the suitability, eligibility, or qualifications of 
individuals for Federal employment, for work on Federal contracts, or 
for access to classified information or restricted areas.''
    None of the forms is used for any purpose other than a personnel 
background investigation, as described above. The completed forms are 
maintained by OPM subject to the protections of the Privacy Act of 
1974, as amended.
    Procedurally, the subject of a personnel background investigation 
discloses the identity of relevant sources, such as supervisors, 
coworkers, neighbors, friends, current or former spouses, instructors, 
relatives, or schools attended, on the standard form (SF) 85, 
Questionnaire for Non-Sensitive Positions; the SF 85P, Questionnaire 
for Public Trust Positions; or the SF 86, Questionnaire for National 
Security Positions. After OPM receives a completed SF 85, SF 85P, or SF 
86, the INV forms are distributed to the provided source contacts 
through an automated mailing operation.
    The INV 40 is used to collect records from a Federal or State 
record repository or a credit bureau. The INV 44 is used to collect law 
enforcement data from a criminal justice agency. The INV 41, 42, and 43 
are sent to employment references, associates, and schools attended. 
The forms disclose that the source's name was provided by the subject 
to assist in completing a background investigation to help determine 
the subject's suitability for employment or security clearance, and 
request that the source complete the form with information to help in 
this determination. Generally the subject of the investigation will 
identify these employment references, associates, and schools on his or 
her SF 85, SF 85P, or SF 86 questionnaire. If information is omitted on 
the questionnaire, however, the information may be provided in a 
follow-up contact between the subject and an investigator. By their 
terms, the INV 41, 42, and 43 forms are not to be sent to employment 
references, associates, and schools that have not been identified by 
the subject of the investigation.
    Approximately 279,000 INV 40 inquiries are sent to Federal and non-
Federal agencies annually. The INV 40 takes approximately five minutes 
to complete. The estimated annual burden is 23,250 hours. Approximately 
2,243,000 INV 41 inquiries are sent to previous and present employers 
and supervisors. The INV 41 takes approximately five minutes to 
complete. The estimated annual burden is 186,900 hours. Approximately 
1,882,000 INV 42 inquiries are sent to individuals annually. The INV 42 
takes approximately five minutes to complete. The estimated annual 
burden is 156,800 hours. Approximately 464,000 INV 43 inquiries are 
sent to educational institutions annually. The INV 43 takes 
approximately five minutes to complete. The estimated annual burden is 
38,700 hours. Approximately 1,546,000 INV 44 inquiries are sent to law 
enforcement agencies annually. The INV 44 takes approximately five 
minutes to complete. The estimated annual burden is 128,800 hours. The 
total number of respondents for the INV 40, INV 41, INV 42, INV 43, and 
INV 44 is 6,135,200 and the total estimated burden is 511,200 hours.
    A notice of the proposed information collection was published in 
the Federal Register on February 2, 2010 (Federal Register Notices/
Volume 75, Number 21, pages 5358-5359), as required by 5 CFR part 1320, 
affording the public an opportunity to comment on the form(s). Two (2) 
comments were received and are addressed as follows. The National 
Treasury Employees Union provided four areas of comment:
    a. NTEU commented that INV 41, 42, and 43 solicit ``adverse 
information'' about the subject of the investigation that is not 
``relevant and necessary'' to OPM's purposes. OPM believes that the 
forms are a reasonable means to collect information relevant to the 
investigations for which the forms are used. Open-ended questions are 
the most effective means to gather source information in an 
investigation, since leading questions will tend to distort responses. 
On January 19, 2011, the Supreme Court ruled in National Aeronautics 
and Space Administration v. Nelson, 131 S. Ct. 746, that the INV 42 
form's ``open-ended inquiries * * * are reasonably aimed at identifying 
capable employees who will faithfully conduct the Government's 
business'' and that these inquiries ``further the Government's 
interests in managing its internal operations.'' 131 S. Ct. at 759, 
761. The forms include instructions designed to prevent irrelevant 
responses. Moreover, since OPM is required by executive order to make 
these inquiries in connection with personnel investigations, retention 
of the forms in OPM's system of investigative records is consistent 
with Privacy Act requirements.
    b. NTEU commented that the INV 41, 42, and 43 require disclosure of 
highly personal information that is not narrowly tailored to meet the 
government's needs. OPM rejects the commenter's assertion. The Supreme 
Court ruled in Nelson that the Government, ``when it requests job-
related personal information in an employment background check,'' does 
not have ``a constitutional burden to demonstrate that its questions 
are `necessary' or the least restrictive means of furthering its 
interests.'' 131 S. Ct. at 760. OPM concludes that the information 
collection is appropriate for the investigations in which it may be 
used, namely investigations of

[[Page 10925]]

suitability for Federal employment; investigations for employment in a 
sensitive national security position; investigations for eligibility 
for access to classified information; investigations for fitness for 
employment in the excepted service or as a contract employee; and 
investigations for identity credentials for long-term physical and 
logical access to Federally controlled facilities and information 
systems. Further, there are adequate protections against the 
unauthorized redisclosure of reports of investigation in the Privacy 
Act. See Nelson, 131 S. Ct. at 762-64. Additional protections are found 
in section 9(c) of E.O. 10450, as amended, and in agency restrictions 
on the release of personally identifiable information.
    c. NTEU commented that the forms request information beyond that to 
which the employee has consented in the Authorization for Release of 
Information as there is no indication that information regarding 
general behavior and conduct will be solicited from individuals who 
might offer information regarding personal habits. The commenter is 
incorrect. The authorization is part of a questionnaire that 
specifically informs the subject that the investigative process is 
designed to develop information to show ``whether you are reliable and 
trustworthy, and of good conduct and character.''
    d. NTEU commented that the forms do not adequately explain the 
purpose for which the information is sought and its routine nature, and 
therefore allow the reference to infer that the subject is under 
suspicion of wrongdoing. OPM has received no evidence to support this 
suggestion during its longstanding use of these forms. The form 
instructions make clear that the form is part of a background vetting 
process, not part of a criminal or disciplinary proceeding.
    An OPM investigator commented that the INV 44 should instruct 
responding law enforcement agencies to withhold traffic violations if 
the fine was less than $300 and did not involve alcohol or drugs, since 
subjects of national security investigations are not required to 
disclose such violations on their SF 86, Questionnaire for National 
Security Positions. OPM does not accept this recommendation at this 
time because (1) the INV 44 is used for investigations based on other 
investigative questionnaires (SF 85, SF 85P) which do not include 
exceptions for traffic violations that resulted in fines less than 
$300; and (2) subjecting responding law enforcement agencies to the 
burden of parsing such violations from their records when responding to 
OPM requests may deter responses or result in response errors.
    OPM is proposing to modify INV forms 40, 41, and 42 to provide 
instruction to respondents to mark, by making a check, when the 
respondent requests confidentiality of his or her identity, and to call 
an office at OPM to receive approval of the request before completing 
the form. The purpose of this change is to more clearly establish the 
granting of confidentiality as permitted by the Privacy Act of 1974 and 
OPM's implementing regulations.

    U.S. Office of Personnel Management.
John Berry,
Director.
[FR Doc. 2011-4353 Filed 2-25-11; 8:45 am]
BILLING CODE 6325-53-P