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