Fair Chance To Compete for Jobs, 60317-60333 [2023-18242]

Agencies

• Office of Personnel Management

[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Rules and Regulations]
[Pages 60317-60333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18242]



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Rules and Regulations
                                                Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / 
Rules and Regulations

[[Page 60317]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 302, 317, 319, 330, 731, 754, and 920

RIN 3206-AO00


Fair Chance To Compete for Jobs

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations governing when, during the hiring process, a hiring agency 
can request information typically collected during a background 
investigation from an applicant for Federal employment. In addition, 
OPM is issuing new regulations establishing the requirement for the 
timing of collection of criminal history information and for governing 
complaint procedures under which an applicant for a position in the 
civil service may submit a complaint, or any other information, 
relating to compliance by an employee of an agency in reference to the 
timing of collection of criminal history information. Furthermore, the 
final rule outlines adverse action procedures that apply when it is 
alleged that an agency employee has violated the requirements and 
appeal procedures that will be available from a determination by OPM 
adverse to the Federal employee. Nothing in this rule shall be read in 
derogation of any individual's rights under Title VII. This rule 
implements the Fair Chance to Compete for Jobs Act of 2019 (Fair Chance 
Act). With some exceptions, the Fair Chance Act prohibits Federal 
agencies and Federal contractors acting on their behalf from requesting 
that an applicant for Federal employment disclose criminal history 
record information before the agency makes a conditional offer of 
employment to that applicant. The Fair Chance Act identifies some 
positions to which the prohibition shall not apply. It also requires 
OPM to establish complaint procedures under which an applicant for a 
position in the civil service may submit a complaint, or any other 
information, relating to compliance with the Fair Chance Act by an 
employee of an agency, establishes minimum penalties and procedures to 
be followed before a penalty may be assessed, and requires OPM to 
establish appeal procedures available in the event of a determination 
adverse to the Federal employee.

DATES: Effective October 2, 2023.

FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at 
[email protected] or by telephone at (202) 606-2930, with 
respect to 5 CFR part 754; Lisa Loss by email at [email protected] or by 
telephone at (202) 606-7017, with respect to 5 CFR part 731; and Mike 
Gilmore by email at [email protected] or by telephone at (202) 
936-3261, by fax at (202) 606-4430, or by TTY at (202) 418-3134for all 
other parts.

SUPPLEMENTARY INFORMATION:

Background

    Provisions of the Fair Chance Act were incorporated into the 
National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-
92), which was signed into law by the President on December 20, 2019. 
The Fair Chance Act places limitations on agency requests for criminal 
history record information prior to a conditional offer of employment. 
It also requires a complaint process by which applicants for 
appointment to a position in the civil service may submit a complaint, 
or any other information, relating to compliance with the requirements 
of the Fair Chance Act. Furthermore, the Fair Chance Act establishes 
requirements and procedures regarding penalties for violations. Because 
of these statutory requirements, OPM issued proposed regulations 
published at 87 FR 24885, April 27, 2022, 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.

The Existing `Ban the Box' Rule

    On December 1, 2016, OPM issued a final rule at 81 FR 86555 that 
revised 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. The 
changes were to promote compliance with Merit System Principles as well 
as the goal of the Federal Interagency Reentry Council and the 
Presidential 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,'' otherwise known as ``Ban the Box'' rules. As noted by OPM 
when it first promulgated the rule, the intent of the rule was to 
conform regulatory requirements to what OPM believed was already the 
predominant agency practice, as many agencies already employed the 
practice of waiting until the later stages of the hiring process to 
collect criminal history information.
    Current OPM regulations at 5 CFR parts 330 and 731 prevent 
agencies, unless an exception is granted by OPM, from making inquiries 
into an applicant's criminal or credit history of the sort asked on OPM 
Optional Form (OF) 306, titled Declaration for Federal Employment, in 
the `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. The 
Fair Chance Act contains the same prohibition with respect to criminal 
history and does not address credit history. The Fair Chance Act has 
elaborated on the methods of inquiry not permitted and provides for 
certain exceptions to the rule. Furthermore, the Fair Chance Act 
requires OPM, when making additional exceptions, to give due 
consideration to positions that involve interaction with minors, access 
to sensitive information, or managing financial transactions.
    The OF 306 is used to assist OPM and Federal agencies in 
determining a person's suitability for employment as well as to provide 
other information that is required of applicants. Applicants must 
answer the questions on the form before they can be appointed or 
converted to a new appointment in the competitive, excepted, or Senior 
Executive Service. For most of the information on the OF 306, agencies 
may determine the timing of the

[[Page 60318]]

collection of the OF 306 in the application and hiring process; 
however, unless permitted by law, they may not ask applicants to answer 
the questions on the form that address criminal history information 
until a conditional offer of employment has been extended. Further, 
unless they have been granted an exception by OPM, agencies may not ask 
individuals to complete the question that relates to credit history. 
Most applicants are likely to be asked to complete the form after a 
conditional offer of employment has been made. OPM's authority to 
direct Federal agencies to use the OF 306 is found in 5 U.S.C. 1302, 
3301, 3304, 3328, 7301, and 8716; 5 CFR part 731; and E.O. 10577 and 
E.O. 13467, as amended. The OF 306 is one aspect of vetting that can be 
collected, in accordance with the provisions outlined in this rule, and 
used to begin to assess suitability in advance of the initiation of a 
required background investigation.

Explanation of OPM's Final Rule Under the Fair Chance Act

1. Restrictions on Preemployment Criminal Inquiries

    OPM is issuing these provisions under section 1122(b)(1) of the 
Fair Chance Act, under which the Director of OPM ``shall issue such 
regulations as are necessary to carry out chapter 92 of title 5, United 
States Code (as implemented by this subtitle).'' OPM is also issuing 
these provisions to implement the requirements of 5 U.S.C. 9202(c)(2), 
as added by the Fair Chance Act, which requires the OPM Director to 
issue regulations identifying positions with respect to which the 
prohibition shall not apply giving due consideration to positions that 
involve interaction with minors, access to sensitive information, or 
managing financial transactions, beyond those already identified in the 
statute.
    Unless otherwise required by law, an employee of an agency may not 
request, in oral or written form (including through the Declaration for 
Federal Employment (OF 306) or any similar successor form, the USAJOBS 
internet website, or any other electronic means) that an applicant for 
an appointment to a position in the civil service disclose criminal 
history record information regarding the applicant before the 
appointing authority extends a conditional offer to the applicant. 
Under the provisions of the Fair Chance Act, this prohibition does not 
apply under the following circumstances:
     Determinations of eligibility described under clause (i), 
(ii) or (iii) of 5 U.S.C. 9101(b)(1)(A) i.e., for (i) access to 
classified information; (ii) assignment to or retention in sensitive 
national security duties or positions; or (iii) acceptance or retention 
in the armed forces; or
     Recruitment of a Federal law enforcement officer (defined 
in 18 U.S.C. 115(c)).
    The Fair Chance Act applies to all appointments in the Executive 
branch; i.e., to appointments in the competitive service, the excepted 
service, and the Senior Executive Service (SES). Therefore, OPM is (1) 
revising the provisions in 5 CFR part 330, subpart M, which currently 
implements the Ban the Box rules for the competitive service, by 
removing the reference to criminal history so that the Fair Chance Act 
can be implemented for all types of appointments in a newly created 
part 920; (2) preserving the existing Ban the Box rules restricting 
pre-employment credit inquiries for appointments in the competitive 
service; and (3) amending part 731 to incorporate the exceptions to 
this provision as established by law and to refer agencies to the newly 
created part 920 for guidance on other types of positions for which the 
prohibition under the Fair Chance Act for collecting criminal history 
information will not apply. For the convenience of the reader, we are 
placing these provisions in the newly created part 920 rather than 
repeat the provisions in parts 302, Employment in the Excepted Service; 
317, Employment in the Senior Executive Service; 319, Employment in the 
Senior-Level and Scientific and Professional Positions; 330, 
Recruitment Selection, and Placement (General); and 731, Suitability. 
OPM also amends parts 302, 317, and 319 to include a reference as a 
reminder that these types of positions are subject to the provisions of 
the Fair Chance Act found in chapter 92 of title 5, U.S.C., and 5 CFR 
part 920.
    This final rule will continue to permit agencies to make an 
objection, pass-over request, or suitability determination on the basis 
of criminal or credit history record information 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. Exceptions previously granted to agencies 
by OPM pursuant to 5 CFR part 330 subpart M (i.e., the Ban the Box 
provisions) continue to be valid.

2. Complaint, Adverse Action, and Appeal Procedures

    Under section 9203, the Fair Chance Act requires the Director of 
OPM to establish and publish procedures under which an applicant for an 
appointment to a position in the civil service may submit a complaint, 
or any other information, relating to compliance by an employee with 5 
U.S.C. 9202. Under the provisions of section 9204, the Fair Chance Act 
further establishes minimum requirements regarding penalties for 
violations of the Fair Chance Act and provides that such penalties may 
be entered only after notice to the Federal employee accused and an 
opportunity for a hearing on the record (thereby, indirectly, 
establishing minimum procedural requirements before an adverse 
determination can be made). Finally, the Fair Chance Act requires the 
Director of OPM, by rule, to establish procedures providing for an 
appeal from any adverse action taken under section 9204 by no later 
than 30 days after the date of the action. The Fair Chance Act further 
notes in section 9205 that an adverse action taken under the Fair 
Chance Act shall not be subject to the procedures under chapter 75 of 
title 5 or, except as provided for in the appeal process established 
under the Fair Chance Act, be subject to appeal or judicial review. 
Therefore, OPM is issuing final regulations governing complaint 
procedures under which an applicant for a position in the civil service 
may submit a complaint, or any other information, relating to 
compliance by an employee of an agency with section 9202 of title 5, 
and adverse action and appeal procedures for alleged violations of 
section 9202 of title 5.

Public Comments

    In response to the proposed rule, OPM received 20 comments during 
the 60-day public comment period from individuals (including Federal 
employees), organizations, and Federal agencies. At the conclusion of 
the public comment period, OPM reviewed and analyzed the comments. In 
general, the comments ranged from categorical rejection of the proposed 
regulations to strong support. OPM reviewed and carefully considered 
all comments and arguments made in support of and in opposition to the 
proposed changes. The comments are summarized below, together with a 
discussion of the suggestions for revision that were considered and 
either adopted, adopted in part, or declined, and the rationale 
therefor. Finally, comments beyond the scope of the proposed changes or 
which were vague or incomplete are not addressed below.
    In the first section below, we address general or overarching 
comments. In the sections that follow, we address comments related to 
specific portions of the regulations.

[[Page 60319]]

General Comments

    Some commenters offered support for the Fair Chance Act because it 
provides individuals who have been incarcerated an opportunity to be 
considered for employment based upon their skills and experience rather 
than what may be irrelevant, inaccurate, or stale criminal history 
records. One commenter shared their perspective that wrongful 
convictions happen often, and individuals who did commit the crime have 
time to reflect and change for the better. This commenter opined that 
the requirements of the Act should be enough for them to get another 
chance at life and redeem themselves. Similarly, another commenter 
shared their perspective that a lot of people are incarcerated for 
unfair reasons, and they and others who perhaps did commit the crime 
deserve a second chance.
    OPM agrees that the Fair Chance Act advances important goals in 
that it places limitations on actions Federal agencies may take in the 
hiring process that would be detrimental for individuals who have been 
incarcerated. OPM's implementing regulations allow job applicants to 
present their qualifications and abilities for assessment and to be 
considered solely based on their merits without the specter of a 
criminal record during the selection process. Consistent with the 
statute, the regulations provide the opportunity for a qualified 
applicant with a criminal history record to advance in the hiring 
process in the same manner as a qualified applicant without a criminal 
history record.
    Several organizations commended OPM for taking steps to implement 
strong regulations. These organizations stated their support for ``the 
adoption of final regulations that provide additional clarity to both 
hiring agencies and the public, allow for effective enforcement of the 
new law, and reinforce the clear language and intent of the Fair Chance 
Act.'' In addition, the organizations expressed gratitude for OPM's 
commitment to effectively implementing the Fair Chance Act. These 
organizations also requested that OPM incorporate additional 
protections and clarifications into the final rule. OPM notes that 
several public comments resulted in additional clarifications and 
changes in this final rule. These changes are addressed below in their 
respective areas of the Supplementary Information section of this 
preamble. OPM will address other comments in guidance that it will be 
issuing to assist agencies with implementing the requirements of this 
rule.
    As for more general comments, one commenter stated that the 
proposed rule ensures ``criminals gain employment.'' This commenter 
characterized the rule as a political tactic and questioned how the 
proposed rule would help the government other than add union employees. 
Also, the commenter shared their observation of numerous employees 
leaving the government to seek a ``higher professional working 
atmosphere.''
    These final implementing regulations resulted from a bipartisan law 
that enjoyed Congressional support across two Administrations. The 
scope of OPM's regulations is determined by the contours of the law 
Congress drafted and directed OPM to implement. As such, OPM will not 
make any revisions to the rule based on this comment. This regulation 
prohibits Federal agencies and Federal contractors acting on their 
behalf from requesting that an applicant for Federal employment 
disclose criminal history record information before the agency makes a 
conditional offer of employment to that applicant. This final rule does 
not eliminate the requirement of agencies performing their due 
diligence in examining an applicant's criminal history or other 
relevant background information once a conditional offer of employment 
has been extended. Further, this regulation improves the government by 
supporting the Administration's initiative on diversity, equity, 
inclusion, and accessibility (DEIA), further positioning the Federal 
government as a model employer, and providing opportunities for 
talented, skilled individuals--both with and without a criminal history 
record--to put their talents to use to advance the mission of the 
Federal Government.
    OPM disagrees that this rule will diminish professionalism in the 
Federal workforce. As stated in the regulatory impact analysis of this 
rule, studies show that employment is the single most important factor 
in reducing recidivism; people with criminal history records are no 
more likely to be fired for misconduct than people without records; and 
they are statistically less likely to quit, which saves employers in 
turnover costs. Therefore, the regulations benefit not only the Federal 
government as an employer but also American society as a whole and at 
the family and community levels.
    Two individuals suggested changes based on the type of offense 
committed. One commenter, who generally supported the rule, stated that 
the rule may be too broad in removing access to criminal history. The 
individual suggested that people who have been convicted of sexual or 
violent offenses still be screened, but people whose records do not 
reflect a threat to safety have that barrier removed. Another commenter 
asked OPM to create an exception to the proposed rule for sexual 
offenders, specifically, suggesting that this exception would permit 
agencies to eliminate applicants who are sexual offenders from the 
hiring process before determining whether they qualify for a position.
    OPM cannot adopt these suggestions because they are contrary to the 
text of the Fair Chance Act. The Fair Chance Act makes it unlawful, 
with few exceptions, to request criminal history from an applicant 
before the agency makes a conditional offer of employment to that 
applicant. As discussed, OPM's implementing regulations allow job 
applicants to present their qualifications and abilities for assessment 
and be considered based on their merits without the specter of a 
criminal history record during the selection process. The regulations 
provide the opportunity for qualified applicants with criminal history 
records to advance in the hiring process just as a qualified applicant 
without a criminal history record would advance. Moreover, in most 
cases, the separate personnel vetting determination can and should 
occur after the selection process and a conditional offer of employment 
has been made, thereby separating criminal history as an aspect of the 
vetting process from factors that are relevant at the time of the 
initial hiring assessment.
    Two agencies commented that they already make offers of conditional 
employment before requesting criminal history, so this rule will have 
no negative impact to their policies and procedures.
    Below we summarize the public comments that are most appropriately 
addressed by reference to the specific portion of the regulations to 
which the comments applied.

Part 302--Employment in the Excepted Service

    This final rule adds Sec.  302.107 to subpart A to incorporate the 
requirements of the Fair Chance Act. This section addresses when 
inquiries into an applicant's criminal history may be made and 
circumstances under which exceptions may be requested and considered by 
OPM.
    OPM received no comments on this section.

[[Page 60320]]

Part 317--Employment in the Senior Executive Service

    This final rule adds Sec.  317.202 to subpart B to incorporate the 
requirements of the Fair Chance Act. Section 317.202 addresses when 
inquiries into an applicant's criminal history may be made and 
circumstances under which exceptions may be requested and considered by 
OPM.
    OPM received no comments on this section.

Part 319--Employment in Senior-Level and Scientific and Professional 
Positions

    This final rule adds Sec.  319.106 to subpart A to incorporate the 
requirements of the Fair Chance Act. Section 319.106 addresses when 
inquiries into an applicant's criminal history may be made and 
circumstances under which exceptions may be requested and considered by 
OPM.
    OPM received no comments on this section.

Part 330--Recruitment, Selection, and Placement (General)

    The Fair Chance Act does not specifically address the timing of 
suitability inquiries into a job applicant's credit history. The 
Presidential Memorandum on 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 of January 
31, 2014, however, addresses credit history and is still in effect. 
Consistent with existing law and the Presidential Memorandum, OPM's 
revision of Sec.  330.1300 retains its prohibition on making inquiries 
into a job applicant's credit history and removes any reference to 
criminal history. The prohibition on using criminal history is 
addressed in part 920.
    OPM received no comments on this section.

Part 731--Suitability

    The Fair Chance Act does not specifically address the timing of 
suitability inquiries into a job applicant's credit history. The 
Presidential Memorandum on 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 of January 
31, 2014, however, addresses credit history, and is still in effect. In 
accordance with this Memorandum, applicants should not face undue 
obstacles to Federal employment because they are unemployed or face 
financial difficulties through no fault of their own. Agencies must 
take steps to ensure fair treatment of all applicants, as well as 
Federal employees, throughout the recruiting and hiring process. One of 
the ways that Federal agencies can ensure fair treatment for applicants 
who have experienced periods of unemployment and/or financial 
difficulty is to avoid unnecessary screening mechanisms, especially at 
early stages of the hiring process, before a candidate's qualifications 
have been fully assessed. Consistent with existing policy and the 
Presidential Memorandum, OPM's revision of Sec.  731.103(d)(1) retains 
the prohibition on making inquiries into a job applicant's credit 
history and updates the reference to the prohibition relating to 
criminal history to align with the new part 920, which reflects the 
requirements of the Fair Chance Act. Both reduce the opportunity for 
information to be misused at the preliminary screening stage.
    Several organizations addressed the proposed changes to this part 
in conjunction with changes to part 920. The comments that address the 
content of both parts are summarized below. Several organizations 
commented that language in Sec.  731.103(d)(1) is less clear than in 
Sec.  920.102(b) with regard to positions that are exempt because the 
hiring agency is required by statute to make inquiries into an 
applicant's criminal history prior to making a conditional offer. The 
organizations raised concerns that the language may be misconstrued as 
allowing exemptions any time consideration of criminal history is 
required by law, even if the timing is not mandated by law. OPM agrees 
and will make a change for clarity, by striking the portion of the 
sentence reading ``Except as required by law.''

Part 754--Complaint Procedures, Adverse Actions, and Appeals for 
Criminal History Inquiries Prior to Conditional Offer

    An organization expressed support for OPM's proposed new part 754, 
which the organization stated ``creates a compliance mechanism for 
aggrieved applicants affected by `Ban the Box' violations and 
disciplinary mechanisms for employees who continue to unlawfully 
require pre-offer of disclosure of criminal or credit history in 
violation of the Fair Chance Act.''

Subpart A--Complaint Procedures

    The Fair Chance Act directs OPM to establish and publish procedures 
under which an applicant for an appointment to a position in the civil 
service may submit a complaint, or any other information, regarding 
compliance with 5 U.S.C. 9202. Based on these unique requirements, OPM 
adds a new 5 CFR part 754 to implement the complaint procedure 
requirements of the Fair Chance Act. The rule appears in subpart A of 5 
CFR part 754 as ``Complaint Procedures.'' This final rule provides the 
regulatory framework for the complaint process for job applicants to 
allege violations of the nature described in the Fair Chance Act. This 
regulatory scheme is significant because job applicants do not have the 
ability to use any existing statutory or regulatory complaint 
procedures that may be available for other employment-related 
complaints, such as those of the U.S. Office of Special Counsel, which 
investigates prohibited personnel practices.
    Subpart A establishes procedures under which an applicant for an 
appointment to a position in the civil service may submit a complaint, 
or any other information, relating to compliance by an employee of an 
agency with section 9202, as required by section 1122(b)(1) of the Fair 
Chance Act.

Section 754.101 Coverage

    This final rule describes who may use the agency complaint 
procedures and the actions covered and provides key terms that track 
the definitions in part 920.
    OPM received no comments on this section.

Section 754.102 Agency Complaint Process

    This section establishes the complaint process to be utilized for 
actions taken under this part. The process includes respective roles 
for OPM and Federal government agencies.
    Several organizations observed that OPM's proposed regulations 
include key protections and clarifications, which the organizations 
urged OPM to retain in the final rule, including the complaint and 
investigation process as required by the Fair Chance Act. In addition 
to the strengths they recognized in the proposed regulations, the 
organizations urged OPM to incorporate additional protections and 
clarifications into the final rule, including ensuring the complaint 
processes implemented by hiring agencies are fair and transparent. 
These organizations expounded that, in addition to individual agency 
processes for receiving complaints, OPM should clarify some of the 
elements of the complaint process as well as enhance

[[Page 60321]]

protections as reflected immediately below.
    Regarding Sec.  754.102(a), some organizations recommended that OPM 
develop a centralized means for receiving complaints and forwarding 
them to the appropriate agency for an agency investigation. 
Organizations expressed concern that, while the rule requires each 
hiring agency to establish and publicize systems for receiving 
complaints from applicants regarding violations of the Fair Chance Act, 
some job applicants will likely remain confused as to whom to submit 
such a complaint or may feel more comfortable submitting a complaint 
directly to OPM instead of to the hiring agency that likely just 
rejected them for a job based on their criminal history record. These 
organizations posited that, even if OPM does not implement a 
centralized means for receiving Fair Chance Act complaints, the 
regulations should provide that any complaint related to a violation of 
the Fair Chance Act that is submitted directly to OPM shall be 
forwarded to the appropriate agency for investigation and will be 
considered timely if it was submitted to OPM within the time period 
described in the regulations.
    OPM is confident that agencies will develop complaint processes 
that are fair and transparent, making centralized complaint intake 
unnecessary. Notably, the rule requires that agencies include 
information about the complaint process in their job announcements. 
This public notice aids in accomplishing complaint process 
transparency. Therefore, OPM will decline to adopt the organizations' 
recommendations to establish a centralized compliant process. As stated 
in the proposed rule, OPM believes there is ample precedent for 
agencies to establish internal procedures for receipt and investigation 
of employment-related complaints against the agency and to accomplish 
these tasks in a fair and impartial manner. Moreover, adding a 
procedural layer that involves OPM receiving a complaint and forwarding 
it to the appropriate agency adds time to the process that may delay 
resolution of the matter which would disserve applicants. Additionally, 
OPM does not have the resources necessary to effectively administer a 
new government-wide complaint process, and we have concluded that it is 
more efficient and cost-effective for agencies to leverage their 
existing resources. That said, to the extent OPM receives a complaint, 
OPM will promptly forward it to the appropriate agency.
    As stated in the proposed rule, direct submission of complaints to 
agencies is a long-standing process with which the public is familiar. 
For example, currently, applicants submit Federal sector equal 
employment opportunity (EEO) complaints to agencies rather than to the 
Equal Employment Opportunity Commission (EEOC). Thus, if OPM were to 
change this long-standing process as the commenter seeks, it may 
create--not prevent--confusion.
    To ensure applicants are informed, OPM encourages agencies to 
widely publicize information about the Fair Chance Act complaint 
process to job applicants, and, as stated above, agencies' job 
announcements must include information about the complaint process. OPM 
also notes that one safeguard the rule affords is that applicants have 
an opportunity to submit a complaint or any other information after 30 
days if the applicant's rights to do so were not properly publicized. 
In addition, the agency must conduct outreach to inform an applicant of 
the procedure for submitting a complaint when it has reasonable cause 
to believe that the applicant is attempting to file a complaint. The 
employing agency has the ability to extend the 30-day time limit when 
an applicant shows that the applicant was not notified of the time 
limits and was not otherwise aware of them, that the applicant did not 
know and reasonably should not have known that the non-compliance with 
section 9202 and part 920 occurred, to consider a reasonable 
accommodation of a disability, or for other proper and adequate reasons 
considered by the agency. The agency must apply the regulatory 
provisions to determine if a complaint forwarded by OPM was timely 
filed, or if there is proper and adequate basis for an extension.
    Additionally, with respect to Sec.  754.102(a), an organization 
recommended that OPM consider ``whether a more robust set of standards 
is needed to ensure that agencies will not brush aside complaints.'' 
The organization stated that allowing complainants the option of 
submitting complaints directly to OPM in lieu of to the agency (as an 
alternative to concurrent and centralized intake as discussed above) 
offers a method whereby effective standard-setting and robust 
enforcement could be better ensured.
    OPM will not make any revisions based on this comment. For the same 
reasons that OPM will not adopt concurrent or centralized complaint 
intake, OPM will not accept the recommendation to allow applicants to 
submit complaints directly to OPM. Agencies routinely receive and 
investigate allegations of wrongdoing against agency employees, 
including complex and sensitive matters such as off-duty misconduct, 
on-duty drug or alcohol use, and workplace harassment. An alleged 
violation of section 9202 of the Fair Chance Act and part 920 is well 
within the range of misconduct that agencies can handle in a fair and 
impartial manner.
    Although we did not receive a comment in regard to Sec.  
754.102(a)(3), this rule corrects a cross reference in the regulatory 
text. The corrected reference now states ``paragraph (a)(2) of this 
section'' instead of ``paragraph (b) of this section''.
    In discussing the agency investigation process as outlined in Sec.  
754.102(b), an organization discussed that Sec.  754.102 delegates to 
the employing agencies the task of ensuring compliance with the Fair 
Chance Act by having the agencies receive and investigate complaints 
made against them. The organization noted that the rule places a 
restriction that the same official cannot be both the executing-
advising officer for the recruitment and the investigator. The 
organization stated, ``. . . that is surely part of the minimum that 
should be expected of any investigatory process but likely does not go 
far enough in ensuring an impartial process.''
    OPM disagrees with the organization's assertion that the 
investigatory process as outlined in Sec.  754.102(b) is insufficient 
to achieve an impartial process. OPM believes there is abundant 
precedent, such as appeals of agency classification decisions and 
agency programs related to eliminating discriminatory practices and 
policies, for agencies to establish internal procedures for receipt and 
investigation of employment-related complaints in a fair and impartial 
manner. An agency must follow its investigatory procedures and gather 
all relevant information about an alleged violation of 5 U.S.C. 9202 
and 5 CFR part 920. The investigation will be the foundation for an 
assessment of what misconduct, if any, occurred and any individual(s) 
responsible. Upon receipt of the agency's administrative report, OPM 
will consider the specific facts and circumstances on a case-by-case 
basis to determine whether to proceed. OPM believes that with 
appropriate OPM guidance and oversight, agencies can effectively 
investigate violations of Fair Chance Act requirements.
    In further discussion of the agency investigation, an organization 
recommended that OPM should allow complainants to make submissions to 
OPM that would supplement, correct, or rebut the factual record that 
the agency's

[[Page 60322]]

investigative process yielded pursuant to the agency's administrative 
report under Sec.  754.102(b)(5). The organization recommended also 
that a complainant be allowed to make submissions of facts directly to 
OPM either in parallel to the agency's required report or within a 
reasonable time after being notified of the report's contents, before 
OPM adjudication takes place.
    OPM will not make any revisions based on this comment. Part 754 
lays out a straightforward administrative process with a framework for 
complaint intake and investigation that provides clear parameters and, 
where appropriate, agency discretion. Along with the complaint itself, 
an applicant may submit any other information the applicant deems 
necessary to ensure a complete factual record before OPM's adjudication 
takes place. The agency's administrative report to OPM should include 
``a complete copy of all information gathered during the 
investigation.'' If OPM needs additional information from an applicant 
or agency employee for the purpose of adjudicating the complaint, OPM 
may make a request to the agency. For these reasons, it is unnecessary 
to create a mechanism for applicants to make submissions directly to 
OPM.
    Some organizations recommended with respect to Sec.  754.102(b) 
that OPM ``ensure sufficient time for a complainant to respond to a 
hiring agency's request for information.'' These organizations also 
urged OPM to put mechanisms in place that ``ensure that agencies do not 
use a complainant's failure to quickly respond to a request for 
additional information as an excuse for abandoning an investigation.'' 
The organizations continued that, in some cases, additional information 
beyond the initial complaint may not truly be needed from the 
complainant, and the investigation should therefore not be suspended 
even if the complainant fails to respond.
    In response to these comments, and as discussed in greater detail 
below, we have added regulatory text to provide an objective timeframe 
of 10 days for applicants to respond to a request for additional 
information, yet we also indicate that the agency may extend this 
timeframe if the agency deems that extenuating circumstances warrant 
extension. Further, OPM would discourage agencies from using a 
complainant's failure to respond or failure to ``quickly respond'' to a 
request for additional information as the sole reason for abandoning an 
investigation. Instead, agency investigators should determine whether 
they can otherwise develop a record that allows a reasonable fact 
finder to draw conclusions as to whether non-compliance with section 
9202 and part 920 occurred.
    Furthermore, the organizations stated that the regulations must 
require hiring agencies to provide complainants with a reasonable 
amount of time to respond to any such requests for information. The 
commenters asserted that it is not a complainant's job to follow up on 
the complaint, and in fact, complainants will likely have been denied a 
job opportunity by the agency and may be employed elsewhere, still in 
search of employment while the investigation proceeds, or living under 
stresses related to unemployment, which could impact their ability to 
respond quickly. One of the organizations, speaking on behalf of itself 
and several collaborating organizations, opined that OPM's rule 
appropriately includes a time limit for an agency to complete its 
investigation so that investigations do not drag on indefinitely.
    For these reasons, the organizations recommended that complainants 
receive 30 days to respond to such requests. They further suggested 
that OPM may wish to also provide in the regulations that an agency may 
receive additional time to complete the investigation beyond the 60-day 
investigative period if the complainant takes unusually long to 
respond.
    OPM agrees with this recommendation to specify a reasonable amount 
of time for an applicant to respond to any such request for information 
during the investigation, which is consistent with OPM's establishment 
of a time limit for the investigation. Under ordinary circumstances, 
OPM believes a period of 10 calendar days from the date of the request 
is reasonable and balances the need for timely conclusion of the 
investigation. This brief but sufficient response period of 10 calendar 
days does not require additional time beyond the 60-day investigative 
period. However, as stated above, the agency may extend the applicant's 
response period for extenuating circumstances. In addition, an agency 
may extend the investigation period if the agency provides more than 10 
calendar days for the applicant to respond to an agency's request for 
information.
    An organization expressed concern that Sec.  754.102(b)(2) 
delegates to agencies the discretion to determine the appropriate fact-
finding methods for investigating the complaint, ``subject only to the 
oversight and future issuances described respectively in proposed 
sections 754.102(d)(1) and (d)(3)'' and recommended that OPM consider 
if more rigorous standards are needed.
    OPM will not make any changes based on this comment. To reiterate, 
OPM believes there is abundant precedent, such as appeals of agency 
classification decisions and agency programs related to eliminating 
discriminatory practices and policies, for agencies to establish 
internal procedures for investigation of employment-related complaints 
in a fair and impartial manner. OPM believes that with appropriate OPM 
guidance and oversight, agencies can effectively investigate violations 
of Fair Chance Act requirements.
    In further response to comments that expressed support for 
additional clarity for hiring agencies and a final rule that is 
effective and efficient, Sec.  754.102(b)(5) will also permit the 
agency to send its administrative report to OPM via electronic mail at 
[email protected] as an alternative to postal delivery as 
proposed.
    Regarding Sec.  754.102(c), some organizations recommended that OPM 
require that the hiring agency and/or OPM inform the complainant of the 
results of an investigation and the ultimate findings. One of the 
organizations, speaking on behalf of itself and several collaborating 
organizations, noted that in Sec.  754.102(c)(2), ``the subject of the 
complaint'' appears to refer to the agency employee who allegedly 
inquired about an applicant's criminal history record before a 
conditional offer. The organizations asserted that the regulations are 
silent on when, how, and by whom the complainant will be notified of 
the result of OPM's adjudication, and a complainant is another 
interested party who should be timely informed of the outcome. The 
organizations urged OPM to supplement Sec.  754.102(c)(2) to specify 
that OPM will simultaneously notify the complainant in writing of its 
findings and decision.
    OPM will not revise Sec.  754.102(c) based on this comment. It is 
correct that the subject of the complaint is the agency employee who 
allegedly violated section 9202 of the Fair Chance Act and part 920 of 
this regulation. OPM plans to issue guidance to assist with 
implementation of this rule. An agency may only share information from 
the records concerning an individual's Fair Chance Act complaint 
pursuant to the Privacy Act and the applicable system of records 
notice, for example, with those who have a need to know, such as human 
resources staff involved in advising management and any management 
official responsible for

[[Page 60323]]

approving the action, or others to whom disclosure is permitted 
pursuant to a routine use. As an interested party, an applicant has the 
option of submitting a Freedom of Information Act request to obtain any 
releasable information about the investigation and outcome.
    OPM is revising the wording of Sec.  754.102(c) to clarify that OPM 
will notify the agency and the subject(s) of the complaint regarding 
OPM's assessment that a violation may have occurred such that OPM is 
initiating the subpart B adverse action proceedings.

Section 754.103 Applicant Representatives

    This section describes the requirements for an applicant's 
representative.
    An agency asked if it is OPM's intent that an applicant under the 
definition be considered part of the bargaining unit if the position is 
a covered position. It is not OPM's intent that an applicant, who is 
not already employed by the agency in a bargaining unit position, as 
defined in newly created part 920, be considered part of the bargaining 
unit solely because the position for which the individual applied is 
covered by a collective bargaining agreement. OPM believes it is 
appropriate and fair for an applicant to receive assistance throughout 
the complaint process, subject to the restrictions outlined in Sec.  
754.103.

Subpart B--Adverse Actions

    OPM adds subpart B, Adverse Actions, which describes the adverse 
actions and appeals process related to violations of the Fair Chance 
Act. This new subpart also describes the specific penalties to be 
imposed by OPM for each violation of 5 U.S.C. 9202. These provisions 
are significant because under the Fair Chance Act, the procedures of 
chapter 75 of title 5, United States Code, Adverse Actions, are not 
applicable and appeal or judicial review is not applicable except as 
provided under procedures established by the Director of OPM.

Section 754.201 Coverage

    This section describes which actions and employees are covered by 
the new adverse action procedures established by OPM pursuant to the 
Fair Chance Act and defines key terms used in the subpart.
    OPM received no comments on this section.

Section 754.202 Penalty Determination

    This section describes the specific penalties OPM may direct an 
agency to process when an agency employee has been found to have 
violated section 9202 of the Fair Chance Act. The Fair Chance Act 
specifies certain penalties for violations of the statute, which are 
written warnings, suspensions without pay, and civil penalties of 
various amounts depending on the violation. Notably the range of 
penalties under the Fair Chance Act includes some forms of penalty that 
are not enumerated under the ``adverse actions'' provisions found in 
chapter 75 of title 5, United States Code (written warnings, civil 
penalties). For certain violations, under the Fair Chance Act OPM can 
direct the employing agency to collect a civil penalty and remit it to 
the Treasury, for deposit in the Treasury. OPM invited public comment 
on the method for collecting and remitting civil penalties. However, we 
did not receive any such comments.
    A commenter asserted that current case law shows that the proposed 
penalty determinations are inconsistent with penalties upheld for 
violating Federal regulations. This commenter opined that, while these 
recommendations include increasing days of suspensions and adding civil 
penalties for the fourth and greater offenses, they are still setting 
precedent that a Federal employee could violate Federal regulations 
more than five times and still maintain their Federal employment. The 
commenter suggested adjusting penalty determinations to include 
proposed removal for multiple violations of the Fair Chance Act, 
decrease the number of potential violations that have penalty 
determinations, and add an aggravating factor of intent to violate 
government regulations as a reason to increase the penalty on an 
earlier offense. The commenter requested, to the degree that OPM can 
influence the penalties required, that discretion be afforded to the 
agencies so they can weigh relevant factors.
    OPM will not make any revisions based on this comment. Congress, 
through the Fair Chance Act, prescribed the range of penalties OPM may 
direct an agency to process when an agency employee has been found to 
have violated section 9202 of the Fair Chance Act and part 920 of this 
regulation. Therefore, OPM will not add removal to the penalty range, 
decrease the number of violations prescribed as a threshold for a 
certain penalty, or add an aggravating factor of intent to the 
regulation. Note that OPM is the proposing and deciding authority for 
penalties imposed for section 9202 violations. Accordingly, OPM, not 
the employing agency, is responsible for evaluating the facts and 
circumstances in each case. Also, the penalty scheme developed by 
Congress in the Fair Chance Act is unique to violations of section 9202 
of the Act.
    An agency shared observations that written warnings are maintained 
in a local file and removed after a certain period, and reprimands are 
maintained in an employee's Official Personnel Folder (OPF) temporarily 
and removed after a certain period. The agency asked if it is OPM's 
intent to have ``reprimands'' for violations of section 9202 maintained 
on the permanent side of an employee's OPF.
    OPM will not make any revisions based on this comment. OPM notes 
that Congress elected not to include a reprimand in its prescribed 
range of penalties for a violation of section 9202 of the Act, and we 
will not add a reprimand as a penalty option. To clarify, section 9204 
of the Act defines a written warning as an adverse action for the 
purpose of addressing a first violation of section 9202. Further, the 
Act specifies that after OPM provides procedural rights, if we 
determine that an employee has committed a first violation of section 
9202, OPM shall issue a written warning that includes a description of 
the violation and the additional penalties that may apply for 
subsequent violations, and direct the employee's agency to file such 
warning in the employee's official personnel record. Thus, a written 
warning issued under Sec.  754.202 is an adverse action and is subject 
to the same procedures as other adverse actions, including permanent 
retention in the employee's OPF.
    OPM is revising its proposed regulatory text for Sec.  754.202(a) 
to parallel the language in paragraph (b), making clear that the 
process for a penalty determination for the first violation and 
subsequent violations is the same and that OPM's determination of 
violation and imposition of a penalty occurs only after the employee 
has been provided the procedural rights in Sec.  754.203.

Section 754.203 Procedures

    The final rule establishes the procedures to be utilized for 
actions taken under this subpart.
    OPM received no comments on this section.

Section 754.204 Appeal Rights

    This section describes the appeal rights for those actions taken by 
OPM under Sec.  754.203. Appeal rights are conferred for suspensions of 
more than 14 days or any decision to impose a civil penalty under this 
subpart.

[[Page 60324]]

    OPM received no comments on this section.

Section 754.205 Agency Records

    This section outlines the records that OPM and the covered agency 
must maintain and their obligations under the Privacy Act.
    An organization asserted that the proposed rule provides no 
guidance about how the investigatory process should handle private or 
sensitive information that may be disclosed, intentionally or 
inadvertently, in the course of the fact-gathering and reporting 
process. The organization recommended that OPM consider analyzing and 
potentially issuing guidelines or revised rules that would require that 
the processes to implement the Fair Chance Act requirements are 
consistent with the intent of the statute and other applicable Federal 
law concerning privacy and sensitivity of personal information 
including but not limited to criminal conviction-related history. The 
commenter also suggested that agencies and OPM take into account local, 
Tribal, and State privacy and fair chance-type laws when carrying out 
their investigatory and oversight responsibilities under this rule.
    We disagree with the organization's assertion that the rule 
provides no guidance about the handling of private or sensitive 
information that may be disclosed, intentionally or inadvertently, in 
the course of the investigatory process. In the Supplemental 
Information section of the proposed rule, OPM addressed handling of 
private or sensitive information by stating that OPM and agencies have 
obligations under the Privacy Act. Private or sensitive information 
disclosed during the investigation will be added to the agency's 
administrative file and is covered by Federal law in accordance with 
the Privacy Act requirements of this section. Indeed, the regulatory 
text for Sec.  754.205 states, ``The complaint, the applicant's 
supporting material, the agency's administrative file, the notice of 
the proposed action, the employee's written reply, if any, any summary 
or transcript of the employee's oral reply, if any, the notice of 
decision, and any order to the covered agency effecting the action 
together with any supporting material, must be maintained in an 
appropriate system of records under the Privacy Act.''
    Regarding the organization's recommendation that agencies and OPM 
consider local, Tribal, and State privacy and fair chance-type laws, 
OPM will not make any revisions to this rule. As noted above, the 
records received through the Fair Chance complaint investigation 
process are subject to the requirements of the Privacy Act. Federal 
agencies have well-established Privacy Act programs. Under the Privacy 
Act and other Federal laws, records are protected from unauthorized 
access and misuse through various administrative, technical, and 
physical security measures. OPM's regulations and guidance implement 
applicable Federal statutes for Federal personnel management. Congress 
has not authorized coverage under any other type of law for the Fair 
Chance Act implementation.

Part 920--Timing of Criminal History Inquiries

    OPM is regulating the provisions of the Fair Chance Act in 5 CFR 
part 920 because these provisions apply to positions in the excepted, 
Senior Executive, and competitive services. For the convenience of the 
reader, we are placing them in one location rather than repeat the 
provisions in parts 302, 317, 319, and 330, respectively. Additionally, 
some agencies may have positions that are exempt from part 302 but not 
exempt from the provisions of the Fair Chance Act.

Subpart A--General Provisions

    Subpart A of part 920 contains general provisions that are 
applicable to the timing of criminal history inquiries. This subpart 
explains which positions are covered by this part and which positions 
may be excluded. This subpart also provides definitions for the purpose 
of this part.

Section 920.101 Definitions

    This section contains definitions necessary for the administration 
of this part.
    Several organizations commented that OPM's proposed definition of 
``conditional offer''--defined as ``an offer of employment in the civil 
service that is conditioned upon the results of a criminal history 
inquiry''--does not provide that a conditional offer can be revoked for 
reasons other than a criminal history inquiry, and that therefore OPM 
should clarify that the criminal history inquiry should be isolated 
from other necessary background screening. OPM agrees that the proposed 
definition of ``conditional offer'' is too narrow, and is revising the 
definition in Sec.  920.101 in this final rule to read as follows: 
``conditional offer means an offer of employment to a position in the 
civil service that is conditioned upon the results of a background 
investigation, including, as relevant here, the results of a criminal 
history inquiry.''
    These organizations also encouraged OPM to clarify in its 
regulations that a hiring agency must extend a conditional offer in 
writing before inquiring about criminal history record information. OPM 
declines to make changes in response to this comment. OPM believes that 
agencies already extend all conditional offers in writing and that such 
clarification is unnecessary. OPM will, however, consider whether to 
address this point in subsequent guidance.
    OPM received a comment from one agency recommending that OPM add 
language to the definition of ``applicant'' in 920.101(a) that 
explicitly includes or excludes current Federal employees. OPM is not 
adopting this suggestion. An ``applicant'' is defined as a person who 
has applied to an agency under its procedures for accepting 
applications. OPM notes that an applicant may, at times, be a Federal 
employee. The definition of ``applicant'' in the rule encompasses any 
person who has applied to an agency under its procedures for accepting 
applications; therefore, further clarification is not necessary.

Section 920.102 Positions Covered by Fair Chance Act Regulations

    Section 920.102 explains which positions are covered by this part 
and which positions may be excluded.
    Several organizations asked for OPM to remove the open-ended 
possibility for case-by-case exceptions, arguing that the statute 
requires OPM to list within the regulation the additional positions to 
which the exception may apply. Therefore, they argued that the proposal 
to grant case-by-case exceptions is contrary to the statute. OPM is 
adopting this recommendation in this final rule. The final rule deletes 
the language in Sec.  920.201(b)(3) from the notice of proposed 
rulemaking that indicated that OPM will continue to consider case-by-
case exceptions for exempting positions from the Fair Chance Act 
criminal history inquiry requirements. Previously, agencies were 
permitted to make requests for exceptions to the timing of collection 
of criminal history information based upon a job-related need, and with 
appropriate supporting information, including, for example, for 
positions in which criminal history information is required to 
determine whether the applicant is eligible for further consideration 
for the position. OPM granted these requests, which will remain in 
effect.
    During the public comment period, one agency asked OPM to consider 
positions that have contact with minors to be an exception to the 
proposed rule.

[[Page 60325]]

Another agency recommended that OPM exempt (1) Testing Designated 
Positions and positions requiring Certification Licensure or 
Registration from the Act based on the sensitive nature of duties for 
covered positions; and (2) positions that provide direct care to 
elderly and to individuals with physical, mental, and intellectual 
disabilities which impair their ability to manage their personal 
affairs. The comments do not provide sufficient information for OPM to 
determine that all such positions--above and beyond those that are 
already exempted by statute--should be exempted from the Fair Chance 
Act's requirement to delay criminal history information, and, at this 
time, OPM is not exempting any additional positions in this regulation. 
To the extent agencies believe that additional positions should be 
exempt from such requirements, agencies should alert OPM, which will 
carefully consider any input for the purpose of future rulemaking or 
guidance.
    Several organizations also asked that OPM provide clarity to 
agencies regarding their legal responsibility to conduct individualized 
assessments and otherwise fairly consider applicants with criminal 
history records even after a conditional offer and in accordance with 
Title VII and EEOC requirements. OPM notes that these rules only 
pertain to the timing of inquiries into an applicant's criminal 
history, not to the substantive selection process for Federal 
employment. OPM does not believe it is necessary to modify the 
regulation in response to these comments, but OPM does note that 
agencies have an independent obligation to comply with Title VII and 
that nothing in this rule shall be read in derogation of any 
individual's rights under Title VII.
    A commenter asked how this regulation relates to the Bond Amendment 
when hiring for sensitive positions. As is addressed in Sec.  
920.201(b), the prohibition for requesting criminal history information 
before a conditional job offer does not apply for positions that 
require a determination of eligibility for access to classified 
information or which have been designated as a sensitive position under 
the Position Designation System issued by OPM and the Office of the 
Director of National Intelligence. Therefore, these changes have no 
effect on the requirements of the Bond Amendment.

Subpart B--Timing of Inquiries Regarding Criminal History

    Subpart B addresses when inquiries into an applicant's criminal 
history may be made.

Section 920.201 Limitations on Criminal History Inquiries

    Section 920.201 describes the agency personnel who are covered by 
the prohibition of criminal history inquiries at certain points in the 
recruitment and hiring process, as well as the restrictions on when 
criminal history inquiries may be made and the exceptions for this 
limitation. This section also establishes notification requirements of 
the prohibition to applicants.
    Several organizations asked that additional instructions be 
provided to hiring agencies about what actions must be delayed until 
after a conditional offer and how staff should respond if criminal 
history information is disclosed before a conditional offer. These 
organizations also commented that agencies should be directed, within 
the regulation, to not consider criminal history information that may 
be inadvertently disclosed earlier in the process or gained through 
informal attempts, such as through internet searches. OPM believes that 
part 920 clearly and with significant detail outlines the applicability 
of the limitations in terms of the means through which agencies may 
obtain information of this nature and the timing of which they may 
employ such means. Furthermore, this section requires agencies to 
publicize this prohibition, when applicable, within the job 
announcement, giving applicants the opportunity to know that the 
information is not to be requested ahead of the job offer. Therefore, 
OPM will not make any changes in this regulation based on these 
comments; OPM will, however, provide further instructions to agencies 
on these points in supplemental guidance.

Section 920.202 Violations

    This section defines what constitutes a violation of the Fair 
Chance Act and the prohibition in section 920.201.
    In the above sections, OPM has addressed the comments received 
related to section 920.202.

Expected Impact of This Final Rule

A. Statement of Need

    OPM is issuing this final rule to implement the provisions of the 
Fair Chance Act found in chapter 92 of title 5, United States Code. 
This statute prohibits Federal agencies and Federal contractors acting 
on their behalf from requesting that applicants for employment disclose 
criminal history record information before the agency makes a 
conditional offer of employment to that employee. The Fair Chance Act 
identifies some positions to which the prohibition shall not apply and 
requires OPM to issue regulations identifying additional positions to 
which the prohibition shall not apply. It also requires OPM to 
establish complaint procedures under which an applicant for a position 
in the civil service may submit a complaint, or any other information, 
relating to compliance by an employee of an agency with the Fair Chance 
Act, and adverse action and appeal procedures when it has been 
determined that a Federal employee has violated the Fair Chance Act. 
OPM is implementing these statutory requirements in the least 
burdensome way it can while still effectuating the Fair Chance Act.

B. Impact

    The final rule allows job applicants to present their 
qualifications and abilities for assessment and be considered based on 
their merits without the specter of a criminal history record during 
the selection process. Various studies show that offenders who maintain 
steady employment are less likely to become involved in criminal 
behavior after release from prison.\1\ Although several factors may 
impact recidivism (such as family ties, and mental and physical 
health), it is widely held that stable employment supports relationship 
and financial goals that decrease the likelihood of re-offending.\2\ As 
the nation's largest employer and a model employer, through this rule 
the Federal government will demonstrate an example of fair hiring 
practices by removing unnecessary barriers for people with records who 
desire to join the Federal workforce. Given that people with criminal 
history records are statistically less likely to quit,\3\ Federal 
employers stand to save in turnover costs. For example, in a 2021 
study, the Society for Human Resources Management found that 73% of 
business leaders and human resources professionals said workers with 
criminal records were just as or more dependable than workers without 
criminal records.\4\ Not only does employment of formerly incarcerated

[[Page 60326]]

individuals affect rates of recidivism, it benefits communities and 
society by reducing criminal justice costs, crime victimization costs, 
and the costs of incarceration to the reoffenders and their 
families.\5\
---------------------------------------------------------------------------

    \1\ Berg. & Huebner, ``Reentry and the Ties that Bind: An 
Examination of Social Ties, Employment, and Recidivism'' (April 28, 
2011).
    \2\ Link, Ward, & Stansfield, ``Consequences of Mental and 
Physical Health for Reentry and Recidivism: Toward a Health-based 
Model of Desistance'' (March 27, 2019).
    \3\ Lee-Johnson, ``Give Job Applicants with Criminal Records a 
Fair Chance'' (September 21, 2020), and Society for Human Resources 
Management, ``2021 Getting Talent Back to Work Report'' (May 2021).
    \4\ Society for Human Resources Management, ``2021 Getting 
Talent Back to Work Report'' (May 2021).
    \5\ U.S. Department of Labor, ``Reducing Recidivism and 
Increasing Opportunity'' (June 2018).
---------------------------------------------------------------------------

    OPM believes there is significant value in being able to 
demonstrate the effect of these final regulations on both Federal 
agencies and formerly incarcerated individuals. As noted earlier, 
however, OPM currently does not have and is not aware of any data to 
show what impact, if any, OPM's existing ``Ban the Box'' rules have had 
on agency hiring processes. Therefore, OPM invited comments regarding 
any hiring data agencies may have that demonstrate the effect of either 
OPM's prior regulations or the potential impact of these proposed 
rules. This included ways that the proposed rules may impact the size 
of applicant pools for positions not previously covered by OPM's 
regulation, including positions in the excepted service as well as 
positions in the U.S. Postal Service and the Postal Regulatory 
Commission.
    Several organizations commented with recommendations for the data 
that OPM should collect. Those recommendations include the following:

 Number of applicants provided a conditional offer (and number 
of those with a conviction record)
 Number of applicants with a conviction record whose 
conditional offers were rescinded by the hiring agency
 The convictions (offense and years elapsed) based upon which 
conditional offers were rescinded
 Number of applicants with a conviction record who were hired 
and the positions into which they were hired
 Demographic information for all of these categories

    OPM appreciates these public comments and will take these 
recommendations into account as it formulates a data strategy including 
in consultation with other agency partners.

C. Regulatory Alternatives

    OPM's implementing regulations are required by statute and cannot 
be avoided. In the final regulations for part 754, OPM fleshes out 
procedures for receiving and investigating complaints, or any other 
information, as well as procedural and appeal rights for an agency 
employee alleged to have violated section 9202. The statute establishes 
the agencies and employees covered by 5 CFR 754, available penalties 
that can be imposed for an employee found to have violated section 
9202, and the 30-day timeframe for appealing an adverse action.
    First, OPM considered the option of receiving complaints, and any 
other information, directly from applicants and conducting its own 
outreach and investigative fact-finding, as appropriate to the nature 
of the applicant's submission. But agencies have already established 
internal procedures for receipt and investigation of employment-related 
complaints against the agency and to accomplish these tasks in a fair 
and impartial manner. Therefore, we have laid out an approach that we 
believe is minimally burdensome for agencies and straightforward for 
applicants. Subject to OPM guidelines and oversight, the final rule 
assigns to each agency covered by the Fair Chance Act regulations the 
responsibility to receive complaints, or any other information, and any 
applicable supporting material. Further, this final rule delegates to 
each agency OPM's responsibility to conduct an investigation of the 
complaint, or any other information, regarding compliance with 5 U.S.C. 
9202. OPM believes that establishing a process that is similar to other 
successful and effective processes will facilitate implementation of 
the Fair Chance Act complaint process in covered agencies as agencies 
are already familiar with these similar processes. While the final rule 
provides parameters to guide agencies and facilitate governmentwide 
consistency, the assignment and delegation to agencies reduces the need 
for what would be more extensive regulations if OPM were directly 
receiving and investigating complaints, and other information, related 
to an alleged violation of section 9202.
    Regarding the procedures for adverse actions, the statute requires 
notice and an opportunity for a hearing on the record by OPM for any 
employee alleged to have committed a violation of section 9202. Section 
9205 further notes that the procedures of chapter 75 of title 5, United 
States Code, are not applicable and that appeal or judicial review are 
not applicable except as provided under procedures established by the 
Director of OPM. Because chapter 75 procedures are not available, the 
final rule establishes an alternative to implement the unique 
procedural and appeal elements of the Fair Chance Act. In developing 
the procedures, OPM considered the benefits of adapting the adverse 
action procedures found at 5 CFR part 752 rather than another approach. 
Adapting the part 752 procedures affords agencies the benefit of 
familiarity, facilitates ease of transfer in knowledge and skills to 
the new regulations, and reduces the need for more extensive or complex 
regulations.

D. Costs

    OPM did not receive any comments on the estimated costs in the 
proposed rule. The economic assessment is finalized with no changes.
Costs Related to Parts 302, 317, 319, 330, 731, and 920--Restrictions 
on Preemployment Criminal History Inquiries Prior to Conditional Offer
    This rule will affect the operations of over 80 Federal agencies 
ranging from cabinet-level departments to small independent agencies. 
This rule expands the prohibition on making inquiries into an 
applicant's criminal background prior to a conditional offer of 
employment. The prohibition currently applies to positions in the 
competitive service. This final rule will expand this prohibition to 
include agencies with positions in the excepted service and the Senior 
Executive Service. There are approximately 20 agencies in the Executive 
Branch that are fully in the excepted service that will be impacted by 
this final rule. We estimate that this rule will require individuals 
employed by these agencies to develop policies and procedures to 
implement the rule when making appointments. For the purpose of this 
cost analysis, with regard to parts 302, 317, 319, 330, 731, and 920, 
the assumed average salary rate of Federal employees performing this 
work will be the rate in 2022 for GS-14, step 5, from the Washington, 
DC, locality pay table ($143,064 annual locality rate and $68.55 hourly 
locality rate). We assume that the total dollar value of labor, which 
includes wages, benefits, and overhead, is equal to 200 percent of the 
wage rate, resulting in an assumed labor cost of $137.10 per hour.
    In order to comply with the regulatory changes in this final rule, 
affected agencies will need to review the rule and update their 
policies and procedures. We estimate that, in the first year following 
publication of the final rule, this will require an average of 250 
hours of work by employees with an average hourly cost of $137.10. This 
would result in estimated costs in that first year of implementation of 
about $34,275 per agency, and about $2,742,000 in total governmentwide. 
We do not believe this rule will substantially increase the ongoing 
administrative costs to agencies (including the administrative costs of 
administering the program and hiring

[[Page 60327]]

and training new staff) as this rule sets out leveraging existing 
procedures.
Costs Related to Part 754--Complaint Procedures, Adverse Actions, and 
Appeals for Criminal History Inquiries Prior to Conditional Offer
    Regarding the implementation of the regulatory requirements in part 
754, in the event of a complaint by an applicant, agencies will incur 
labor costs associated with the investigation into the complaint. OPM 
will incur labor costs associated with reviewing the results of the 
investigation and reaching a determination, which could include issuing 
a notice of proposed action to the subject of the complaint, 
considering any response, and making a final determination. In the 
event OPM directs the employing agency to take an action as a result of 
a founded complaint, OPM would incur labor costs in responding to and/
or defending any appeal by the subject of the complaint to the Merit 
Systems Protection Board (MSPB).
    In order to estimate the costs to implement the final regulatory 
requirements in part 754 for complaint procedures, adverse actions, and 
appeals, OPM made certain assumptions and considered that some costs 
may vary depending on agency size and the extent to which an agency is 
able to leverage existing policies, practices, and procedures. For this 
cost analysis, the assumed staffing for Federal employees performing 
the work required by the regulations in part 754 is one executive; one 
GS-14, step 5; a GS-15, step 5; and one GS-7, step 5 in the Washington, 
DC, locality area. The 2022 basic rate of pay for an executive at an 
agency with a certified SES performance appraisal system ranges from 
$135,468 to $203,700 annually, for an average of $169,584 per year or 
$81.26 per hour. For General Schedule employees in the Washington, DC, 
locality area, the 2022 pay table rates are $168,282 annually and 
$80.63 hourly for GS-15, step 5; $143,064 annually and $68.55 for GS-
14, step 5, and $57,393 annually and $27.50 hourly for GS-7, step 5. We 
assume that the total dollar value of labor, which includes wages, 
benefits, and overhead, is equal to 200 percent of the wage rate, 
resulting in assumed hourly labor costs of $162.51 for an executive; 
$161.27 for a GS-15, step 5; $137.10 for a GS-14, step 5; and $55 for a 
GS-7, step 5.
    As to overall complaint procedures, program implementation and 
oversight, OPM assumes it will incur certain upfront costs and then 
ongoing costs. For example, the establishment of new processing codes 
requires one-time updates to OPM's databases and personnel action 
processing handbook. After the issuance of any final rule effecting 
part 754, OPM may develop additional materials related to its 
implementation. This includes, but is not limited to, procedures and 
guidance related to agency obligations to report to OPM actions taken 
to investigate any complaints filed by an applicant regarding an 
agency's compliance with 5 U.S.C. 9202 and adverse actions taken at the 
direction of OPM for non-compliance with 5 U.S.C. 9202. OPM estimates 
that the cost for its implementation and oversight in the first year 
will be $30,370.00 and $3,687.04 on average in subsequent years.
    OPM estimates that it will cost each agency $21,319.04 in the first 
year to establish an internal policy for handling alleged violations of 
5 U.S.C. 9202. We assume that larger agencies advertise more vacancies 
and are therefore likely to receive a greater number of complaints. We 
estimate the annual cost of complaint intake and investigation for 
large agencies to be $172,746.00 (based on an average of 30 complaints 
per large agency); medium size agencies $115,164.00 (for 20 
complaints); and small size agencies $57,582.00 (for 10 complaints). 
The total estimated cost for agencies to receive and investigate 
complaints is $345,492.00 annually, which averages to $5,758.20 per 
complaint.
    For agency outreach regarding any other information that may 
potentially be an attempt to file a complaint for an alleged violation 
of 5 U.S.C. 9202, OPM again assumes that larger agencies advertise more 
vacancies and are therefore likely to experience a greater number of 
such instances. We estimate that large agencies on average may conduct 
30 instances of outreach and incur $8,226.00 for the total number of 
instances. Medium size agencies may conduct outreach for 20 instances 
and incur $5,484.00 total. Small agencies may conduct outreach for 10 
instances and incur $2,742.00 total. The total estimated annual cost of 
agency outreach is $16,452.00 and the average cost of agency outreach 
is $274.20 per instance.
    Following agency intake, outreach (if applicable), and 
investigation, OPM is responsible for administering the adverse action 
procedures as outlined in Sec.  754.203. Based on the estimate for the 
annual number of complaints that Federal agencies may receive (60 for 
large, medium, and small agencies combined), OPM estimates that 25%, or 
15, of the complaints may result in a finding of a violation of 5 
U.S.C. 9202. While OPM will carefully review and consider each 
investigative file submitted by agencies, OPM expects that only those 
investigations that result in a finding of a violation will generate a 
meaningful increase in cost above staff's usual duties and 
responsibilities. Assuming 15 such cases, the total cost for OPM's 
administration of the adverse action procedures, including proposing an 
action, considering any reply, and issuing a decision, is estimated to 
be $159,818.40. The average cost for OPM per adverse action is 
$10,654.56.
    Under this final regulation, agencies are responsible for 
processing any adverse action imposed by OPM. Agencies routinely 
process suspensions for other forms of misconduct. Thus, applying those 
same procedures to adverse actions imposed for violations of 5 U.S.C. 
9202 will be a negligible cost for agencies as they will be leveraging 
existing processes and procedures. However, OPM does anticipate some 
cost for the one-time update to agency processing systems for the new 
codes established by OPM to identify that the adverse actions are taken 
under 5 U.S.C. 9202, as well as the establishment of agency procedures 
for the collection of civil penalties. OPM estimates the costs to 
agencies in the first year for updating their systems and procedures 
and processing actions to be $24,690.04. Thereafter, we estimate that 
the average cost for an agency to process an adverse action, including 
any civil penalty, is $960.50 per action.
    The available penalties for violations of 5 U.S.C. 9202 include 
written warnings and short suspensions (14 days or less) that are not 
grievable or appealable. Further, an employee's first two violations of 
section 9202 will result in a penalty no stronger than a seven-day 
suspension. For only a third or subsequent violation would OPM impose a 
penalty that may be appealable to the MSPB. While such an appeal to the 
MSPB is possible, we believe that it will be rare that an employee 
violates section 9202 three or more times. OPM anticipates that if 15 
adverse actions are imposed per year, OPM anticipates that only one on 
average will be appealable to the MSPB. We therefore do not believe 
there will be a measurable impact on MSPB operations and thus, we have 
not estimated costs for the MSPB.
    Because any appeal filed is against OPM and not the employing 
agency, OPM will be responsible for defending the action. OPM estimates 
$11,447.84 to defend an appeal.
    The remaining requirements of part 754 for complaint procedures, 
adverse actions, and appeals will require

[[Page 60328]]

minimal costs for OPM or agencies, or only negligible costs. With 
respect to informing applicants of the agency's complaint procedures 
via the agency's public website and in vacancy announcements, the 
additional cost to agencies will be small. Agencies already provide 
notice on their public websites and in vacancy announcements about how 
an applicant can file an EEO complaint. Also, agencies provide 
information to the public on their external websites about how to file 
an Inspector General complaint. Thus, an additional notice does not 
present a significant additional cost. In conclusion, OPM estimates a 
cost of $598,141.47 to implement the complaint procedures under the 
final Fair Chance Act regulations in the first year and the recurring 
cost per year to be $32,782.34.
Indirect Costs
    We note that the final rule may have indirect costs on other 
entities. Section 1122(d) of the Fair Chance Act amends section 
207(d)(2) of the Congressional Accountability Act of 1995 to require 
the Board of Directors of the Office of Congressional Workplace Rights 
to promulgate regulations that are ``the same'' as OPM's ``except to 
the extent that the Board may determine, for good cause shown and 
stated together with the regulation, that a modification of such 
regulations would be more effective for the implementation of the 
rights and protections under this section.'' Section 1122(e) of the 
Fair Chance Act similarly amends 28 U.S.C. 604(e)(5)(B) to require the 
Director of the Administrative Office of the U.S. Courts to promulgate 
regulations that are ``the same'' as OPM's ``except to the extent that 
the Director . . . may determine, for good cause shown and stated 
together with the regulation, that a modification of such regulations 
would be more effective for the implementation of the rights and 
protections under this subsection.'' Finally, section 1123(c) of the 
Fair Chance Act requires the Federal Acquisition Regulation (FAR) 
Council to amend the FAR ``to be consistent with'' OPM's regulations 
``to the maximum extent practicable'' and to ``include together with 
such revision an explanation of any substantive modification of the 
Office of Personnel Management regulations, including an explanation of 
how such modification will more effectively implement the rights and 
protections under this section.'' Such indirect costs are not 
quantifiable since sections 1122(d)-(e) and 1123(c) of the Fair Chance 
Act give the other entities significant leeway to adopt, reject, or 
modify OPM's regulations with respect to the populations covered by 
those sections.

E. Benefits

    This final regulation provides the opportunity for a qualified 
applicant with a criminal history record to advance in the hiring 
process just as a qualified applicant without a criminal history record 
would advance. The regulation benefit not only the Federal government 
as an employer but also American society as a whole at the family and 
community levels in terms of a strengthened economy.
    This final regulation will support the Administration's priority to 
advance comprehensive equity. The final rule can help Federal agencies 
realize the vision of the Federal government as a model employer and to 
advance the principles of diversity, equity, inclusion, and 
accessibility. Finally, another benefit of this rule is increased 
transparency and accountability in the Federal hiring process. The 
regulations provide applicants who believe they have been subjected to 
a violation of 5 U.S.C. 9202 the right to report the alleged violation 
and holds accountable Federal employees found to have committed such a 
violation.

F. Request for Comment and Data

    In addition to the questions posed in the regulatory analysis and 
given the limited information on the Federal Government's 
implementation on Ban the Box, OPM requested comment on the 
implementation and impacts of Ban the Box efforts in the private 
sectors. As noted above, OPM received multiple responses regarding the 
data that OPM should collect to inform the impact of this effort. OPM 
appreciates the responses received and is formulating a strategy for 
future data collections.

G. List of Sources

Berg, Mark T. & Huebner, Beth M. ``Reentry and the Ties that Bind: 
An Examination of Social Ties, Employment, and Recidivism.'' Justice 
Quarterly, April 28, 2011, 382. https://doi.org/10.1080/07418825.2010.498383
Lee-Johnson, Margie. ``Give Job Applicants with Criminal Records a 
Fair Chance.'' Harvard Business Review, September 21, 2020. https://hbr.org/2020/09/give-job-applicants-with-criminal-records-a-fair-chance?autocomplete=true
Link, Nathan W., Ward, Jeffrey T., & Stansfield, Richard. 
``Consequences of Mental and Physical Health for Reentry and 
Recidivism: Toward a Health-based Model of Desistance.'' 
Criminology, March 27, 2019, 544. https://onlinelibrary.wiley.com/doi/epdf/10.1111/1745-9125.12213
National Employment Law Project. ``FAQ: Fair Chance to Compete for 
Jobs Act of 2019,'' December 2019. https://s27147.pcdn.co/wp-content/uploads/Fact-Sheet-FAQ-Federal-Fair-Chance-Compete-Jobs-Act-2019.pdf
Society for Human Resources Management. ``2021 Getting Talent Back 
to Work Report: A Workplace Survey on Hiring and Working with People 
with Criminal Records,'' May 2021. https://www.gettingtalentbacktowork.org/wp-content/uploads/2021/05/2021-GTBTW_Report.pdf
U.S. Department of Labor. ``Reducing Recidivism and Increasing 
Opportunity: Benefits and Costs of the RecycleForce Enhanced 
Transitional Jobs Program,'' June 2018. https://www.mdrc.org/sites/default/files/ETJD_STED_Benefit_Cost_Technical_Supplement_508.pdf

Executive Orders 13563 and 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. In accordance with the provisions of Executive Order 
12866, this rule was reviewed by the Office of Management and Budget as 
significant.

Regulatory Flexibility Act

    The OPM Director certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
because it applies 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.

[[Page 60329]]

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

    Subtitle E of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C. 
801 et seq.) requires rules to be submitted to Congress before taking 
effect. OPM will submit to Congress and the Comptroller General of the 
United States a report regarding the issuance of this rule before its 
effective date, as required by 5 U.S.C. 801. The Office of Information 
and Regulatory Affairs in the Office of Management and Budget has 
determined that this rule is not a major rule as defined by the CRA (5 
U.S.C. 804).

Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This rule makes 
reference to an OMB approved collection of information subject to the 
PRA titled Declaration for Federal Employment (OF 306), OMB Control 
Number 3206-0182. The systems of record notice for this collection is 
https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-govt-1-general-personnel-records.pdf.
    OPM requested comments as part of the proposed rule on this 
information collection. While no comments were received on the burden 
or cost estimate, OPM did receive other comments. In response to 
comments regarding the timing of asking applicants about criminal 
history, OPM is replacing a sentence in the instructions to add clarity 
to the timing within the process when an individual is most likely to 
be asked to complete the form (i.e., after a tentative job offer has 
been made). Should an individual need to fill out an OF 306, it can be 
done in several ways such as through USAStaffing, in response to an 
email from the hiring agency, or through other electronic means.

List of Subjects in 5 CFR Part 302, 317, 319, 330, 731, 754, and 
920

    Administrative practice and procedure, Government employees.

Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.

    Accordingly, for the reasons stated in the preamble, OPM amends 
chapter I of title 5, Code of Federal Regulations, as follows:

PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE

0
1. Revise the authority citation for part 302 to read as follows:

    Authority:  5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3319, 3320, 
8151, E.O. 10577 (3 CFR 1954-1958 Comp., p. 218); Sec.  302.105 also 
issued under 5 U.S.C. 1104, Pub. L. 95-454, sec. 3(5); Sec.  302.501 
also issued under 5 U.S.C. 7701 et seq.; Sec.  302.107 also issued 
under 5 U.S.C. 9201-9206 and Pub. L. 116-92, sec. 1122(b)(1).


0
2. Add Sec.  302.107 to subpart A to read as follows:


Sec.  302.107   Suitability inquiries regarding criminal history.

    Agency inquiries regarding criminal history must be done in 
accordance with the requirements under chapter 92 of title 5, U.S. Code 
and part 920 of this chapter.

PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE

0
3. Revise the authority citation for part 317 to read as follows:

    Authority:  5 U.S.C. 3392, 3393, 3395, 3397, 3592, 3593, 3595, 
3596, 8414, AND 8421. Sec.  317.202 also issued under 5 U.S.C. 9201-
9206 and Pub. L. 116-92, sec. 1122(b)(1).


0
4. Add Sec.  317.202 to subpart B to read as follows:


Sec.  317.202   Suitability inquiries regarding criminal history.

    Agency inquiries regarding criminal history must be done in 
accordance with the requirements under chapter 92 of title 5, U.S. Code 
and part 920 of this chapter.

PART 319--EMPLOYMENT IN THE SENIOR-LEVEL AND SCIENTIFIC AND 
PROFESSIONAL POSITIONS

0
5. Revise the authority citation for part 319 to read as follows:

    Authority:  5 U.S.C. 1104, 3104, 3324, 3325, 5108, AND 5376. 
Sec.  319.106 also issued under 5 U.S.C. 9201-9206 and Pub. L. 116-
92, sec. 1122(b)(1).


0
6. Add Sec.  319.106 to subpart A to read as follows:


Sec.  319.106   Suitability inquiries regarding criminal history.

    Agency inquiries regarding criminal history must be done in 
accordance with the requirements under chapter 92 of title 5, U.S. Code 
and part 920 of this chapter.

PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)

0
7. Revise the authority citation for part 330 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). Sec.  
330.1301 also issued under 5 U.S.C. 9201-9206 and Pub. L. 116-92, 
sec. 1122(b)(1).


0
8. Revise subpart M, consisting of Sec. Sec.  330.1300 and 330.1301, to 
read as follows:

Subpart M--Timing of Background Investigations


Sec.  330.1300   Timing of suitability inquiries in competitive hiring.

    (a) A hiring agency may not make specific inquiries concerning an 
applicant's credit background of the sort asked on the OF-306, 
Declaration for Federal Employment, or other forms used to conduct 
suitability investigations for Federal employment (i.e., inquiries into 
an applicant's 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, where applicable, or previous 
work history, prior to making a conditional offer of employment to an 
applicant.
    (b) However, in certain situations, agencies may have a business 
need to obtain information about the credit 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

[[Page 60330]]

evaluate an applicant's adverse credit history earlier in the process. 
OPM will consider such factors as, but not limited to, the nature of 
the position being filled and whether a clean credit 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 review an 
applicant's credit background 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 the 
applicant's 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 credit background 
information prior to completion of the assessment process and the 
making of a conditional offer of employment.


Sec.  330.1301   Suitability inquiries regarding criminal history.

    Agency inquiries regarding criminal history must be done in 
accordance with the requirements under chapter 92 of title 5, U.S. Code 
and part 920 of this chapter.

PART 731--SUITABILITY

0
9. Revise the authority citation for part 731 to read as follows:

    Authority:  5 U.S.C. 1302, 3301, 7301, 9201-9206; Pub. L. 116-
92, sec. 1122(b)(1); 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; Presidential Memorandum 
on 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, January 31, 
2014.


0
11. In Sec.  731.103, revise paragraph (d)(1) 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 in oral or written form 
(including through the OF-306 or other forms used to conduct 
suitability investigations for Federal employment, USAJOBS, or any 
other electronic means) unless the hiring agency has made a conditional 
offer of employment to the applicant. Agencies may request an exception 
to the provision for making credit inquiries in advance of a 
conditional offer in accordance with the provisions in 5 CFR part 330, 
subpart M. For criminal inquiries prior to a conditional offer, this 
prohibition does not apply to applicants for positions excepted under 5 
CFR 920.201(b). Agencies may make inquiries into an applicant's 
Selective Service registration, military service, citizenship status, 
where applicable, or previous work history, prior to making a 
conditional offer of employment to an applicant.
* * * * *

0
12. Add part 754 as follows:

PART 754--COMPLAINT PROCEDURES, ADVERSE ACTIONS, AND APPEALS FOR 
CRIMINAL HISTORY INQUIRIES PRIOR TO CONDITIONAL OFFER

Subpart A--Complaint Procedures
Sec.
754.101 Coverage.
754.102 Agency complaint process.
754.103 Applicant representatives.
Subpart B--Adverse Actions
754.201 Coverage.
754.202 Penalty determination.
754.203 Procedures.
754.204 Appeal rights.
754.205 Agency records.

    Authority:  5 U.S.C. 554(a)(2), 1103(a)(5)(A), 1104(a)(2), 9201-
9205, and Pub. L. 116-92, sec. 1122(b)(1).

Subpart A--Complaint Procedures


Sec.  754.101   Coverage.

    (a) Actions covered. A complaint, or any other information, 
submitted by an applicant for an appointment to a civil service 
position relating to compliance with section 9202 of title 5, United 
States Code.
    (b) Definitions. In this subpart, Agency, applicant, appointing 
authority, conditional offer, criminal history record information, and 
employee have the meanings set forth in 5 CFR 920.101.


Sec.  754.102   Agency complaint process.

    (a) Complaint intake. (1) Within 90 days of the effective date of 
this part, each agency must establish and publicize an accessible 
program for the agency to receive a complaint, or any other 
information, from an applicant, and any applicable supporting material, 
relating to the agency's compliance with section 9202 of title 5, 
United States Code and part 920 of this chapter, in accordance with the 
guidelines and standards established in this section and the issuances 
described in paragraph (d)(3) of this section.
    (2) An applicant may submit a complaint, or any other information, 
to an agency within 30 calendar days of the date of the alleged non-
compliance by an employee of an agency with section 9202 of title 5, 
United States Code and part 920 of this chapter.
    (3) The agency shall extend the 30-calendar-day time limit in 
paragraph (a)(2) of this section when the applicant shows that the 
applicant was not notified of the time limits and was not otherwise 
aware of them, that the applicant did not know and reasonably should 
not have known that the non-compliance with 5 U.S.C. 9202 and part 920 
of this chapter occurred, to consider a reasonable accommodation of a 
disability, or for other proper and adequate reasons considered by the 
agency.
    (4) The agency must conduct outreach to inform an applicant of the 
procedure for submitting a complaint when it has reasonable cause to 
believe that the applicant is attempting to file a complaint.
    (b) Agency investigation. (1) Acting under delegated authority from 
OPM and subject to the limitations and requirements of paragraph (d) of 
this section, the agency employing the employee against whom the 
complaint has been filed shall investigate the complaint, unless the 
employee is an administrative law judge appointed under 5 U.S.C. 3105. 
To carry out this function in an impartial manner, the same agency 
official(s) responsible for executing and advising on the recruitment 
action may not also be responsible for managing, advising, or 
overseeing the agency complaint process established in this section.
    (2) In carrying out its delegated responsibilities under paragraph 
(b)(1) of this section, the agency shall develop an impartial and 
appropriate factual record adequate for OPM to make findings on the 
claims raised by any written complaint. An appropriate factual record 
is one that allows a reasonable fact finder to draw conclusions as to 
whether non-compliance with 5 U.S.C. 9202 and part 920 of this chapter 
occurred. Agencies have discretion to determine the appropriate fact-
finding methods that efficiently and thoroughly address the matters at 
issue.
    (3) The agency must delegate to the investigator sufficient 
authority to secure the production, from agency employees and 
contractors, of documentary and testimonial evidence needed to 
investigate and report on the complaint.
    (4) The applicant or applicant's representative must be given a 
reasonable time to respond to a request for documentary and testimonial

[[Page 60331]]

evidence. This time period will not exceed 10 calendar days under 
ordinary circumstances. However, in the agency's discretion, an agency 
may grant an extension under extenuating circumstances.
    (5) The agency shall complete its investigation within 60 calendar 
days of the date of the filing of the complaint. An agency may extend 
the investigation period when the agency has provided more than 10 
calendar days for the applicant to respond to a request for documentary 
and testimonial evidence pursuant to paragraph (b)(4) of this section. 
Notwithstanding an extension, the agency shall complete the 
investigation as expeditiously as possible.
    (6) Within 30 calendar days of completing its investigation, the 
agency shall provide to OPM an administrative report. This report 
should include the applicant's complaint, or any other information 
submitted by the applicant, the agency's factual findings, a complete 
copy of all information gathered during the investigation, and any 
other information that the agency believes OPM should consider. The 
report should be submitted to the Manager, Employee Accountability, 
Accountability and Workforce Relations, Employee Services, Office of 
Personnel Management, 1900 E Street NW, Room 7H28, Washington, DC 20415 
or [email protected].
    (c) OPM adjudication. (1) At OPM's discretion, OPM may request the 
agency provide additional information as necessary.
    (2) OPM shall notify the agency and the subject(s) of the complaint 
in writing of its assessment of the complaint, including any decision 
to initiate adverse action proceedings under subpart B of this part.
    (d) OPM oversight. (1) OPM may revoke an agency's delegation under 
this section if an agency fails to conform to this section or OPM 
issuances as described in paragraph (d)(3) of this section.
    (2) OPM retains jurisdiction to make final determinations and take 
actions regarding the receipt and investigation of complaints, or any 
other information; record-keeping; and reporting related to an 
allegation of non-compliance with 5 U.S.C. 9202 and part 920 of this 
chapter. Paragraphs (a) and (b) of this section notwithstanding, OPM 
may, in its discretion, exercise its jurisdiction under this section in 
any case it deems necessary.
    (3) OPM may set forth policies, procedures, standards, and 
supplementary guidance for the implementation of this section in OPM 
issuances.


Sec.  754.103   Applicant representatives.

    An applicant may select a representative of the applicant's choice 
to assist the applicant during the complaint process. An agency may 
disallow as an applicant's representative an individual whose 
activities as a representative would cause a conflict of interest or 
position; an agency employee who cannot be released from official 
duties because of the priority needs of the Government; or an agency 
employee whose release would give rise to unreasonable costs to the 
Government.

Subpart B--Adverse Actions


Sec.  754.201   Coverage.

    (a) Actions covered. This subpart applies to actions taken under 5 
U.S.C. 9204.
    (b) Employees covered. This subpart covers an employee of an agency 
as defined and ``employee'' has the meaning given the term in 5 CFR 
920.101.
    (c) Definitions. In this subpart--
    Civil penalty means a monetary penalty imposed on an employee of a 
covered agency when it has been determined the employee has violated 
the Fair Chance Act.
    Day means a calendar day.
    Director means the Director of OPM or Director's designee.
    Suspension means the placing of an employee of a covered agency in 
a temporary status without duties and pay when it has been determined 
the employee violated the Fair Chance Act.


Sec.  754.202   Penalty determination.

    (a) First violation. If the Director or Director's designee 
determines, after OPM provides the procedural rights in Sec.  754.203, 
that an employee of an agency has violated 5 U.S.C. 9202 and part 920 
of this chapter, the Director or Director's designee shall issue to the 
employee a written warning that includes a description of the violation 
and the additional penalties that may apply for subsequent violations; 
and direct the agency to file such warning in the employee's official 
personnel record file.
    (b) Subsequent violations. If the Director or Director's designee 
determines, after OPM provides the procedural rights in Sec.  754.203, 
that an employee of an agency has committed a subsequent violation of 5 
U.S.C. 9202 and part 920 of this chapter, the Director or Director's 
designee may take the following action:
    (1) For a second violation, order a suspension of the employee for 
a period of not more than 7 days.
    (2) For a third violation, order a suspension of the employee for a 
period of more than 7 days.
    (3) For a fourth violation--
    (i) Order a suspension of the employee for a period of more than 7 
days; and
    (ii) Order the employee's agency to collect a civil penalty against 
the employee in an amount that is not more than $250, and remit the 
penalty amount to the U.S. Department of Treasury for deposit in the 
Treasury.
    (4) For a fifth violation--
    (i) Order a suspension of the employee for a period of more than 7 
days; and
    (ii) Order the employee's agency to collect a civil penalty against 
the employee in an amount that is not more than $500, and remit the 
penalty amount to the U.S. Department of Treasury for deposit in the 
Treasury.
    (5) For any subsequent violation--
    (i) Order a suspension of the employee for a period of more than 7 
days; and
    (ii) Order the employee's agency to collect a civil penalty against 
the employee in an amount that is not more than $1,000, and remit the 
penalty amount to the U.S. Department of Treasury for deposit in the 
Treasury.
    (c) Duration of suspension and penalty amount. The Director or 
Director's Designee has discretion to determine the duration of a 
suspension and the amount of a penalty under this section, subject only 
to the minimum and maximum durations and amounts specified in this 
section.
    (d) Agency responsibilities. An agency shall carry out an order of 
the Director to suspend an employee, or to collect and remit a civil 
penalty, pursuant to processing and recordkeeping instructions issued 
by OPM.
    (1) The agency shall carry out the order of the Director to suspend 
the employee as soon as practicable.
    (2) The agency shall carry out the order of the Director to collect 
and remit a civil penalty as soon as practicable, unless the employee 
timely appeals the action under Sec.  754.204, in which case the agency 
shall collect and remit the civil penalty as soon as practicable after 
the Merit Systems Protection Board issues a final decision sustaining 
the action.
    (e) Administrative law judges. Paragraphs (a) through (d) of this 
section do not apply if the Director or Director's designee believes 
that an administrative law judge has violated 5 U.S.C. 9202 and part 
920 of this chapter. In any such

[[Page 60332]]

case the Director or Director's designee shall file a complaint with 
the Merit Systems Protection Board proposing an action set forth in 5 
U.S.C. 9204 and describing with particularity the facts that support 
the proposed agency action, and the Board will determine whether the 
action is for good cause under its regulations in 5 CFR part 1201, 
subpart D.


Sec.  754.203   Procedures.

    (a) Notice of proposed action. An employee against whom action is 
proposed under this subpart is entitled to at least 30 days' advance 
written notice. The notice must state the specific reason(s) for the 
proposed action and inform the employee of the right to review the 
material which is relied on to support the reasons for the proposed 
action given in the notice before any final decision is made by the 
Director or Director's designee.
    (b) Employee's answer. (1) An employee may answer orally and in 
writing. The employee's agency must give the employee a reasonable 
amount of official time to review the material relied on to support 
OPM's proposed action, to prepare and present an answer orally and in 
writing, and to secure affidavits, if the employee is in an active duty 
status. OPM may require the employee to furnish any answer to the 
proposed action, and affidavits and other documentary evidence in 
support of the employee's answer, within such time as would be 
reasonable, but not less than 7 days.
    (2) The Director or Director's Designee may designate an Office of 
Personnel Management official to hear the employee's oral answer, and 
confer authority on that person to make or recommend a final decision 
on the proposed adverse action.
    (c) Representation. An employee covered by this part is entitled to 
be represented by an attorney or other representative. An agency may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position, or an 
employee of the agency whose release from the employee's official 
position would give rise to unreasonable costs or whose priority work 
assignments preclude release.
    (d) OPM decision. (1) In arriving at a decision, the Director or 
Director's Designee will consider only the complaint, the applicant's 
supporting material, the agency's administrative file, the reasons 
specified in the notice of proposed action, and any oral and written 
answer by the employee or the employee's representative.
    (2) The decision notice must specify in writing the reasons for the 
decision and advise the employee of any appeal rights.
    (e) Administrative Law Judges. This section does not apply if the 
Director or Director's designee believes that an administrative law 
judge has violated 5 U.S.C. 9202 and part 920 of this chapter.


Sec.  754.204   Appeal rights.

    (a) An employee against whom an action is taken by OPM under Sec.  
754.203 may appeal to the Merit Systems Protection Board, under the 
regulations of the Board, but only to the extent the action concerns 
suspensions for more than 14 days or combines a suspension and a civil 
penalty. An appeal must be filed by not later than 30 days after the 
effective date of the action. The procedures for filing an appeal with 
the Board are found at 5 CFR part 1201.
    (b) If the Board finds that one or more of the charges brought by 
OPM against the employee is supported by a preponderance of the 
evidence, regardless of whether all specifications are sustained, it 
must affirm OPM's action. The Board may neither review whether the 
adverse action is for such cause as will promote the efficiency of the 
service, nor mitigate the duration of a suspension or the amount of a 
civil penalty ordered under this part.
    (c) An appeal against OPM is the exclusive avenue of appeal. The 
employee has no right to file a separate appeal against the employing 
agency for processing a personnel action as ordered by OPM under Sec.  
754.202.
    (d) OPM's action under Sec.  754.202 of this part is not subject to 
an agency's administrative grievance procedure or a negotiated 
grievance procedure under a collective bargaining agreement between an 
exclusive bargaining representative and any agency.


Sec.  754.205   Agency records.

    The complaint, the applicant's supporting material, the agency's 
administrative file, the notice of the proposed action, the employee's 
written reply, if any, summary or transcript of the employee's oral 
reply, if any, the notice of decision, and any order to the covered 
agency effecting the action together with any supporting material, must 
be maintained in the applicable Privacy Act system of records.

0
13. Add part 920 to read as follows:

PART 920--TIMING OF CRIMINAL HISTORY INQUIRIES

Subpart A--General Provisions
Sec.
920.101 Definitions.
920.102 Positions covered by Fair Chance Act regulations.
Subpart B--Timing of Inquiries Regarding Criminal History
920.201 Limitations on criminal history inquiries.
920.202 Violations.

    Authority:  5 U.S.C. 1103(a)(5)(A), 9201-9206 and Pub. L. 116-
92, sec. 1122(b)(1).

Subpart A--General Provisions


Sec.  920.101   Definitions.

    For the purpose of this part:
    Agency means--
    (1) An Executive agency as such term is defined in 5 U.S.C. 105, 
including--
    (i) An Executive department defined in 5 U.S.C. 101;
    (ii) A Government corporation defined in 5 U.S.C. 103(1); and
    (iii) An independent establishment defined in 5 U.S.C. 104, 
including the Government Accountability Office;
    (2) A military department as defined in 5 U.S.C. 102;
    (3) The United States Postal Service and the Postal Regulatory 
Commission; and
    (4) Each component of the Executive Office of the President that is 
an independent establishment, or that has a position in the competitive 
service, with respect to an applicant for the position.
    Applicant means a person who has applied to an agency under its 
procedures for accepting applications consistent with governmentwide 
regulations, as applicable.
    Appointing authority means an employee in the executive branch of 
the Government of the United States that has authority to make 
appointments to positions in the civil service.
    Conditional offer means an offer of employment to a position in the 
civil service that is conditioned upon the results of a background 
investigation, including, as relevant here, the results of a criminal 
history inquiry.
    Criminal history record information--(1) Except as provided in 
paragraphs (2) and (3) f this definition, has the meaning given the 
term in section 9101(a) of title 5, United States Code;
    (2) Includes any information described in the first sentence of 
section 9101(a)(2) of title 5, United States Code, that has been sealed 
or expunged pursuant to law; and
    (3) Includes information collected by a criminal justice agency, 
relating to an act or alleged act of juvenile delinquency, that is 
analogous to criminal history record information (including such 
information that has been sealed or expunged pursuant to law).

[[Page 60333]]

    Employee means an ``employee'' as defined in 5 U.S.C. 2105 and an 
employee of the United States Postal Service or the Postal Regulatory 
Commission.
    Political appointment means an appointment by the President without 
Senate confirmation (except those appointed under 5 CFR 213.3102(c)); 
an appointment to a position compensated under the Executive Schedule 
(5 U.S.C. 5312 through 5316); an appointment of a White House Fellow to 
be assigned as an assistant to a top-level Federal officer (5 CFR 
213.3102(z)); a Schedule C appointment (5 CFR 213.3301, 213.3302); a 
noncareer, limited term, or limited emergency Senior Executive Service 
appointment (5 CFR part 317, subpart F); an appointee to serve in a 
political capacity under agency-specific authority; and a provisional 
political appointment.


Sec.  920.102   Positions covered by Fair Chance Act regulations.

    (a) Positions covered. This part applies to all positions in the 
competitive service, excepted service, and Senior Executive Service in 
an agency.
    (b) Exempt positions. For purposes of this part an exempt position 
is any position for which a hiring agency is required by statutory 
authority to make inquiries into an applicant's criminal history prior 
to extending an offer of employment to the applicant.

Subpart B--Timing of Inquiries Regarding Criminal History


Sec.  920.201   Limitations on criminal history inquiries.

    (a) Applicability. An employee of an agency may not request, in 
oral or written form (including through the Declaration for Federal 
Employment (Office of Personnel Management Optional Form 306) or any 
similar successor form, the USAJOBS internet website, or any other 
electronic means) that an applicant for an appointment to a position in 
the civil service disclose criminal history record information 
regarding the applicant before the appointing authority extends a 
conditional offer to the applicant. This includes the following points 
in the recruitment and hiring process:
    (1) Initial application, through a job opportunity announcement on 
USAJOBS, or through any recruitment/public notification such as on the 
agency's website/social media, etc.;
    (2) After an agency receives an initial application through its 
back-end system, through shared service providers/recruiters/
contractors, or orally or via email and other forms of electronic 
notification; and
    (3) Prior to, during, or after a job interview. This prohibition 
applies to agency personnel, including when they act through shared 
service providers, contractors (acting on behalf of the agency) 
involved in the agency's recruitment and hiring process, or automated 
systems (specific to the agency or governmentwide).
    (b) Exceptions for certain positions. (1) The prohibition under 
paragraph (a) of this section shall not apply with respect to an 
applicant for an appointment to a position:
    (i) Which is exempt in accordance with Sec.  920.102(b);
    (ii) That requires a determination of eligibility for access to 
classified information;
    (iii) Has been designated as a sensitive position under the 
Position Designation System issued by OPM and the Office of Director of 
National Intelligence, which describes in greater detail agency 
requirements for designating positions that could bring about a 
material adverse effect on the national security;
    (iv) Is a dual-status military technician position in which an 
applicant or employee is subject to a determination of eligibility for 
acceptance or retention in the armed forces, in connection with 
concurrent military membership; or
    (v) Is a Federal law enforcement officer position meeting the 
definition in section 115(c) of title 18, U.S. Code.
    (2) The prohibition under paragraph (a) of this section shall not 
apply with respect to an applicant for a political appointment.
    (c) Notification to applicants. Each agency must publicize to 
applicants the prohibition described in paragraph (a) of this section 
in job opportunity announcements and on agency websites/portals for 
positions that do not require a posting on USAJOBS, such as excepted 
service positions, and in addition to information on where it has 
posted about its complaint intake process under as required by part 754 
of this chapter.


Sec.  920.202   Violations.

    (a) An agency employee may not request, orally or in writing, 
information about an applicant's criminal history prior to making a 
conditional offer of employment to that applicant unless the position 
is exempted or excepted in accordance with Sec.  920.201(b).
    (b) A violation (or prohibited action) as defined in paragraph (a) 
of this section occurs when agency personnel, shared service providers, 
or contractors (acting on behalf of the agency) involved in the 
agency's recruitment and hiring process, either personally or through 
automated systems (specific to the agency or governmentwide), make oral 
or written requests prior to giving a conditional offer of employment--
    (1) In a job opportunity announcement on USAJOBS or in any 
recruitment/public notification such as on the agency's website or 
social media;
    (2) In communications sent after an agency receives an initial 
application, through an agency's talent acquisition system, shared 
service providers/recruiters/contractors, orally or in writing 
(including via email and other forms of electronic notification); or
    (3) Prior to, during, or after a job interview or other applicant 
assessment.
    (c) When a prohibited request, announcement, or communication is 
publicly posted or simultaneously distributed to multiple applicants, 
it constitutes a single violation.
    (d) Any violation as defined in paragraph (a) of this section is 
subject to the complaint and penalty procedures in part 754 of this 
chapter.

[FR Doc. 2023-18242 Filed 8-31-23; 8:45 am]
BILLING CODE 6325-39-P