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.

Rules and Regulations Federal Register

60317 

Vol. 88, No. 169 

Friday, September 1, 2023 

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. 

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 

employeeaccountability@opm.gov or by 

telephone at (202) 606–2930, with 

respect to 5 CFR part 754; Lisa Loss by 

email at SuitEA@opm.gov or by 

telephone at (202) 606–7017, with 

respect to 5 CFR part 731; and Mike 

Gilmore by email at Michael.Gilmore@

opm.gov 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 


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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. 


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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 § 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. 


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Part 317—Employment in the Senior 

Executive Service 

This final rule adds § 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 § 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 § 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 § 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 § 731.103(d)(1) is less clear 

than in § 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 


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protections as reflected immediately 

below. 

Regarding § 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 longstanding 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 

§ 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 § 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 § 754.102(b), an 

organization discussed that § 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 § 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 


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investigative process yielded pursuant 

to the agency’s administrative report 

under § 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 § 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 noncompliance 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 § 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, § 754.102(b)(5) 

will also permit the agency to send its 

administrative report to OPM via 

electronic mail at 

employeeaccountability@opm.gov as an 

alternative to postal delivery as 

proposed. 

Regarding § 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 

§ 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 

§ 754.102(c)(2) to specify that OPM will 

simultaneously notify the complainant 

in writing of its findings and decision. 

OPM will not revise § 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 


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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 

§ 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 

§ 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 § 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 § 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 

§ 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 § 754.203. Appeal rights are 

conferred for suspensions of more than 

14 days or any decision to impose a 

civil penalty under this subpart. 


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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 § 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 § 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 

§ 920.201(b)(3) from the notice of 

proposed rulemaking that indicated that 

OPM will continue to consider case-bycase 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. 


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1Berg. & Huebner, ‘‘Reentry and the Ties that 

Bind: An Examination of Social Ties, Employment, 

and Recidivism’’ (April 28, 2011). 

2Link, Ward, & Stansfield, ‘‘Consequences of 

Mental and Physical Health for Reentry and 

Recidivism: Toward a Health-based Model of 

Desistance’’ (March 27, 2019). 

3Lee-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). 

4Society for Human Resources Management, 

‘‘2021 Getting Talent Back to Work Report’’ (May 

2021). 

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 

§ 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 


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60326 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

5U.S. Department of Labor, ‘‘Reducing 

Recidivism and Increasing Opportunity’’ (June 

2018). 

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

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 


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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 noncompliance 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 

§ 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 


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60328 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Rules and Regulations 

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-jobapplicants-with-criminal-records-a-fairchance?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-ChanceCompete-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/wpcontent/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. 


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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/informationmanagement/privacy-policy/sorn/opmsorn-govt-1-general-personnelrecords.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 

■ 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); § 302.105 

also issued under 5 U.S.C. 1104, Pub. L. 95– 

454, sec. 3(5); § 302.501 also issued under 5 

U.S.C. 7701 et seq.; § 302.107 also issued 

under 5 U.S.C. 9201–9206 and Pub. L. 116– 

92, sec. 1122(b)(1). 

■ 2. Add § 302.107 to subpart A to read 

as follows: 

§ 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 

■ 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. § 317.202 also issued under 5 U.S.C. 

9201–9206 and Pub. L. 116–92, sec. 

1122(b)(1). 

■ 4. Add § 317.202 to subpart B to read 

as follows: 

§ 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 

■ 5. Revise the authority citation for part 

319 to read as follows: 

Authority: 5 U.S.C. 1104, 3104, 3324, 

3325, 5108, AND 5376. § 319.106 also issued 

under 5 U.S.C. 9201–9206 and Pub. L. 116– 

92, sec. 1122(b)(1). 

■ 6. Add § 319.106 to subpart A to read 

as follows: 

§ 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) 

■ 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). 

§ 330.1301 also issued under 5 U.S.C. 9201– 

9206 and Pub. L. 116–92, sec. 1122(b)(1). 

■ 8. Revise subpart M, consisting of 

§§ 330.1300 and 330.1301, to read as 

follows: 

Subpart M—Timing of Background 

Investigations 

§ 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 


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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. 

§ 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 

■ 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. 

■ 11. In § 731.103, revise paragraph 

(d)(1) to read as follows: 

§ 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. 

* * * * * 

■ 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 

§ 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. 

§ 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 noncompliance 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 noncompliance 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 


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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 employeeaccountability@

opm.gov. 

(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. 

§ 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 

§ 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. 

§ 754.202 Penalty determination. 

(a) First violation. If the Director or 

Director’s designee determines, after 

OPM provides the procedural rights in 

§ 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 § 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 § 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 


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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. 

§ 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. 

§ 754.204 Appeal rights. 

(a) An employee against whom an 

action is taken by OPM under § 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 § 754.202. 

(d) OPM’s action under § 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. 

§ 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. 

■ 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 

§ 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). 


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

§ 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 

§ 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 § 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. 

§ 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 § 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 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Chapter I 

[Docket No. FDA–2019–D–4212] 

Wholesale Distributor Verification 

Requirement for Saleable Returned 

Drug Product and Dispenser 

Verification Requirements When 

Investigating a Suspect or Illegitimate 

Product—Compliance Policies, 

Revision 1; Guidance for Industry; 

Availability 

AGENCY: Food and Drug Administration, 

Department of Health and Human 

Services (HHS). 

ACTION: Notification of availability. 

SUMMARY: The Food and Drug 

Administration (FDA or Agency) is 

announcing the availability of a 

guidance for industry entitled 

‘‘Wholesale Distributor Verification 

Requirement for Saleable Returned Drug 

Product and Dispenser Verification 

Requirements When Investigating a 

Suspect or Illegitimate Product— 

Compliance Policies, Revision 1.’’ This 

revised guidance explains that FDA 

intends to extend for an additional year 

(from November 27, 2023, to November 

27, 2024), the enforcement policies 


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