This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

24885 

Vol. 87, No. 81 

Wednesday, April 27, 2022 

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: Proposed rule with request for 

comments. 

SUMMARY: The Office of Personnel 

Management (OPM) is proposing to 

amend rules 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. In 

addition, OPM is proposing new 

regulations to establish 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. Finally, the regulations 

will outline adverse action procedures 

that will 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. OPM is proposing 

these changes to implement 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 

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 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: Comments must be received on 

or before June 27, 2022. 

ADDRESSES: You may submit comments 

through the Federal eRulemaking Portal 

at http://www.regulations.gov. All 

submissions received through the Portal 

must include the agency name and 

docket number or Regulation Identifier 

Number (RIN) for this proposed 

rulemaking. 

Instructions: All submissions must 

include the agency name and docket 

number or RIN for this rulemaking. 

Please arrange and identify your 

comments on the regulatory text by 

subpart and section number; if your 

comments relate to the supplementary 

information, please refer to the heading 

and page number. All comments 

received will be posted without change, 

including any personal information 

provided. Please ensure your comments 

are submitted within the specified open 

comment period. Comments received 

after the close of the comment period 

will be marked ‘‘late,’’ and OPM is not 

required to consider them in 

formulating a final decision. Before 

acting on this proposal, OPM will 

consider and respond to all comments 

within the scope of the regulations that 

we receive on or before the closing date 

for comments. Changes to this proposal 

may be made in light of the comments 

we receive. 

FOR FURTHER INFORMATION CONTACT: For 

questions with respect to 5 CFR part 

754, contact Timothy Curry by email at 

employeeaccountability@opm.gov or by 

telephone at (202) 606–2930. For 

questions with respect to 5 CFR part 

731, contact Lisa Loss by email at 

SuitEA@opm.gov or by telephone at 

(202) 606–7017. For questions on all 

other parts, contact Mike Gilmore by 

telephone on (202) 606–2429, by fax at 

(202) 606–4430, by TTY at (202) 418– 

3134, or by email at Michael.Gilmore@

opm.gov. 

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 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. 

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. 

OPM does not currently have any data 

to show whether the revised regulations 

affected agency hiring processes or were 

instead, as OPM anticipated, a 

codification of existing practices. 

Currently OPM regulations, 5 CFR 

parts 330 and 731, prevent agencies, 

unless an exception is granted by OPM, 

from making inquiries into an 


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applicant’s criminal or credit history of 

the sort asked on the Optional Form 

(OF) 306 titled, Declaration for Federal 

Employment, ‘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 Act has elaborated on the 

methods of inquiry not permitted and 

also 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. 

Explanation of OPM’s Proposed Rule 

Under the Fair Chance Act 

1. Restrictions on Preemployment 

Criminal Inquiries 

OPM is proposing 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 added by 

this subtitle).’’ OPM is also proposing 

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 (OPM 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. 

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 proposing to: (1) 

Revise 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) preserve the 

existing Ban the Box rules restricting 

pre-employment credit inquiries for 

appointments in the competitive 

service; and (3) amend 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 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 Senior-Level and 

Scientific and Professional Positions; 

330, and 731. OPM is also proposing to 

amend 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. 

The regulations explain that agencies 

may request exceptions from OPM on a 

case-by-case basis. OPM will consider 

exceptions based on legitimate, job/ 

position-related reasons, giving due 

consideration to requests for positions 

with specific job-related duties. 

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. 

The proposed 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. 

2. Complaint, Adverse Action, and 

Appeal Procedures 

Under section 9203, the 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 Act 

further establishes minimum 

requirements regarding penalties for 

violations of the 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 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 Act further notes 

in section 9205 that an adverse action 

taken under the Act shall not be subject 

to the procedures under chapter 75 of 

title 5 or, except as provided for the 

appeal process established under the 

Act, be subject to appeal or judicial 

review. Therefore, OPM is proposing 

new 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. 

3. Section-by Section Analysis 

Part 302 

OPM is proposing to add § 302.107 to 

subpart A to incorporate the 

requirements of the Fair Chance Act. 

Proposed § 302.107 addresses when 

inquiries into an applicant’s criminal 

history may be made and circumstances 

under which exceptions may be 

requested and considered by OPM. 

Part 317 

OPM is proposing to add § 317.202 to 

subpart B to incorporate the 

requirements of the Fair Chance Act. 

Proposed § 317.202 addresses when 

inquiries into an applicant’s criminal 

and credit history may be made and 

circumstances under which exceptions 

may be requested and considered by 

OPM. 

Part 319 

OPM is proposing to add § 319.106 to 

subpart A to incorporate the 


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1This delegation of investigative authority is not 

possible when the alleged violator is an 

administrative law judge (ALJ) for whom an adverse 

action is governed by the procedures in 5 U.S.C. 

7521. Such actions require formal adjudication 

under the Administrative Procedure Act, under 

which fact-finding by an agency head or an ALJ 

‘‘constitutes the exclusive record for decision.’’ 5 

U.S.C. 556(b), (e). 

requirements of the Fair Chance Act. 

Proposed § 319.106 addresses when 

inquiries into an applicant’s criminal 

and credit history may be made and 

circumstances under which exceptions 

may be requested and considered by 

OPM. 

Part 330 

The Fair Chance Act does not 

specifically address the timing of 

suitability inquiries into a job 

applicant’s credit history. Nevertheless, 

the Presidential Memorandum of 

January 31, 2014, addresses this topic, 

and is still in effect. As a result, OPM’s 

revision of § 330.1300 retains the 

prohibition on making inquiries into a 

job applicant’s credit history and 

removes any reference to criminal 

history as that prohibition will be 

addressed in part 920. 

Part 731 

The Fair Chance Act does not 

specifically address the timing of 

suitability inquiries into a job 

applicant’s credit history. Nevertheless, 

the Presidential Memorandum of 

January 31, 2014, addresses this topic, 

and is still in effect. As a result, 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 as reflected 

in the new part 920, which incorporates 

the requirements of the Fair Chance Act 

and addresses the circumstances under 

which exceptions may be requested and 

considered by OPM. 

Part 754 

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 is proposing to add 

a new 5 CFR part 754 to implement the 

complaint procedure requirements of 

the Fair Chance Act. This new proposed 

rule falls under subpart A of 5 CFR part 

754 as ‘‘Complaint Procedures.’’ The 

Fair Chance Act does not provide job 

applicants the ability to use any existing 

statutory or regulatory complaint 

procedures that may be available for 

other employment related complaints, 

such as the U.S. Office of Special 

Counsel, which investigates prohibited 

personnel practices. Thus, there 

currently is no regulatory framework for 

the complaint process for job applicants 

to allege violations of the nature 

described in the Fair Chance Act. The 

Fair Chance Act is also silent on who 

investigates complaints. 

Under 5 U.S.C. 9203(2), the Director 

of OPM ‘‘shall . . . 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 

of an agency with section 9202,’’ and 

section 1122(b)(1) of the Fair Chance 

Act, reprinted at 5 U.S.C. 9201 note, 

requires the Director to ‘‘issue such 

regulations as are necessary to carry 

out’’ this and the other requirements of 

chapter 92. More generally under 5 

U.S.C. 1103(a)(5)(A), the Director is 

authorized to execute, administer, and 

enforce this and any other provision of 

civil service law. Under these 

authorities we are prescribing a 

complaint procedure under which an 

applicant will initially file a complaint, 

or any other information, and if 

applicable, supporting material with the 

employing agency, which will transmit 

the material to OPM. 

To be acceptable for processing by 

OPM, the complaint, or any other 

information, and supporting material 

must be accompanied by a report of 

investigation. However, the only 

investigative authority in the Fair 

Chance Act is in section 9204(a), under 

which the Director of OPM must 

determine whether a violation has 

occurred ‘‘after notice and an 

opportunity for a hearing on the 

record.’’ This language encompasses 

adverse action procedures, as described 

in greater detail below, but it also 

encompasses the predicate fact-finding 

needed for OPM to either initiate an 

adverse action based on a complaint, 

dismiss the complaint, or require 

additional fact finding. Accordingly, 

OPM has determined that, under the 

proposed rule, subject to certain 

limitations and requirements, the best 

approach is for OPM to delegate to 

agencies its authority under 5 U.S.C. 

9204(a) to investigate a complaint, or 

any other information, while reserving 

to OPM the authority under section 

9204(a) to provide notice of a proposed 

adverse action and an opportunity to 

respond to the charges.1

Under 5 U.S.C. 1104(a) and (b), OPM 

may delegate, in whole or in part, any 

personnel management function vested 

in or delegated to the Director and 

establish standards and oversight 

programs as necessary. In addition, 

under 5 CFR parts 5 and 10, OPM has 

responsibility to oversee the Federal 

personnel system and agency 

compliance with merit system 

principles and supporting laws, rules, 

regulations, Executive Orders, and OPM 

standards. OPM may set forth policies, 

procedures, standards, and 

supplementary guidance for the 

implementation of this part in OPM 

issuances. 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. 

Therefore, OPM believes that with 

appropriate OPM guidance and 

oversight, agencies can investigate 

violations of Fair Chance Act 

requirements in a fair and impartial 

manner. OPM will then notify the 

agency employee of negative findings, 

provide an opportunity for the 

employee to be heard, and render a 

decision on the final record. 

Section 754.101 Coverage 

Subpart A applies to ‘‘a complaint, or 

any other information,’’ submitted by an 

applicant for an appointment to a 

position in the civil service relating to 

compliance with 5 U.S.C. 9202. 

Regarding ‘‘any other information,’’ it is 

conceivable that an applicant may ask a 

question or raise a concern about noncompliance with section 9202 without 

knowledge of an agency’s specific 

complaint procedures. Agency 

procedures must address how to 

conduct outreach when an applicant 

initiates contact about a complaint. 

The proposed rule describes who may 

utilize the agency complaint procedures 

described in § 754.102. Specifically, the 

complaint procedures are available to an 

applicant as the term applicant is 

defined in proposed § 920.101, which 

means a person who has applied to an 

agency under its procedures for 

accepting applications consistent with 

governmentwide regulations, as 

applicable. 

Section 754.101 includes definitions 

that track the definitions in part 920, as 

described in greater detail below. 

Section 754.102 Agency Complaint 

Process 

OPM was informed by other existing 

complaint procedures in establishing 

the processes required by the Fair 

Chance Act. OPM believes that 


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establishing a process which 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. 

As noted above, within guidelines 

established by OPM and subject to OPM 

oversight, the proposed 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, consistent 

with these OPM guidelines and 

oversight, the proposed rule delegates to 

each agency OPM’s responsibility to 

conduct an investigation of the written 

complaint, or any other information, 

regarding compliance with 5 U.S.C. 

9202. Agencies then would have 

responsibility to provide OPM the 

applicant’s written complaint or any 

other information, along with 

supporting material and the results of 

the agency’s investigation, so OPM may 

determine any further actions, such as 

additional investigative fact-finding or 

appropriate penalties, regarding 

violations of the Fair Chance Act 

requirements. 

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. For example, Federal 

employees may request their agency 

conduct a review of the classification of 

the employee’s position and may appeal 

the classification decision to the agency 

under rules established by OPM. 

Another example concerns the 

responsibility of agencies to establish 

programs to promote equal opportunity 

and to identify and eliminate 

discriminatory practices and policies. 

This includes the responsibility to 

provide for the prompt, fair, and 

impartial processing of Equal 

Employment Opportunity (EEO) 

complaints under rules established by 

the Equal Employment Opportunity 

Commission (EEOC). These examples 

have helped inform OPM of successful 

procedures that can be modeled in 

establishing the processes required by 

the Fair Chance Act. 

The proposed rule directs covered 

agencies to establish a complaint 

process within 90 days of the effective 

date of the final rule that allows an 

applicant to file a complaint, or submit 

any other information, within 30 

calendar days of the date of the alleged 

non-compliance with 5 U.S.C. 9202 by 

an employee of the covered agency. The 

proposed rule further directs covered 

agencies to extend this time limit when 

the applicant shows that he or she was 

not notified of the time limits and was 

not otherwise aware of them, that he or 

she did not know and reasonably should 

not have known that the noncompliance with section 9202 occurred, 

to consider a reasonable accommodation 

of a disability, or for other proper and 

adequate reasons considered by the 

agency. OPM believes this provides 

applicants sufficient time to submit a 

complaint, or any other information, 

and is comparable to time limits for 

filing other types of employment-related 

complaints. It also provides an 

opportunity for the applicant to submit 

a complaint or any other information 

after 30 days if the applicant’s rights to 

do so were not properly publicized. 

This highlights why it will be critical for 

agencies to widely publicize 

information regarding the complaint 

process to job applicants. The 

information must appear in agency job 

announcements. In addition to placing 

this information in job announcements, 

agencies should consider placing this 

information on agency websites/portals 

soliciting applications for those 

positions that do not require a posting 

on USAJOBS, such as excepted service 

positions. Finally, as noted above, the 

proposed rule requires that covered 

agencies conduct outreach about its 

complaint procedures, when an 

applicant initiates contact about an 

alleged violation. 

The proposed rule requires covered 

agencies to investigate any complaint, or 

any other information, regarding 

compliance with section 9202. It notes 

that in order 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. Agencies otherwise 

have discretion to determine 

responsibility for investigating 

complaints, or any other information, 

under this process. 

The proposed rule requires agencies 

to develop an impartial and appropriate 

factual record sufficient for OPM to 

make findings on the complaint. In 

other words, the record should allow a 

reasonable fact finder to draw 

conclusions as to whether noncompliance with section 9202 occurred. 

Agencies otherwise have discretion to 

determine the appropriate fact-finding 

methods to carry out this responsibility. 

The proposed rule requires the agency 

to delegate sufficient authority to the 

investigator to secure the production, 

from agency employees and contractors 

of documentary evidence and 

testimonial evidence needed to report 

on and investigate the complaint. While 

agencies may have less control over the 

applicant’s cooperation, applicants have 

an incentive to cooperate. If an agency 

notifies OPM that an applicant has 

refused to produce documentary or 

testimonial evidence sought during the 

investigation, OPM may direct the 

agency to suspend the investigation; or 

if the investigation continues despite an 

applicant’s failure to participate, OPM 

may make an adverse inference or, in 

appropriate circumstances, dismiss the 

complaint. 

In addition, the proposed rule 

requires the agency to complete the 

investigation within 60 calendar days of 

the filing of the complaint. Due to the 

narrow scope of section 9202, OPM 

believes that 60 calendar days is 

sufficient time to complete a thorough 

investigation. 

The proposed rule requires the agency 

to provide OPM an administrative 

report on the investigation of a 

complaint within 30 calendar days of 

completing the investigation. This 

report should include all necessary 

information for OPM to make a 

determination on whether noncompliance with section 9202 occurred. 

The report should include the 

applicant’s written 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 the agency 

believes OPM should consider. OPM 

may request the agency provide 

additional information as necessary. 

After review, OPM will notify the 

agency and the subject(s) of the 

complaint in writing of OPM’s findings 

regarding the complaint, including any 

decision to initiate adverse action 

proceedings under 5 CFR part 754, 

subpart B, or to dismiss the complaint. 

Agencies exercise authority under this 

section by delegation from OPM and 

must adhere to the OPM requirements 

for receipt and investigation of 

complaints or any other information, as 

stated in this section as well as any 

OPM issuances. Agencies must also 

implement policies and procedures and 

maintain records demonstrating that 

they employ reasonable methods to 

ensure adherence to the Fair Chance Act 

and OPM regulations and any 

subsequent issuances. OPM retains the 

exclusive authority to determine the 

sufficiency of an agency’s complaint 

process, including the sufficiency of the 

investigation. OPM may direct further 

action if OPM determines it necessary 

for its adjudication of the complaint or 


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any other information submitted 

regarding an allegation of noncompliance with section 9202. 

Section 754.103 Applicant 

Representatives 

The proposed language in this section 

provides that the applicant may select a 

representative of their choice to assist 

throughout the complaint process. It 

further notes that an agency may 

disallow an applicant’s representative 

when the individual’s activities as a 

representative would cause a conflict of 

interest or position, when the applicant 

designates an agency employee who 

cannot be released from their official 

duties because of the priority needs of 

the Government, or when the applicant 

designates an agency employee whose 

release would give rise to unreasonable 

costs to the Government. This is 

comparable to requirements and 

restrictions on representatives that are 

provided for in OPM regulations on 

classification appeals. OPM believes 

this is appropriate and fair for the 

applicant when balanced against the 

business and mission needs of the 

agency. 

Subpart B—Adverse Actions 

The Fair Chance Act does not require 

compliance with any existing statutory 

or regulatory adverse action procedures 

which are available for other conductrelated matters. Section 9204 prescribes 

certain penalties to be imposed by OPM 

for each violation of 5 U.S.C. 9202 and 

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. 

Based on these unique requirements, 

OPM is proposing to add subpart B, 

Adverse Actions, under the new 5 CFR 

part 754, to implement a new adverse 

action and appeals process related to 

violations of the Fair Chance Act. 

While implementing the requirements 

of the Fair Chance Act, we have also 

been mindful of the need to provide 

procedures that we are confident would 

provide for due process. Those include, 

at a minimum, a meaningful 

opportunity—before a decision is made 

on an adverse action—for an individual 

to know the charges and penalty and 

present a defense. In addition, in light 

of the case law available in relation to 

chapter 75 proceedings, we have 

concluded that it is prudent to provide 

for the ability to appeal the adverse 

action of a suspension for 15 days or 

more before an impartial adjudicator, a 

procedural right that would be available 

with respect to analogous penalties in a 

chapter 75 adverse action proceeding. 

The following sections identify the 

requirements proposed for this new 

subpart and briefly describe the purpose 

of each requirement. 

Section 754.201 Coverage 

This section describes which actions 

and employees are covered by the new 

adverse action procedures established 

by OPM and defines key terms used in 

the subpart. Employees of agencies as 

defined in section 920.101 are subject to 

the adverse action procedures 

established in this subpart. 

This section also defines the terms 

‘‘day,’’ ‘‘suspension,’’ ‘‘civil penalty,’’ 

and ‘‘Director.’’ The term ‘‘day’’ is 

consistent with how OPM defines this 

term in adverse action rules under 5 

CFR part 752. The term ‘‘suspension’’ is 

similar to how OPM defines it under 

part 752 but modified for purposes of 

aligning it with the requirements of the 

Fair Chance Act. OPM believes it is 

appropriate to use similar definitions for 

the Fair Chance Act adverse action 

procedures to facilitate a common 

understanding of these terms. The term 

‘‘civil penalty’’ is intended to clarify 

that this penalty is a form of monetary 

penalty on a covered agency employee 

which is separate and distinct from a 

suspension without pay. Finally, the 

term ‘‘Director’’ is consistent with how 

OPM defines it in other regulations 

promulgated by OPM. OPM believes 

this is consistent with the Director’s 

statutory authority and otherwise will 

facilitate an effective process that allows 

the Director to timely respond to 

complaints from across the entire 

Executive Branch. 

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 Act. The Act specifies 

certain penalties for violations of the 

Act including written warnings, 

suspensions without pay, and civil 

penalties of various amounts depending 

on the violation. The Act provides that 

these actions are not subject to the 

procedures under chapter 75 of title 5, 

United States Code but under 

procedures established by OPM. 

Notably, the range of penalties 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), and another form of 

penalty that is found in chapter 75 and 

requires procedures set out in 

subchapter II of chapter 75 (suspensions 

of 15 days or more). 

Since penalties of written warnings, 

suspensions without pay, and civil 

monetary penalties may be taken across 

multiple Federal agencies utilizing 

various systems and internal processes, 

the proposed rule specifies that the 

employing agency can be directed by 

OPM to (1) issue the employee a written 

warning; (2) process a suspension; and 

(3) collect a civil penalty after OPM 

determines a violation of section 9202 

has occurred. This is comparable to 

OPM directing employing agencies to 

process actions taken by OPM, such as 

removal actions for suitability. 

OPM proposes that the employing 

agency will collect a civil penalty and 

remit it to the Treasury, for deposit in 

the Treasury. OPM invites public 

comment on the method for collecting 

and remitting civil penalties. 

OPM proposes that the employing 

agency must carry out the Director’s 

order to suspend the employee as soon 

as practicable. This is consistent with 

the practice for suspensions under 

chapter 75. However, OPM proposes 

that if the Director orders a civil 

penalty, the penalty cannot be collected 

and remitted until the conclusion of any 

appeal to the Merit Systems Protection 

Board. This is consistent with 5 U.S.C. 

1215(a)(3)(A), under which the Office of 

Special Counsel can pursue a civil 

penalty as a disciplinary action, but the 

penalty cannot be collected until the 

Board’s proceedings have concluded. 

Deferring the collection of a civil 

penalty until resolution of the Board 

appeal will limit the possibility of 

having to collect civil penalties and 

then refund them if OPM’s action is not 

sustained. OPM will track and monitor 

agencies’ processing of OPM’s orders by 

establishing new legal authority codes 

and remark codes to identify that the 

adverse actions are taken under 5 U.S.C. 

9202. OPM’s Guide to Processing 

Personnel Actions will be updated to 

reflect the new codes. 

Section 754.203 Procedures 

The proposed rule establishes the 

procedures to be utilized for actions 

taken under this subpart. The 

procedures in the subpart are similar, 

but not identical, to the adverse action 

procedures found at 5 CFR part 752. 

There are some very unique differences. 

For example, a written warning issued 

under this section is an adverse action 

and is subject to the same procedures 

and retention period as any other 

records of adverse actions. 


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2We note that the penalty for a first offense of the 

Fair Chance Act under 5 U.S.C. 9204(a)(1) is a mere 

‘‘warning,’’ which is not an offense listed in 5 

U.S.C. 7521; while the penalty for a subsequent 

offense may include a ‘‘suspension,’’ which is 

specifically covered by 5 U.S.C. 7521(b)(2). 

Likewise a ‘‘civil penalty’’ for a fourth or 

subsequent violation is not an offense listed in 

section 7521. Yet 5 U.S.C. 554(a)(2) requires a 

formal hearing regardless of whether or not the 

penalty against the ALJ is listed in section 7521, 

and OPM sees no practicable way to establish two 

separate formal hearing programs for offenses 

resulting in a penalty not listed in 5 U.S.C. 7521 

(a ‘‘warning’’ or a ‘‘civil penalty’’) and for offenses 

resulting in a penalty listed in 5 U.S.C. 7521 (a 

‘‘suspension’’). 

The proposed rule specifies that the 

proposed action is made by the Director 

or Director’s designee in order to 

implement the statutory requirements 

found in the Fair Chance Act. Since the 

Director is now required to make 

determinations involving employees in 

numerous agencies across the Executive 

Branch, the proposed rule provides that 

the Director may designate OPM 

officials to act on their behalf. 

The proposed rule does provide for 

procedural rights appropriate to the 

situation: (1) A meaningful 

opportunity—before a decision is made 

on an adverse action—for an individual 

to know the charges and penalty and 

present a defense, with representation; 

and (2) the ability to appeal the adverse 

action of a suspension of 15 days or 

more before an impartial adjudicator. 

This is similar to what is found in 5 CFR 

part 752. 

The proposed rule provides for a 30- 

day notice of any proposed action under 

this subpart. While notices of this length 

are typically only required for 

suspensions greater than 14 days under 

OPM’s adverse action rules at 5 CFR 

part 752, OPM believes it is appropriate 

to propose a 30-day notice for any 

actions proposed under this subpart due 

to the unique nature of this process. 

OPM will have to notify employees who 

are located and employed in other 

Federal agencies, not just at OPM. In 

light of these requirements, OPM 

believes a 30-day notice for all proposed 

actions will facilitate an effective 

process by allowing all parties involved 

to be timely notified and to effectively 

respond to the proposed action. 

The Fair Chance Act requires ‘‘notice 

and an opportunity for a hearing on the 

record’’ when OPM proposes an action 

and before OPM renders any decision. 

OPM proposes to fulfill this requirement 

by providing a notice of proposed 

action, an opportunity to review the 

material relied upon, an opportunity to 

respond orally and/or in writing to the 

notice of proposed action to the Director 

of OPM (or designee), and a decision by 

the Director of OPM (or delegated 

designee), to be followed by an appeal 

to the Merit Systems Protection Board 

(MSPB) if the action taken is a 

suspension of 15 days or longer. This 

comports with (and, at least at the lower 

end of the penalty range, exceeds) the 

5th Amendment due process 

requirements for suspension of a 

tenured public employee. See Gilbert v. 

Homar, 520 U.S. 924, 929, 930, 933 

(1997). 

Except as described below, a hearing 

before an administrative law judge (ALJ) 

under the Administrative Procedure Act 

(APA) is not required. OPM notes that 

the term ‘‘notice and an opportunity for 

a hearing on the record’’ frequently 

invokes formal hearing procedures 

under the APA, 5 U.S.C. 554(a), 556– 

557. See, e.g., Crestview Parke Care Ctr. 

v. Thompson, 373 F.3d 743, 748 (6th 

Cir. 2004). An exception in section 

554(a)(2) applies, however, ‘‘to the 

extent there is involved . . . the 

selection or tenure of an employee.’’ 

The phrase ‘‘there is involved’’ is broad, 

encompassing proceedings that 

implicate employee selection or tenure 

even if that subject matter is not the 

direct focus of the adjudication. 

Likewise, the APA’s legislative history 

shows that the phrase ‘‘selection or 

tenure’’ in 5 U.S.C. 554(a)(2) is to be 

construed broadly, since ‘‘the selection 

and control of public personnel has 

been traditionally regarded as a largely 

discretionary function which, if to be 

overturned, should be done by separate 

legislation.’’ S. Rep. No. 79–758, at 16 

(1945); see also Starrett v. Special 

Counsel, 792 F.2d 1246, 1252 (4th Cir. 

1986). 

The proposed rule provides that the 

employee’s agency must give the 

employee who is in an active duty 

status 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. 

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. The proposed rule provides that 

the OPM Director may designate an 

official who has authority to make or 

recommend a final decision on the 

proposed adverse action, hear the 

employee’s oral answer, and consider 

any written response. 

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 their official position would give 

rise to unreasonable costs or whose 

priority work assignments preclude 

their release. 

Whereas the hearing obligation for 

non-ALJs will be fulfilled by the 

procedures described above, OPM 

believes it is appropriate to provide a 

hearing opportunity before taking an 

adverse action against an ALJ. The 

exception in 5 U.S.C. 554(a)(2) does not 

apply to ‘‘a[n] administrative law judge 

appointed under section 3105 of this 

title.’’ Likewise, 5 U.S.C. 559 provides 

that a subsequent statute—such as the 

Fair Chance Act—‘‘may not be held to 

supersede or modify’’ 5 U.S.C. 7521, 

governing the formal APA hearing rights 

of ALJs facing a suspension, ‘‘except to 

the extent that it does so expressly’’ 

(emphasis supplied). Finally, 5 U.S.C. 

7521(b) includes a list of those statutes 

under which an action otherwise 

covered by 5 U.S.C. 7521(b) is excepted. 

Congress did not include the Fair 

Chance Act in the list of exceptions. 

Since 5 U.S.C. 9205(b)(1) generally 

makes procedures under ‘‘chapter 75’’ 

inapplicable to adverse actions taken 

under the Fair Chance Act, without 

‘‘expressly’’ superseding or modifying 5 

U.S.C. 7521, the APA permits no 

deviation from the procedures in 5 

U.S.C. 7521, when the alleged violator 

is an incumbent ALJ appointed under 5 

U.S.C. 3105. 

Accordingly, OPM proposes that if the 

employee alleged to have violated 

section 9202 is an ALJ appointed under 

section 3105, before OPM takes the 

proposed action the ALJ should have an 

opportunity for a hearing before the 

Merit Systems Protection Board and the 

Board should establish and determine 

whether good cause exists. Under 5 

U.S.C. 1305, the proceeding must be 

governed by the regulations of the 

Board, not those of OPM.2

Finally, the proposed rule provides 

that only the reasons specified in the 

notice of proposed action and any 

answer the employee or the employee’s 

representative, or both, made to the 

designated official may be considered in 

deciding on the proposed action. In the 

case of ALJs, OPM must await the 

MSPB’s good cause determination. The 

decision notice must specify in writing 

the reasons for the decision and advise 

the employee of any appeal rights. This 

facilitates satisfaction of minimum 

procedural rights. 

Section 754.204 Appeal Rights 

The Fair Chance Act does not specify 

any appeal rights for penalties enacted 

for violations of the Act other than any 


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3 In addition, a Fair Chance Act appeal is not a 

category of appeal for which the Board inherited the 

Civil Service Commission’s penalty mitigation 

authority upon its establishment in 1978. See 

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 292– 

94 (1981). Likewise, where, as in 5 U.S.C. 9205(a), 

Congress authorizes OPM to prescribe appellate 

procedures by regulation, OPM has latitude to 

prescribe the scope of the Board’s jurisdiction. See 

Folio, 402 F.3d at 1355. 

4 In addition, an adverse action under the Fair 

Chance Act is not an action within the meaning of 

5 U.S.C. 7512, so there can be no election of 

remedies under 5 U.S.C. 7121(e)(1). 

appeal rights established by OPM. 

Under 5 U.S.C. 1103(a)(5), OPM has the 

broad authority to execute, administer, 

and enforce civil service rules and 

regulations. Therefore, pursuant to its 

statutory authority, as well as the 

President’s delegation of his authority, 

OPM does have statutory authority to 

create the right of appeal to the Merit 

Systems Protection Board (MSPB) by 

regulation where appropriate. The Merit 

Systems Protection Board, in turn, has 

the responsibility to ‘‘hear, adjudicate, 

or provide for the hearing or 

adjudication, of all matters within the 

jurisdiction of the Board under . . . law, 

rule, or regulation,’’ and an employee 

may appeal to the Board ‘‘from any 

action which is appealable to the Board 

under any law, rule, or regulation.’’ 5 

U.S.C. 1204(a)(1), 7701(a) (emphasis 

supplied). Both the U.S. Court of 

Appeals for the Federal Circuit and the 

Board have consistently affirmed the 

principle that the Board’s enabling 

statute gives it appellate jurisdiction 

over actions that are made appealable to 

the Board by OPM regulation; and that 

where an appeal is solely by regulation, 

the regulation circumscribes the scope 

of the appeal. See Roberto v. Dep’t of the 

Navy, 440 F.3d 1341, 1350 (Fed. Cir. 

2006); Folio v. Dep’t of Homeland Sec., 

402 F.3d 1350, 1355 (Fed. Cir. 2005); 

Dowd v. United States, 713 F.2d 720, 

722–23 (Fed. Cir. 1983); Gaxiola v. Dep’t 

of the Air Force, 6 M.S.P.R. 515, 519 

(1981). For example, a probationer has 

certain rights of appeal only as 

conferred by OPM regulation. OPM is 

prescribing an MSPB appeal right for 

adverse actions of 15 days or longer and 

for civil penalties taken under the Fair 

Chance Act as described below, when 

the alleged violator is an employee other 

than an ALJ. 

For forms of misconduct not covered 

by the Fair Chance Act, written 

warnings and suspensions of 14 days or 

less do not have appeal rights to the 

MSPB. This was an intentional choice 

on Congress’s part in passing the Civil 

Service Reform Act (CSRA). This 

scheme balances the interests of Federal 

employees with the needs of ‘‘sound 

and efficient administration.’’ See 

United States v. Fausto, 484 U.S. 439, 

445 (1988). Prudently, the more serious 

the personnel action, the more robust 

are the remedies afforded. For example, 

‘‘Chapter 75 of the Act governs adverse 

actions taken against employees for the 

‘efficiency of the service,’ which 

includes action . . . based on 

misconduct.’’ Fausto, at 446. Employees 

facing a ‘‘major adverse action’’ are 

entitled to MPSB review, and, if the 

decision is adverse, subsequent appeal 

to the MSPB’s reviewing court, the U.S. 

Court of Appeals for the Federal Circuit. 

Id. at 447. A covered employee facing 

only a ‘‘minor adverse personnel 

action’’—that is, a relatively short 

suspension—is entitled to less robust 

remedies, id. at 450: Namely, advance 

written notice, a reasonable time to 

respond, the right to be represented by 

an attorney, and a timely written 

decision, but not the right to full review 

by the MSPB and appeal to the Federal 

Circuit. 5 U.S.C. 7503(b). 

For these reasons, OPM believes such 

appeal rights should not be conferred 

for written warnings and suspensions of 

14 days or less taken under this subpart. 

This promotes efficiency and avoids 

creating inconsistencies on when appeal 

rights are provided for similar penalties 

on different types of misconduct. 

Moreover, for a short suspension under 

the Fair Chance Act, as for a short 

suspension under chapter 75, the 

procedures we propose—advance 

notice, an opportunity to review the 

material relied upon, and an 

opportunity for a written submission 

and an oral hearing before an OPM 

official, prior to any final action—are 

fair and adequate, without the need for 

an additional level of appeal to the 

MSPB. 

Conversely, OPM has concluded that 

it would be appropriate to provide 

MSPB appeal rights for suspensions of 

more than 14 days under this subpart or 

any decision to impose a civil penalty. 

This facilitates a consistent approach to 

appeal rights for suspensions taken 

under the Fair Chance Act and under 

chapter 75. The agency will process any 

action at OPM’s direction. Thus, there is 

no separate right of appeal to the agency 

from the decision. Any appeal to the 

MSPB will be against OPM and not 

against both OPM and the employee’s 

agency. 

The Board will have the authority to 

reverse OPM’s action if the charges are 

not proved by preponderant evidence. If 

the Board finds that OPM has proved at 

least one specification of the charge by 

preponderant evidence, the Board must 

sustain the action. The Fair Chance Act 

does not incorporate the requirement in 

5 U.S.C. 7503(a) and 7513(a) that an 

adverse action shall be ‘‘for such cause 

as will promote the efficiency of the 

service.’’ Accordingly, there is no 

requirement for OPM to prove a nexus 

between the employee’s conduct and 

service efficiency, and the Board cannot 

mitigate the penalty.3

OPM reads 5 U.S.C. 9205(b) as 

permitting the Director to decide which 

adverse actions are subject to appeal 

and which are not. Because the adverse 

action is ordered by OPM and only 

processed by the employing agency, 

there is no right to file an administrative 

grievance or contractual negotiated 

grievance for the adverse action under a 

negotiated grievance procedure. OPM, 

not the employing agency, orders the 

action under the Fair Chance Act. OPM 

is not a party in an agency’s 

administrative grievance procedures, 

and OPM is not the subject of a 

collective bargaining agreement between 

an agency and an exclusive bargaining 

representative for that agency.4

Therefore, an agency cannot overrule 

OPM’s decision; the agency is merely 

processing an action taken by OPM. 

OPM invites public comment on 

whether a grievance procedure of some 

kind should be provided for short 

suspensions, and on how it would work 

considering that employing agencies 

lack discretion when OPM orders an 

adverse action. 

Section 754.205 Agency Records 

This section outlines what OPM and 

the covered agency must maintain 

copies of, and their obligation under the 

Privacy Act. 

Part 920 

OPM is proposing to regulate 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. We also note that 

some agencies may have positions that 

are exempt from part 302 but not 

exempt from the provisions of the Fair 

Chance Act. Likewise, agencies may 

have positions akin to those in the SES, 

but which operate outside the 

provisions of part 317. Placing these 

rules in a common location not tied 

specifically to title 5 excepted service or 

SES rules will help mitigate any 

confusion as to their applicability 

governmentwide. 


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Subpart A 

Proposed subpart A, of part 920 

General Provisions, contains general 

provisions that are applicable to the 

timing of criminal history inquiries. 

Proposed section 920.101 contains 

definitions necessary for the 

administration of this part. 

Proposed § 920.102 explains which 

positions are covered by this part and 

which positions may be excluded. 

Section 920.102(a) makes clear that 

positions in the competitive service, 

excepted service, and SES in executive 

agencies as well as positions in the 

United States Postal Service and the 

Postal Regulatory Commission are 

covered by this part. Section 920.102(b) 

states that for purposes of this part an 

exempt position is any position for 

which a hiring agency is required by 

statute to make inquiries into an 

applicant’s criminal history prior to 

extending an offer of employment to the 

applicant. 

The Fair Chance Act defines which 

agencies are covered by the Act. This 

definition includes an Executive Agency 

as such term is defined in 5 U.S.C. 105; 

the United States Postal Service and the 

Postal Regulatory Commission; and the 

Executive Office of the President. An 

‘‘Executive agency’’ is defined in 5 

U.S.C. 105 to mean an Executive 

Department under 5 U.S.C. 101, a 

Government corporation under 5 U.S.C. 

103, and an independent establishment 

under 5 U.S.C. 104 (including the 

Government Accountability Office). 

Therefore, coverage of the Fair Chance 

Act is broad. 

The definition of an ‘‘executive 

agency’’ in 5 U.S.C. 105 does not 

specifically include a ‘‘military 

department’’ as defined in 5 U.S.C. 102: 

Namely, the Department of the Army, 

the Department of the Navy, or the 

Department of the Air Force. OPM 

construes the Fair Chance Act to cover 

the military departments as well as the 

Department of Defense in which they 

reside, and proposes to include the 

military departments in the definition of 

a ‘‘agency.’’ Absent an expression of 

congressional intent to the contrary, 

because military departments are part of 

the Department of Defense, they are 

subject to those Civil Service laws that 

apply to an ‘‘executive agency’’ within 

the meaning of 5 U.S.C. 105. See White 

v. Dep’t of the Army, 115 M.S.P.R. 664, 

668 (2011). Yet ‘‘[t]he organizational 

history of the Department of Defense 

indicates that the military service 

departments were intended to 

function—at least, with respect to 

personnel matters—with the 

independence that generally 

characterizes executive departments 

outside the Department of Defense, 

rather than the limited kind of 

independence that generally 

characterizes organizations within those 

departments.’’ Pervez v. Dep’t of Navy, 

193 F.3d 1371, 1373 (Fed. Cir. 1999 

(quoting Francis v. Dep’t of the Navy, 53 

M.S.P.R. 545, 549 (1992)). Thus, because 

of the military departments’ ‘‘treatment 

as separate agencies for personnel 

purposes,’’ Pervez, 193 F.3d at 1374, 

OPM’s proposed rule defines the 

military departments as separate 

‘‘agencies’’ for purposes of complying 

with the Fair Chance Act. 

While the coverage of Executive 

departments in 5 U.S.C. 101 is 

straightforward enough, 5 U.S.C. 

9202(1) makes no specific exceptions for 

subdivisions of Executive departments 

which have their own statutory 

personnel authorities. Prominent 

examples include the Veterans Health 

Administration within the Department 

of Veterans Affairs, the Federal Aviation 

Administration within the Department 

of Transportation, the Transportation 

Security Administration within the 

Department of Homeland Security, and 

the intelligence components of the 

Department of Defense. We welcome 

comment on whether any statute 

establishing an alternative personnel 

system for a subdivision of a department 

or agency creates an exception from 5 

U.S.C. 9202(1), notwithstanding the Fair 

Chance Act’s later date of enactment. 

The Fair Chance Act covers 

‘‘Government corporations’’ and 

‘‘independent establishments’’ as 

defined in 5 U.S.C. 103 and 104, and 

OPM must include them, generally, as 

covered ‘‘agencies’’ in our proposed 

rule. We note that these definitions have 

been broadly construed to cover a 

number of entities that have historically 

operated outside of the title 5 personnel 

system. Under 5 U.S.C. 103, 

‘‘ ‘Government corporation’ means a 

corporation owned or controlled by the 

Government of the United States,’’ and 

this text has been construed to include 

both corporations wholly owned by the 

U.S. Government, and mixed-ownership 

corporations under U.S. Government 

control, as specified in 31 U.S.C. 

9101(2) and (3). See Snead v. Pension 

Benefit Guar. Corp., 74 M.S.P.R. 501, 

503 (1997); Dockery v. Fed. Deposit Ins. 

Corp., 64 M.S.P.R. 458, 461–62 (1984). 

In light of this broad construction, we 

are soliciting comment on whether the 

authorizing statute of any Government 

corporation operates to make an 

exception from 5 U.S.C. 9202(1)’s 

coverage, notwithstanding the Fair 

Chance Act’s later date of enactment. 

The term ‘‘independent 

establishment’’ is defined in 5 U.S.C. 

104 as ‘‘an establishment in the 

executive branch . . . which is not an 

Executive department, military 

department, Government corporation, or 

part thereof, or part of an independent 

establishment.’’ The term has been 

construed broadly to cover independent, 

free-standing establishments with their 

own structure, or entities that have been 

created by statute or executive order and 

are not privately owned or privately 

controlled. Applicability of the Fed. 

Vacancies Reform Act to Vacancies at 

the Int’l Monetary Fund and the World 

Bank, 24 Op. O.L.C. 58, 65–66 (2000); 

Hereford v. Tenn. Valley Auth., 88 

M.S.P.R. 201, 205–206 (2001). There is 

no specific exception in 5 U.S.C. 104 for 

independent regulatory agencies or 

commissions as defined in 44 U.S.C. 

3502(5), or for free-standing agencies 

that largely operate outside of the title 

5 personnel system. Accordingly, we are 

soliciting comment on whether the 

authorizing statute of any independent 

establishment operates to make an 

exception from 5 U.S.C. 9202(1)’s 

coverage, notwithstanding the Fair 

Chance Act’s later date of enactment. 

Finally, 5 U.S.C. 9202(1)(B) expressly 

extends OPM’s rulemaking and 

enforcement power under the Fair 

Chance Act to ‘‘the Executive Office of 

the President.’’ We construe this 

language as applying to an application 

for any competitive service position 

within the Executive Office of the 

President (EOP), consistent with OPM’s 

broad legal authority over competitive 

service employment. Under 5 U.S.C. 

3302 and 1104(a)(1), the President may 

‘‘prescribe rules governing the 

competitive service’’ and ‘‘delegate . . . 

authority for personnel management 

functions’’ to OPM. The President has 

prescribed Civil Service Rules I and V, 

as codified in parts 1 and 5 of Title 5, 

Code of Federal Regulations. These 

rules state that for ‘‘all positions in the 

competitive service and . . . all 

incumbents of such positions,’’ OPM 

‘‘may secure effective implementation of 

the civil service laws, rules, and 

regulations’’ by ‘‘[e]valuating the 

effectiveness of . . . agency compliance 

with and enforcement of applicable 

laws, rules, regulations and office 

directives’’ and ‘‘[i]nvestigating, or 

directing an agency to investigate and 

report on, apparent violations of 

applicable laws, rules, regulations, or 

directives requiring corrective action, 

found in the course of an evaluation.’’ 

5 CFR 1.1, 5.2(b), (c). Following OPM’s 

report of an evaluation or investigation, 

‘‘[w]henever the Director issues specific 


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5We note that there is also substantial case law 

on when an EOP component is a covered ‘‘agency’’ 

within the meaning of the Freedom of Information 

Act (FOIA), 5 U.S.C. 552(f)(2). This case law did not 

guide us in construing whether an EOP component 

is an ‘‘agency’’ within the meaning of the Fair 

Chance Act. This is because, despite facial 

similarities between 5 U.S.C. 105 and 5 U.S.C. 

552(f)(2), the test of whether an EOP component is 

covered by the FOIA derives from the FOIA’s 

unique legislative history, rather than from its text. 

See Kissinger v. Reporter’s Comm. for Freedom of 

the Press, 445 U.S. 136, 156 (1980); Citizens for 

Responsibility and Ethics in Wash. v. Office of 

Admin., 566 F.3d 219, 222 (D.C. Cir. 2009). OPM 

has no reason to believe that Congress intended the 

same considerations to govern EOP’s coverage 

under the FOIA and EOP’s coverage under the Fair 

Chance Act. 

instructions as to separation or other 

corrective action with regard to an 

employee, including cancellation of a 

personnel action, the head of the agency 

concerned shall comply with the 

Director’s instructions;’’ and OPM 

‘‘shall promulgate and enforce 

regulations necessary to carry out’’ these 

requirements. 5 CFR 5.1, 5.3(b). 

In 5 U.S.C. 1103(a)(5)(A) and 1303(1), 

Congress has charged OPM with 

‘‘executing, administering, and 

enforcing’’ these civil service rules and 

‘‘investigat[ing] and report[ing] on 

matters concerning . . . the 

enforcement and effect’’ of these rules. 

These provisions do not restrict OPM’s 

oversight authority over positions and 

employees in the competitive service 

based on where they are placed in the 

Executive branch. Thus, it would be 

consistent with preexisting authority for 

OPM to order a penalty under the Fair 

Chance Act as a corrective action, 

following an investigation and an 

adverse action proceeding, if an EOP 

employee is found to have made a 

prohibited inquiry to an applicant for a 

competitive service position. 

However, OPM’s oversight authority 

is more limited with respect to positions 

and employees in the excepted service. 

We do not believe Congress intended to 

subject applications for positions 

outside of the competitive service in 

every component of the Executive Office 

of the President to OPM’s regulatory and 

enforcement jurisdiction under the Fair 

Chance Act, considering the established 

principle that some, but not all, EOP 

components are ‘‘independent 

establishments’’ of the Executive branch 

within the meaning of 5 U.S.C. 104, and 

thus within 5 U.S.C. 105’s definition of 

an ‘‘executive agency’’ subject to regular 

title 5 employment rules. 

The term ‘‘independent 

establishment’’ in 5 U.S.C. 104 has been 

construed to cover those free-standing 

components of the EOP which have 

their own structure and unity, such as 

the Office of Management and Budget; 

but to exclude from its coverage 

components of informal or ad hoc 

nature, i.e., working groups or task 

forces. See Applicability of the Fed. 

Vacancies Reform Act, 24 Op. O.L.C. at 

65–66, 67. The term has also been held 

to exclude those EOP components 

which are not ‘‘independent 

establishments’’ by operation of other 

laws. See Haddon v. Walters, 43 F.3d 

1488, 1490 (D.C. Cir. 1995) (noting the 

exclusion of the Executive Residence).5

Thus OPM’s proposed rule does not 

extend to applications for positions 

outside of the competitive service in 

these components of the Executive 

Office of the President. 

In addition, the Act defines the terms 

‘‘appointing authority,’’ ‘‘conditional 

offer,’’ and ‘‘criminal history record 

information.’’ An ‘‘appointing 

authority’’ is 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 in a position in 

the civil service that is conditioned 

upon the results of a criminal history 

inquiry. The term ‘‘criminal history 

record information’’ has the meaning 

given the term in section 5 U.S.C. 

9101(a), except as provided in 

subparagraphs (B) and (C) of section 

9201. Subparagraph (B) states that 

criminal history record information 

includes any information described in 

the first sentence of section 9101(a)(2) 

that has been sealed or expunged 

pursuant to law. Subparagraph (C) states 

that criminal history record information 

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). OPM incorporates these 

definitions without additional 

interpretation, as they are clear on their 

face. 

The Fair Chance Act uses the term 

‘‘employee,’’ which is defined in 5 

U.S.C. 2105; but effectively modifies the 

definition by including, in its coverage, 

the United States Postal Service and the 

Postal Regulatory Commission, which 

would otherwise be excluded from the 

definition by operation of 5 U.S.C. 

2105(e). Accordingly, we are adding the 

following definition to proposed 

§ 920.101: ‘‘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.’’ 

As described in greater detail below, 

we are defining ‘‘political appointment’’ 

as an appointment by the President 

without Senate confirmation (except 

those appointed under 5 CFR 

213.3102(c)) because these are not 

positions of a confidential or policy 

determining character); 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. This definition lists the 

different types of political appointing 

authorities found in regulation and 

statute. 

Finally, we are defining an 

‘‘applicant’’ as a person who has 

actually applied to an agency under its 

procedures for accepting applications. 

This definition resolves a textual 

ambiguity in 5 U.S.C. 9202(a). It makes 

clear that the Fair Chance Act’s 

remedies are only for persons who have 

actually applied for Federal jobs, not for 

persons who, for example, are merely 

considering applying for a job, have 

saved a resume in an on-line applicant 

interface such as USAJOBS but have not 

yet submitted it in response to a job 

opportunity announcement, or have 

attended a recruiting event but have not 

yet formally applied for a vacancy. We 

note that for USAJOBS announcements, 

5 CFR 330.104 requires agencies to 

notify applicants of how to submit an 

application and how the receipt of an 

application will be documented. 

Subpart B 

Proposed subpart B addresses when 

inquiries into an applicant’s criminal 

history may be made. Proposed 

§ 920.201 regulates this aspect of the 

Fair Chance Act. Proposed paragraph (a) 

states that an agency cannot request an 

applicant’s criminal history information 

orally or in written form, prior to giving 

a conditional offer of employment. 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 


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email and other forms of electronic 

notification; and (3) prior to, during, or 

after a job interview. This prohibition 

applies to agency personnel, shared 

service providers, contractors involved 

in the agency’s recruitment and hiring 

process, automated systems (specific to 

the agency or governmentwide), etc. 

Proposed paragraph (b) tracks the 

requirements of 5 U.S.C. 9202(b) and 

(c)(1). It allows agencies to make 

inquiries into a job applicant’s criminal 

history, prior to making a conditional 

job offer to that applicant, if doing so is 

otherwise required by law, if the 

position requires a determination of 

eligibility for access to classified 

information or employment in a 

sensitive position, or eligibility for 

acceptance or retention in the armed 

forces (as described in 5 U.S.C. 

9101(b)(1)(A)(i), (ii), or (iii)), or if it is 

a Federal law enforcement officer 

position (as defined in section 115(c) of 

title 18). We are clarifying that for this 

purpose a ‘‘sensitive position’’ is one 

that been so designated 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. This conforms to our 

regulations governing sensitive 

positions in 5 CFR 1400.201. 

The reference in the Fair Chance Act 

to a position requiring a determination 

of eligibility for acceptance or retention 

in the armed forces is ambiguous. By its 

terms the Fair Chance Act applies only 

to applicants for ‘‘an appointment to a 

position in the civil service,’’ not for 

acceptance into the armed forces. We 

construe this provision as relating to 

those positions in the civil service 

where the applicant is required to 

maintain military membership as a 

condition of civilian Federal 

employment, i.e., a dual-status military 

technician position. Our proposed rule 

incorporates this interpretation. 

The Fair Chance Act applies to 

applicants to positions in the ‘‘civil 

service,’’ which, under 5 U.S.C. 2101(1), 

extends to ‘‘all appointive positions’’ in 

the executive branch. Proposed 

paragraph (b) makes an exception for 

applicants for political appointments, 

since political appointees provide 

confidential, policy-determining, or 

policy-advocating functions on behalf of 

the President or presidentiallyappointed agency heads, and serve as 

personal advisors and representatives to 

the President and other senior 

administration officials. Preemployment criminal history screening 

may be required for these positions 

prior to a conditional offer of 

employment, because of the utmost trust 

and discretion required in these 

positions and the potential for adverse 

publicity associated with unfit 

applicants. OPM is not making an 

exception for applicants to positions 

requiring appointment by the President 

with the advice and consent of the 

Senate. The Fair Chance Act already 

excludes such positions because a 

‘‘conditional offer’’ is never extended 

for these positions under 5 U.S.C. 

9202(a); rather, the individual is 

nominated and then confirmed. 

Proposed paragraph (b) also describes 

other circumstances for which OPM 

may grant exceptions in response to a 

request from a hiring agency. OPM may 

grant exceptions on a case-by-case basis 

only when an agency demonstrates 

specific job-related reasons why the 

agency needs to evaluate an applicant’s 

criminal history for a position prior to 

making a conditional offer giving due 

consideration to positions that involve 

interaction with minors, access to 

sensitive information, or managing 

financial transactions. 

Proposed paragraph (c) adds the 

requirement to notify applicants of the 

prohibition in job opportunity 

announcements and on agency 

websites/portals for positions that do 

not require a posting on USAJOBS, such 

as excepted service positions, in 

addition to information about its 

complaint process as required by part 

754 of this chapter. 

Proposed § 920.202 defines what 

constitutes a violation of the Fair 

Chance Act and the prohibition in 

proposed § 920.201. Proposed paragraph 

(a) defines a violation as any oral or 

written request from criminal history 

information prior to a conditional job 

offer. Proposed paragraph (b) explains 

that a violation occurs when a 

prohibited inquiry is made by agency 

personnel, including when they act 

through shared service providers, 

contractors involved in the agency’s 

recruitment/hiring process, or 

automated systems (specific to the 

agency or governmentwide). 

This section also outlines several 

situations in which a violation could 

occur. An agency cannot request 

criminal history information upon the 

initial application, through a job 

opportunity announcement on 

USAJOBS, or through any recruitment/ 

public notification such as on the 

agency’s website/social media. An 

agency also cannot request this 

information 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 prior to giving 

the conditional offer. Additionally, the 

agency cannot request the information 

verbally prior to, during, or after a job 

interview prior to giving a conditional 

offer. 

Proposed paragraph (c) provides that 

when a prohibited request, 

announcement, or communication is 

publicly posted or simultaneously 

distributed to multiple applicants, it 

constitutes a single violation. This 

resolves an ambiguity in the language of 

5 U.S.C. 9202(a) and prevents the 

absurd and unintended outcome of 

thousands of violations and complaints 

arising from a single job opportunity 

announcement on USAJOBS. 

Proposed paragraph (d) explains that 

any violation as defined in paragraph (a) 

is subject to the complaint and penalty 

procedures in part 754 of this chapter. 

Expected Impact of This Proposed Rule 

A. Statement of Need 

OPM is issuing this proposed 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 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 congressional purposes 

of the Fair Chance Act. 

B. Impact 

The proposed 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 record 

during the selection process. 

Employment of people with criminal 

records is the single most important 


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6National Employment Law Project, ‘‘The 

Business Case: Becoming a Fair-Chance Employer’’ 

(June 2016). 

7U.S. Department of Labor, ‘‘Reducing 

Recidivism and Increasing Opportunity’’ (June 

2018). 

influence on reducing re-offending.6

The impact to communities and society 

includes reducing criminal justice costs, 

crime victimization costs, and the costs 

of incarceration to the reoffenders and 

their families.7 Another significant 

impact of the proposed rule is that the 

Federal government, as the nation’s 

largest employer and a model employer, 

will demonstrate an example of fair 

hiring practices by removing 

unnecessary barriers for people with 

records who desire to join the Federal 

workforce. 

OPM believes there is significant 

value in being able to demonstrate the 

effect of these proposed 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 invites 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 includes 

ways that these 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 United States Postal 

Service and the Postal Regulatory 

Commission. 

C. Regulatory Alternatives 

OPM’s implementing regulations are 

required by statute and cannot be 

avoided. In the proposed 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 proposed 5 CFR part 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. However, 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. Therefore, we have 

laid out an approach that we believe is 

minimally burdensome for agencies. 

Subject to OPM guidelines and 

oversight, the proposed 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, the 

proposed 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 which 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 proposed 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, it is necessary for 

OPM to propose an alternative to 

implement the unique procedural and 

appeal elements of the Fair Chance Act. 

In developing proposed 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 

Costs Related to Parts 302, 317, 319, 

330, 731 and 920—Restrictions on 

Preemployment Criminal 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. The proposed rule 

would 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 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 proposed 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 

and training new staff). 

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 proposed 

part 754, in the event of a complaint by 

an applicant, agencies will incur labor 

costs associated with the investigation 

into the complaint and 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 


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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. 

In order to estimate the costs to 

implement the proposed 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 investigation any 

complaints filed by an applicant 

regarding an agency’s compliance with 

5 U.S.C. 9902 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 

proposed § 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 

75%, 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 the proposed 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. 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, 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 the 

proposed part 754 for complaint 

procedures, adverse actions, and 

appeals will require minimal costs for 

OPM or agencies. 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 proposed Fair 

Chance Act regulations in the first year 

and the recurring cost per year to be 

$32,782.34. 


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8National Employment Law Project Fact Sheet, 

FAQ (December 17, 2019). 

9Lee-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). 

10National Employment Law Project Fact Sheet, 

FAQ (December 17, 2019). 

Indirect Costs 

We note that OPM’s rule, when 

finalized, 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 

The Fair Chance Act regulations will 

help level the playing field for 

applicants with a criminal history 

record, contribute to an equitable and 

diverse Federal workforce, and enhance 

transparency and accountability in the 

Federal hiring process. More than 70 

million adults in the United States have 

an arrest or conviction record that can 

show up on a routine background check 

for employment. As a result, one in 

three adults may face serious challenges 

securing employment in order to 

provide for their families and 

communities.8 With some exceptions, 

the Fair Chance Act prohibits Federal 

employers from requesting that an 

applicant disclose criminal history 

record information before the agency 

makes a conditional offer of 

employment to that applicant. The 

proposed regulations provide the 

opportunity for qualified applicants 

with records to advance in the hiring 

process just as a qualified applicant 

without a criminal history record would 

advance. Studies show that employment 

is the single most important factor in 

reducing recidivism; that people with 

criminal records are no more likely to be 

fired for misconduct than people 

without records; and that they are 

statistically less likely to quit, which 

saves employers in turnover costs.9

Therefore, the regulations benefit not 

only the Federal government as an 

employer but also American society as 

a whole at the family and community 

levels. 

This regulation will support the 

Administration’s priority to advance 

comprehensive equity. Executive Order 

14035 establishes an initiative on 

diversity, equity, inclusion, and 

accessibility (DEIA). As part of the DEIA 

Initiative, a Government-Wide Strategic 

Plan To Advance Diversity, Equity, and 

Accessibility In The Federal Workforce 

was released by OPM in November 

2021. This new DEIA strategic plan 

directs agencies to prioritize a number 

of efforts to support sustainability and 

continued improvement on DEIA 

matters. The proposed rule can help 

Federal agencies realize the vision of the 

Federal government as a model 

employer in the areas of diversity, 

equity, and inclusion. There is evidence 

that people of color have less access to 

basic resources as compared to other 

segments of the American population. 

For example, Black women with records 

are most impacted by the high rate of 

unemployment for formerly 

incarcerated people.10 By removing 

barriers to fair competition through the 

Fair Chance Act along with other 

initiatives, Federal agencies stand to 

gain a more diverse applicant pool, 

improve equity in the hiring process, 

and build or maintain a workforce fully 

representative of America. 

Finally, another benefit of the 

proposed rule is increased transparency 

and accountability in the Federal hiring 

process. The regulations protect the 

rights of applicants who believe they 

have been subjected to a violation of 5 

U.S.C. 9202 and holds accountable 

Federal employees found to have 

committed such a violation. This 

regulation should have a deterrent effect 

on supervisors, managers, and other 

employees involved in the hiring 

process to prevent them from engaging 

in activities that are in violation of the 

Fair Chance Act. 

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 requests comment on the 

implementation and impacts of Ban the 

Box efforts in the private sectors. Such 

information will be useful for better 

understanding the impact of these 

regulations on hiring by Federal 

agencies. The types of information that 

OPM is interested in include, but are 

not limited to, the following: 

• Based on what the private sector 

has done, what should OPM, Federal 

agencies, and the government as a 

whole hope to accomplish with 

implementation of these regulations? 

• Has your organization’s 

implementation of Ban the Box 

impacted and aided your organization’s 

diversity, equity, inclusion, and 

accessibility efforts? If so, how? 

• Does your hiring process include 

any proactive efforts or accommodations 

related to candidates who have a 

criminal history record? Have you taken 

any steps, such as streamlining or 

revising your application process to 

address barriers facing candidates who 

have a criminal history record? 

• How many roles does your 

organization have that are currently 

open or will be open that can be filled 

by candidates with criminal history 

records? How many positions has your 

organization filled? 

• How does your organization 

measure success with respect to hiring 

candidates with criminal history 

records? Do you have data or reports to 

share? 

• To the extent your organization has 

data regarding the number of employees 

who have a criminal history record, 

what has been your experience with 

respect to those candidates and 

employee turnover? How does employee 

turnover for those with criminal history 

records compare to employee turnover 

for those without criminal history 

records? 


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11See Amanda Agan, Sonja Starr, Ban the Box, 

Criminal Records, and Racial Discrimination: A 

Field Experiment, The Quarterly Journal of 

Economics, Volume 133, Issue 1, February 2018, 

Pages 191–235, https://doi.org/10.1093/qje/qjx028 

and Doleac, Jennifer L., and Benjamin Hansen. 

‘‘The unintended consequences of ‘‘ban the box’’: 

Statistical discrimination and employment 

outcomes when criminal histories are hidden.’’ 

Journal of Labor Economics 38.2 (2020): 321–374. 

• Has Ban the Box increased qualified 

applicants for hard-to-fill positions? If 

so, what types of positions? 

• OPM recognizes that engaging in 

efforts to hire candidates with a 

criminal history record is not only an 

opportunity to diversify the federal 

government workforce but is also a 

chance to forge meaningful connections 

with job development experts in local 

communities. How has your 

organization partnered with local source 

partners to give you strategic access to 

talented individuals with criminal 

history records? What should OPM and 

federal agencies consider in this area? 

• Are there actions that you have 

taken to better ensure that applicants 

with criminal history records can 

succeed once hired? How can OPM 

ensure federal agencies are ready to 

receive talented applicants who have 

criminal history records, once they 

receive conditional offers of 

employment? 

• Many candidates with criminal 

history records who are qualified in 

terms of the skills they possess may not 

have previous job experience in the role, 

or may have a lengthy employment gap 

during a period of incarceration. As 

your organization recruits for your open 

roles, how have you focused on 

identifying candidates who, even 

though they may not have significant 

work experience, can demonstrate 

transferable skills that will make them 

successful in your organization? 

• Some studies 11 suggest 

implementation of Ban the Box results 

in lower employment for certain groups. 

What should OPM and Federal agencies 

do to avoid these outcomes? Are there 

other studies to review and consider as 

part of the federal hiring process for 

these individuals to mitigate or avoid 

these outcomes? 

• Are there additional ways that the 

Federal Government can be a model 

employer with respect to individuals 

with criminal history records? 

G. List of Sources 

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 

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 

National Employment Law Project. ‘‘The 

Business Case: Becoming a Fair-Chance 

Employer,’’ June 2016. https://

s27147.pcdn.co/wp-content/uploads/ 

Business-Case-Fair-ChanceEmployment.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.getting

talentbacktowork.org/wp-content/ 

uploads/2021/05/2021-GTBTW_

Report.pdf 

U.S. Department of Labor. ‘‘Reducing 

Recidivism and Increasing Opportunity: 

Benefits and Costs of the RecycleForce 

Enhanced Transitional Jobs Program,’’ 

June 2018. https://www.mdrc.org/sites/ 

default/files/ETJD_STED_Benefit_Cost_

Technical_Supplement_508.pdf 

Executive Orders 13563 and 12866, 

Regulatory Review 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. In 

accordance with the provisions of 

Executive Order 12866, this rule was 

reviewed by the Office of Management 

and Budget as a significant, but not 

economically significant, rule. 

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. 

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, which has 

been submitted to OMB for review. This 

form is completed by applicants who 

are under consideration for Federal or 

Federal contract employment and 

collects information about an 

applicant’s selective service registration, 

military service, and general 

background. The information collected 

on this form is mainly used to 

determine a person’s acceptability for 

Federal and Federal contract 

employment, and their retirement status 

and life insurance enrollment. The 

information on this form may be used in 

conducting an investigation to 

determine a person’s suitability or 

ability to hold a security clearance, and 

it may be disclosed to authorized 

officials making similar, subsequent 

determinations. The OF 306 asks for 


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personal identifying data and 

information about violations of the law, 

past convictions, imprisonments, 

probations, parole, military court 

martial, delinquency on a Federal debt, 

Selective Service Registration, United 

States military service, Federal civilian 

or military retirement benefits received 

or applied for, and life insurance 

enrollment. 

Public reporting burden for this 

collection of information is estimated to 

average 15 minutes per response, 

including the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

The annual reporting burden is 

estimated as follows: 

Respondents: 315,478. 

Total Annual Responses: 315,478. 

Total Burden Hours: 78,870. 

Interested persons are invited to send 

comments regarding burden estimates or 

any other aspect of this collection of 

information. OPM is soliciting 

comments to: 

1. Evaluate the necessity and utility of

the proposed information collection for 

the proper performance of the agency’s 

functions, including whether the 

information will have practical utility; 

2. evaluate the accuracy of the

estimated burden, including the validity 

of the methodology and assumptions 

used; 

3. enhance the quality, utility, and

clarity of the information to be 

collected; and 

4. use automated collection

techniques or other forms of information 

technology to minimize the information 

collection burden. Submit comments on 

this collection of information no later 

than June 27, 2022, through https://

www/regulations.gov and follow the 

instructions on the site. 

A copy of the proposed information 

collection and the associated 

instructions is available at https://

www.opm.gov/forms/pdf_fill/ 

of0306.pdf. The systems of record notice 

for this collection is: https://

www.opm.gov/informationmanagement/privacy-policy/sorn/opmsorn-govt-1-general-personnelrecords.pdf. 

List of Subjects in 5 CFR Part 302, 317, 

319, 330, 731, 754, and 920 

Administrative practices and 

procedures, Government employees. 

U.S. Office of Personnel Management. 

Office of Personnel Management 

Alexys Stanley, 

Regulatory Affairs Analyst. 

Accordingly, OPM is proposing to 

amend 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 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 

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 


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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 their 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. 

■ 10. In § 731.103, revise paragraph 

(d)(1) to read as follows: 

§ 731.103 Delegation to agencies. 

* * * * * 

(d)* * * 

(1) Except where required by law, 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). If an agency has a 

business need to obtain information 

about the criminal history of applicants 

for other positions earlier in the process, 

they must follow the guidance in part 

920 which also addresses the provisions 

for requesting an exception from the 

Office of Personnel Management. 

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. 

■ 11. Add part 754 as to read 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. 

(3) The agency shall extend the 30 

calendar day time limit in paragraph (b) 

of this section when the applicant 

shows that he or she was not notified of 

the time limits and was not otherwise 

aware of them, that he or she did not 

know and reasonably should not have 

known that the non-compliance with 5 

U.S.C. 9202 and part 920 of this chapter 

occurred, to consider a reasonable 

accommodation of a disability, or for 

other proper and adequate reasons 

considered by the agency. 

(4) The agency must conduct outreach 

to inform an applicant of the procedure 

for submitting a complaint when it has 

reasonable cause to believe that the 

applicant is attempting to file a 

complaint. 

(b) Agency investigation. (1) Acting 

under delegated authority from OPM 

and subject to the limitations and 

requirements of paragraph (d) of this 

section, the agency employing the 

employee against whom the complaint 

has been filed shall investigate the 

complaint, unless the employee is an 

administrative law judge appointed 

under 5 U.S.C. 3105. To carry out this 

function in an impartial manner, the 

same agency official(s) responsible for 

executing and advising on the 

recruitment action may not also be 

responsible for managing, advising, or 

overseeing the agency complaint 

process established in this section. 

(2) In carrying out its delegated 

responsibilities under paragraph (b)(1) 

of this section, the agency shall develop 

an impartial and appropriate factual 

record adequate for OPM to make 

findings on the claims raised by any 

written complaint. An appropriate 

factual record is one that allows a 

reasonable fact finder to draw 

conclusions as to whether 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 agency shall complete its 

investigation within 60 calendar days of 

the date of the filing of the complaint. 

(5) Within 30 calendar days of 

completing its investigation, the agency 

shall provide to OPM an administrative 

report. This report should include the 


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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, Washington, DC 20415. 

(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 findings regarding the 

complaint, including any decision to 

initiate adverse action proceedings. 

(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 noncompliance 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 their 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 their 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 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 

the 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 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, after 

OPM provides the procedural rights in 

§ 754.203, 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 the 

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 determines that an 

administrative law judge has violated 5 

U.S.C. 9202 and part 920 of this chapter. 

In any such case the Director or the 

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. If the 

Director or Director’s designee 

determines a violation of 5 U.S.C. 9202 

and part 920 of this chapter has 

occurred, 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 their 

right to review the material which is 

relied on to support the reasons for 

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 


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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 their 

official position would give rise to 

unreasonable costs or whose priority 

work assignments preclude their 

release. 

(d) OPM decision. (1) In arriving at a 

decision, the Director or the 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) This section does not apply if the 

Director or Director’s designee 

determines 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 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, 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. 

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 in a position in the civil 

service that is conditioned upon the 

results of a criminal history inquiry. 

Criminal history record information— 

(1) Except as provided in paragraphs (2) 

and (3) of 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). 

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. 


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Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 24903 

(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. (1) 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: 

(i) 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.; 

(ii) 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 

(iii) Prior to, during, or after a job 

interview. 

(2) This prohibition applies to agency 

personnel, including when they act 

through shared service providers, 

contractors 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) 

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 this 

paragraph (a) shall not apply with 

respect to an applicant for a political 

appointment. 

(3) OPM may grant additional 

exceptions on a case-by-case basis only 

when an agency demonstrates specific 

job-related reasons why the agency 

needs to evaluate an applicant’s 

criminal history for a position prior to 

making a conditional offer, giving due 

consideration to positions that involve 

transactions with minors, access to 

sensitive information, or managing 

financial transactions. OPM will 

consider such factors as, but not limited 

to, the nature of the position being filled 

and whether a clean criminal history 

record would be essential to the ability 

to perform one of the duties of the 

position effectively. 

(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 

information on where it has posted its 

complaint intake process under 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 

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. 2022–08975 Filed 4–26–22; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2022–0434; Airspace 

Docket No. 19–AAL–69] 

RIN 2120–AA66 

Proposed Amendment of United States 

Area Navigation (RNAV) Route T–260; 

Nome, AK 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

amend United States Area Navigation 

(RNAV) T-route, T–260 in the vicinity of 

Nome, AK. The RNAV amendments are 

necessary due to the planned 

decommissioning of the Tin City, AK, 

(TNC) Non-Directional Beacons (NDB)/ 

Distance Measuring Equipment (DME) 

and the Point Hope, AK, (PHO) NDB. 

Both NDBs will decommission as part of 

a large and comprehensive T-route 

modernization project for the state of 

Alaska. Although the Tin City, AK, 

(TNC) NDB will decommission, the colocated Distance Measuring Equipment 

(DME) will remain for use within the 

National Airspace System (NAS). 

DATES: Comments must be received on 

or before June 13, 2022. 

ADDRESSES: Send comments on this 

proposal to the U.S. Department of 

Transportation, Docket Operations, 1200 

New Jersey Avenue SE, West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590; telephone: (800) 

647–5527, or (202) 366–9826. You must 

identify FAA Docket No. FAA–2022– 

0434; Airspace Docket No. 19–AAL–69 

at the beginning of your comments. You 

may also submit comments through the 

internet at https://www.regulations.gov. 

FAA Order JO 7400.11F, Airspace 

Designations and Reporting Points, and 


lotter on DSK11XQN23PROD with PROPOSALS1