[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Notices]
[Pages 10923-10925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4353]
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OFFICE OF PERSONNEL MANAGEMENT
Submission for Review: Extension of an Expiring Information
Collection 3206-0165; General Request for Investigative Information
(INV 40) on Employment Data and Supervisor Information (INV 41),
Personal Information (INV 42), Educational Registrar and Dean of
Students Record Data (INV 43), and Law Enforcement Data (INV 44)
AGENCY: U.S. Office of Personnel Management.
ACTION: 30-Day notice and request for comments.
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SUMMARY: The Federal Investigative Services (FIS), U.S. Office of
Personnel Management (OPM) offers the general public and other Federal
agencies the opportunity to comment on the extension of an expiring
information collection request (ICR), Office of Management and Budget
(OMB) Control No. 3206-0165, for the General Request for Investigative
Information (INV 40), the Investigative Request for Employment Data and
Supervisor Information (INV 41), the Investigative Request for Personal
Information (INV 42), the Investigative Request for Educational
Registrar and Dean of Students Record Data (INV 43), and the
Investigative Request for Law Enforcement Data (INV 44). As required by
the Paperwork Reduction Act of 1995, (Pub. L. 104-13, 44 U.S.C. chapter
35) as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is
soliciting comments for this collection. The Office of Management and
Budget (OMB) is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to
be collected; and
4. Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submissions of responses.
DATES: Comments are encouraged and will be accepted until March 30,
2011. This process is conducted in accordance with 5 CFR 1320.1.
ADDRESSES: Interested persons are invited to submit written comments on
the proposed information collection to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Officer for the Office of
Personnel Management or sent via electronic mail to [email protected] or faxed to (202) 395-6974; and Federal
Investigative Services, U.S. Office of Personnel Management, 1900 E
Street, NW., Washington, DC 20415, Attention: Lisa Loss or sent via
electronic mail to [email protected].
FOR FURTHER INFORMATION CONTACT: A copy of this ICR, with applicable
supporting documentation, may be obtained by contacting the Federal
Investigative Services, U.S. Office of Personnel Management, 1900 E.
Street, NW., Washington, DC 20415, Attention:
[[Page 10924]]
Lisa Loss or sent via electronic mail to [email protected].
SUPPLEMENTARY INFORMATION: Section 3(a) of Executive Order (E.O.)
10450, as amended, states that with specified exceptions, ``the
appointment of each civilian officer or employee in any department or
agency of the Government shall be made subject to investigation,'' and
that ``in no event shall the investigation consist of less than a
national agency check * * * and written inquiries to appropriate local
law enforcement agencies, former employers and supervisors, references,
and schools attended by the persons under investigation.'' This minimum
investigation for appointment in the civil service is called the
National Agency Check with Inquiries (NACI).
The INV 40, 41, 42, 43, and 44 are used to conduct the ``written
inquiries'' portion of the NACI. They are also used in any
investigation requiring the same written inquiries, including
suitability investigations under E.O. 10577, as amended and 5 CFR part
731, for employment in positions defined in 5 CFR 731.101(b);
investigations for employment in a sensitive national security position
under E.O. 10450, as amended and 5 CFR part 732; certain investigations
for eligibility for access to classified information pursuant to
standards promulgated under E.O. 12968, as amended; certain
investigations for fitness for employment in the excepted service or as
a contract employee, pursuant to investigative requirements prescribed
by employing and contracting agencies; and investigations for identity
credentials for long-term physical and logical access to Federally-
controlled facilities and information systems, pursuant to standards
promulgated under the Federal Information Security Management Act. The
INV forms 40 and 44, in particular, facilitate OPM's access to criminal
history record information under 5 U.S.C. 9101.
The content of the INV forms is also designed to meet notice
requirements for personnel investigations specified by 5 CFR
736.102(c). These notice requirements apply to any ``investigation * *
* to determine the suitability, eligibility, or qualifications of
individuals for Federal employment, for work on Federal contracts, or
for access to classified information or restricted areas.''
None of the forms is used for any purpose other than a personnel
background investigation, as described above. The completed forms are
maintained by OPM subject to the protections of the Privacy Act of
1974, as amended.
Procedurally, the subject of a personnel background investigation
discloses the identity of relevant sources, such as supervisors,
coworkers, neighbors, friends, current or former spouses, instructors,
relatives, or schools attended, on the standard form (SF) 85,
Questionnaire for Non-Sensitive Positions; the SF 85P, Questionnaire
for Public Trust Positions; or the SF 86, Questionnaire for National
Security Positions. After OPM receives a completed SF 85, SF 85P, or SF
86, the INV forms are distributed to the provided source contacts
through an automated mailing operation.
The INV 40 is used to collect records from a Federal or State
record repository or a credit bureau. The INV 44 is used to collect law
enforcement data from a criminal justice agency. The INV 41, 42, and 43
are sent to employment references, associates, and schools attended.
The forms disclose that the source's name was provided by the subject
to assist in completing a background investigation to help determine
the subject's suitability for employment or security clearance, and
request that the source complete the form with information to help in
this determination. Generally the subject of the investigation will
identify these employment references, associates, and schools on his or
her SF 85, SF 85P, or SF 86 questionnaire. If information is omitted on
the questionnaire, however, the information may be provided in a
follow-up contact between the subject and an investigator. By their
terms, the INV 41, 42, and 43 forms are not to be sent to employment
references, associates, and schools that have not been identified by
the subject of the investigation.
Approximately 279,000 INV 40 inquiries are sent to Federal and non-
Federal agencies annually. The INV 40 takes approximately five minutes
to complete. The estimated annual burden is 23,250 hours. Approximately
2,243,000 INV 41 inquiries are sent to previous and present employers
and supervisors. The INV 41 takes approximately five minutes to
complete. The estimated annual burden is 186,900 hours. Approximately
1,882,000 INV 42 inquiries are sent to individuals annually. The INV 42
takes approximately five minutes to complete. The estimated annual
burden is 156,800 hours. Approximately 464,000 INV 43 inquiries are
sent to educational institutions annually. The INV 43 takes
approximately five minutes to complete. The estimated annual burden is
38,700 hours. Approximately 1,546,000 INV 44 inquiries are sent to law
enforcement agencies annually. The INV 44 takes approximately five
minutes to complete. The estimated annual burden is 128,800 hours. The
total number of respondents for the INV 40, INV 41, INV 42, INV 43, and
INV 44 is 6,135,200 and the total estimated burden is 511,200 hours.
A notice of the proposed information collection was published in
the Federal Register on February 2, 2010 (Federal Register Notices/
Volume 75, Number 21, pages 5358-5359), as required by 5 CFR part 1320,
affording the public an opportunity to comment on the form(s). Two (2)
comments were received and are addressed as follows. The National
Treasury Employees Union provided four areas of comment:
a. NTEU commented that INV 41, 42, and 43 solicit ``adverse
information'' about the subject of the investigation that is not
``relevant and necessary'' to OPM's purposes. OPM believes that the
forms are a reasonable means to collect information relevant to the
investigations for which the forms are used. Open-ended questions are
the most effective means to gather source information in an
investigation, since leading questions will tend to distort responses.
On January 19, 2011, the Supreme Court ruled in National Aeronautics
and Space Administration v. Nelson, 131 S. Ct. 746, that the INV 42
form's ``open-ended inquiries * * * are reasonably aimed at identifying
capable employees who will faithfully conduct the Government's
business'' and that these inquiries ``further the Government's
interests in managing its internal operations.'' 131 S. Ct. at 759,
761. The forms include instructions designed to prevent irrelevant
responses. Moreover, since OPM is required by executive order to make
these inquiries in connection with personnel investigations, retention
of the forms in OPM's system of investigative records is consistent
with Privacy Act requirements.
b. NTEU commented that the INV 41, 42, and 43 require disclosure of
highly personal information that is not narrowly tailored to meet the
government's needs. OPM rejects the commenter's assertion. The Supreme
Court ruled in Nelson that the Government, ``when it requests job-
related personal information in an employment background check,'' does
not have ``a constitutional burden to demonstrate that its questions
are `necessary' or the least restrictive means of furthering its
interests.'' 131 S. Ct. at 760. OPM concludes that the information
collection is appropriate for the investigations in which it may be
used, namely investigations of
[[Page 10925]]
suitability for Federal employment; investigations for employment in a
sensitive national security position; investigations for eligibility
for access to classified information; investigations for fitness for
employment in the excepted service or as a contract employee; and
investigations for identity credentials for long-term physical and
logical access to Federally controlled facilities and information
systems. Further, there are adequate protections against the
unauthorized redisclosure of reports of investigation in the Privacy
Act. See Nelson, 131 S. Ct. at 762-64. Additional protections are found
in section 9(c) of E.O. 10450, as amended, and in agency restrictions
on the release of personally identifiable information.
c. NTEU commented that the forms request information beyond that to
which the employee has consented in the Authorization for Release of
Information as there is no indication that information regarding
general behavior and conduct will be solicited from individuals who
might offer information regarding personal habits. The commenter is
incorrect. The authorization is part of a questionnaire that
specifically informs the subject that the investigative process is
designed to develop information to show ``whether you are reliable and
trustworthy, and of good conduct and character.''
d. NTEU commented that the forms do not adequately explain the
purpose for which the information is sought and its routine nature, and
therefore allow the reference to infer that the subject is under
suspicion of wrongdoing. OPM has received no evidence to support this
suggestion during its longstanding use of these forms. The form
instructions make clear that the form is part of a background vetting
process, not part of a criminal or disciplinary proceeding.
An OPM investigator commented that the INV 44 should instruct
responding law enforcement agencies to withhold traffic violations if
the fine was less than $300 and did not involve alcohol or drugs, since
subjects of national security investigations are not required to
disclose such violations on their SF 86, Questionnaire for National
Security Positions. OPM does not accept this recommendation at this
time because (1) the INV 44 is used for investigations based on other
investigative questionnaires (SF 85, SF 85P) which do not include
exceptions for traffic violations that resulted in fines less than
$300; and (2) subjecting responding law enforcement agencies to the
burden of parsing such violations from their records when responding to
OPM requests may deter responses or result in response errors.
OPM is proposing to modify INV forms 40, 41, and 42 to provide
instruction to respondents to mark, by making a check, when the
respondent requests confidentiality of his or her identity, and to call
an office at OPM to receive approval of the request before completing
the form. The purpose of this change is to more clearly establish the
granting of confidentiality as permitted by the Privacy Act of 1974 and
OPM's implementing regulations.
U.S. Office of Personnel Management.
John Berry,
Director.
[FR Doc. 2011-4353 Filed 2-25-11; 8:45 am]
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