30 day notice

Federal Register / Vol. 77, No. 161 / Monday, August 20, 2012 / Notices
Comments on this information
collection should be received within 30
calendar days from the date of this
publication.

DATES:

Send or deliver comments
to—U.S. Office of Personnel
Management, Office of Information and
Regulatory Affairs, Office of
Management Budget, 725 17th Street
NW., Washington, DC 20503, Attention:
Desk Officer for the Office of Personnel,
Management; or send via electronic mail
to oira_submission@omb.eop.gov or fax
to (202) 395–6974.

ADDRESSES:

U.S. Office of Personnel Management.
John Berry,
Director.
[FR Doc. 2012–20384 Filed 8–17–12; 8:45 am]
BILLING CODE 6325–46–P

OFFICE OF PERSONNEL
MANAGEMENT
Submission for Review: Information
Collection 3206–NEW; Questionnaire
for Public Trust Positions (SF 85P) and
Supplemental Questionnaire for
Selected Positions (SF 85P–S)
U.S. Office of Personnel
Management.

AGENCY:

30-Day Notice and request for
comments.

ACTION:

Federal Investigative Services
(FIS), U.S. Office of Personnel
Management (OPM) offers the general
public and other federal agencies the
opportunity to comment on an
information collection request (ICR),
Office of Management and Budget
(OMB) Control No. 3206–NEW, for
Questionnaire for Public Trust
Positions, Standard Form 85P (SF 85P)
and Supplemental Questionnaire for
Selected Positions, Standard Form SF
85P–S (SF 85P–S). 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 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;

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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 September 19,
2012. 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., Room
10235, Washington, DC 20503,
Attention: Jasmeet K. Seehra, OMB Desk
Officer or sent via electronic mail to
oira_submission@omb.eop.gov 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
FISFormsComments@opm.gov.
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:
Lisa Loss or sent via electronic mail to
FISFormsComments@opm.gov.
SUPPLEMENTARY INFORMATION: This
notice announces that OPM submitted
to OMB a request for review and
clearance of the revised information
collection of information, Questionnaire
for Public Trust Positions, SF 85P and
Supplemental Questionnaire for
Selected Positions, SF 85P–S, which are
housed in a system named e-QIP
(Electronic Questionnaires for
Investigative Processing) and are
information collections completed by
applicants for, or incumbents of, Federal
Civilian Government positions, or
positions in private entities performing
work for the Government under
contract. The collections are used as the
basis of information for background
investigations to establish that such
persons are: Suitable for appointment to
or retention in Federal employment in
a public trust position; fit for
employment or retention in Federal
employment in the excepted service
when the duties to be performed are
equivalent in degree of trust reposed in
the incumbent to a public trust position;

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fit to perform work on behalf of the
Federal Government pursuant to a
Government contract, when the duties
to be performed are equivalent in degree
of trust reposed in the individual to a
public trust position; or eligible for
physical and logical access to federally
controlled facilities or information
systems, when the duties to be
performed by the individual are
equivalent to the duties performed by an
employee in a public trust position. For
applicants, the SF 85P and SF 85P–S are
to be used only after a conditional offer
of employment has been made. The SF
85P–S is supplemental to the SF 85P
and is used only as approved by OPM,
for certain positions such as those
requiring carrying of a firearm.
It is estimated that the total number
of respondents for the SF 85P is 112,894
annually. The electronic application
includes branching questions and
instructions which provide for a tailored
collection from the respondent based on
varying factors in the respondent’s
personal history. The burden on the
respondent will vary depending upon
how the information collected relates to
the respondent’s personal history. In an
empirical study, the median of
participant time spent completing the
SF 85P was 155 minutes. Accordingly,
OPM estimates that the annual burden
is 141,118 hours. It is estimated that the
total number of respondents for the SF
85P–S is 11,717 annually. Each SF 85P–
S form takes an estimated 10 minutes to
complete. Accordingly, the estimated
annual burden is 1,953 hours. e-QIP
(Electronic Questionnaires for
Investigations Processing) is a webbased system application that houses
the SF 85P and SF 85P–S. This internet
data collection tool provides faster
processing time and immediate data
validation to ensure accuracy of the
respondent’s personal information. The
e-Government initiative mandates that
agencies utilize e-QIP for all
investigations and reinvestigations. A
variable in assessing burden hours is the
nature of the electronic application. The
electronic application includes
branching questions and instructions
which provide for a tailored collection
from the respondent based on varying
factors in the respondent’s personal
history. Because the question branches,
or expands for additional details, only
for those persons who have indicated,
by their previous answers, that a
particular topic is relevant to them, the
burden on the respondent is reduced
when the respondent’s personal history
demonstrates that he or she has no
pertinent information to provide
regarding that line of questioning.

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Accordingly, the burden on the
respondent will vary depending on
whether particular segments of the
information collection relate to the
respondent’s personal history.
Additionally, once entered, a
respondent’s complete and certified
investigative data remains secured in
the e-QIP system until the next time the
respondent is sponsored by an agency to
complete a new investigative form.
Upon initiation, the respondent’s
previously entered data (except ‘‘yes/
no’’ questions) will populate a new
investigative request. The respondent
will be allowed to update his or her
information, and certify the data, but
will need to revise only the information
that has changed. In this instance, time
to complete the form is reduced
significantly.
The 60-day notice of the proposed
information collection was published in
the Federal Register on December 29,
2010 (Federal Register Notices/Volume
75, Number 249, page 82095–82097) as
required by 5 CFR 1320, affording the
public an opportunity to comment on
the form(s). Comments were received
from the Equal Employment
Opportunity Commission (EEOC),
Internal Revenue Service Personnel
Security (IRS–PS), the Department of
Homeland Security Office of Security
(DHS–OS), the Office of the Secretary of
Defense, Human Resources community
(OSD–HR), and commenters from the
Department of Justice, Treasury, and
OPM. Two employee unions, the
American Federation of Government
Employees (AFGE) and the National
Treasury Employees Union (NTEU),
submitted comments.
EEOC provided comments which,
EEOC stated, were from the perspective
of the federal agency enforcing the equal
employment opportunity (EEO) laws for
the federal and private sectors, with a
particular focus, in this instance, on
Section 501 of the Rehabilitation Act, as
amended (Section 501), and Title VII of
the Civil Rights Act, as amended (Title
VII).
EEOC commented that Section 501 of
the Rehabilitation Act restricts federal
employers as to the circumstances
under which they may make ‘‘disabilityrelated inquiries’’ of applicants and
employees. In EEOC’s view, disabilityrelated and non-disability-related
inquiries are intertwined in sections 21
and 22 of the SF 85P, and therefore both
sections are subject to Section 501’s
restrictions. EEOC commented that
OPM should direct agencies to ask these
questions (Section 21 ‘‘Illegal Use of
Drugs and Drug Activity,’’ and Section
22 ‘‘Use of Alcohol,’’ only when Section
501 permits. EEOC recommended that

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OPM add language to the instructions
for the SF 85P that previously existed
on the SF 85P–S, stating that Federal
departments and agencies may pose
disability-related inquiries to applicants
only after an offer has been made, and
to employees only under circumstances
that are job related and consistent with
business necessity. EEOC further
recommended that OPM insert specific
instructions about Section 501 at the
beginning of the SF 85P, crossreferencing sections 21 and 22. OPM did
not accept EEOC’s recommendation.
The instructions on the SF 85P already
state that, ‘‘for applicants, the form is to
be used only after a conditional offer of
employment has been made.’’ Therefore,
Section 501 has already been properly
addressed. OPM has clearly indicated
the types of decision-making that the SF
85P supports, and as noted above, the
information collection regarding illegal
use of drugs, drug activity, and use of
alcohol is necessary for the
determinations the form supports.
EEOC acknowledged that federal
agency employers need tools, such as
the SF 85P, that allow them to collect
complete information about the
disposition of all arrests, charges, and
other criminal proceedings in an
applicant’s background. EEOC stated it
was unclear whether OPM intended its
inquiry to encompass the disposition of
all arrests, of all charges, and of all
trials.
The collection of disposition
information is indeed required for the
arrests and charges that the form
collects. The branching questions of the
collection permit the respondent to
provide relevant information, including
circumstances and outcomes. The
collection is tailored to specific
timeframes, and OPM uses the
information provided to obtain further
information on dispositions, if
necessary. Accordingly, by the time the
agency has the background investigation
before it, and is ready to adjudicate
suitability, fitness, or eligibility, it
should have disposition information
before it in the record.
EEOC commented that OPM should
educate federal employers about how to
assess suitability for federal or contract
employment when evaluating an
applicant’s police record. Although this
comment appears to be out of the scope
of commenting on the information
collection, OPM responds that it agrees
with the EEOC and does indeed already
provide such guidance in the suitability.
OPM is not responsible for establishing
standards for fitness inquiries
concerning employees of contractors.
EEOC recommended eliminating or
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section 24, Financial Record, due to
concerns that the inquiries could result
in discriminatory uses of the requested
information. It recommended that if
OPM retains the section, or portions
thereof, it should adopt explicit,
objective guidelines for using the
requested information, which at a
minimum should require the decisionmaker to determine and consider the
background circumstances that led to
the reported financial problems when
deciding whether to hold them against
the applicant. EEOC recommended open
text fields to collect the information.
OPM did not accept EEOC’s
recommendation to eliminate or
significantly restrict the scope of section
24. OPM does already provide guidance
to agencies regarding the appropriate
use of information about financial issues
in making suitability determinations
using this form and what other
circumstances, such as societal factors,
should be considered in the analysis.
Further, the proposed collection does
include free text fields for the
respondent to provide the
circumstances surrounding the
indebtedness and actions taken in
regard to it.
IRS–PS stated that IRS agrees with the
changes as presented. DHS–OS stated
that DHS approves of the additional
questions and expanded collection of
information, particularly in regards to
Section 21, Illegal Use of Drugs and
Drug Activity, as it will assist DHS in
the goal of a drug-free workplace. A
commenter from the Department of
Justice provided a favorable view
regarding the proposed form, stating
that the additions will greatly benefit
personnel security programs in their
adjudications. The commenter stated
that the form asks for information that
is pertinent and relevant to suitability
determinations and fitness evaluations
for contractors.
DHS–OS made suggestions to replace
references to ‘‘eligibility’’ with
‘‘suitability’’ in the instruction pages of
the form. These comments were not
accepted because the form supports
eligibility for physical and logical access
to federally controlled facilities or
information systems (when the duties to
be performed are equivalent in degree of
trust reposed in the incumbent to a
public trust position) as well as
suitability determinations. DHS–OS also
suggested strengthening the advice
regarding delays that occur as a result of
credit freezes. This comment was
accepted.
DHS–OS recommended that the
questions posed in Section 13C,
Employment Record, should be asked of
all persons who have ever had federal

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service, not merely those who have been
in the federal service in the last seven
years. This comment was not accepted,
because OPM has concluded, based
upon experience, that the questions on
the form are sufficient to identify the
conduct that would be relevant, in light
of recency and other factors.
DHS–OS recommended that the
criminal conviction questions ask if the
individual has ‘‘ever’’ been convicted of
any crime in civilian courts or in
military courts martial, which would
require a change to sections 15 and 20.
DHS reasons that some convictions
would warrant a negative suitability
finding by a law enforcement agency
irrespective of the age of the conviction.
This recommendation was not accepted.
OPM believes that requiring
respondents to provide all criminal
convictions regardless of age would
result in an increased collection of
information from respondents that
would be unduly burdensome in light of
the broad spectrum of offenses that
would be reported and the diminished
likelihood that offenses more than seven
years old would warrant a negative
suitability finding. Furthermore, the
form already includes questions that
would collect information necessary to
determine eligibility for certain law
enforcement positions in regard to the
Lautenberg Amendment, and the
investigation includes a check of the
criminal history records on file with the
Federal Bureau of Investigation and
local law enforcement agencies to obtain
a complete picture of the respondent’s
criminal history.
DHS–OS recommended that the Fair
Credit Reporting Act Release specify a
timeframe of five years. This
recommendation was not accepted as a
timeframe is not required.
A commenter from DOJ recommended
that the form be modified so that ‘‘I
don’t know’’ is not an option regarding
Selective Service Record. This
recommendation was not accepted as it
is possible that the SF 85P will be
completed by someone without access
to the internet to easily locate the
information. Additionally, an
explanation is required if ‘‘I don’t
know’’ is selected. The commenter
similarly commented that ‘‘I don’t
know’’ should not be an acceptable
answer when providing contact
information for People Who Know You
Well. This comment was not accepted.
Although it is expected that most
respondents will be able to provide
contact information, it is OPM’s
experience that, in rare circumstances,
this option is necessary. DOJ also
provided a comment that other areas of
the form should have an ‘‘I don’t know’’

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option for information that could be
difficult to provide. The form was not
modified in response to this comment as
the electronic platform of the
questionnaire will allow an explanatory
remark in ‘‘Additional Comments’’ at
each section.
DOJ observed that the question
regarding Illegal Use of Drugs, which
was moved to the SF 85P from the SF
85P–S, previously allowed an exception
for use prior to the age of 16. DOJ
inquired whether this exception was
intentionally omitted. The exception is
not incorporated because OPM believes,
based upon its experience, that conduct
information before the age of 16 can be
relevant, depending on the respondent’s
age and subsequent conduct.
A commenter from OSD–HR
recommended that the section ‘‘Purpose
of this Form’’ include a statement that
the questionnaire shall not be used for
National Security Sensitive position
determinations. Similarly, the American
Federation of Government Employees
(AFGE) commented that OPM should
clarify the distinction between the forms
SF 85P and SF 85P–S and the form SF
86, as well as provide greater guidance
as to when the completion of a
particular form should be required.
OPM accepted these comments and has
added the statement suggested by
OSDHR to the proposed questionnaire.
OSD–HR recommended that the
instructions explain that after a
suitability determination is made, the
respondent may also be subject to
continuous evaluation, which may
include periodic reinvestigations to
ensure continuing suitability for
employment. This comment was not
accepted. OSD–HR also stated that
personnel in public trust positions
should be subject to continuous
evaluation, and the Investigative Process
block and the Authorization for Release
of Information should be amended to so
state. This comment also was not
accepted. Pursuant to Executive Order
13467, ‘‘‘[c]ontinuous evaluation’ means
reviewing the background of an
individual who has been determined to
be eligible for access to classified
information (including additional or
new checks of commercial databases,
Government databases, and other
information lawfully available to
security officials) at any time during the
period of eligibility to determine
whether that individual continues to
meet the requirements for eligibility for
access to classified information.’’ E.O.
13467, sec. 1.3(d). Individuals in that
circumstance would be filling out an
SF 86, not an SF 85P. The President
dealt with incumbent public trust
employees in Executive Order 13488.

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E.O. 13488 states that ‘‘[i]ndividuals in
positions of public trust shall be subject
to reinvestigation under standards
(including but not limited to the
frequency of such reinvestigation) as
determined by the Director of the Office
of Personnel Management * * *’’
Pursuant to that Order, OPM
promulgated 5 CFR 731.106(d), which
provides that public trust employees
must be reinvestigated at least every five
years. A reinvestigation of a public trust
employee with no access to classified
information would be similar to the
investigation the employee underwent
at the time of appointment to the public
trust position, and would not be the
same as what is meant by continuous
evaluation.
OSD–HR recommended that the
Personal Interview area of the
instructions should include reference to
garnishments, tax warrants, and
foreclosures as documentation regarding
these may be required. This
recommendation was not accepted
because ‘‘other financial obligations’’ is
a broad category that implicitly includes
these areas, particularly since there are
direct questions about garnishments, tax
liens, and foreclosures in the financial
record section.
OSD–HR recommended that
‘‘certificates’’ should be added to the
types of educational awards required to
be listed. This comment was not
accepted because, although certificates
may be received in connection with
educational activities, compelling the
listing of all certificates in this section
would likely compel irrelevant
information, given the vast array of
educational certificate opportunities
(e.g. cake decorating).
OSD–HR recommended that Section
13C define the term misconduct and
provided a suggested definition. This
recommendation was not accepted
because misconduct is a commonly
understood term. Also in Section 13C,
OSD–HR recommended adding the
word ‘‘otherwise’’ between ‘‘or’’ and
‘‘disciplined’’ as written, it may appear
that official reprimands, etc. are not
forms of discipline. This
recommendation was not accepted as it
is not necessary to capture the desired
information.
OSD–HR recommended that nonappropriated fund applicants/
employees be excluded from completing
Section 14, Selective Service. This
recommendation was not accepted as it
would be more confusing to compel
applicants to distinguish between NAF
positions and other positions. OPM will
provide guidance to assist agencies in
using the information properly for
decision-making.

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OSD–HR recommended that
‘‘common law’’ be defined or removed
from the form as common law marriage
is not recognized in some states. This
recommendation was not accepted.
‘‘Common law’’ is included on the form
because it is, in fact, recognized in other
states, and we need to account for it
where it occurs. Similarly, civil unions
and domestic partnerships are legally
recognized in an increasing number of
states. Therefore, with due regard to the
comment from OSD–HR, the form was
revised to collect information regarding
legally recognized civil unions and
domestic partnerships, in addition to
legally recognized civil marriages.
OSD–HR suggested including a
hyperlink to 21 U.S.C. 844 or 18 U.S.C.
3607 to clarify for applicants which
convictions may be omitted from the
form. This recommendation was not
accepted as individuals to whom this
applies should be aware of the reason,
and the references may easily be
researched as necessary.
OSD–HR recommended that
‘‘controlled substance’’ and ‘‘controlled
substance activity’’ should be clearly
defined. This recommendation was not
accepted as this language has been used
on the forms for many years and has not
appeared to require further clarification.
OSD–HR recommended that the
question of being ‘‘ordered, advised, or
asked to seek counseling or treatment as
a result of alcohol use’’ be treated as a
stand-alone question (i.e., a question
everyone must answer), rather than a
branching question, which would be
similar to the way this information was
treated on the SF 85P–S, prior to its
deletion. OSD–HR stated an alternative
recommendation would be to place
question 4 back on the SF 85P–S to
ensure this information is collected
appropriately. OPM accepted this
comment and has added the question
back on the SF 85P–S as a stand-alone
question, while retaining it as a
conditional question on the SF 85P.
OSD–HR recommended that the
wording of the question regarding
‘‘negative impacts’’ from alcohol on the
SF 85P should mirror the wording on
the SF 86, to include impact on personal
relationships. This recommendation
was not accepted, as the wording on the
SF 85P, with its emphasis on work
relationships, is appropriate for the
types of decisions the form SF- 85P
supports, and, based upon OPM’s
experience, the additional information
is not necessary in this context.
OSD–HR recommended that Section
24, Financial Record, should include
Chapter 12 in the list of bankruptcies.
This recommendation was accepted.

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OSD–HR recommended that
references to tax liens should be
changed to ‘‘tax lien (warrant).’’ This
recommendation was not accepted
because the Federal government and
most (all but 7) states issue tax liens.
Introducing ‘‘warrant’’ may confuse
applicants unfamiliar with the term
outside of its criminal application, and
may result in more inaccurate responses
than if it is not introduced.
OSD–HR recommended that the
question regarding alimony and child
support payments should be expanded
beyond ‘‘current’’ to collect a history of
neglecting these obligations. This
comment was not accepted because,
even though the question on alimony
and child support asks about current
delinquency, the applicant will still
need to list any judgment, garnishment,
or lien, as well as any delinquency over
120 days, in responding to the other
questions on the form.
OSD–HR recommended adding an
example of student loans in parenthesis
following the question about delinquent
federal debt. This recommendation was
not accepted, as previous experience
with this question on other forms has
shown that including examples tends to
lead the respondent to narrow his/her
response to only the examples, even
when qualifying language is included
(‘‘such as * * *’’).
OSD–HR commented that Section 26
should be amended to remove the word
‘‘tortious’’ and replace it with
‘‘intentionally or negligently wrongful
conduct.’’ This comment was not
accepted because framing the question
in another way would likely cause it to
be interpreted too narrowly.
OSD–HR recommended that Section
27 be amended to remove the word
‘‘security’’ from the explanation block.
This comment was accepted.
OSD–HR stated the word ‘‘clearance’’
is not appropriate in the Purpose
paragraph in the Fair Credit Reporting
Disclosure and Authorization. This
comment was accepted and the word
‘‘clearance’’ has been changed to
‘‘ability.’’
OSD–HR recommended reinstating
the prior Agency Use block for ‘‘Compu/
ADP’’ that appeared on the 1995 version
of the SF 85P. This comment was not
accepted because this term is not
relevant, standing apart from other
position designation factors. The
Agency Use section includes a block for
position title, which will help inform
the adjudicators.
A commenter from Treasury stated
that there are no suitability factors in
connection with which to adjudicate an
affirmative answer to Section 15’s
question regarding service in a foreign

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country’s military, intelligence,
diplomatic, security forces, or
government agency. This comment was
not accepted. This question
complements Section 15’s questions
concerning service in the U.S. military
and thus affords the opportunity to
establish whether there have been
instances of bad conduct during service
in other contexts, where obtaining
relevant records may be more difficult.
Conduct that occurred in these locations
may be relevant to the decisions these
investigations support. Further, the U.S.
Government has an interest in ensuring
that persons in positions of public trust
have not engaged in acts or activities
designed to overthrow the U.S.
Government by force, and the
information provided in response to
these questions is designed to assist the
adjudicator with that determination.
The Treasury commenter also stated
that branching questions in Section 19
regarding being questioned, searched,
etc. appear to be too invasive for public
trust positions and these encounters and
activities are not identified as suitability
factors. The form was not modified in
response to this comment. The question
is intended to elicit potential criminal
conduct while in a foreign country. The
information provided, though not
necessarily conclusive, will help the
investigating entity identify potential
issues for further inquiry in a context
where it would otherwise be difficult to
locate appropriate records.
The Treasury commenter
recommended that Question 23,
Investigation and Clearance Record, be
modified to ask the applicant to provide
the name of the Treasury Bureau that
conducted the investigation. This
comment was accepted.
A commenter from OPM
recommended that additional guidance
should be provided on the form to
explain the process by which the
respondent should list any freeze on his
or her credit accounts. This comment
was not accepted as OPM provides such
implementation guidance to agencies to
assist respondents.
The commenter from OPM
recommended that Agency Use Block D
be removed as the form is not to be used
for sensitive positions. This comment
was accepted, and Block D has been
removed. Additionally, Block C has
been renamed, ‘‘Risk Level.’’
The commenter from OPM suggested
a link to the Department of Education’s
Web site should be provided in the
Education section in order to assist
respondents in providing a valid school
address. This comment was accepted
and the link will be added.

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The commenter from OPM suggested
that the Relatives section be expanded
to collect identifying information
regarding brother/sister/stepbrother/
stepsister. This comment was accepted.
The commenter from OPM suggested
amending the question in the Illegal Use
of Drugs section regarding use of illegal
drugs while in certain positions to
include public trust positions. This
comment was not accepted as it is
overly broad.
The commenter from OPM suggested
adding a question to the SF 85P
regarding whether the subject is
currently registered or has ever had to
register as a sex offender. This comment
was not accepted as the conduct
information that would be sought by
such a question is already collected in
the section regarding Police Record.
NTEU expressed concerns regarding
the sweep of the proposed changes and
the breadth of the information
demanded of public trust employees.
NTEU commented that there was a lack
of justification for the expanded scope
of the SF 85P and the elimination of
questions from the SF 85P–S and that
OPM has not provided sufficient
explanation of the government’s need
for the information. In particular, NTEU
suggested that OPM appeared to
rationalize the introduction of expanded
questioning on the form simply in order
to mirror the SF 86, Questionnaire for
National Security Positions. NTEU
suggested that the Office of Management
and Budget (OMB) should disapprove
the proposed information collection.
Although in its proposed information
collection request of December 2010,
OPM did state that questions on the SF
85P and SF 86 were designed to mirror
one another for consistency, that
observation related to the objective of
alignment, i.e., ensuring that questions
in areas of overlapping concern are
asked in the same manner to the extent
possible, so that, if there is a future need
for a different kind of investigation (e.g.,
if a public trust employee subsequently
requires access to classified
information), the investigating entity
may limit the scope of any new
investigation to areas of inquiry not
previously pursued. OPM’s intent in
adding new questions was not to
duplicate the SF 86. These questions
were added, on the basis of knowledge
gained from experience with the
adjudicative function and consultation
with agencies, to better enable agencies
to make sound determinations of
suitability for public trust positions or
fitness or eligibility for a credential in
other contexts. Where questions were
being added to the SF 85P that already
exist on the SF 86, however, an attempt

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was made to use like language. In other
words, OPM operates on the assumption
that where the same information
collection is attempted, similar wording
should be used. This supports efficient
electronic format development and
potentially assists efficiency when
persons move between positions that
require different forms. The proposed
SF 85P and SF 85P–S ask only the
questions that OPM has concluded are
necessary to ensure sufficient
information to adjudicate suitability or
fitness or eligibility at the public trust
level.
The SF 85P and SF 85P–S are not to
be used for the investigation of persons
for national security positions. The
proposed SF 85P and SF 85P–S support
the investigations to establish that the
respondents are suitable for
appointment or retention in a public
trust position fit for appointment or
retention in the excepted service when
the duties to be performed are
equivalent in degree of trust reposed in
the incumbent to a public trust position;
fit based on character and conduct
where the individual is going to perform
work pursuant to a Government
contract, when the duties to be
performed are equivalent to the duties
performed by an employee in a public
trust position; or eligible for physical
and logical access to federally
controlled facilities or information
systems, when the duties to be
performed are equivalent to the duties
performed by an employee in a public
trust position.
These investigations seek to
determine whether the conduct and
character of the competitive service or
career SES applicant, appointee, or
employee promote the efficiency and
protect the integrity of the service.
Simply because information may be
identified as a national security issue
does not mean that it would not also be
relevant to a suitability issue; in fact,
many fact patterns that present national
security issues may also present
suitability concerns.
Additionally, OPM’s credentialing
standards for those being considered for
physical or logical access to federal
facilities and information systems
require a determination of whether there
is an unacceptable risk to the life, safety,
or health of employees, contractors,
vendors, or visitors; to the Government’s
physical assets or information systems;
to personal property; to records,
including classified, privileged,
proprietary, financial, or medical
records; or to the privacy of data
subjects.
From a suitability or fitness
perspective, an individual’s abuse of

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alcohol may impact on his or her ability
to complete the duties of the job and/or
raise questions about his or her
reliability and trustworthiness, thus
indicating that his or her employment
would not promote the efficiency of the
service or protect its integrity. From a
credentialing perspective, or the
perspective of fitness to perform under
a contract, an individual’s abuse of
alcohol may put people, property, or
information systems at risk and the
investigation must support a
determination regarding whether there
is a reasonable basis to believe, based on
the nature or duration of the
individual’s alcohol abuse without
evidence of substantial rehabilitation,
that issuance of a PIV card or
permission to perform work poses an
unacceptable risk.
Inappropriate use of drugs can raise
questions about an individual’s
reliability and trustworthiness and
ability or willingness to comply with
laws, rules, and regulations, thus
potentially indicating that his or her
employment would not promote the
efficiency of the service or protect its
integrity. The investigation supports a
determination of whether there is illegal
use of narcotics, drugs or other
controlled substances, without evidence
of substantial rehabilitation. From a
credentialing perspective, the
investigation supports a determination
of whether an individual’s abuse of
drugs may put people, property, or
information systems at risk.
Failure to live within one’s means,
satisfy debts, and meet financial
obligations may raise questions about
the individual’s honesty. Evidence of
such failures may also signify that
issuing a credential would put people,
property or information systems at risk.
For example, a person’s consistent
failure to satisfy significant debts may
indicate that granting a PIV poses an
unacceptable risk to Government
financial assets and information systems
to which the individual will have
access.
Issues related to the use of
information technology may be
evaluated as suitability issues when
they relate to criminal or dishonest
conduct and when occurring on the job,
as misconduct or negligence in
employment. Unauthorized access to
government information or improper
use of government information once
access is granted may compromise the
privacy of individuals, and may make
public, information that is proprietary
in nature, thus compromising the
operations and missions of Federal
entities. Information obtained during
the investigation supports the deciding

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agency’s ability to determine whether
there is a reasonable basis to believe the
individual will use Federally-controlled
information systems unlawfully, make
unauthorized modifications to such
systems, corrupt or destroy such
systems, or engage in inappropriate uses
of such systems.
NTEU commented regarding Timing
of the Interview and requests ‘‘as soon
as possible,’’ be retained, vice
‘‘immediately.’’ This comment was
accepted.
NTEU objected to language in the
instructions that inform the applicant
that the scope of a personal interview
may exceed the time covered by the
form when necessary to resolve issues.
OPM did not accept this comment as the
language on the form is properly
advising the applicant of one aspect of
the investigative process. Further,
information beyond the scope of the
question on the form may be necessary
to provide information regarding
patterns of behavior as well as conduct
that occurred in the past but may have
ongoing implications or ramifications to
current conduct. The form is not
intended to limit the scope of a proper
investigation—it is simply one aspect of
the investigation required to support the
adjudication that is necessary.
NTEU commented that Section 10 of
the form is an improvement but
suggested that the form be amended to
include a space for an employee to
indicate uncertainty regarding whether
he or she currently holds citizenship in
the foreign country. The form in its
electronic application provides an
‘‘additional comments’’ field which
allow for explanations of this sort.
NTEU commented that Section 11 is
an improvement over the current form
but questioned why an employee need
report whether the residence was owned
or leased or other. This information
assists investigators in verifying
residences and seeking references as
needed during the investigation. NTEU
also commented that the three year
reference period for residences is an
improvement but questioned how an
employee would answer the question if
he has no reference to offer. The form
in its electronic application provides an
‘‘additional comments’’ field which
allow for explanations of this sort.
Regarding Section 12, NTEU
questioned the need for an employee to
provide the name of someone who knew
him at school. This information assists
investigators in identifying references
from the educational activity, which is
an important component of the
individual’s personal history.
NTEU suggested that Section 13 be
modified to define the term

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‘‘employment.’’ This comment was not
accepted as the term is commonly
understood. NTEU objected to
collection of the name of someone who
can verify unemployment activities and
means of support while unemployed.
This information provides alternative
reference information necessary for the
investigation when there is a period of
unemployment and employment
references are not possible. NTEU
questioned why the government needs
to know an employee’s means of
support. OPM did not amend the form
in response to NTEU’s question as
information regarding the respondent’s
activities and means of support while
unemployed may produce relevant
conduct information for that period.
NTEU and AFGE provided similar
comments regarding Section 13c.,
Employment Record. AFGE commented
that the collection regarding adverse
incidents in the workplace is overly
invasive and unreliable, and further that
this type of reporting requirement often
operates in direct contravention of
collective bargaining agreements and
Agency directives and policies that
provide that certain minor disciplines
will be removed or expunged from
Agency files after a certain period of
time. NTEU recommended that the form
be modified to omit any disciplinary
action that was overturned at a higher
level and to describe only the ultimate
penalty, if it was modified or mitigated.
NTEU suggested that at a minimum, the
form should be modified to include a
space to note the subsequent disposition
of the disciplinary action. These
comments were not accepted as
information regarding the underlying
conduct, regardless of the penalty
assigned, is necessary when
adjudicating an applicant’s suitability or
eligibility for a public trust position
since the adjudicator is evaluating
whether the individual’s conduct could
have an adverse impact on the
efficiency of the service. Further, an
agency’s collective bargaining
agreement with its employees does not
override the obligation to collect
sufficient information to meet the
government wide legal requirement of
an adequate suitability adjudication.
The form provides fields for the
applicant to explain circumstances and
disposition of the disciplinary action.
Adjudicators are required to establish
that there was a reasonable basis to
conclude that the conduct occurred in
order to use the conduct as basis for a
decision that a person is unsuitable for
a position.
AFGE objected to Section 17
regarding cohabitant and former spouse
information, Section 18 regarding

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information about relatives and aliases
of named relatives, and Section 19
regarding foreign countries visited,
including any contact with any person
known or suspected of being involved
or associated with foreign intelligence,
terrorist, security, or military
organizations. AFGE commented that
these questions are overreaching and
constitutionally infirm, as in AFGE’s
view, they impinge on protected
associational interests. OPM did not
amend the form as a result of these
comments.
Information collection regarding
former spouses and cohabitants has
been added to the collection as these
individuals have proven to be useful
sources of information when issues
surface during an investigation. Further,
regarding Sections 17, 18, and 19,
background investigations necessarily
involve inquiry into a person’s personal
history, including those relatives and
associates with whom the person has
the strongest ties. OPM inquires about
these relationships not to gather
information regarding beliefs but rather
to develop information, as a result of
these ties, that enables the adjudicator
to determine whether there is relevant
conduct on the part of the person being
investigated. The relationships
themselves are not relevant—it is the
information that is developed about
character and conduct that is of interest.
Regarding Section 17, NTEU
commented that OPM has not provided
sufficient explanation of the need for
information regarding former spouses
and cohabitants and suggested that it
appears this information was added
only because it exists on the SF 86.
Information collection regarding former
spouses and cohabitants has been added
to the collection as these individuals
have proven to be important sources of
information when issues surface during
an investigation. Cohabitants, as defined
on the form, share a relationship that
may be akin to the relationship with a
spouse. Former spouses have shared
such a relationship, at least in the past,
and are similarly well-suited to provide
information about conduct. Further, as
stated above regarding AFGE’s comment
on this section, background
investigations necessarily involve
inquiry into a person’s personal history,
including those relatives and associates
with whom the person has the strongest
ties. OPM inquires about these
relationships, not to gather information
regarding beliefs but rather to develop
information, as a result of these ties, that
enables the adjudicator to determine
whether there is relevant conduct on the
part of the person being investigated as
a result of those ties.

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Regarding Section 19, Travel, NTEU
suggested that the instructions indicate
that frequent travel across the Mexican
or Canadian borders could be described
together, in the category of ‘‘many short
trips’’ on ‘‘various’’ dates and that the
form be revised to permit the listing of
several countries in one box, when
multiple countries were visited on the
same trip. This comment was not
accepted as delineating the information
regarding specific countries is required
in order to complete a thorough
investigation, especially if information
is developed concerning improper
conduct in a particular location.
NTEU commented that completion of
the travel section could be excessively
onerous in this day of frequent overseas
travel, and recommend that instead of
requiring the employee to list all trips,
it would make more sense to require the
employee to list and describe only
certain trips: Those where he or she was
questioned/involved in an encounter
with the police/contacted by persons
suspected of being involved in or
associated with foreign intelligence,
terrorist, security, or military
organizations. This comment was not
accepted as the question is designed to
shed light on the respondent’s activities
and conduct during the time period, and
knowledge of the travel itself permits
exploration of potentially relevant
conduct.
Regarding Section 20, Police Record,
NTEU commented that providing a
specific instruction to report instances
when the record was sealed, expunged
or otherwise stricken from the record or
the charge was dismissed is an
improvement in terms of clarity;
however, NTEU commented that
employees should not be required to
disclose information that a court has
determined is properly expunged or
otherwise stricken from the record.
AFGE similarly commented that the
questionnaire should not inquire about
criminal matters that have been
expunged or otherwise sealed or
eradicated from the court records. These
comments were not accepted, because
information regarding the underlying
conduct is important to assess, whether
or not the record was expunged or
otherwise sealed or eradicated from the
court record. The courts expunge or seal
records for purposes specific to the
respective justice systems they represent
(e.g., to eliminate the impact upon
sentencing for subsequent offenses or to
protect the individual’s privacy). Those
purposes are not necessarily relevant to
the Federal Government’s obligation to
assess suitability, fitness, or eligibility
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the Government in a context that rises
to the level of a public trust.
Regarding Section 21, Illegal Use of
Drugs and Drug Activity, NTEU objected
to moving the question about illegal
drug use and drug activity to the SF 85P
from the SF 85PS. NTEU recommended
that the introduction to this section
should indicate that it covers drug use
or activity that is illegal under federal
law, if that is the intent of the question.
This recommendation was not accepted
as individuals are expected to know and
obey the laws of the states as well as the
laws of the United States, and illegal
drug use within the specified period
might indicate character or conduct that
would be inappropriate in an individual
who would be occupying a position of
public trust.
AFGE commented that the
questionnaire provisions demanding
information about drug use and drug
activities violate employees’
constitutional right to privacy and their
Fifth Amendment rights against selfincrimination. OPM did not accept this
comment. The government has an
interest in knowing whether an
individual being considered for or
occupying a position of public trust is
reliable, trustworthy, and willing and
able to comply with laws, rules, and
regulations. Drug use could also have
implications for the safety of co-workers
and the public, if the individual is to
have access to government facilities and
systems. The questionnaire provides an
assurance that the respondent’s truthful
responses to Section 21 will not be used
as evidence against the respondent in a
criminal proceeding. The investigation
supports a determination of whether
there is illegal use of narcotics, drugs or
other controlled substances, without
evidence of substantial rehabilitation,
which is relevant to an assessment of
character and conduct. From a
credentialing perspective, the
investigation also supports a
determination of whether an
individual’s abuse of drugs may put
people, property, or information
systems at risk.
NTEU objects to the requirement of
disclosure of drug use prior to the age
of 16 and commented that the current
SF 85P–S requires disclosure of drug
use only since the age of 16 or in the
last seven years, whichever is shorter,
should be preserved. The comment was
not accepted as conduct information
before the age of 16 may be relevant,
depending on the respondent’s age and
subsequent conduct.
NTEU questioned the value of the
question about future intent to use a
drug or to engage in drug trafficking.
The comment was not accepted as

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50181

responses to this question often shed
light on the respondent’s conduct and
reason for engaging in illegal drug use.
NTEU noted that there is some
redundancy in the questions regarding
whether the applicant has illegally used
or has otherwise been involved with a
drug or controlled substance in the last
seven years, or while employed as a law
enforcement officer, in a position
affecting public safety, prosecutor, or as
a courtroom official. This concern will
be addressed in the electronic format;
the branching nature of the
questionnaire will ensure that
respondents are not presented with
duplicative questions.
NTEU questioned the need to ask
about ‘‘cultivation’’ of any drug or
controlled substance in the last seven
years. This comment was not accepted
as illegal cultivation is relevant
information and represents conduct that
is distinct from drug use.
NTEU objected to the question about
intentional misuse of prescription
drugs. This comment was not accepted
as information regarding intentional
misuse of prescription drugs may
establish criminal conduct as well as
possible impairment of judgment and
reliability without evidence of
substantial rehabilitation. Such conduct
is also relevant to the question of
reliability and trustworthiness, an
important consideration with respect to
the positions to which this form relates.
NTEU commented that it strongly
opposes the required disclosure of
voluntary counseling or treatment
programs and stated that the disclosure,
and the offering of mitigating
information, should be at the
employee’s option. OPM did not accept
these comments. As stated above, the
information collection regarding illegal
use of drugs is necessary for the
determinations the form supports; it is
not possible to assess this information
properly unless a complete picture is
obtained, including information about
efforts at rehabilitation.
Regarding Section 22, Alcohol, NTEU
objected to the transfer of alcohol
inquiries from the SF 85PS to the SF
85P, and to expansion of the question to
ask about ‘‘negative impacts’’ on work
performance or professional
relationships. As stated above, an
individual’s abuse of alcohol may
impact on his or her ability to
adequately perform the duties of the
position. Such abuse may also raise
questions about the individual’s
reliability and trustworthiness, and may
suggest the individual could put people,
property, or information systems at risk.
Impacts of alcohol use on work
performance or professional

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relationships are especially relevant to
these decisions, because those are
precisely the concerns about alcohol
abuse that have prompted the inquiry.
NTEU objected to the required
disclosure of counseling or treatment
that the employee voluntarily sought,
and stated that the disclosure and
offering of evidence of rehabilitation,
should be at the employee’s option.
AFGE commented that Section 22’s
questions regarding alcohol treatment
violate the permissible areas of
examination under the Rehabilitation
Act and ADA, as inquiries regarding a
drug addiction are proscribed. AFGE
further commented that there is a
constitutional right to privacy in the
nondisclosure of personal information.
OPM did not accept these comments. As
stated above, the information collection
regarding the use of alcohol is necessary
for the determinations the form
supports; moreover, because the form is
to be proffered to the individual only
after an offer has been made (or
employment has been commenced)
OPM believes it has adequately
addressed the requirements of the
Rehabilitation Act and the Americans
with Disabilities Act.
Regarding Section 24, Financial
Record, NTEU questioned the
justification for expansion of
questioning in this area. AFGE
commented that the questions are
overbroad because they fail to establish
a nexus between the information sought
and any specific positions. The nexus,
in the suitability and fitness contexts, is
with the concept of dishonesty. As
noted above, failure to live within one’s
means, satisfy debts, and meet financial
obligations may raise questions about
the individual’s honesty. The nexus, in
the credentialing context is with the
question of whether making the person
eligible for access to government
facilities and systems will put people,
property or information systems at risk.
For example, a person’s consistent
failure to satisfy significant debts may
indicate that granting a PIV poses an
unacceptable risk to Government
financial assets and information systems
to which the individual will have
access. The adjudicator is not looking at
the individual’s financial condition per
se. The adjudicator is assessing whether
the individual is making an honest
effort to discharge its obligation. The
expanded questioning of the form will
assist in gathering pertinent information
regarding indebtedness that the
previous SF 85P did not collect so that
adjudicators can make more informed
decisions.
NTEU commented that is unclear how
overdue taxes must be in order to be

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reported on the form. NTEU stated it is
unclear whether the section applies to
taxes that are jointly owed (by the
employee and a spouse or separated
spouse), and the failure is due to the
spouse. OPM did not accept the
comment as the question requests the
respondent to provide overdue taxes for
which the respondent is responsible.
Taxes that are jointly owed are owed by
both parties. Further, the form provides
the respondent with the ability to
provide explanation and mitigating
information.
NTEU recommended that the question
about disciplinary action for misuse of
a government credit card should be
modified to include a box to report any
subsequent reconsideration or
modification of agency-imposed
disciplinary action through, for
example, a union grievance. OPM did
not accept this comment as the form
already provides the ability to provide
further explanation.
NTEU questioned the need to inquire
into use of a credit counseling service
and recommended that this information
should be voluntary, to be provided if
the employee feels it advisable to offer
evidence of attempts to correct a poor
credit situation. OPM did not accept the
comment. As noted above, OPM is
interested in the individual’s honest
efforts to discharge obligations, and this
information is highly pertinent to that
question. Moreover, the question is
tailored to collect information only
when there is first a response indicating
that there has been an actual inability to
fully meet financial obligations.
NTEU commented that the question
regarding whether the employee is
‘‘currently delinquent’’ on alimony,
child support, or any federal debt is
ambiguous as there is no instruction
regarding how far in arrears an
employee must be to be ‘‘delinquent.’’
NTEU proposed a standard of 180 days
for delinquency. OPM did not accept
this comment as the question is
designed to gather any current
delinquency regarding alimony, child
support, and federal debt. Based upon
experience, OPM thinks that any
delinquency with respect to these
matters could be indicative of a
character or conduct issue, and thus that
information on current delinquencies of
whatever duration is important in
assessing character and conduct.
Regarding the question about whether
the respondent is over 120 days
delinquent on any debt in the past seven
years, NTEU proposed a standard of 180
days as a realistic time within which to
expect that an employee should be able
to correct financial lapses. OPM did not
accept the comment. Debts that are 120

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days past due are serious enough to
impact a person’s creditworthiness. In
deciding upon 120 days, OPM
considered that such lapses are
generally reported by credit grantors to
credit bureaus by the time debts are 120
days past due as such debts are widely
considered to establish a likelihood that
the lapse will not be corrected.
AFGE also commented that the
questions in Section 24 violate
confidentiality provisions of the Fair
Credit Reporting Disclosure and
Authorization Act, and implicate other
privacy issues. OPM did not accept this
comment. At the time the investigation
is conducted, OPM obtains the
respondent’s voluntary release of
information covered by the Fair Credit
Reporting Act. Unless the individual
signs the release the investigation
cannot go forward.
Regarding Section 25, Use of
Information Technology Systems, NTEU
commented that the section appears to
have been added to mirror a 2008
addition to the SF 86. As stated, there
were no questions added for the
purpose of mirroring the SF 86. Rather
the questions added support the
determinations that are made using SF
85P-based investigations. Disclosures
related to the use of information
technology may turn up potentially
criminal or dishonest conduct or, when
the underlying conduct occurred on the
job, evidence of misconduct or
negligence in employment. Information
obtained during the investigation
supports a decision of whether the
individual is sufficiently reliable to hold
a public trust position or whether there
is a reasonable basis to believe the
individual will use Federally-controlled
information systems unlawfully, make
unauthorized modifications to such
systems, corrupt or destroy such
systems, or engage in inappropriate uses
of such systems.
NTEU noted its approval of the advice
regarding self-incrimination but
expressed concern regarding what it
viewed as a lack of clarity as to the
activity intended to be covered by this
section as well as its breadth. NTEU
suggested that the description of activity
covered by this section be tightened and
more clearly defined, so as to capture
only such things as true hacking and
introduction of viruses or other
malicious software. AFGE objected to
Section 25, stating that issues of alleged
compromise of Personally Identifiable
Information and Privacy Act violations
are often nuanced and highly technical
interpretations made by those illequipped to make such evaluations, and
are arbitrarily and capriciously applied
by Agencies. OPM did not accept these

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comments. The questions are designed
to collect information regarding specific
conduct and incidents. OPM has
provided a broad enough context to
explain the intent of the question and
provides guidance to agencies about
how to use the information properly in
adjudications of suitability or
credentialing.
Regarding Section 26, Non-Criminal
Court Actions, NTEU proposed that the
section be rephrased to inquire only
about civil court actions alleging fraud
or intentional tortious conduct by the
employee defendant. NTEU stated its
view that this change is necessary
because it is not uncommon for a
complaint to name a long list of
defendants and many counts, with only
some relevant to any given defendant.
AFGE objected to Section 26, stating
that merely being a named defendant in
a lawsuit of this nature, no matter how
frivolous or the nature of the
disposition, is irrelevant to maintaining
a public trust position, and should not
be used to impermissibly taint an
employee’s record and evaluation, as it
is here. OPM did not accept these
comments. Information about court
proceedings often provides leads
concerning alleged conduct that could
be relevant to suitability, fitness or
credentialing concerns. For examples,
such records might include allegations
of physical violence, allegations of theft,
conversion of property, or other
dishonest conduct, or allegations of
negligence of a sort that might be
relevant to the individual’s
trustworthiness in the position in
question. The question is designed to
elicit whether records exist that could
surface such information and to permit
the investigator’s training and
experience regarding suitability
investigations to inform the collection of
information from the records as opposed
to requiring the respondent to apply a
filter as to what might be relevant.
Further, the presence of any information
collected on the form is not a taint on
the respondent, as the information must
be evaluated using specific criteria
established for the type of decision the
investigation supports.
Regarding Section 27, Association
Record, NTEU suggested that this
section appears to have been added to
mirror the SF 86. AFGE objected to
Section 27 on the basis of First
Amendment association and speech
interests. As previously stated, there
were no questions added for the
purpose of mirroring the SF 86. The
questions were added because, based
upon OPM’s experience it is useful in
developing leads that, in turn, may
permit OPM to develop relevant

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information about character and
conduct that would permit adjudicators
to make more informed decisions about
suitability, fitness, and credentialing.
NTEU commented that because some
of the questions are aimed at conduct
that is undeniably criminal, it wondered
at the absence of any guarantee of use
immunity against self-incrimination in a
criminal proceeding. Advice concerning
immunity in connection with this
question appears in the first paragraph
of the questionnaire.
Regarding the Authorization for
Release of Medical Information, NTEU
commented that it has previously
complained that the permissible uses for
the Authorization for Release of Medical
Information were not clearly outlined in
the SF 85P and stated that the proposed
instructions correct that situation.
However, NTEU objected to the
language of the proposed form that
indicates that employees will also be
required to complete the Medical
Release ‘‘in the event information arises
in an investigation that requires further
inquiry for resolution, and only to
resolve such issues.’’ NTEU commented
that this language is not an effective
limitation and permits an investigator to
require signature on the Release at will.
OPM did not amend the form in
response to this comment as the proper
use and handling of the investigative
questionnaire by investigations program
personnel is governed by investigative
policies appropriate to the types of
decision-making the investigations
support. The President, in E.O. 13488,
has required that agencies re-investigate
periodically the incumbents of public
trust positions, and, depending upon
the types of issues that might arise in
such a reinvestigation, the medical
information covered by the release
could be highly salient to the question
whether it continues to be appropriate
to retain the individual in the position
that he or she encumbers.
Regarding the electronic format of the
form, NTEU commented that it does not
oppose the e-QIP format and recognized
that use of branching questions can
assist a respondent in determining what
follow-up questions to answer. NTEU
expressed a concern, however, about the
extent of an employee’s ability to correct
or amend answers to eliminate
inadvertent errors or omissions once
inputted and inquired whether a halfcompleted form could be saved and
continued at a later date and whether a
form submitted through e-QIP could be
later revised. Although this concern
appears to be outside of the scope of
comments on the information
collection, OPM advises that
respondents are able to save and

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50183

continue inputting information as
necessary, up to the point that the
respondent certifies that the information
is accurate and complete. Once the
collection has been certified, the
applicant may contact the agency that
asked him or her to complete the
questionnaire should the applicant need
to amend or correct the information he
or she provided.
Regarding the Burden on
Respondents, NTEU suggested that the
estimated burden of 75 minutes to
complete the SF 85P underestimated the
burden imposed on those who will have
to complete this form. OPM has
reassessed the burden imposed on
nonfederal respondents. The electronic
application includes branching
questions and instructions which
provide for a tailored collection from
the respondent based on varying factors
in the respondent’s personal history.
The burden on the respondent will vary
depending upon what branching
questions are triggered by the
respondent’s personal history. OPM
employed the Department of Defense
Personnel Security Research Center to
conduct a study of the estimated burden
of the SF 85P based on empirical data
gathered in a simulated background
investigation context. A sample of 33
participants successfully completed the
study. Time burden estimates ranged
greatly, from 70 to 435 minutes. The
average of participant time spent
completing the form was 183 minutes
and the median was 155 minutes. In
calculating the burden estimate for the
SF 85P, the median number will be
used, due to the variations expected
from the tailored collection.
Comments regarding the SF 85P–S
were received from commenters at DOJ,
OSD–HR, and from NTEU. Commenters
from the DOJ and OSD–HR
recommended that the SF 85P–S should
be eliminated and that the questions
from the SF 85P–S be incorporated into
the SF 85P. These comments were not
accepted because the SF 85P–S collects
information necessary for adjudication
only of certain positions, particularly
those that require the carrying of
firearms.
NTEU commented that questions
about illegal drug use and alcohol
should be reserved for the SF 85P–S.
This comment was not accepted because
OPM has concluded, on the basis of
experience, that the information
collected regarding these areas is
relevant to all of the decision-making
the SF 85P supports, and not merely the
positions that traditionally used the SF
85P–S in the past.
As stated above, OSD–HR
recommends that the question of being

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50184

Federal Register / Vol. 77, No. 161 / Monday, August 20, 2012 / Notices

‘‘ordered, advised, or asked to seek
counseling or treatment as a result of
alcohol use’’ be treated as a stand-alone
question on the SF 85P or alternatively,
that question 4 be placed back on the SF
85P–S to ensure this information is
collected appropriately. OPM accepted
this comment and has added the
question back on the SF 85P–S as a
standalone question, while retaining it
as a conditional question on the SF 85P.
U.S. Office of Personnel Management.
John Berry,
Director.
[FR Doc. 2012–20379 Filed 8–16–12; 8:45 am]
BILLING CODE 6325–53–P

SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–67660; File No. 10–207]

Miami International Securities
Exchange, LLC; Notice of Filing of
Application for Registration as a
National Securities Exchange Under
Section 6 of the Securities Exchange
Act of 1934

mstockstill on DSK4VPTVN1PROD with NOTICES

August 15, 2012.

On April 26, 2012, Miami
International Securities Exchange, LLC
(‘‘MIAX’’) submitted to the Securities
and Exchange Commission
(‘‘Commission’’) a Form 1 application
under the Securities Exchange Act of
1934 (‘‘Exchange Act’’), seeking
registration as a national securities
exchange under Section 6 of the
Exchange Act. MIAX’s Form 1
application provides detailed
information on how it proposes to
satisfy the requirements of the Exchange
Act.
The Commission is publishing this
notice to solicit comments on MIAX’s
Form 1 application. The Commission
will take any comments it receives into
consideration in making its
determination about whether to grant
MIAX’s request to be registered as a
national securities exchange. The
Commission will grant the registration if
it finds that the requirements of the
Exchange Act and the rules and
regulations thereunder with respect to
MIAX are satisfied.1
MIAX would be wholly owned by its
parent company, Miami International
Holdings, Inc. (‘‘Miami Holdings’’). If
approved, MIAX would commence
operation of a fully automated
electronic trading platform for the
trading of standardized options with a
continuous, automated matching
function. MIAX would not have a
1 15

U.S.C. 78s(a).

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physical trading floor. Liquidity would
be derived from orders to buy and
orders to sell submitted to MIAX
electronically by its registered brokerdealer members, as well as from quotes
submitted electronically by market
makers.
A description of the manner of
operation of MIAX’s proposed system
can be found in Exhibit E to MIAX’s
Form 1 application. The proposed
rulebook for the proposed MIAX
exchange can be found in Exhibit B to
MIAX’s Form 1 application, and the
governing documents for both MIAX
and Miami Holdings can be found in
Exhibit A. A listing of the officers and
directors of MIAX can be found in
Exhibit J to MIAX’s Form 1 application.
MIAX’s Form 1 application, including
all of the Exhibits referenced above, is
available online at www.sec.gov/rules/
other.shtml as well as at the
Commission’s Public Reference Room.
With respect to MIAX’s proposed
trading rules, some of the notable
features proposed by MIAX are
highlighted below. For example, in
certain circumstances where MIAX
could not fully execute an incoming
Priority Customer order,2 it has
proposed to use mechanisms and route
timers that would expose the incoming
order to the MIAX market for up to one
second before routing the order to away
markets or otherwise handling the order
in accordance with its proposed trading
rules.3 In addition, in limited
circumstances, certain orders that are
eligible for routing could be routed
immediately, at least in part, without
being subject to a one second route
timer, if they meet a number of criteria.4
MIAX has proposed three different
classes of market makers that would
operate on MIAX: Primary Lead Market
Makers; Lead Market Makers; and
Registered Market Makers. The different
classes of market makers would be
subject to varying levels of affirmative
and negative market making obligations.
Notably, MIAX would allow market
makers to use a variety of quote types,
some of which would have a specific
time in force and would be analogous to
2 See proposed MIAX Rule 100 (defining ‘‘Priority
Customer’’ as a person or entity that is not a broker
or dealer in securities and does not place more than
390 orders in listed options per day on average
during a calendar month for its own beneficial
accounts).
3 See proposed MIAX Rules 515 and 529. See also
Exhibit E to MIAX’s Form 1 submission, at 5–7.
4 See proposed MIAX Rule 529. In short, an order
would be eligible for immediate routing if (1) it is
a customer order significantly greater in size than
the size of the NBBO posted at away markets, and
(2) it arrives at a time when MIAX has significant
interest posted at one minimum price variation
inferior to the NBBO at away markets.

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orders (MIAX refers to such order types
as ‘‘eQuotes,’’ and market makers would
be able to enter these orders through
their quotation infrastructure).5
Specifically, MIAX has proposed rules
to allow market makers to submit any of
the following ‘‘quote’’ types: Standard
quote; Day eQuote; Immediate or Cancel
eQuote; Fill or Kill eQuote; Intermarket
Sweep eQuote; Auction or Cancel
eQuote; and Opening Only eQuote.6
While market makers could only have
one Standard quote active at any one
time, they would be permitted to have
multiple types of eQuotes active in a
single series.7
MIAX’s proposed rules also provide
for the categorization of certain market
maker quotes as ‘‘priority’’ quotes and
‘‘non-priority’’ quotes.8 Use of priority
quotes, which need to meet certain bid/
ask differential requirements, would
entitle market makers to precedence
over all other professional interest (i.e.,
non-Priority Customer orders and
market maker orders and non-priority
quotes) on MIAX at the same price.9
Interested persons are invited to
submit written data, views, and
arguments concerning MIAX’s Form 1,
including whether the application is
consistent with the Exchange Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (http://www.sec.gov/
rules/sro.shtml); or
• Send an email to rulecomments@sec.gov. Please include File
Number 10–207 on the subject line.
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street NE., Washington, DC
20549–1090.
All submissions should refer to File
Number 10–207. This file number
should be included on the subject line
if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (http://www.sec.gov/
rules/other.shtml). Copies of the
5 See

Exhibit E to MIAX’s Form 1 submission, at

3.
6 See

proposed MIAX Rule 517.
its application ultimately is approved by the
Commission, MIAX does not expect to make Day
eQuotes available for use upon first commencing
operations. See Exhibit E to MIAX’s Form 1
submission.
8 See proposed MIAX Rule 517.
9 See id.
7 If

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