[Federal Register Volume 75, Number 239 (Tuesday, December 14, 2010)]
[Proposed Rules]
[Pages 77783-77789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31373]
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Proposed Rules
Federal Register
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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.
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Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 /
Proposed Rules
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 732
RIN 3206-AM27
Designation of National Security Positions
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The U.S. Office of Personnel Management (OPM) is proposing to
revise its regulation regarding designation of national security
positions. This proposed rule is one of a number of initiatives OPM has
undertaken to simplify and streamline the system of Federal Government
investigative and adjudicative processes to make them more efficient
and as equitable as possible. The purpose of this revision is to
clarify the requirements and procedures agencies should observe when
designating national security positions as required under E.O. 10450,
Security Requirements for Government Employment. The proposed
regulations maintain the current standard which defines a national
security position as ``any position in a department or agency, the
occupant of which could bring about, by virtue of the nature of the
position, a material adverse effect on the national security.'' The
purpose of the revisions is to clarify the categories of positions
which, by virtue of the nature of their duties, have the potential to
bring about a material adverse impact on the national security, whether
or not the positions require access to classified information.
Another purpose of the amendments is to acknowledge, for greater
clarity, complementary requirements set forth in part 731, Suitability,
so that every position is properly designated with regard to both
public trust risk and national security sensitivity considerations,
both of which are necessary for determining appropriate investigative
requirements. Finally, the proposed rule clarifies when reinvestigation
of individuals in national security positions is required.
DATES: OPM will consider comments received on or before February 14,
2011.
ADDRESSES: You may submit comments, identified by ``3206-AM27,'' using
either of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments. Please organize comments by
section designation. All submissions received through the Portal must
include the agency name and docket number or Regulation Identifier
Number (RIN) for this rulemaking.
All Mail: Tim Curry, Deputy Associate Director, Partnership and
Labor Relations, Employee Services, U.S. Office of Personnel
Management, Room 7H28, 1900 E Street, NW., Washington, DC 20415-8200.
FOR FURTHER INFORMATION CONTACT: Debra Buford, U.S. Office of Personnel
Management, Employee Services, 1900 E St., NW., Room 7H28, Washington,
DC 20415-8200; fax to 202-606-2613; e-mail to [email protected].
SUPPLEMENTARY INFORMATION: OPM proposes to amend part 732 of title 5,
Code of Federal Regulations (CFR), to clarify its coverage, and the
procedural requirements for making position sensitivity designations.
OPM also proposes various revisions to make the regulations more
readable.
Scope
OPM proposes to update the definition of ``national security
position'' in Sec. 732.102, Definitions and applicability, to include
positions that may have a material adverse impact on the national
security, but that may not seem to fall squarely within the current
definition in Sec. 732.102(a) of this chapter. While access to
classified information is, in and of itself, a reason to designate a
position as a national security position, positions may have the
requisite national security impact independent of whether the incumbent
of the position requires eligibility for access to classified
information. For example, positions involving protection from terrorism
have the potential to bring about a material adverse impact on the
national security, especially where the position duties involve
protection of borders and ports, critical infrastructure, or key
resources. Positions that include responsibilities related to public
safety, law enforcement, and the protection of Government information
systems could also legitimately be designated as national security
positions, where neglect of such responsibilities or malfeasance could
bring about a material adverse effect on the national security.
OPM therefore proposes to update the definition of ``national
security position'' to add positions where the duties include
``protecting the nation, its citizens and residents from acts of
terrorism, espionage, or foreign aggression, including * * * protecting
the nation's borders, ports, critical infrastructure or key resources
and where the occupant's neglect, action or inaction could bring about
a material adverse effect on the national security.'' The new text
would appear in Sec. 732.102(a)(2)(i) of the proposed rule. In
utilizing the terms ``critical infrastructure'' and ``key resources''
OPM has been guided by their definitions in the USA PATRIOT Act of 2001
and the Homeland Security Act of 2002, both enacted in the aftermath of
the September 11, 2001, terrorist attacks. OPM intends that agencies,
likewise, be guided in their assessment of positions with these types
of duties by referring to these statutes.
For clarity, OPM also proposes to update its regulations to specify
that an agency may designate a position as national security sensitive
where it involves other responsibilities, including but not limited to
protecting or controlling access to facilities or information systems;
controlling, maintaining custody, safeguarding or disposing of
hazardous materials, arms, ammunition, or explosives; exercising
investigative or adjudicative duties related to national security,
suitability, fitness or identity credentialing; exercising criminal
justice, public safety or law enforcement duties; or conducting audits
or investigations of these functions, where the occupant's neglect,
action or inaction could bring about a material adverse effect on the
national security. The new text appears in Sec. 732.102(a)(2)(iv)
through (viii) of the proposed rule.
In proposing these changes, OPM cautions that not all positions
with these responsibilities must be designated as national security
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positions. Rather, in each instance, agencies must make a determination
of whether the occupant's neglect, action or inaction could bring about
a material adverse effect on the national security, i.e., could cause
at least ``significant or serious damage to the national security.''
See proposed Sec. Sec. 732.102(a) (general standard for designating a
national security position) and 732.201(a)(1) (standard for designating
the minimum level of a national security position).
OPM believes that, with these updates and clarifications, the
regulation will more fully conform to section 3(b) of E.O. 10450, as
amended, under which an agency head shall designate as sensitive ``any
position * * * the occupant of which could bring about, by virtue of
the nature of the position, a material adverse effect on the national
security.'' Consistent with this provision, agencies are reminded that
sensitivity designations are based on the nature of a position, not on
the mission of the agency or of its subcomponents. OPM will issue
further detailed guidance in its Position Designation System and other
supplementary issuances.
The regulations currently cover only positions in the competitive
service and certain Senior Executive Service positions. OPM proposes,
in Sec. 732.102(b), to extend part 732 to apply to positions where the
incumbent can be noncompetitively converted to the competitive service.
Such positions include those to which appointments are made with the
intent of converting the employee to an appointment in the competitive
service if the employee satisfies eligibility requirements. In these
instances, the process for entry into the competitive service is
continuous, beginning with initial appointment to the excepted service
and ending in (noncompetitive) conversion to the competitive service,
all while generally serving in the same position. Extension of the
regulation's scope to include sensitivity designations of such
positions is consistent with OPM's authority to investigate persons
entering or employed in the competitive service. Excepted service
positions that can lead to noncompetitive conversion to the competitive
service should be subject to the same sensitivity designation
assessments as other covered positions. This change would also serve to
align this part with the current coverage of part 731.
Part 732, if amended as proposed, would apply to the limited
category of excepted service employees whose appointments lead to
noncompetitive conversion into the competitive service. Part 732 would
not apply, however, to any other employees whose positions are in the
excepted service. The proposed rule would note that agencies may apply
the requirements of this part to other excepted service positions
within the executive branch, and to contractor positions, to the extent
consistent with law, but this option would be wholly at the discretion
of each agency.
Implementation
Proposed Sec. 732.103 would authorize OPM to issue appropriate
implementing guidance.
Sensitivity Levels
The proposed rule changes further clarify the designation of
national security positions and provide examples of duties that would
result in a sensitivity designation at each level. These non-exclusive
examples are intended to assist agency personnel in placing positions
at the Noncritical-Sensitive, Critical-Sensitive, or Special-Sensitive
level, once they have been properly designated as national security
positions. As noted in the proposed regulations, to avoid the risk of
over-designation, a position's duties support a determination that a
national security position is Critical-Sensitive, rather than
Noncritical-Sensitive, only if the occupant's neglect, action, or
inaction could bring about ``exceptionally grave damage to the national
security.'' Further, a position's duties support a determination that a
national security position is Special-Sensitive, rather than Critical-
Sensitive, only if the occupant's neglect, action, or inaction could
bring about ``inestimable damage to the national security.''
To avoid the risk of under-designation, the proposed regulations
also note that the position duties supporting a designation include but
are ``not limited to'' those listed in the examples. Therefore,
positions not listed in the examples could be properly designated as
national security positions at one of the three prescribed levels if
the occupant's neglect, action, or inaction could bring about a
``material adverse effect on the national security,'' i.e., could
cause, at a minimum, ``significant or serious damage to the national
security.'' See proposed Sec. Sec. 732.102(a) and 732.201(a)(1).
This section complements 5 CFR 731.106, discussing public trust
risk designations related to suitability. When read together, the two
sections provide that every covered position must be evaluated based on
public trust risk as well as national security sensitivity
considerations in order to determine the appropriate investigation
required. OPM currently issues guidance on how to designate a
position's risk and sensitivity level, and the resulting level of
investigation that is appropriate based on those designations. OPM will
make revisions to the Position Designation System required to conform
to amendments OPM proposes in this part.
Periodic Reinvestigation Requirements
OPM has long prescribed reinvestigation requirements for positions
covered by part 732, consistent with its authority under section 8(b)
of E.O. 10450, as amended, to conduct the personnel investigations for
persons entering or employed in the competitive service. The
reinvestigation requirements in 5 CFR 732.203 must be revised, however,
to accommodate three recent Presidential Executive orders. E.O. 12968
of August 2, 1995, established requirements for periodic and event-
driven reinvestigations of employees requiring eligibility for access
to classified information. These individuals' positions are already
designated as national security positions under the current version of
5 CFR part 732. E.O. 13467 of June 30, 2008, retained these
reinvestigation requirements while also authorizing ``continuous
evaluation'' by amending E.O. 12968. E.O. 13488 of January 22, 2009,
provided for reinvestigation of individuals whose positions are
designated as public trust positions under 5 CFR part 731. OPM proposes
to amend Sec. 732.203 to incorporate these requirements.
Currently, under 5 CFR 732.203, an employee in a Special-Sensitive
or Critical-Sensitive position is subject to a national security
reinvestigation at least every 5 years, while an employee in a
Noncritical-Sensitive position is not subject to a reinvestigation.
This provision of regulation potentially conflicts with E.O. 12968, as
amended. Under E.O. 12968, where an employee, including an employee in
a Noncritical-Sensitive position, requires eligibility for access to
classified information, he or she is subject to the national security
reinvestigation and continuous evaluation requirements prescribed by
the Executive order. OPM proposes to amend Sec. 732.203 to recognize
that when an employee in a national security position requires
eligibility for access to classified information, the reinvestigation
requirements of E.O. 12968 are controlling.
Numerous employees in national security positions do not require
eligibility for access to classified information. Prior to the issuance
of E.O. 13488, the only Governmentwide
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requirement for periodically reinvestigating such employees was in 5
CFR 732.203. As noted above, under 5 CFR 732.203, an employee in a
Special-Sensitive or Critical-Sensitive position is subject to a
national security reinvestigation at least every 5 years, while an
employee in a Noncritical-Sensitive position is not subject to any
reinvestigation. However, E.O. 13488 now requires public trust
suitability reinvestigations under 5 CFR part 731 for every covered
employee at a frequency to be determined by OPM.
Unless conforming changes are made to the regulations, there is a
risk that an employee in a Special-Sensitive or Critical-Sensitive
position will unnecessarily be subject to two separate reinvestigations
at least every 5 years: A national security reinvestigation under part
732, and a public trust reinvestigation under E.O. 13488. Requiring
multiple reinvestigations of the same individual at least every 5 years
would be inconsistent with E.O. 13467, which calls for investigations
to be aligned ``using consistent standards to the extent possible.''
To avoid this outcome, OPM proposes to amend Sec. 732.203 to make
every incumbent of a national security position who does not require
eligibility for access to classified information subject to a national
security reinvestigation at least every 5 years, and to provide that
such reinvestigation must be conducted using a Questionnaire for
National Security Positions, at a frequency and scope that will satisfy
the reinvestigative requirements for both national security and public
trust positions. This amendment will avoid the risk of unnecessarily
subjecting an employee in a Special-Sensitive or Critical-Sensitive
position to two separate reinvestigations every 5 years, and will
confirm OPM's long-standing policy that every employee in a national
security position must be reinvestigated using a Questionnaire for
National Security Positions, not a Questionnaire for Public Trust
Positions. OPM will propose conforming changes to part 731 of this
chapter in a separate rulemaking to implement E.O. 13488.
Reassessment of Current Positions
The proposed rule, in Sec. 732.204, would require agencies to
assess all current positions using the definitions of sensitivity level
designations provided in Sec. 732.201 of the proposed regulation
within 24 months of the effective date of the final rule. This is
necessary to ensure that all positions are properly designated using
the updated definition. OPM believes that the 24-month timeframe would
allow agencies ample opportunity to fully review the duties of
positions within their organizations to determine whether or not they
impact national security under the updated definition and make the
appropriate designation changes. The proposal does not require that all
investigations be completed within the 24-month timeframe, only that
positions be re-evaluated by then, and that any required investigation
be initiated within 14 days of a person's occupancy of a position that
has been newly designated as sensitive, consistent with 5 CFR
736.201(c). Agencies may provide advance notice of the redesignation of
a position to allow adequate time for the employee to complete
investigative questionnaires, releases, and any other information
needed from the employee. This will help ensure that agencies have a
full 14 days to initiate the investigation, i.e., to submit all the
information needed by the investigations service provider.
Agencies retain the right to determine whether or not an incumbent
in a position redesignated as a national security position may continue
to exercise national security position duties pending the outcome of
any required investigation. The incumbent may continue to occupy such
sensitive position pending the completion of an investigation, but
agencies may remove the incumbent's national security duties, as
authorized by section 3(b) of E.O. 10450.
Savings Provision
The proposed rule contains the addition of a savings provision
intended to avoid any adverse impact to the procedural rights of
employees resulting from designations made where employees are awaiting
adjudication of a prior investigation at the time of any redesignation
of positions required by the final rule. OPM specifically requests
comment on the necessity of such a provision in protecting employee
procedural rights or agency right to take action relative to
administrative or other review procedures ongoing at the time of any
redesignation of positions. This savings provision would appear at
Sec. 732.205.
Waivers and Exceptions
OPM is proposing some changes to the procedures and standards for
waivers and exceptions to preappointment investigative requirements, to
ensure that waivers and exceptions do not pose unacceptable risks to
the national security. This is to better meet the requirements of
section 3(b) of E.O. 10450, as amended, under which emergency waivers
of preappointment investigative requirements must be ``necessary in the
national interest,'' and section 3(a) of the same order, under which
OPM may authorize such exceptions from investigative requirements ``as
may meet the requirements of the national security.'' The proposed rule
addresses a waiver of the requirement to conduct the pre-appointment
investigation, not to be confused with the temporary access to
classified information before an investigation is adjudicated, which is
governed by E.O. 12968 and Intelligence Community policy guidance. Some
of the proposed changes are made possible by the more automated
environment in which checks are now conducted. OPM will issue guidance
with detailed instructions for agencies to make waiver and exception
requests.
No change is proposed to Sec. 732.202(a)(2)(i), which states that
for Special-Sensitive positions, preappointment investigative
requirements may not be waived. This requirement derives from a
separate regulation, 5 CFR 736.201(c).
Under the proposed revisions, to waive the preappointment check for
Critical-Sensitive positions based on an emergency, the agency would be
required to initiate an investigation based on a completed
questionnaire, and a Federal Bureau of Investigation fingerprint check
portion of the required investigation would be required to be completed
and to support a waiver. Currently, the standard is that a check is
initiated but not all responses have been received within 5 days, or
that the waiver decision is made on the basis of other favorably
completed checks. Under the proposed regulations, a waiver of the
preappointment check for Noncritical-Sensitive positions would be
required to be based on an emergency, and the agency would be required
to favorably evaluate a completed questionnaire and initiate the
required investigation within 14 days after appointment. Currently,
agencies may waive investigative requirements for these positions
without a specific finding of an emergency.
OPM also proposes amending Sec. 732.202(b) to eliminate the
automatic exceptions from investigative requirements of E.O. 10450 that
are currently given to positions that are intermittent, seasonal, per
diem, or temporary, not to exceed an aggregate of 180 days, as well as
for aliens employed outside the United States. The proposed regulations
would provide that an agency head may request an exception for those
positions from OPM, but they
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would no longer be automatically excepted.
To fulfill its continuing study responsibility under section 14 of
E.O. 10450, as amended, OPM proposes detailed requirements related to
appropriate documentation when granting waivers and exceptions to
investigative requirements. These documentation requirements conform to
current operating guidance provided by OPM. These requirements are
further clarified to include notice to applicants that any appointment
granted based on a waiver is conditional, and that continuation in the
position is dependent on the favorable adjudication of the
investigation.
Finally, OPM proposes an amendment to make Sec. 732.202
inapplicable to investigations, waivers of investigative requirements,
or exceptions from investigative requirements under 42 U.S.C. 2165(b),
because this statute makes preemployment investigations mandatory for
certain positions unless waivers or exceptions are made under the terms
of the statute.
Procedural Rights
OPM proposes to amend Sec. 732.301 to improve its terminology and
ensure agencies comply with all applicable procedural requirements when
making adjudicative decisions. OPM proposes to add a reference to the
procedural requirements of E.O. 12968, which had not yet been issued at
the time part 732 was originally promulgated, and to the agency's own
procedural regulations. Part 732 is not intended to provide an
independent authority for agencies to take adverse actions when the
retention of an employee is not consistent with the national security.
Nor should part 732 be construed to require or encourage agencies to
take adverse actions on national security grounds under 5 CFR part 752
when other grounds are sufficient. Nor, finally, does part 732 have any
bearing on the Merit Systems Protection Board's appellate jurisdiction
or the scope of the Board's appellate review of an adverse action. To
make this clear, in Sec. 732.301(a), we propose deleting the reference
to adjudicative decisions made ``under this part.''
Reporting
OPM proposes to amend Sec. 732.302 to require agencies to report
the completion of investigations, as well as the initiation of
investigations, and to collect additional data needed to comply with
process efficiency requirements. These changes support OPM's obligation
to maintain security and suitability databases and to report on
security investigations. OPM further proposes to require agencies to
report an adjudicative determination and action taken as a result of
investigation within 90 days after receipt of the final report of
investigation. The current regulation implies that the ultimate
determination is required no later than 90 days after receipt of the
final report of investigation. OPM recognizes that in certain
instances, an initial adjudicative determination may not be final;
however, in order to meet the reporting requirements established in
section 14(c) of E.O. 10450, an official report of adjudication is
required within 90 days after receipt of the final report of
investigation.
Former Employees Terminated in the Interest of National Security
OPM proposes to clarify requirements for agency actions and rights
of former employees under 5 U.S.C. 7312 and section 7 of E.O. 10450, as
amended, regarding employment of former employees who were terminated
under 5 U.S.C. 7532 or any other statute or Executive order authorizing
removal in the interest of national security. Where an employee is
removed under 5 U.S.C. 7532, 5 U.S.C. 7312 provides that the individual
may accept reemployment with another agency, if the head of the other
agency first consults with OPM, and that OPM, upon the request of the
individual or the agency head, may determine the individual's
reemployment eligibility. Section 7 of E.O. 10450 provides more broadly
that the requirement to consult with OPM applies whether the employee
is removed under 5 U.S.C. 7532 or under ``any other security or loyalty
program relating to officers or employees of the Government.''
Currently, the regulation implementing these requirements explains that
the former employee may request a determination of reemployment
eligibility from OPM, but does not explain that the agency head must
consult with OPM before reemploying an individual removed for national
security reasons. OPM proposes to amend Sec. 732.401 to explain this
requirement and to clarify that the employee or agency seeking a
determination of reemployment eligibility from OPM should submit a copy
of the vacancy announcement since OPM's decision affects only
selections from that vacancy announcement. We note that the requirement
applies only in the specific case where an employee is removed under a
statute authorizing summary termination in the interest of national
security, such as 5 U.S.C. 7532. There is no requirement for an agency
or an individual to contact OPM for a determination of reemployment
eligibility, where the individual was removed in an adverse action
under 5 U.S.C. 7513 due to revocation of a security clearance.
OPM also proposes to remove Sec. 732.401(b)(2), which authorizes
OPM to debar or cancel the reinstatement eligibility of an individual
who was previously terminated for national security reasons and whose
eligibility was obtained through fraud. This section of the regulations
is obsolete and should accordingly be eliminated. OPM may take a
suitability action against an applicant based on his or her deception
or fraud in examination or appointment under a separate authority, 5
CFR part 731, which provides full procedural protections for the
applicant.
Technical Amendment
A technical amendment is proposed in the Authorities for this part
to reflect 5 U.S.C. 1103(a)(5), which broadly authorizes the Director
of OPM to execute, administer, and enforce the civil service laws,
rules and regulations. Finally, OPM proposes a technical amendment to
include E.O. 10577, as amended, rule V of which requires the Director
of OPM to promulgate and enforce regulations necessary to carry out the
provisions of all Executive orders imposing responsibilities on OPM
(including E.O. 10450); to include E.O. 13467, which expresses the
policy of aligning investigative requirements to the extent possible;
and to include E.O. 12968, referenced in proposed Sec. Sec. 732.203(a)
and 732.301.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the
regulations pertain only to Federal employees and agencies.
E.O. 12866, Regulatory Review
This proposed rule has been reviewed by the Office of Management
and Budget under Executive Order 12866.
E.O. 13132
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.
[[Page 77787]]
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 and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 5 CFR Part 732
Administrative practices and procedures, Government employees.
U.S. Office of Personnel Management.
John Berry,
Director.
Accordingly, OPM proposes to revise part 732, title 5, Code of
Federal Regulations, to read as follows:
PART 732--DESIGNATION OF NATIONAL SECURITY POSITIONS
Subpart A--Scope
Sec.
732.101 Purpose.
732.102 Definition and applicability.
732.103 Implementation.
Subpart B--Designation and Investigative Requirements
732.201 Sensitivity level designations and investigative
requirements.
732.202 Waivers and exceptions to preappointment investigative
requirements.
732.203 Periodic reinvestigation requirements.
732.204 Reassessment of current positions.
732.205 Savings provision.
Subpart C--Procedural Rights and Reporting
732.301 Procedural rights.
732.302 Reporting to OPM.
Subpart D--Security and Related Determinations
732.401 Reemployment eligibility of certain former Federal
employees.
Authority: 5 U.S.C. 1103(a)(5), 3301, 3302, 7312; 50 U.S.C.
403; E.O. 10450, 3 CFR, 1949-1953 Comp., p. 936; E.O. 10577, 3 CFR,
1954-1958 Comp., p. 218; E.O. 12968, 3 CFR, 1996 Comp., p. 391; E.O.
13467, 3 CFR, 2009 Comp., p. 196.
Subpart A--Scope
Sec. 732.101 Purpose.
(a) This part sets forth certain requirements and procedures which
each agency shall observe for determining national security positions
pursuant to Executive Order 10450--Security Requirements for Government
Employment (April 27, 1953), 18 FR 2489, 3 CFR 1949-1953 Comp., p. 936,
as amended.
(b) All positions must be evaluated for a position sensitivity
designation commensurate with the responsibilities and assignments of
the position as they relate to the impact on the national security,
including but not limited to eligibility for access to classified
information.
Sec. 732.102 Definition and applicability.
(a) For purposes of this part, the term ``national security
position'' includes any position in a department or agency, the
occupant of which could bring about, by virtue of the nature of the
position, a material adverse effect on the national security.
(1) Such positions include those requiring eligibility for access
to classified information.
(2) Other such positions include, but are not limited to, those
whose duties include:
(i) Protecting the nation, its citizens and residents from acts of
terrorism, espionage, or foreign aggression, including those positions
where the occupant's duties involve protecting the nation's borders,
ports, critical infrastructure or key resources, and where the
occupant's neglect, action, or inaction could bring about a material
adverse effect on the national security;
(ii) Developing defense plans or policies;
(iii) Planning or conducting intelligence or counterintelligence
activities, counterterrorism activities and related activities
concerned with the preservation of the military strength of the United
States;
(iv) Protecting or controlling access to facilities or information
systems where the occupant's neglect, action, or inaction could bring
about a material adverse effect on the national security;
(v) Controlling, maintaining custody, safeguarding, or disposing of
hazardous materials, arms, ammunition or explosives, where the
occupant's neglect, action, or inaction could bring about a material
adverse effect on the national security;
(vi) Exercising investigative or adjudicative duties related to
national security, suitability, fitness or identity credentialing,
where the occupant's neglect, action, or inaction could bring about a
material adverse effect on the national security;
(vii) Exercising duties related to criminal justice, public safety
or law enforcement, where the occupant's neglect, action, or inaction
could bring about a material adverse effect on the national security;
or
(viii) Investigations or audits related to the functions described
in paragraphs (a)(2)(i) through (a)(2)(vii) of this section, where the
occupant's neglect, action, or inaction could bring about a material
adverse effect on the national security.
(b) The requirements of this part apply to positions in the
competitive service, positions in the excepted service where the
incumbent can be noncompetitively converted to the competitive service,
and career appointments in the Senior Executive Service within the
executive branch. Departments and agencies may apply the requirements
of this part to other excepted service positions within the executive
branch and contractor positions, to the extent consistent with law.
Sec. 732.103 Implementation.
OPM may set forth policies, general procedures, criteria,
standards, quality control procedures, and supplementary guidance for
the implementation of this part in OPM issuances.
Subpart B--Designation and Investigative Requirements
Sec. 732.201 Sensitivity level designations and investigative
requirements.
(a) For purposes of this part, the head of each agency shall
designate, or cause to be designated, a position within the department
or agency as a national security position pursuant to Sec. 732.102(a).
National security positions must then be designated, based on the
degree of potential damage to the national security, at one of the
following three sensitivity levels:
(1) Noncritical-Sensitive positions are national security positions
which have the potential to cause significant or serious damage to the
national security, including, but not limited to:
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(i) Positions requiring eligibility for access to Secret,
Confidential, or ``L'' classified information; or
(ii) Positions not requiring eligibility for access to classified
information, but having the potential to cause significant or serious
damage to the national security.
(2) Critical-Sensitive positions are national security positions
which have the potential to cause exceptionally grave damage to the
national security, including, but not limited to:
(i) Positions requiring eligibility for access to Top Secret or
``Q'' classified information;
(ii) Positions involving development or approval of war plans,
major or special military operations, or critical and extremely
important items of war;
(iii) National security policy-making or policy-determining
positions;
(iv) Positions with investigative duties, including handling of
completed counter-intelligence or background investigations, the nature
of which have the potential to cause exceptionally grave damage to the
national security;
(v) Positions involving adjudication or granting of personnel
security clearance eligibility;
(vi) Positions involving duty on personnel security boards;
(vii) Senior management positions in key programs, the compromise
of which could result in grave damage to the national security,
(viii) Positions having direct involvement with diplomatic
relations and negotiations;
(ix) Positions involving independent responsibility for planning or
approving continuity of Government operations;
(x) Positions involving major and immediate responsibility for, and
the ability to act independently without detection to compromise or
exploit, the protection, control, and safety of the nation's borders
and ports or immigration or customs control or policies, where there is
a potential to cause exceptionally grave damage to the national
security;
(xi) Positions involving major and immediate responsibility for,
and the ability to act independently without detection to compromise or
exploit, the design, installation, operation, or maintenance of
critical infrastructure systems or programs;
(xii) Positions in which the occupant has the ability to
independently damage public health and safety with devastating results;
(xiii) Positions in which the occupant has the ability to
independently compromise or exploit biological select agents or toxins,
chemical agents, nuclear materials, or other hazardous materials;
(xiv) Positions in which the occupant has the ability to
independently compromise or exploit the nation's nuclear or chemical
weapons designs or systems;
(xv) Positions in which the occupant obligates, expends, collects
or controls revenue, funds or items with monetary value in excess of
$50 million, or procures or secures funding for goods and/or services
with monetary value in excess of $50 million annually, with the
potential for exceptionally grave damage to the national security;
(xvi) Positions in which the occupant has unlimited access to and
control over unclassified information, which may include private,
proprietary or other controlled unclassified information, but only
where the unauthorized disclosure of that information could cause
exceptionally grave damage to the national security;
(xvii) Positions in which the occupant has direct, unrestricted
control over supplies of arms, ammunition, or explosives or control
over any weapons of mass destruction;
(xviii) Positions in which the occupant has unlimited access to or
control of access to designated restricted areas or restricted
facilities that maintain national security information classified at
the Top Secret or ``Q'' level;
(xix) Positions working with significant life-critical/mission-
critical systems, such that compromise or exploitation of those systems
would cause exceptionally grave damage to essential Government
operations or national infrastructure; or
(xx) Positions in which the occupant conducts internal and/or
external investigation, inquiries, or audits related to the functions
described in paragraphs (a)(2)(i) through (a)(2)(xix) of this section,
where the occupant's neglect, action, or inaction could cause
exceptionally grave damage to the national security.
(3) Special-Sensitive positions are those national security
positions which have the potential to cause inestimable damage to the
national security, including but not limited to positions requiring
eligibility for access to Sensitive Compartmented Information (SCI),
requiring eligibility for access to any other intelligence-related
Special Sensitive information, requiring involvement in Top Secret
Special Access Programs (SAP), or positions which the agency head
determines must be designated higher than Critical-Sensitive consistent
with Executive order.
(b) OPM issues, and periodically revises, a Position Designation
System which describes in greater detail agency requirements for
designating positions that could bring about a material adverse effect
on the national security. Agencies must use the Position Designation
System to designate the sensitivity level of each position covered by
this part.
(c) All positions receiving a position sensitivity designation
under this part must also receive a risk designation under part 731 of
this chapter (see 5 CFR 731.106). The Position Designation System
provides guidance enabling agencies, where appropriate, to base risk
designations under part 731 on the position sensitivity designations
made under this part; and specifies appropriate investigative
requirements to avoid duplication of effort.
Sec. 732.202 Waivers and exceptions to preappointment investigative
requirements.
(a) Waivers--(1) General. A waiver of the preappointment
investigative requirement contained in section 3(b) of Executive Order
10450 for employment in a national security position may be made only
for a limited period:
(i) In case of emergency if the head of the department or agency
concerned finds that such action is necessary in the national interest;
and
(ii) When such finding is made a part of the records of the
department or agency.
(2) Specific waiver requirements.
(i) The preappointment investigative requirement may not be waived
for appointment to positions designated Special-Sensitive under this
part.
(ii) For positions designated Critical-Sensitive under this part,
the records of the department or agency required by paragraph (a)(1) of
this section must document the decision as follows:
(A) The nature of the emergency which necessitates an appointment
prior to completion of the investigation and adjudication process;
(B) A record demonstrating the successful initiation of the
required investigation based on a completed questionnaire; and
(C) A record of the Federal Bureau of Investigation fingerprint
check portion of the required investigation supporting a preappointment
waiver.
(iii) When a waiver for a position designated Noncritical-Sensitive
is granted under this part, the agency head will determine documentary
requirements needed to support the waiver decision. In these cases, the
agency must favorably evaluate the completed questionnaire and initiate
the required investigation. The required
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investigation must be initiated within 14 days of placing the
individual in the position.
(iv) When waiving the preappointment investigation requirements,
the applicant must be notified that the preappointment decision was
made based on limited information, and that the ultimate appointment
decision depends upon favorable completion and adjudication of the full
investigative results.
(b) Exceptions to investigative requirements. Pursuant to section
3(a) of E.O. 10450, as amended, upon request of an agency head, the
Office of Personnel Management may, in its discretion, authorize such
less investigation as may meet the requirement of national security
with respect to:
(1) Positions that are intermittent, seasonal, per diem, or
temporary, not to exceed an aggregate of 180 days in either a single
continuous appointment or series of appointments; or
(2) Positions filled by aliens employed outside the United States.
(c) This section does not apply to investigations, waivers of
investigative requirements, and exceptions from investigative
requirements under 42 U.S.C. 2165(b).
Sec. 732.203 Periodic reinvestigation requirements.
(a) The incumbent of a national security position requiring
eligibility for access to classified information is subject to the
reinvestigation requirements of E.O. 12968, as amended.
(b) The incumbent of a national security position that does not
require eligibility for access to classified information is subject to
periodic reinvestigation at least once every five years. Such
reinvestigation must be conducted using a national security
questionnaire, and at a frequency and scope that will satisfy the
reinvestigative requirements for both national security and public
trust positions.
Sec. 732.204 Reassessment of current positions.
(a) Agency heads must assess each position covered by this part
within the agency using the standards set forth in this regulation as
well as guidance provided in OPM issuances to determine whether changes
in position sensitivity designations are necessary within 24 months of
[EFFECTIVE DATE OF THE FINAL RULE].
(b) Where the sensitivity designation of the position is changed,
and requires a higher level of investigation than was previously
required for the position,
(1) The agency must initiate the investigation no later than 14
working days after the change in designation, and
(2) The agency will determine whether the incumbent's retention in
sensitive duties pending the outcome of the investigation is consistent
with the national security.
(c) Agencies may provide advance notice of the redesignation of a
position to allow time for completion of the forms, releases, and other
information needed from the incumbent to initiate the investigation.
Sec. 732.205 Savings provision.
No provision of the regulations in this part shall be applied in
such a way as to affect any administrative proceeding pending on the
effective date of the final regulation. An administrative proceeding is
deemed to be pending from the date of the agency or OPM notice
described in Sec. 732.301(a)(4).
Subpart C--Procedural Rights and Reporting
Sec. 732.301 Procedural rights.
(a) When an agency makes an adjudicative decision based on an OPM
investigation, or when an agency, as a result of information in an OPM
investigation, changes a tentative favorable placement or clearance
decision to an unfavorable decision, the agency must comply with all
applicable administrative procedural requirements, as provided by law,
rule, regulation, or Executive order, including E.O. 12968, as amended,
and the agency's own procedural regulations, and must:
(1) Ensure that the records used in making the decision are
accurate, relevant, timely, and complete to the extent reasonably
necessary to assure fairness to the individual in any determination;
(2) Consider all available, relevant information in reaching its
final decision;
(3) Keep any record of the agency action required by OPM as
published in its issuances;
(4) At a minimum, provide the individual concerned:
(i) Notice of the specific reason(s) for the decision;
(ii) An opportunity to respond; and
(iii) Notice of appeal rights, if any.
(b) [Reserved]
Sec. 732.302 Reporting to OPM.
(a) Each agency conducting an investigation under E.O. 10450 is
required to notify OPM when the investigation is initiated and when it
is completed.
(b) Agencies shall report to OPM an adjudicative determination and
action taken with respect to an individual investigated pursuant to
E.O. 10450 as soon as possible and in no event later than 90 days after
receipt of the final report of investigation.
(c) To comply with process efficiency requirements, additional data
may be collected from agencies conducting investigations or taking
action under this part. These collections will be identified in
separate OPM guidance, issued as necessary under Sec. 732.103.
Subpart D--Security and Related Determinations
Sec. 732.401 Reemployment eligibility of certain former Federal
employees.
(a) Request. (1) A former employee who was terminated from a
department or agency of the Government under 5 U.S.C. 7532, or other
statute or Executive order authorizing termination in the interest of
national security, may submit a request to OPM in writing, including a
copy of the vacancy announcement, to determine whether the individual
is eligible for employment in another department or agency of the
Government.
(2) A department or agency (other than the agency from which the
former employee was removed) seeking to appoint a former employee who
was terminated from a department or agency of the Government under 5
U.S.C. 7532, or other statute or Executive order authorizing
termination in the interest of national security, must submit a request
to OPM in writing, including a copy of the vacancy announcement, to
determine the former employee's eligibility for employment.
(b) Action by OPM. OPM shall determine, and will notify the former
employee, and where applicable, the agency seeking to appoint such
former employee, after appropriate consideration of the case, including
such investigation as it considers necessary, whether the individual is
eligible for appointment to the position outlined in the vacancy
announcement.
[FR Doc. 2010-31373 Filed 12-13-10; 8:45 am]
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