[Federal Register Volume 75, Number 239 (Tuesday, December 14, 2010)]
[Proposed Rules]
[Pages 77783-77789]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-31373]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

[[Page 77783]]


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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 PLR@opm.gov.

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

[[Page 77784]]

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:

[[Page 77788]]

    (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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