[Federal Register Volume 78, Number 102 (Tuesday, May 28, 2013)]
[Proposed Rules]
[Pages 31847-31851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-12556]


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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. 78, No. 102 / Tuesday, May 28, 2013 / 
Proposed Rules

[[Page 31847]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 732 and Chapter IV

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

5 CFR Chapter IV

RIN 3206-AM73


Designation of National Security Positions in the Competitive 
Service, and Related Matters

AGENCY: Office of Personnel Management; Office of the Director of 
National Intelligence.

ACTION: Proposed rule and withdrawal of prior proposed rule.

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SUMMARY: The U.S. Office of Personnel Management (OPM) and the Office 
of the Director of National Intelligence (ODNI) are proposing to issue 
regulations regarding designation of national security positions in the 
competitive service, and related matters. This proposed rule is one of 
a number of initiatives OPM and ODNI have undertaken to simplify and 
streamline the system of Federal Government investigative and 
adjudicative processes to make them more efficient and equitable. The 
purpose of this revision is to clarify the requirements and procedures 
agencies should observe when designating, as national security 
positions, 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, pursuant to Executive 
Order 10450, Security Requirements for Government Employment.

DATES: OPM and ODNI will consider comments on this proposed rule 
received on or before June 27, 2013. Effective May 28, 2013, the 
proposed rule published December 14, 2010, at 75 FR 77783, is 
withdrawn.

ADDRESSES: You may submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. All submissions received through 
the Portal must include the agency name and docket number or Regulation 
Identifier Number (RIN) for this proposed rulemaking.
    You may also send, deliver, or fax comments to Kimberly Holden, 
Deputy Associate Director for Recruitment and Hiring, U.S. Office of 
Personnel Management, Room 6566, 1900 E Street NW., Washington, DC 
20415-9700; email at employ@opm.gov; or fax at (202) 606-2329.

FOR FURTHER INFORMATION CONTACT: Linda Watson by telephone on (202) 
606-1252, by fax at (202) 606-4430, by TTY at (202) 418-3134, or by 
email at Linda.Watson@opm.gov or Teresa Nankivell, Office of the 
Director of National Intelligence, Office of the National 
Counterintelligence Executive, phone 571-204-6623, fax to 571-204-6592, 
email teresabn@dni.gov.

SUPPLEMENTARY INFORMATION: On December 14, 2010, the U.S. Office of 
Personnel Management (OPM) issued a proposed rule in 75 FR 77783 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 proposed various revisions 
to make the regulations more readable. This proposed rule replaces 
OPM's proposed rule at 75 FR 77783 (Dec. 14, 2010), which is withdrawn.
    In a Memorandum dated January 25, 2013, and published in the 
Federal Register at 78 FR 7253 on January 31, 2013, the President 
directed that ``[t]he Director of National Intelligence and the 
Director of the Office of Personnel Management shall jointly propose 
the amended regulations contained in the Office of Personnel 
Management's notice of proposed rulemaking in 75 FR 77783 (Dec. 14, 
2010), with such modifications as are necessary to permit their joint 
publication, without prejudice to the authorities of the Director of 
National Intelligence and the Director of the Office of Personnel 
Management under any executive order, and to the extent permitted by 
law.''
    Accordingly, the proposed rule issued by OPM on December 14, 2010 
(75 FR 77783) is withdrawn, and, with the exception of section 732.401, 
OPM and ODNI are jointly reissuing and renumbering the proposed rule in 
a new chapter IV, part 1400 of title 5, Code of Federal Regulations. 
OPM will separately reissue as a final rule Sec.  732.401, concerning 
OPM's responsibility to make reemployment eligibility determinations 
under 5 U.S.C. 7312, 10 U.S.C. 1609(d), and section 7 of E.O. 10450, as 
amended.
    The following sections of the joint proposed rule differ from the 
corresponding sections of the December 14, 2010 proposed rule:
    The Authority Citation has been revised to add a reference to 50 
U.S.C. 435b and a Federal Register citation to the President's 
Memorandum.
    Section 1400.103, formerly Sec.  732.103, has been revised to allow 
OPM and ODNI to jointly issue standards, procedures, and guidance to 
implement the rule.
    Section 1400.201(a)(2)(v), formerly Sec.  732.201(a)(2)(v), has 
been revised to clarify that ``critical-sensitive'' positions include 
positions involving national security adjudicative determinations 
generally, not just security clearance adjudications.
    Section 1400.201(b) and (c), formerly Sec.  732.201(b) and (c), 
have been revised and a new paragraph (d) added to clarify that in 
certain circumstances a position sensitivity designation under this 
part may automatically carry with it, without further agency action, a 
risk designation under part 731 of this chapter (see 5 CFR 731.106). 
This change was intended only to streamline the suitability and 
security designation processes to the greatest extent practicable. 
Determinations regarding suitability and determinations regarding 
eligibility to hold a sensitive position are governed by distinct 
standards. The administrative processes that may be applicable to each 
determination are also distinct. The requirement that all positions 
receiving a position sensitivity designation under this part shall also 
receive a risk designation under part 731 of this chapter does not 
confer, and is not intended to confer, any new or additional rights of 
appeal upon employees or prospective employees who have been subjected 
to a personnel action that was based on a determination that they lack 
eligibility to hold a sensitive position.
    Technical changes have also been made to Sec.  1400.201 to use 
terms and punctuation consistently.

[[Page 31848]]

    Section 1400.202(c), formerly Sec.  732.202(c), has been revised to 
clarify that OPM's authority under Executive Order 10450, as amended, 
to grant waivers from, and exceptions to investigative requirements, 
does not include the authority to waive investigative requirements for 
eligibility for access to classified information, and does not affect 
ODNI's authority to prescribe standards for temporary eligibility for 
access to classified information.
    Section 1400.301, formerly Sec.  732.301, has been revised to state 
that certain procedural and recordkeeping requirements must be followed 
``subject to requirements of law, rule, regulation or Executive 
order,'' and to renumber the text.
    Members of the public need not resubmit previously submitted 
comments on aspects of the joint proposed rule that are unchanged from 
the December 14, 2010 proposed rules. In the final rule, OPM and ODNI 
will fully address the comments received on the corresponding 
provisions of the December 14, 2010 proposed rule, including any 
changes in the final rule made as a result of the comments. In the 
final rule, OPM and ODNI will also fully address the comments received 
in response to this notice of proposed rulemaking.

Regulatory Flexibility Act

    OPM and ODNI certify that this rule will not have a significant 
economic impact on a substantial number of small entities because the 
rules 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 rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on distribution of power and responsibilities among the various levels 
of government. Therefore, in accordance with Executive Order 13132, it 
is determined that this rule does not have sufficient federalism 
implications to warrant preparation of a Federalism Assessment.

E.O. 12988, Civil Justice Reform

    This rule 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

5 CFR Part 732

    Administrative practices and procedures, Government employees.

5 CFR Part 1400

    Administrative practices and procedures, Classified information, 
Government employees, Investigations.

U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director, Office of the Director of National Intelligence
James R. Clapper, Jr.,
Director.

    Accordingly, OPM and ODNI propose to amend title 5, Code of Federal 
Regulations, by establishing chapter IV consisting of part 1400 to read 
as follows:

Chapter IV--Office of Personnel Management and Office of the Director 
of National Intelligence

PART 1400--DESIGNATION OF NATIONAL SECURITY POSITIONS

Subpart A--Scope
Sec.
1400.101 Purpose.
1400.102 Definitions and applicability.
1400.103 Implementation.
Subpart B--Designation and Investigative Requirements
1400.201 Sensitivity level designations and investigative 
requirements.
1400.202 Waivers and exceptions to preappointment investigative 
requirements.
1400.203 Periodic reinvestigation requirements.
1400.204 Reassessment of current positions.
1400.205 Savings provision.
Subpart C--Procedural Rights and Reporting
1400.301 Procedural rights.
1400.302 Reporting to OPM.

    Authority: 5 U.S.C. 1103(a)(5), 3301, 3302, 7312; 50 U.S.C. 403, 
435b; 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; 78 FR 7253.

Subpart A--Scope


Sec.  1400.101  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.  1400.102  Definitions and applicability.

    (a) In this part--
    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.
    (i) Such positions include those requiring eligibility for access 
to classified information.
    (ii) Other such positions include, but are not limited to, those 
whose duties include:
    (A) 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;
    (B) Developing defense plans or policies;
    (C) Planning or conducting intelligence or counterintelligence 
activities, counterterrorism activities and related activities 
concerned with the preservation of the military strength of the United 
States;
    (D) Protecting or controlling access to facilities or information 
systems where

[[Page 31849]]

the occupant's neglect, action, or inaction could bring about a 
material adverse effect on the national security;
    (E) 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;
    (F) 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;
    (G) 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
    (H) Conducting investigations or audits related to the functions 
described in paragraphs (ii)(B) through (G) of this paragraph (a) 
definition, 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.  1400.103  Implementation.

    OPM and the Security Executive Agent designated pursuant to 
Executive Order 13467 or any successor order may set forth policies, 
general procedures, criteria, standards, quality control procedures, 
and supplementary guidance for the implementation of this part.

Subpart B--Designation and Investigative Requirements


Sec.  1400.201  Sensitivity level designations and investigative 
requirements.

    (a) For purposes of this part, the head of each agency must 
designate, or cause to be designated, a position within the department 
or agency as a national security position pursuant to Sec.  
1400.102(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:
    (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 national security adjudicative 
determinations 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 exceptionally 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 occupants have the ability to 
independently damage public health and safety with devastating results;
    (xiii) Positions in which the occupants have 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 occupants have the ability to 
independently compromise or exploit the nation's nuclear or chemical 
weapons designs or systems;
    (xv) Positions in which the occupants obligate, expend, collect or 
control revenue, funds or items with monetary value in excess of $50 
million, or procure or secure 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 occupants have 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 occupants have direct, unrestricted 
control over supplies of arms, ammunition, or explosives or control 
over any weapons of mass destruction;
    (xviii) Positions in which the occupants have 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 occupants conduct internal and/or 
external investigation, inquiries, or audits related to the functions 
described in paragraphs (a)(2)(i) through (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

[[Page 31850]]

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. All positions receiving a position sensitivity designation 
under this part shall also receive a risk designation under 5 CFR part 
731 (see 5 CFR 731.106) as provided in paragraphs (c) and (d) of this 
section.
    (c) Any position receiving a position sensitivity designation under 
this part at the critical-sensitive or special-sensitive level shall 
automatically carry with that designation, without further agency 
action, a risk designation under 5 CFR 731.106 at the high level.
    (d) Any position receiving a position sensitivity designation at 
the noncritical-sensitive level shall automatically carry with that 
designation, without further agency action, a risk designation under 5 
CFR 731.106 at the moderate level, unless the agency determines that 
the position should be designated at the high level. Agencies shall 
designate the position at the high level where warranted on the basis 
of criteria set forth in OPM issuances as described in Sec.  
731.102(c).


Sec.  1400.202  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 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) Applicability. This section does not apply to:
    (1) Investigations, waivers of investigative requirements, and 
exceptions from investigative requirements under 42 U.S.C. 2165(b);
    (2) Investigative requirements for eligibility for access to 
classified information under Executive Order 12968, as amended; or
    (3) Standards for temporary eligibility for access to classified 
information established by the Security Executive Agent pursuant to 
section 3.3(a)(2) of Executive Order 12968, as amended.


Sec.  1400.203  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 
reinvestigation requirements for both national security and public 
trust positions.


Sec.  1400.204  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.  1400.205  Savings provision.

    No provision of the rule 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.  
1400.301(c)(1).

Subpart C--Procedural Rights and Reporting


Sec.  1400.301  Procedural rights.

    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

[[Page 31851]]

Executive order, including E.O. 12968, as amended, and the agency's own 
procedural regulations, and must:
    (a) 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;
    (b) Consider all available, relevant information in reaching its 
final decision; and
    (c) At a minimum, subject to requirements of law, rule, regulation, 
or Executive order:
    (1) Provide the individual concerned notice of the specific 
reason(s) for the decision, an opportunity to respond, and notice of 
appeal rights, if any; and
    (2) Keep any record of the agency action required by OPM as 
published in its issuances.


Sec.  1400.302  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 must 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 5 CFR 732.103.
[FR Doc. 2013-12556 Filed 5-23-13; 11:15 am]
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