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.

Proposed Rules Federal Register

77783 

Vol. 75, No. 239 

Tuesday, December 14, 2010 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 732 

RIN 3206–AM27 

Designation of National Security 

Positions 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule. 

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; email 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 § 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 § 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 

§ 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 § 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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77784 Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 

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 §§ 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 

§ 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 § 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 NoncriticalSensitive, Critical-Sensitive, or SpecialSensitive level, once they have been 

properly designated as national security 

positions. As noted in the proposed 

regulations, to avoid the risk of overdesignation, 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 underdesignation, 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 

§§ 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 § 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 NoncriticalSensitive 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 § 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 SpecialSensitive or Critical-Sensitive position 

is subject to a national security 

reinvestigation at least every 5 years, 

while an employee in a NoncriticalSensitive 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 § 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 § 732.204, 

would require agencies to assess all 

current positions using the definitions 

of sensitivity level designations 

provided in § 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 

§ 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 preappointment 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 

§ 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 

§ 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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77786 Federal Register / Vol. 75, No. 239 / Tuesday, December 14, 2010 / Proposed Rules 

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 § 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 § 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 § 732.301(a), we 

propose deleting the reference to 

adjudicative decisions made ‘‘under this 

part.’’ 

Reporting 

OPM proposes to amend § 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 § 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 

§ 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 

§§ 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. 

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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 nonagency 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 

§ 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. 

§ 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. 

§ 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 

§ 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 

§ 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 CriticalSensitive 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. 

§ 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 CriticalSensitive 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). 

§ 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. 

§ 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. 

§ 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 § 732.301(a)(4). 

Subpart C—Procedural Rights and 

Reporting 

§ 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] 

§ 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 § 732.103. 

Subpart D—Security and Related 

Determinations 

§ 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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