[Federal Register Volume 78, Number 102 (Tuesday, May 28, 2013)]
[Proposed Rules]
[Pages 31847-31851]
From the Federal Register Online via the Government Publishing 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withdrawn.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 [email protected]; 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 [email protected] 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 [email protected].
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]
BILLING CODE 6325-39-P; 3910-A7-P