On November 9, 2011 the Office of Personnel Management (OPM) published its final rule on changes to Title 5 Code of Federal Regulations Part 731 (5 CFR 731), “Suitability.” The new rule went into effect on December 9, 2011.
The major change to 5 CFR 731 is the requirement to conduct period reinvestigations (PR) on all covered Public Trust (PT) positions. A covered position is defined as “a position in the competitive service, a position in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and a career appointment to a position in the Senior Executive Service.” Agency heads are required to “designate every covered position within the agency at a high, moderate, or low risk level as determined by the position’s potential for adverse impact to the efficiency or integrity of the service.” PT positions are those at the high and moderate risk levels.
Previously federal agencies could only conduct PRs on certain PT positions using the authority provide in the Computer Security Act of 1987 and OMB Circular No. A-130; both of which applied primarily to information technology positions. A National Agency Check with Credit (NACC) was recommended for PRs for Moderate Risk PT positions, and a “Periodic Reinvestigation” (PRI) was recommended for High Risk PT positions. The PRI is a specific OPM investigation, and should not be confused with the generic term periodic reinvestigation or PR.
The new rule requires a National Agency Check with Local Agency Check and Credit Check (NACLC) for Moderate Risk PT positions and a PRI for High Risk PT positions be conducted at 5 year intervals for all covered positions. Non-convertible excepted service positions, temporary positions, and contractor positions (non-covered positions) are not affected by the new rule; however, OPM recommends that non-covered positions be designed as high, moderate, or low risk positions in the same manner as covered positions and that provisions of 5 CFR Part 731 apply to them. The new rule further states:
If, prior to the next required reinvestigation, a separate investigation is conducted to determine a person’s eligibility (or continued eligibility) for access to classified information or to hold a sensitive position, or as a result of a change in risk level as provided in paragraph (e) of this section, and that investigation meets or exceeds the requirements for a public trust reinvestigation, a new public trust reinvestigation is not required. Such a completed investigation restarts the cycle for a public trust reinvestigation for that person.
It also establishes a time period within which an individual, who previously occupied a covered or non-covered PT position, can be reinstated to a covered PT position without a new investigation. The time period is the same as the time period used for national security positions, which allows clearance reinstatement when a break-in-service does not exceed 24 months and the underlying investigation has not gone out-of-date. Previously, if there was any break-in-service, a new investigation was required for covered positions. No break-in-service is permitted for reciprocal acceptance of favorable PT determinations when moving from a covered position to a non-covered position or moving between non-covered positions. (See OPM Memo of September 24, 2009.)
Periodic Reinvestigations for National Security Positions
Equally important is the pending change to 5 CFR 732, “National Security Positions.” Deep in the OPM comments to the final rules affecting 5 CFR 731, OPM stated:
Likewise in our proposed rule amending 5 CFR part 732, dated December 14, 2010, Designation of National Security Positions, the timeframe for reinvestigations is also set at 5 years for national security positions not requiring eligibility for access to classified information. We expect to publish the revised part 732 regulations in early 2012.
The words “for national security positions not requiring eligibility for access to classified information” may be confusing to some people. It’s important to understand that the minimum investigative requirements for all national security positions, including those that require eligibility for access to classified information, are based on position sensitivity levels, not on security clearance levels. All positions requiring access to classified information are designed national security positions, but not all national security positions require access to classified information. Consequently everyone in a national security position, regardless of whether the position requires access to classified information, will be subject to a reinvestigation at least once every 5 years. The Director of National Intelligence, who has authority over security clearance policy, may impose greater requirements for positions that involve access to classified information.
This has serious implications for people who hold Secret or Confidential clearances and believe that they are not required to disclose problems with alcohol, drugs, finances, criminal conduct, or mental health treatment until their next PR. Their PRs will occur 5 to 10 years earlier under the new rule, and the need to do something about their problem will become more pressing. Regardless of what some people believe, cleared personnel have always had an obligation to self-report such matters immediately to their security officer.
Future Changes to Investigative Standards
Also hidden deep in the OPM comments to the final rules affecting 5 CFR 731 was information about future investigative standards:
“. . . OPM is assessing its investigative products as part of a Joint Security and Suitability Process Reform effort under E.O. 13467. Future Federal investigative standards resulting from this effort will use automated records to the extent possible and may impact the investigative structure and process. . . . Future Federal investigative standards may redefine investigation and reinvestigation standards for public trust positions. . . . [N]ew investigative standards are under development. The new investigative standards are targeted to be implemented in 2013.
The revised Federal Investigative Standards issued by OPM in August 2011 under Federal Investigation Notice (FIN) No. 11-04 appeared to be a permanent retreat from the 3-tier concept approved in December 2008 that relied heavily on expanded automated records checks. It now appears that FIN 11-04 was only intended as a temporary measure to make some minor changes and clarify the current investigative standards.
by William Henderson
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