Federal Manager's Daily Report

OPM and the Director of National Intelligence have published final rules on standards for designating the sensitivity level of federal positions, stressing that as under prior policies, “managers are required to adhere to the merit system principles and to refrain from prohibited personnel practices” in that process.

The rules, published in the June 5 Federal Register, carry out a 2013 Presidential memo requiring those agencies to better define what positions merit the designations noncritical-sensitive, critical-sensitive, or special-sensitive. Those designations are important for numerous reasons related to security clearances as well as to limitations on the rights of employees to have disciplinary actions against them reviewed by an outside body such as the MSPB.

The policy states that to be designated even at the lowest of those three levels, the occupant of a position must be able to cause “significant or serious damage” to the national security. It also specifies that the standards apply to activities which are directly concerned with the foreign relations of the United States and protection of the nation from internal subversion, foreign aggression, or terrorism.

Employee unions and some outside interest groups had objected to certain aspects, including an argument that the standards are overbroad and will have the effect of expanding the number and type of positions that could be designated as national security positions without sufficient need. The agencies said that the rules are designed instead to ensure consistency and uniformity and should limit the potential for either over- or under-designating position.

In addition, the agencies downplayed concerns that the rules would increase the potential for retaliating against whistleblowers who could not challenge actions against them and would limit the number of positions eligible for union representation, particularly in law enforcement and cybersecurity related work.

“OPM and ODNI caution that not all positions with these responsibilities must be designated as national security 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. Agencies are reminded that sensitivity designations are based on the nature of the position, not on the mission of the agency or of its subcomponents,” they said.

Employing agencies have 24 months to determine whether changes to position sensitivity designations are necessary. OPM said it will revise its position designation tool and issue detailed guidance.