[Federal Register: February 2, 2011 (Volume 76, Number 22)]
[Proposed Rules]
[Page 5729-5732]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 156
[DOD-2008-OS-0160; RIN 0790-AI42]
Department of Defense Personnel Security Program (PSP)
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: This rule would update policies and responsibilities for the
Department of Defense (DoD) Personnel Security Program (PSP) in
accordance with the provisions of current U.S. Code, Public Laws, and
Executive Orders (E.O.).
DATES: Comments must be received by April 4, 2011.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, OSD Mailroom 3C843, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at http://
www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Stacey Jefferson, (703) 604-1236.
SUPPLEMENTARY INFORMATION: The Department of Defense Directive (DoDD)
5200.2, Personnel Security Program (PSP), codified at 32 CFR 156, was
issued April 9, 1999. The Department is reissuing the DoD Directive as
a DoD Instruction to update existing policy regarding the DoD Personnel
Security Program and also incorporate new policy related to Homeland
Security Presidential Directive-12 (HSPD-12).
This rule provides PSP policy fundamental to preventing
unauthorized disclosure of sensitive and classified information that
could cause irreparable damage to national security. The policy portion
relating to HSPD-12 implements investigative and adjudicative policy
for the Department's personal identity verification credential.
Updates to the policy reflect Joint Security and Suitability Reform
Team efforts to incorporate the foundational policy changes needed to
implement reform. The Intelligence Reform and Terrorism Prevention Act
of 2004, E.O. 13467, E.O. 12968, E.O. 10865, and HSPD-12 are some of
the current Federal laws, directives and statutes that impact the DoD
PSP. Since this rule was last published, additional executive orders
have been issued directing alignment of security, suitability and
reciprocal acceptance of prior investigations and favorable
determinations.
The procedural guidance for the DoD PSP is currently being updated
and will subsequently be proposed as rule codified at 32 CFR part 154.
The investigative and adjudication procedural guidance for the DoD
Federal personal identity verification credential pursuant HSPD-12 is
undergoing coordination and will also be proposed a separate rule.
E.O. 12866, ``Regulatory Planning and Review''
It has been certified that 32 CFR part 156 does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribunal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this E.O.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that 32 CFR part 156 does not contain a
Federal mandate that may result in the expenditure by State, local and
tribunal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that 32 CFR part 156 is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 156 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
E.O. 13132, ``Federalism''
It has been certified that 32 CFR part 156 does not have federalism
implications, as set forth in E.O. 13132. This rule does not have
substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 156
Government employees; Security measures.
Accordingly, 32 CFR part 156 is revised to read as follows.
PART 156--DEPARTMENT OF DEFENSE PERSONNEL SECURITY PROGRAM (PSP)
Sec.
156.1 Purpose.
156.2 Applicability.
156.3 Definitions.
156.4 Policy.
156.5 Responsibilities.
156.6 Procedures-sensitive positions, duties, and classified access.
156.7 Procedures--common access card investigation and adjudication.
[[Page 5730]]
Authority: E.O. 12968, as amended; E.O. 10450, as amended; E.O.
10865, as amended; E.O. 13526; E.O. 12829, as amended; E.O. 13467;
E.O. 13488; E.O. 12333, as amended; sections 301 and 7532 of 5
U.S.C.; section 1072 of Public Law 110-181, as amended; section
278g-3 of 15 U.S.C.; section 11331 of 40 U.S.C.; title 10 U.S.C.;
section 435c. and chapter 23 of 50 U.S.C.; and parts 731, 732 and
736 of 5 CFR.
Sec. 156.1 Purpose.
This part updates policies and responsibilities for the Department
of Defense (DoD) Personnel Security Program (PSP) consistent with E.O.
12968, as amended; E.O. 10450, as amended; E.O. 10865, as amended; E.O.
13526; E.O. 12829, as amended; E.O. 13467; E.O. 13488; E.O. 12333, as
amended; sections 301 and 7532 of 5 U.S.C.; section 1072 of Public Law
110-181, as amended; section 278g-3 of 15 U.S.C.; section 11331 of 40
U.S.C.; title 10 U.S.C.; parts 147, 154 through 156 of 32 CFR; section
435c. and chapter 23 of 50 U.S.C.; and parts 731, 732 and 736 of 5 CFR.
Sec. 156.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Office of the Chairman of the Joint Chiefs of
Staff and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the DoD Field Activities, and all other organizational entities within
the Department of Defense (hereafter referred to collectively as the
``DoD Components'').
Sec. 156.3 Definitions.
These terms and their definitions are for the purposes of this
part:
Continuous evaluation. Defined in section 1.3(d) of E.O. 13467.
Fitness. Defined in E.O. 13488.
Sensitive position. Any position so designated under E.O. 10450, as
amended.
Sec. 156.4 Policy.
It is DoD policy that:
(a) The Department shall establish and maintain a uniform DoD PSP
using appropriate standards in accordance with E.O. 12968, as amended;
E.O. 10450, as amended; E.O. 10865, as amended; E.O. 13526; E.O. 12829,
as amended; E.O. 13467; E.O. 13488; E.O. 12333, as amended; parts 147,
154 through 156 of 32 CFR; parts 731, 732 and 736 of 5 CFR; sections
301 and 7532 of 5 U.S.C; section 1072 of Public Law 110-181, as
amended; section 278g-3 of 15 U.S.C.; section 11331 of 40 U.S.C.; title
10 U.S.C.; section 435c. and chapter 23 of 50 U.S.C.; and the
Intelligence Community Directive Number 704 (ICD 704).\1\
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\1\ Copies available on the Internet at http://www.dni.gov/
electronic_reading_room/ICD_704.pdf.
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(b) Policies and procedures shall be aligned using consistent
standards to the extent possible; provide for reciprocal recognition of
existing investigations and favorable adjudications; be cost-effective,
timely and provide efficient protection of the national interest; and
provide fair treatment of those upon whom the Federal Government relies
to conduct the Nation's business and protect national security.
(c) Discretionary judgments used to determine eligibility for
access to classified information, to hold a sensitive position, or
perform a sensitive duty are inherently governmental functions, and
adjudications supporting these judgments shall be performed by
appropriately trained and favorably adjudicated Government personnel or
appropriate automated procedures.
(d) No negative inference may be raised solely on the basis of
mental health counseling. Such counseling may be a positive factor in
rendering eligibility determinations. However, mental health
counseling, where relevant to adjudication for classified access or to
hold a sensitive position, may justify further inquiry to assess risk
factors that may be relevant to the DoD PSP.
(e) The Department of Defense shall not discriminate on the basis
of race, color, religion, sex, national origin, disability, or sexual
orientation, and no inference may be raised solely on the basis of an
individual's sexual orientation.
(f) Discretionary judgments that determine eligibility for access
to classified information, to hold a sensitive position, or perform a
sensitive duty shall be clearly consistent with the interests of
national security and any doubt shall be resolved in favor of national
security.
(g) No person shall be deemed to be eligible for access to
classified information, to hold a sensitive position, hold a DoD CAC,
or perform a sensitive duty merely by reason of Federal service or
contracting, licensee, certificate holder, or grantee status, or as a
matter of right or privilege, or as a result of any particular title,
rank, position, or affiliation.
(h) Eligibility for access to classified information, hold a
sensitive position, or perform a sensitive duty shall be granted only
to persons who are United States citizens for whom the investigative
and adjudication process has been completed. However, based on mission
needs, temporary eligibility may be granted prior to completion of the
investigative and adjudicative process.
(i) As an exception, a non-U.S. citizen, who possesses an expertise
that cannot be filled by a cleared or clearable U.S. citizen, may hold
a sensitive position or granted a Limited Access Authorization for
access to classified information in support of a specific DoD program,
project, or contract.
(j) The Department shall establish investigative and adjudicative
policy and procedures to determine whether to issue, deny or revoke
CACs in accordance with the Homeland Security Presidential Directive
(HSPD)-12;\2\ Office of Management and Budget Memorandum (OMB) M-05-
24;\3\ Federal Information Processing Standards Publication 201-1(FIPS
201-1) \4\; Federal Acquisition Regulation \5\; section 278g-3 of title
15, U.S.C.; section 11331 of title 40, U.S.C., and the Office of
Personnel Management (OPM) Memorandum, ``Final Credentialing Standards
for Issuing Personal Identity Verification Cards under HSPD-12.'' \6\
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\2\ Copies available on the Internet at http://georgewbush-
whitehouse.archives.gov/news/releases/2004/08/20040827-8.html.
\3\ Copies available on the Internet at http://
www.whitehouse.gov/sites/default/files/omb/memoranda/fy2005/m05-
24.pdf.
\4\ Copies available on the Internet at http://csrc.nist.gov/
publications/fips/fips201-1/FIPS-201-1-chng1.pdf.
\5\ Copies available on the Internet at https://
www.acquisition.gov/Far/loadmainre.html.
\6\ Copies available on the Internet at http://www.opm.gov/
investigate/resources/final_credentialing_standards.pdf.
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Sec. 156.5 Responsibilities.
(a) The Under Secretary of Defense for Intelligence (USD(I)) shall:
(1) Develop, coordinate, and oversee the implementation of policy,
programs, and guidance for the DoD PSP. For the DoD intelligence
agencies this responsibility shall be exercised in consultation with
the Director of National Intelligence.
(2) In coordination with the Under Secretary of Defense for
Personnel and Readiness (USD(P&R)) and the General Counsel of the
Department of Defense (GC, DoD), establish policy for military and
civilians for the CAC personnel security investigation (PSI) and
adjudication in accordance with HSPD-12; E.O. 13467; E.O. 13488,
section 11331 of title 40, U.S.C.; section 278g-3 of 15 U.S.C.; OMB
Memo M-05-24; and OPM Memorandum, ``Final Credentialing Standards for
Issuing
[[Page 5731]]
Personal Identity Verification Cards under HSPD-12.''
(3) In coordination with the Under Secretary of Defense for
Acquisition, Technology and Logistics and the GC, DoD, establish policy
for contractor fitness investigations and CAC adjudication, outside the
purview of the National Industrial Security Program, under the terms of
applicable contracts of HSPD-12; E.O. 13467; E.O. 13488, section 11331
of title 40, U.S.C.; section 278g-3 of 15 U.S.C.; OMB Memo M-05-24; and
OPM Memorandum, ``Final Credentialing Standards for Issuing Personal
Identity Verification Cards under HSPD-12;'' the Federal Acquisition
Regulation; and the Defense Federal Acquisition Regulation.
(4) Develop guidance implementing the policy in this part.
(b) The Deputy Under Secretary of Defense (HUMINT,
Counterintelligence & Security) DUSD(HCI&S), under the authority,
direction, and control of USD(I) shall:
(1) Ensure that the program is consistent, cost-effective,
efficient, and balances the rights of individuals with the interests of
national security.
(2) Develop and publish revisions to 32 CFR part 154.
(3) Approve, coordinate, and oversee all DoD personnel security
research initiatives and activities to improve the efficiency,
effectiveness, and fairness of the DoD PSP.
(4) Ensure the Defense Security Service provides education,
training, and awareness support to the DoD PSP.
(5) Serve as the primary contact between DoD, the Red Cross, United
Service Organizations, and other organizations with direct DoD
affiliation for all matters relating to the PSI policy and procedures
prescribed herein.
(6) When appropriate, approve requests for exceptions to the DoD
PSP for access to classified information except North Atlantic Treaty
Organization (NATO) classified information. Requests for exceptions
involving access to NATO classified information shall be sent to the
Office of the Under Secretary of Defense for Policy.
(7) Issue policy guidance, interpretation, and clarification as
needed.
(8) Conduct oversight inspections of the DoD Components for
implementation and compliance with DoD personnel security policy and
operating procedures.
(9) Develop a framework setting forth an overarching strategy
identifying goals, performance measures, roles and responsibilities, a
communications strategy, and metrics to measure the quality of security
clearance investigations and adjudications to ensure a sound DoD PSP
that will continue to meet the needs of DoD.
(c) The GC, DoD shall:
(1) Provide advice and guidance as to the legal sufficiency of
procedures and standards involved in implementing the DoD PSP and
exercise oversight of the established administrative due process
procedures of the DoD PSP.
(2) Perform functions relating to the DoD PSP including the
maintenance and oversight of the Defense Office of Hearings and
Appeals.
(d) The Under Secretary of Defense for Policy shall approve
requests for exceptions to the DoD PSP involving access to NATO
classified information. Requests for exceptions involving access to any
other classified information shall be sent to the DUSD(HCI&S).
(e) The Heads of the Office of the Secretary of Defense and DoD
Components shall:
(1) Designate a senior agency official who shall direct and
administer the DoD PSP consistent with this part.
(2) Comply with the policy and procedures regarding investigation
and adjudication for CAC issuance and distribute this part to local and
regional organizations.
(3) Provide funding to cover requirements for PSIs, adjudication,
and recording of results to comply with the DoD PSP.
(4) Enforce requirements for prompt reporting of significant
derogatory information, unfavorable administrative actions or adverse
actions to the appropriate personnel security, human resources
official(s), or counterintelligence official(s), as appropriate, within
their respective Component.
(5) Provide requested information and recommendations, as
appropriate, on any aspect of this part and the DoD PSP to the USD(I).
Sec. 156.6 Procedures--sensitive positions, duties, and classified
access.
(a) Procedures. The objective of the personnel security program is
to ensure persons deemed eligible for access to classified information,
to hold a sensitive position, or perform a sensitive duty are and
remain reliable and trustworthy. Duties considered sensitive and
critical to national security do not always involve classified
activities or classified matters. Personnel security procedures for
sensitive positions or duties and classified access are set forth in
E.O. 12968, as amended; 32 CFR 154; ICD 704; and DoD Regulation
5220.22-R.
(b) Sensitive Compartmented Information (SCI) Eligibility.
Investigative and adjudicative requirements for SCI eligibility shall
be executed in accordance with this part and ICD 704. Employees filling
SCI designated positions within the IC must maintain eligibility for
access to SCI as a mandatory condition of employment.
(c) Adjudication. (1) Personnel security criteria and adjudicative
standards are described in E.O. 12968, as amended; parts 154 and 155 of
32 CFR; ICD 704, and DoD Regulation 5220.22-R in accordance with 32 CFR
part 147.
(2) To ensure consistency and quality in determinations of
eligibility for access to classified information and for sensitive
positions or duties, adjudicators must successfully complete the full
program of professional training provided by the Defense Center for
Development of Security Excellence (or equivalent training) and be
certified through the DoD Professional Certification Program for
Adjudicators within two years of program implementation or, for new
hires, within two years of eligibility for certification testing.
(d) Appeal Procedures-Denial or Revocation of Eligibility.
Individuals may elect to appeal unfavorable personnel security
determinations in accordance with the procedures set forth in E.O.
12968, as amended; parts 154 and 155 of 32 CFR; ICD 704, and DoD
Regulation 5220.22-R or as otherwise authorized by law. Such procedures
shall not be diminished but may be enhanced to achieve a common process
to achieve efficiency from consolidation of functions.
(e) Polygraph. Under certain conditions, DoD Components are
authorized to use polygraph examinations to facilitate national
security information access decisions.
(f) Continuous Evaluation. All personnel determined to be eligible
or who currently have access to classified information shall be subject
to continuous evaluation consistent with E.O. 12968, as amended; E.O.
13467; 32 CFR 154; and the ICD 704.
(g) Financial Disclosure. DoD Component implementation of the
electronic financial disclosure requirement shall be completed by the
end of calendar year 2012 as described in E.O. 12968.
(h) Reciprocal Acceptance of Eligibility Determinations (1) DoD
reciprocally accepts existing national security determinations or
clearances from other government agencies in accordance with E.O.
13467, 5 CFR part 731, Office of Management Budget Memorandums
``Reciprocal Recognition of Existing Personnel Security
[[Page 5732]]
Clearances'' dated December 12, 2005 \7\ and July 17, 2006.\8\
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\7\ Copies available on the Internet at http://
www.whitehouse.gov/sites/default/files/omb/assets/omb/memoranda/
fy2006/reciprocal121205.pdf.
\8\ Copies available on the Internet at http://
www.whitehouse.gov/sites/default/files/omb/assets/omb/memoranda/
fy2006/m06-21.pdf.
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(2) Personnel who have been determined eligible for access to
classified information or a sensitive position shall not be subject to
additional security reviews or determinations unless potentially
disqualifying conditions are present that have not been previously
adjudicated. This does not preclude requirements for suitability
determinations.
(3) Reciprocity for SCI eligibility shall be executed in accordance
with the ICD 704.
(i) National Security Agency (NSA)/Central Security Service (CSS).
Employees, contractors, military assignees, and others with similar
affiliations with the NSA/CSS must maintain SCI eligibility for access
to sensitive cryptologic information in accordance with chapter 23 of
50 U.S.C.
(j) Support of the Operation Warfighter Program. PSIs in support of
wounded warriors may be submitted and processed regardless of the time
remaining in military service. Investigations will be accelerated
through a special program code established by the Office of the USD(I)
to ensure expedited service by the investigating and adjudicating
agencies.
(1) Category 2 wounded, ill, or injured Uniformed Service personnel
who expect to be separated with a medical disability rating of 30% or
greater may submit PSIs for Top Secret clearance eligibility prior to
medical separation provided they are serving in or have been nominated
for a wounded warrior internship program.
(2) The investigations will be funded by the DoD sponsoring agency
that is offering the internship. If the sponsoring agency does not have
funds available, the owning Military Service may choose to fund the
investigation.
Sec. 156.7 Procedures--common access card investigation and
adjudication.
(a) A favorably adjudicated National Agency Check with Inquiries
(NACI) is the minimum investigation required for the CAC.
(b) All final adjudicative determinations must be made by cleared
and trained Government personnel. Automated adjudicative processes
shall be used to the maximum extent practicable.
(c) Adjudication decisions of CAC investigations shall be
incorporated into Central Adjudication Facility consolidation as
directed by the Deputy Secretary of Defense.
(d) CAC applicants or holders may appeal CAC denial or revocation.
No separate administrative appeal process is allowed when an individual
has been denied a CAC as a result of a negative suitability
determination under 5 CFR part 731, an applicable decision to deny or
revoke a security clearance, or based on the results of a determination
to disqualify the person from an appointment in the excepted service or
from working on a contract for reasons other than eligibility for a
Federal credential as described in the OPM Memorandum, ``Final
Credentialing Standards for Issuing Personal Identity Verification
Cards under HSPD-12.'' If a later denial or revocation of a CAC results
from an applicable denial or revocation of a security clearance,
suitability decision or other action for which administrative process
was already provided on grounds that support denial or revocation of a
CAC, no separate appeal for CAC denial or revocation is allowed.
(1) Civilian applicants who have been denied a CAC, and for whom an
appeal is allowed under this paragraph, may elect to appeal to a three
member board containing one security and one human resources
representative from the sponsoring activity.
(2) Contractor employees who have had their CAC revoked, and for
whom an appeal is allowed under this paragraph, may appeal to the
Defense Office of Hearings and Appeals under the established
administrative process set out in 32 CFR part 155. Decisions following
appeal are final.
(e) Reciprocity of CAC Determinations. (1) The sponsoring activity
shall not readjudicate CAC determinations for individuals transferring
from another Federal department or agency, provided:
(i) Possession of a valid PIV or CAC can be verified by the
individual's former department or agency.
(ii) The individual has undergone the required NACI or other
equivalent suitability, public trust, or national security
investigation and received favorable adjudication from the former
agency.
(2) Reciprocity may be granted as long as there is no break in
service greater than 24 months and the individual has no actionable
information since the date of the last completed investigation.
(3) Reciprocity shall be based on final adjudication only.
(4) Determinations for CACs issued on an interim basis are not
eligible to be transferred.
Dated: January 14, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-2214 Filed 2-1-11; 8:45 am]
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