[Federal Register Volume 79, Number 62 (Tuesday, April 1, 2014)]
[Rules and Regulations]
[Pages 18161-18167]
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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: Final rule.
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SUMMARY: This rule updates 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.). This rule establishes policy and assigns
responsibilities related to the operation of the DoD PSP, including
investigative and adjudicative policy for determining eligibility to
hold a national security position. This rule also establishes
investigative and adjudicative policy for the Department's personal
identity verification (PIV) credential.
DATES: Effective Date: This rule is effective May 1, 2014.
FOR FURTHER INFORMATION CONTACT: Dr. Kelly Buck, (703) 604-1130.
SUPPLEMENTARY INFORMATION:
Executive Summary
I. Purpose and Legal Authority for This Rule
This rule updates policies, assigns responsibilities, and
prescribes procedures 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.). This rule
establishes PSP policy related to the operation of the DoD PSP,
including investigative and adjudicative policy for determining
eligibility to hold national security positions. This rule also
establishes Homeland Security Presidential Directive (HSPD)-12
investigative and adjudicative policy for the Department's personal
identity verification (PIV) credential. Legal authorities for this rule
are E.O. 12968,
[[Page 18162]]
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;
5 U.S.C. 301 and 7532; section 1072 of Public Law 110-181, as amended;
15 U.S.C. 278g-3; 40 U.S.C. section 11331; 10 U.S.C. 1564; 50 U.S.C.;
3343; 5 CFR parts 731, 732 and 736, and Homeland Security Presidential
Directive (HSPD)-12.
II. Summary of Major Provisions of This Rule
The DoD Directive (DoDD) 5200.2, Personnel Security Program (PSP),
codified at 32 CFR Part 156, was issued April 9, 1999. The Department
is reissuing the DoD Directive as a DoD Instruction to update existing
policy regarding operation of the DoD Personnel Security Program and to
establish new policy implementing HSPD-12.
The updated policy incorporates Joint Security and Suitability
Reform Team efforts to revise Executive branch-wide policy and
procedures needed to implement reform. The Intelligence Reform and
Terrorism Prevention Act of 2004, E.O. 13467, E.O. 12968, as amended,
E.O. 10865, and HSPD-12 are some of the current Federal laws,
directives and statutes that affect 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 determinations.
The procedural guidance for the DoD PSP is currently being updated
and will subsequently be proposed as a rule codified at 32 CFR Part
154. The investigative and adjudication procedural guidance for the DoD
Federal PIV credential pursuant HSPD-12 is undergoing coordination and
will also be proposed a separate rule.
III. Costs and Benefits of This Rule
This is an update to an existing rule regarding personnel security
investigative and adjudicative policy and implements new department
policy related to HSPD-12. The personnel security program has no
discernable increase in anticipated costs and benefits as the program
is being updated to conform to current national security guidance. The
latter dealing with HSPD-12 is an unfunded mandate. However, this rule
does not increase costs; rather it implements the requirements of HSPD-
12 in the most efficient and effective manner possible by ensuring
uniform implementation. The benefits inherent to both the personnel
security and HSPD-12 programs enhance security as directed by the
Intelligence Reform and Terrorism Prevention Act of 2004 and subsequent
implementing policies.
Public Comments
The Department of Defense (DoD) published a proposed rule on
February 2, 2011 (76 FR 5729). One comment was received and is
addressed below:
Comment: Given the increasing use of DNA (deoxyribonucleic acid) as
an investigatory tool by federal, state, and local law enforcement
agencies, the DoD should consider requiring applicants to provide a DNA
sample. That provided DNA sample would be profiled and compared to
available databases. This would help insure that no applicant for a
clearance is a subject of an active federal, state, or local criminal
investigation based on DNA evidence.
This would achieve the same end as the current collection of
fingerprints from applicants that are run against Federal Bureau of
Investigation databases. However, the additional use of DNA would
recognize the greater prevalence of DNA evidence in criminal
investigations.
I do note that DNA is distinctly different from fingerprints in
that a search of databases may produce a result that does not link to
the DoD clearance applicant but could instead provide a linkage to a
familial relative of the applicant. This secondary issue would have to
be examined by DoD and the legal community.
I also believe other federal agencies with similar personnel
security programs should consider the collection of DNA samples from
applicants to insure appropriate reciprocity of clearances between
those agencies and DoD.
DoD Response: The Federal Government is looking into the
feasibility of using biometric identifiers other than fingerprints in
the security clearance process. However, any such requirement such as
the suggested collection of DNA from clearance applicants would be
covered in a separate rulemaking. As the comment correctly notes, such
a policy would be best coordinated with the other federal agencies with
personnel security programs to insure appropriate reciprocity of
clearances between agencies.
Additional Changes by DoD: Other changes were made to the final
rule from what was in the proposed due to additional coordination
within the Department. These changes include:
(a) The title for Sec. 156.5 has been changed from ``Procedures-
sensitive positions, duties, and classified access'' to ``National
Security Positions'' to incorporate the positions, duties, and access
into one common phrase. The term is listed in the definitions section
and its use in the part provides for ease of reading.
(b) Adjustments were made to the part to apply correct U.S. Code,
Public Laws, or Executive Orders to the appropriate paragraph(s).
(c) Changes were made in the ``Responsibilities'' section to update
the new title name for the Deputy Under Secretary of Defense for
Intelligence and Security (previously known as the Deputy Under
Secretary of Defense for HUMINT, Counterintelligence, and Security).
(d) Required responsibilities were also added for the Under
Secretary of Defense for Acquisition, Technology, and Logistics and the
Under Secretary of Defense for Policy.
(e) Verbiage was added that prohibits the use of DoD adjudication
systems of record for use as a pre-hiring tool. Additional language
directs the removal of personnel from national security positions who
have received unfavorable security determinations.
(f) Any other changes made to the part were made for ease and
clarity of reading.
Regulatory Procedures
E.O. 12866, ``Regulatory Planning and Review'' and EO 13563,
``Improving Regulation and Regulatory 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 tribal 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
these Executive Orders.
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
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
[[Page 18163]]
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.
0
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 Policy.
156.4 Responsibilities.
156.5 National security positions.
156.6 Common access card (CAC) investigation and adjudication.
156.7 Definitions.
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; 5 U.S.C 301 and 7532; section
1072 of Pub. L. 110-181, as amended; 15 U.S.C. 278g-3; 40 U.S.C.
11331; 10 U.S.C. 1564; 50 U.S.C. 3343; 5 CFR parts 731, 731.101,
732, and 736; and HSPD-12.
Sec. 156.1 Purpose.
This part updates policies and responsibilities for the 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;
5 U.S.C. 301 and 7532; section 1072 of Public Law 110-181, as amended;
15 U.S.C. 278g-3; 40 U.S.C. 11331; 10 U.S.C. 1564; 32 CFR parts 147,
154 through 156; 50 U.S.C. 3343; 5 CFR parts 731, 731.101, 732 and 736;
and HSPD-12.
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 DoD, the Defense Agencies, the DoD Field
Activities, and all other organizational entities within the DoD
(hereinafter referred to collectively as the ``DoD Components'').
Sec. 156.3 Policy.
It is DoD policy that:
(a) The Department shall establish and maintain a uniform DoD PSP
to the extent consistent with standards and procedures in 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;
32 CFR parts 147, 154 through 156; 5 CFR parts 731, 731.101, 732 and
736; 5 U.S.C. 301 and 7532; section 1072 of Public Law 110-181, as
amended; 15 U.S.C. 278g-3; section 11331 of 40 U.S.C.; 10 U.S.C. 1564;
50 U.S.C. 3343; and the Intelligence Community Directive Number 704
(ICD 704) (available on the Internet at http://www.dni.gov).
(b) DoD PSP policies and procedures shall be aligned using
consistent standards to the extent possible; provide for reciprocal
recognition of existing investigations and 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
national security positions are an inherently governmental function and
shall be performed by appropriately trained and favorably adjudicated
Federal 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
that, by itself, shall not jeopardize the rendering of eligibility
determinations or temporary eligibility for access to national security
information. However, mental health counseling, where relevant to
adjudication for a national security position, may justify further
inquiry to assess risk factors that may be relevant to the DoD PSP.
(e) The DoD shall not discriminate nor may any inference be raised
on the basis of race, color, religion, sex, national origin,
disability, or sexual orientation.
(f) Discretionary judgments that determine eligibility for national
security positions shall be clearly consistent with the national
security interests of the United States. Any doubt shall be resolved in
favor of national security.
(g) No person shall be deemed to be eligible for a national
security position 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) No person shall be appointed or assigned to a national security
position when an unfavorable personnel security determination has been
rendered.
(i) Eligibility for national security positions shall be granted
only to persons who are U.S. citizens for whom the investigative and
adjudicative process has been favorably completed. However, based on
exceptional circumstances where official functions must be performed
prior to completion of the investigative and adjudicative process,
temporary eligibility for access to classified information may be
granted while the investigation is underway.
(j) 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 national security position or be granted a limited access
authorization to classified information in support of a specific DoD
program, project, or contract following a favorable security
determination by an authorized adjudication facility.
(k) The DoD shall establish investigative and adjudicative policy
and procedures to determine whether to issue, deny or revoke common
access cards (CACs) in accordance with the standards of the Homeland
Security Presidential Directive (HSPD)-12 (available in the Public
Papers of the Presidents of the United States: George W. Bush (2004,
Book II, page 1765) found on the Internet at http://www.gpo.gov/);
Office of Management and Budget Memorandum (OMB) M-05-24 (available on
the Internet at http://www.whitehouse.gov/omb); Federal Information
Processing Standards Publication 201-1 (FIPS 201-1) or successor
(available on the Internet at http://csrc.nist.gov/); 48 CFR, Chapter
1, Parts 1-99 (Federal Acquisition Regulation); 48 CFR, Chapter 2,
Parts 201-253 (Defense Federal Acquisition Regulation Supplement), and
the Office of Personnel Management (OPM)
[[Page 18164]]
Memorandum, ``Final Credentialing Standards for Issuing Personal
Identity Verification Cards under HSPD-12,'' dated July 31, 2008
(available on the Internet at http://www.opm.gov/), as applicable.
(l) Information about individuals collected as part of the
investigative and adjudicative process shall be managed in accordance
with applicable laws and DoD policies, including those related to
privacy and confidentiality, security of information, and access to
information.
Sec. 156.4 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.
(2) In coordination with the Under Secretary of Defense for
Personnel and Readiness (USD(P&R)) and the General Counsel of the DoD
(GC, DoD), develop policy for DoD personnel for the CAC personnel
security investigation (PSI) and adjudication in accordance with HSPD-
12; OMB Memorandum M-05-24; FIPS 201-1; and OPM Memorandum, ``Final
Credentialing Standards for Issuing Personal Identity Verification
Cards under HSPD-12.''
(3) In coordination with the Under Secretary of Defense for
Acquisition, Technology and Logistics (USD(AT&L)) and the GC, DoD,
develop policy for contractor investigations for CAC adjudication,
outside the purview of the National Industrial Security Program, under
the terms of applicable contracts in accordance with HSPD-12; OMB
Memorandum M-05-24; FIPS 201-1; the Federal Acquisition Regulation; the
Defense Federal Acquisition Regulation Supplement; and OPM Memorandum,
``Final Credentialing Standards for Issuing Personal Identity
Verification Cards under HSPD-12.''
(4) Issue guidance implementing the policy in this part.
(b) The Deputy Under Secretary of Defense for Intelligence &
Security (DUSD(I&S)), under the authority, direction, and control of
the USD(I) shall:
(1) Ensure that the PSP 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 that the Defense Security Service (DSS) 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 DoD PSP.
(6) When appropriate, approve requests for exceptions to the DoD
PSP relating to national security eligibility requirements 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) Develop guidance, interpretation, and clarification regarding
the DoD PSP as needed.
(8) Conduct oversight inspections of the DoD Components for
implementation and compliance with DoD personnel security policy and
operating procedures.
(9) In furtherance of coordinated Government-wide initiatives under
E.O. 13467, 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 USD(AT&L) shall:
(1) Establish acquisition policy, procedures, and guidance, in
coordination with the USD(I) that facilitate DoD Component compliance
with the DoD PSP.
(2) Establish regulatory requirements within the Federal
Acquisition Regulation and Defense Federal Acquisition Regulation for
contracts and agreements that require non-DoD personnel to adhere to
personnel security procedures in the performance of a contract or
agreement.
(d) The Under Secretary of Defense for Policy (USD(P)) is the
approval authority for requests for exceptions to the DoD PSP involving
access to NATO classified information.
(e) 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
(DOHA).
(f) The Heads of the DoD Components shall:
(1) Designate a senior agency official, consistent with the
provisions of E.O. 12968, as amended, 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 guidance to local
and regional organizations.
(3) Provide funding to cover Component 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, and adverse
actions to the appropriate personnel security, human resources, and
counterintelligence official(s), as appropriate, within their
respective Component.
(5) Perform functions relating to the DoD Security Professional
Education Development Program to ensure the security workforce in their
respective Component has the knowledge and skills required to perform
security functional tasks.
(6) Provide requested information and recommendations, as
appropriate, on any aspect of this part and the DoD PSP to the USD(I).
(7) Enforce the requirement that DoD personnel security
adjudication system(s) of records, within their respective Components,
shall only be used as a personnel security system of records and shall
not be used as a pre-hiring screening tool.
Sec. 156.5 National security positions.
(a) Procedures. The objective of the PSP is to ensure persons
deemed eligible for national security positions remain reliable and
trustworthy.
(1) Duties considered sensitive and critical to national security
do not always involve classified activities or classified matters.
Personnel security procedures for national security positions are set
forth in E.O. 12968, as amended; E.O. 10865, 32 CFR parts 154-155; ICD
704; and DoD Regulation 5220.22-R. The specific procedures applicable
in each case type are set forth in DoD issuances.
(2) Employees with access to automated systems that contain active
duty, guard, or military reservists' personally identifiable
information or information pertaining to Service members that are
otherwise protected from disclosure by section 552a of title 5 United
States Code, may be designated as national security positions within
DoD, where such access has the potential to cause damage to national
security.
[[Page 18165]]
(b) Sensitive Compartmented Information (SCI) Eligibility.
Investigative and adjudicative requirements for SCI eligibility shall
be executed in accordance with this part and ICD 704.
(c) Adjudication. (1) Personnel security criteria and adjudicative
standards are described in E.O. 12968, as amended; 32 CFR parts 147,
154 and 155; ICD 704, and DoD Regulation 5220.22-R, as applicable, in
accordance with Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information and other types of protected
information or assignment to national security positions. Adjudications
of eligibility for national security positions, regardless of whether
they involve access to classified information, must be made in
accordance with the Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information.
(2) When an unfavorable personnel security determination is
rendered:
(i) Individuals cannot be appointed or assigned to national
security positions.
(ii) An individual currently occupying a national security position
will be immediately removed from the national security position and
placed, in accordance with agency policy, in an existing non-sensitive
position if available. Placement in a non-sensitive position requires
compliance with employment suitability standards. The national security
position is not to be modified or a new position created to circumvent
an unfavorable personnel security determination. The individual is to
be placed in an appropriate status, in accordance with agency policy,
until a final security determination is made. A final security
determination is the granting, denial or revocation by an appropriate
central adjudications facility or an appeal board decision, whichever
is later.
(iii) To ensure consistency and quality in determinations of
eligibility for national security positions, adjudicators must
successfully complete the full program of professional training
provided by the DSS Center for Development of Security Excellence (or
equivalent training) and be certified through the DoD Professional
Certification Program for Adjudicators within 2 years of program
implementation or, for new hires, within 2 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 as applicable or as otherwise authorized by law.
(e) Polygraph. Under certain conditions, DoD Components are
authorized to use polygraph examinations to resolve credible derogatory
information developed in connection with a personnel security
investigation; to aid in the related adjudication; or to facilitate
classified access decisions.
(f) Continuous Evaluation. All personnel in national security
positions shall be subject to continuous evaluation.
(g) Financial Disclosure. DoD Component implementation of the
electronic financial disclosure requirement, consistent with E.O.
12968, shall be completed by the end of calendar year 2012.
(h) Reciprocal Acceptance of Eligibility Determinations. (1) DoD
reciprocally accepts existing national security eligibility
determinations or clearances from other government agencies in
accordance with E.O. 13467, OMB Memorandums ``Reciprocal Recognition of
Existing Personnel Security Clearances'' dated December 12, 2005
(Copies available on the Internet at http://www.whitehouse.gov/omb) and
July 17, 2006 (Copies available on the Internet at http://www.whitehouse.gov/omb).
(2) Reciprocity for SCI eligibility shall be executed in accordance
with ICD 704 and associated Director of National Intelligence guidance.
(3) Personnel who have been determined eligible for national
security positions should not be subjected to additional security
reviews, completion of a new security questionnaire, or initiation of a
new investigative check, unless credible derogatory information that
was not previously adjudicated becomes known, or the previous
adjudication was granted by a condition, deviation, or waiver pursuant
the provisions of OMB Memorandums ``Reciprocal Recognition of Existing
Personnel Security Clearances'' dated December 12, 2005, or there has
been a break in service of more than 24 months. Exceptions for access
to SCI or special access programs are listed in the OMB Memorandums
``Reciprocal Recognition of Existing Personnel Security Clearances''
dated July 17, 2006.
(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 50 U.S.C.
chapter 23.
(j) Wounded Warrior Security and Intelligence Internship 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
percent or greater may submit a PSI for Top Secret clearance with SCI
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 Component that is
offering the internship. If the DoD Component does not have funds
available, the Military Service in which the uniform service personnel
served may choose to fund the investigation.
Sec. 156.6 Common access card (CAC) investigation and adjudication.
(a) General. Individuals entrusted with access to Federal property,
information systems, and any other information bearing on national
security must not put the Government at risk or provide an avenue for
terrorism.
(1) All individuals requiring a CAC must meet credentialing
standards of OPM Memorandum, ``Final Credentialing Standards for
Issuing Personal Identity Verification Cards under HSPD-12.'' For those
individuals who are subject to an interim credentialing decision before
a security, suitability, or equivalent adjudication is completed, the
OPM credentialing standards will be the basis for issuing or denying a
CAC. The subsequent credentialing decision will be made upon receipt of
the completed investigation from the ISP.
(2) If an individual is found unsuitable for employment in a
covered position under 5 CFR 731.101, ineligible for access to
classified information under E.O. 12968, or disqualified from
appointment in the excepted service or from working on a contract, the
unfavorable decision is a sufficient basis for non-issuance or
revocation of a CAC, but does not necessarily mandate this result.
(b) Investigation. A favorably adjudicated National Agency Check
with Inquiries (NACI) is the minimum investigation required for a final
credentialing determination for CAC.
[[Page 18166]]
(1) An interim credentialing determination can be made based on the
results of a completed National Agency Check or an Federal Bureau of
Investigation National Criminal History Check (fingerprint check), and
submission of a request for investigation (NACI or greater).
(2) Individuals identified as having a favorably adjudicated
investigation on record, equivalent to (or greater than) the NACI do
not require an additional investigation for CAC issuance.
(3) There is no requirement to reinvestigate CAC holders unless
they are subject to reinvestigation for national security or
suitability reasons as specified in applicable DoD issuances.
(4) Existing CAC holders without the requisite background
investigation on record must be investigated in accordance with OMB
Memorandum M-05-24, ``Implementation of Homeland Security Presidential
Directive (HSPD) 12--Policy for a Common Identification Standard for
Federal Employees and Contractors,'' dated August 5, 2005.
(c) Adjudication. The ultimate determination whether to authorize
CAC issuance or revoke the CAC must be an overall common-sense judgment
after careful consideration of the basic and, if applicable,
supplemental credentialing standards in OPM Memorandum, ``Final
Credentialing Standards for Issuing Personal Identity Verification
Cards under HSPD-12,'' each of which is to be evaluated in the context
of the whole person. These standards shall be evaluated to determine if
there is a reasonable basis to believe that issuing a CAC to the
individual poses an unacceptable risk.
(1) Each case is unique and must be judged on its own merits. To
the extent pertinent to the individual case, when evaluating the
conduct, the adjudicator should consider: the nature and seriousness of
the conduct, the circumstances surrounding the conduct, the recency and
frequency of the conduct, the individual's age and maturity at the time
of the conduct, contributing external conditions, and the presence or
absence of rehabilitation or efforts toward rehabilitation.
(2) Final credentialing standards are:
(i) Basic Credentialing Standards. All CAC adjudications must apply
the basic credentialing standards. CAC shall not be issued when a
disqualifying factor cannot be mitigated.
(ii) Supplemental Credentialing Standards. The supplemental
credentialing standards, in addition to the basic credentialing
standards, shall apply generally to individuals who are not subject to
adjudication for eligibility for a sensitive position or access to
classified information, suitability for Federal employment or fitness.
These standards may be applied based on the risk associated with the
position or work on the contract.
(3) All interim and final adjudicative determinations shall be made
by cleared and trained Federal Government personnel. Automated
adjudicative processes shall be used to the maximum extent practicable.
(4) Adjudication decisions of CAC investigations shall be
incorporated into the Consolidated Central Adjudication Facility as
directed by the Deputy Secretary of Defense.
(5) CAC adjudicators must successfully complete formal training
through a DoD adjudicator course from the DSS Center for Development of
Security Excellence to achieve maximum consistency and fairness of
decisions rendered.
(6) Federal Government credentialing standards do not prohibit
employment of convicted felons who have been released from correctional
institutions, absent other issues, if they have demonstrated clear
evidence of rehabilitation.
(d) Appeals. CAC applicants or holders may appeal CAC denial or
revocation.
(1) 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 an excepted service
position or from working on a contract for reasons other than
eligibility for a Federal Credential as described in 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.
(2) Initial civilian and contractor 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 no more than one
security representative from the sponsoring activity.
(3) Contractor employees who have had their CAC revoked, and for
whom an appeal is allowed under this paragraph, may appeal to DOHA
under the established administrative process set out in 32 CFR Part
155.
(4) Decisions following appeal are final.
(5) Individuals whose CACs have been denied or revoked are eligible
for reconsideration 1 year after the date of final denial or
revocation, provided the sponsoring activity supports reconsideration.
Individuals with a statutory or regulatory bar are not eligible for
reconsideration while under debarment.
(e) Foreign Nationals. Special considerations for conducting
background investigations of non-U.S. nationals (foreign nationals) are
addressed in OPM Memorandum, ``Final Credentialing Standards for
Issuing Personal Identity Verification Cards under HSPD-12.'' The
following criteria shall be met prior to CAC issuance to foreign
nationals:
(1) The background investigation must be completed and favorably
adjudicated before issuing CACs to foreign nationals.
(2) Foreign nationals are not eligible to receive CAC on an interim
basis.
(3) At foreign locations:
(i) Foreign national background investigations may vary based on
standing reciprocity treaties concerning identity assurance and
information exchange that exist between the United States and its
allies. This includes foreign military, civilian, or contract support
with a visit status and security assurance that has been confirmed,
documented, and processed in accordance with USD(P) policy.
(ii) The type of background investigation may also vary based upon
agency agreements with the host country when the foreign national CAC
applicant (such as a DoD direct or indirect hire) has not resided in
the United States for at least 3 of the past 5 years or is residing in
a foreign country. The investigation must be consistent with NACI, to
the extent possible, and include a fingerprint check against the
Federal Bureau of Investigation (FBI) criminal history database, an FBI
Investigations Files (name check) search, and a name check against the
Terrorist Screening Database.
(4) At U.S.-based locations and in U.S. territories:
(i) Foreign nationals who have resided in the United States or U.S.
territory for 3 years or more must have a NACI or greater
investigation.
(ii) Components may delay the background investigation of foreign
nationals who have resided in the U.S. or U.S. territory for less than
3 years
[[Page 18167]]
until the individual has been in the U.S. or U.S. territory for 3
years. When the investigation is delayed, the Component may, in lieu of
a CAC, issue an alternative facility access credential at the
discretion of the relevant Component official based on a risk
determination.
(f) Recording Final Adjudication. Immediately following final
adjudication, the sponsoring activity shall record the final
eligibility determination (active, revoked, denied, etc.) in the OPM
Central Verification System as directed by OPM Memorandum, ``Final
Credentialing Standards for Issuing Personal Identity Verification
Cards under HSPD-12,'' and maintain local records for posting in a DoD
repository when available.
(g) Reciprocity of CAC Determinations. (1) The sponsoring activity
shall not re-adjudicate CAC determinations for individuals transferring
from another Federal department or agency, provided:
(i) Possession of a valid personal identity verification (PIV) card
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.
(iii) 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.
(2) Interim CAC determinations are not eligible to be transferred
or reciprocally accepted. Reciprocity shall be based on final favorable
adjudication only.
Sec. 156.7 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.
Contractor. Defined in E.O. 13467.
Employee. Defined in E.O. 12968, as amended.
Limited access authorization. Defined in 32 CFR Part 154.
National security position. (1) 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 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 (1)(ii)(B) through (G) of this definition,
where the occupant's neglect, action, or inaction could bring about a
material adverse effect on the national security.
(2) 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.
Unacceptable risk. Threat to the life, safety, or health of
employees, contractors, vendors, or visitors; to the Government's
physical assets or information systems; to personal property; to
records, privileged, proprietary, financial, or medical records; or to
the privacy of data subjects, which will not be tolerated by the
Government.
Dated: March 20, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-06544 Filed 3-31-14; 8:45 am]
BILLING CODE 5001-06-P
