Title 32—National Defense--Volume 1
PART 155—DEFENSE INDUSTRIAL PERSONNEL SECURITY CLEARANCE PROGRAM
§ 155.1   Purpose.
This part updates policy, responsibilities, and procedures of the Defense Industrial Personnel Security Clearance Review Program implementing E.O. 10865, as amended.
§ 155.2   Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Inspector General of the Department of Defense (IG, DoD), and the Defense Agencies (hereafter referred to collectively as “the DoD Components”).
(b) By mutual agreement, also extends to other Federal Agencies that include:
(1) Department of Agriculture.
(2) Department of Commerce.
(3) Department of Interior.
(4) Department of Justice.
(5) Department of Labor.
(6) Department of State.
(7) Department of Transportation.
(8) Department of Treasury.
(9) Environmental Protection Agency.
(10) Federal Emergency Management Agency.
(11) Federal Reserve System.
(12) General Accounting Office.
(13) General Services Administration.
(14) National Aeronautics and Space Administration.
(15) National Science Foundation.
(16) Small Business Administration.
(17) United States Arms Control and Disarmament Agency.
(18) United States Information Agency.
(19) United States International Trade Commission.
(20) United States Trade Representative.
(c) Applies to cases that the Defense Industrial Security Clearance Office (DISCO) forwards to the “Defense Office of Hearings and Appeals (DOHA)” for action under this part to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.
(d) Provides a program that may be extended to other security cases at the direction of the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C 3 I)).
(e) Does not apply to cases in which:
(1) A security clearance is withdrawn because the applicant no longer has a need for access to classified information;
(2) An interim security clearance is withdrawn by the DISCO during an investigation; or
(3) A security clearance is withdrawn for administrative reasons that are without prejudice as to a later determination of whether the grant or continuance of the applicant's security clearance would be clearly consistent with the national interest.
(f) Does not apply to cases for access to sensitive compartmented information or a special access program.
§ 155.3   Definitions.
(a) Applicant. Any U.S. citizen who holds or requires a security clearance or any immigrant alien who holds or requires a limited access authorization for access to classified information needed in connection with his or her employment in the private sector; any U.S. citizen who is a direct-hire employee or selectee for a position with the North Atlantic Treaty Organization (NATO) and who holds or requires NATO certificates of security clearance or security assurances for access to U.S. or foreign classified information; or any U.S. citizen nominated by the Red Cross or United Service Organizations for assignment with the Military Services overseas. The term “applicant” does not apply to those U.S. citizens who are seconded to NATO by U.S. Departments and Agencies or to U.S. citizens recruited through such Agencies in response to a request from NATO.
(b) Clearance Decision. A decision made in accordance with this part concerning whether it is clearly consistent with the national interest to grant an applicant a security clearance for access to Confidential, Secret, or Top Secret information. A favorable clearance decision establishes eligibility of the applicant to be granted a security clearance for access at the level governed by the documented need for such access, and the type of investigation specified for that level in 32 CFR part 154. An unfavorable clearance decision denies any application for a security clearance and revokes any existing security clearance, thereby preventing access to classified information at any level and the retention of any existing security clearance.
§ 155.4   Policy.
It is DoD policy that:
(a) All proceedings provided for by this part shall be conducted in a fair and impartial manner.
(b) A clearance decision reflects the basis for an ultimate finding as to whether it is clearly consistent with the national interest to grant or continue a security clearance for the applicant.
(c) Except as otherwise provided for by E.O. 10865, as amended, or this part, a final unfavorable clearance decision shall not be made without first providing the applicant with:
(1) Notice of specific reasons for the proposed action.
(2) An opportunity to respond to the reasons.
(3) Notice of the right to a hearing and the opportunity to cross-examine persons providing information adverse to the applicant.
(4) Opportunity to present evidence on his or her own behalf, or to be represented by counsel or personal representative.
(5) Written notice of final clearance decisions.
(6) Notice of appeal procedures.
(d) Actions pursuant to this part shall cease upon termination of the applicant's need for access to classified information except in those cases in which:
(1) A hearing has commenced;
(2) A clearance decision has been issued; or
(3) The applicant's security clearance was suspended and the applicant provided a written request that the case continue.
§ 155.5   Responsibilities.
(a) The Assistant Secretary of Defense of Command, Control, Communications and Intelligence shall:
(1) Establish investigative policy and adjudicative standards and oversee their application.
(2) Coordinate with the General Counsel of the Department of Defense (GC, DoD) on policy affecting clearance decisions.
(3) Issue clarifying guidance and instructions as needed.
(b) The General Counsel of the Department of Defense shall:
(1) Establish guidance and provide oversight as to legal sufficiency of procedures and standards established by this part.
(2) Establish the organization and composition of the DOHA.
(3) Designate a civilian attorney to be the Director, DOHA.
(4) Issue clarifying guidance and instructions as needed.
(5) Administer the program established by this part.
(6) Issue invitational travel orders in appropriate cases to persons to appear and testify who have provided oral or written statements adverse to the applicant relating to a controverted issue.
(7) Designate attorneys to be Department Counsels assigned to the DOHA to represent the Government's interest in cases and related matters within the applicability and scope of this part.
(8) Designate attorneys to be Administrative Judges assigned to the DOHA.
(9) Designate attorneys to be Administrative Judge members of the DOHA Appeal Board.
(10) Provide for supervision of attorneys and other personnel assigned or attached to the DOHA.
(11) Develop and implement policy established or coordinated with the GC, DoD, in accordance with this part.
(12) Establish and maintain qualitative and quantitative standards for all work by DOHA employees arising within the applicability and scope of this part.
(13) Ensure that the Administrative Judges and Appeal Board members have the requisite independence to render fair and impartial decisions consistent with DoD policy.
(14) Provide training, clarify policy, or initiate personnel actions, as appropriate, to ensure that all DOHA decisions are made in accordance with policy, procedures, and standards established by this part.
(15) Provide for maintenance and control of all DOHA records.
(16) Take actions as provided for in § 155.6(b), and the additional procedural guidance in appendix A to this part.
(17) Establish and maintain procedures for timely assignment and completion of cases.
(18) Issue guidance and instructions, as needed, to fulfill the foregoing responsibilities.
(19) Designate the Director, DOHA, to implement paragraphs (b)(5) through (b)(18) of this section, under general guidance of the GC, DoD.
(c) The Heads of the DoD Components shall provide (from resources available to the designated DoD Component) financing, personnel, personnel spaces, office facilities, and related administrative support required by the DOHA.
(d) The ASD(C 3 I) shall ensure that cases within the scope and applicability of this part are referred promptly to the DOHA, as required, and that clearance decisions by the DOHA are acted upon without delay.
§ 155.6   Procedures.
(a) Applicants shall be investigated in accordance with the standards in 32 CFR part 154.
(b) An applicant is required to give, and to authorize others to give, full, frank, and truthful answers to relevant and material questions needed by the DOHA to reach a clearance decision and to otherwise comply with the procedures authorized by this part. The applicant may elect on constitutional or other grounds not to comply; but refusal or failure to furnish or authorize the providing of relevant and material information or otherwise cooperate at any stage in the investigation or adjudicative process may prevent the DOHA from making a clearance decision. If an applicant fails or refuses to:
(1) Provide relevant and material information or to authorize others to provide such information; or
(2) Proceed in a timely or orderly fashion in accordance with this part; or
(3) Follow directions of an Administrative Judge or the Appeal Board; then the Director, DOHA, or designee, may revoke any security clearance held by the applicant and discontinue case processing. Requests for resumption of case processing and reinstatement of a security clearance may be approved by the Director, DOHA, only upon a showing of good cause. If the request is denied, in whole or in part, the decision is final and bars reapplication for a security clearance for 1 year from the date of the revocation.
(c) Each clearance decision must be a fair and impartial common sense determination based upon consideration of all the relevant and material information and the pertinent criteria in 32 CFR 154.7 and adjudication policy in appendix H to 32 CFR part 154, including as appropriate:
(1) Nature and seriousness of the conduct and surrounding circumstances.
(2) Frequency and recency of the conduct.
(3) Age of the applicant.
(4) Motivation of the applicant, and the extent to which the conduct was negligent, willful, voluntary, or undertaken with knowledge of the consequences involved.
(5) Absence or presence of rehabilitation.
(6) Probability that the circumstances or conduct will continue or recur in the future.
(d) Whenever there is a reasonable basis for concluding that an applicant's continued access to classified information poses an imminent threat to the national interest, any security clearance held by the applicant may be suspended by the ASD(C 3 I), with the concurrence of the GC, DoD, pending a final clearance decision. This suspension may be rescinded by the same authorities upon presentation of additional information that conclusively demonstrates that an imminent threat to the national interest no longer exists. Procedures in appendix A to this part shall be expedited whenever an applicant's security clearance has been suspended pursuant to this section.
(e) Nothing contained in this part shall limit or affect the responsibility and powers of the Secretary of Defense or the head of another Department or Agency to deny or revoke a security clearance when the security of the nation so requires. Such authority may not be delegated and may be exercised only when the Secretary of Defense or the head of another Department or Agency determines that the hearing procedures and other provisions of this part cannot be invoked consistent with the national security. Such a determination shall be conclusive.
(f) Additional procedural guidance is in appendix A to this part.