55622 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 

not received, within the said applicable 

time, the buyer’s consent to any further 

delay; 

(4) The seller has notified the buyer 

of its inability to make shipment and 

has indicated its decision not to ship the 

merchandise; 

(5) The seller fails to offer the option 

prescribed in paragraph (b)(1) of this 

section and has not shipped the 

merchandise within the applicable time 

set forth in paragraph (a)(1) of this 

section. 

(d) In any action brought by the 

Federal Trade Commission, alleging a 

violation of this part, the failure of a 

respondent-seller to have records or 

other documentary proof establishing its 

use of systems and procedures which 

assure compliance, in the ordinary 

course of business, with any 

requirement of paragraph (b) or (c) of 

this section will create a rebuttable 

presumption that the seller failed to 

comply with said requirement. 

§ 435.3 Limited applicability. 

(a) This part shall not apply to: 

(1) Subscriptions, such as magazine 

sales, ordered for serial delivery, after 

the initial shipment is made in 

compliance with this part; 

(2) Orders of seeds and growing 

plants; 

(3) Orders made on a collect-ondelivery (C.O.D.) basis; 

(4) Transactions governed by the 

Federal Trade Commission‘s Trade 

Regulation Rule entitled ‘‘Use of 

Prenotification Negative Option Plans,’’ 

16 CFR Part 425. 

(b) By taking action in this area: 

(1) The Federal Trade Commission 

does not intend to preempt action in the 

same area, which is not inconsistent 

with this part, by any State, municipal, 

or other local government. This part 

does not annul or diminish any rights or 

remedies provided to consumers by any 

State law, municipal ordinance, or other 

local regulation, insofar as those rights 

or remedies are equal to or greater than 

those provided by this part. In addition, 

this part does not supersede those 

provisions of any State law, municipal 

ordinance, or other local regulation 

which impose obligations or liabilities 

upon sellers, when sellers subject to this 

part are not in compliance therewith. 

(2) This part does supersede those 

provisions of any State law, municipal 

ordinance, or other local regulation 

which are inconsistent with this part to 

the extent that those provisions do not 

provide a buyer with rights which are 

equal to or greater than those rights 

granted a buyer by this part. This part 

also supersedes those provisions of any 

State law, municipal ordinance, or other 

local regulation requiring that a buyer 

be notified of a right which is the same 

as a right provided by this part but 

requiring that a buyer be given notice of 

this right in a language, form, or manner 

which is different in any way from that 

required by this part. In those instances 

where any State law, municipal 

ordinance, or other local regulation 

contains provisions, some but not all of 

which are partially or completely 

superseded by this part, the provisions 

or portions of those provisions which 

have not been superseded retain their 

full force and effect. 

(c) If any provision of this part, or its 

application to any person, partnership, 

corporation, act or practice is held 

invalid, the remainder of this part or the 

application of the provision to any other 

person, partnership, corporation, act or 

practice shall not be affected thereby. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2014–22092 Filed 9–16–14; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 157 

[Docket ID: DOD–2012–OS–0167] 

RIN 0790–AI97 

DoD Investigative and Adjudicative 

Guidance for Issuing the Common 

Access Card (CAC) 

AGENCY: Under Secretary of Defense for 

Intelligence, DoD. 

ACTION: Interim final rule. 

SUMMARY: This interim final rule 

establishes policy, assigns 

responsibilities, and prescribes 

procedures for investigating and 

adjudicating eligibility to hold the DoD 

Common Access Card (CAC). The CAC 

is the DoD personal identity verification 

(PIV) credential. Individuals 

appropriately sponsored for a DoD CAC 

must be investigated and adjudicated in 

accordance with this part. 

Prior to this rule, DoD components 

have been implementing investigative 

and adjudicative requirements for 

Homeland Security Presidential 

Directive—12 (HSPD–12) based solely 

on broad guidance issued by the U.S. 

Office of Personnel Management (OPM). 

This interim final rule elaborates on 

OPM guidance for component 

adjudicators who determine, based on 

review of investigative case files, 

whether to grant CAC eligibility to 

individuals who require: Physical 

access to DoD facilities or non-DoD 

facilities on behalf of DoD; logical 

access to information systems (whether 

on site or remotely); or remote access to 

DoD networks that use only the CAC 

logon for user authentication. 

The adjudicator’s role is discussed 

further in the SUPPLEMENTARY

INFORMATION. The interim final rule 

provides the adjudicator with 

conditions that may be disqualifying 

and circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk. 

DATES: Effective Date: This rule is 

effective September 17, 2014. Comments 

must be received by November 17, 2014. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 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, 4800 Mark Center Drive, 

East Tower, Suite 02G09, Alexandria 

VA 22350–3100. 

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: Dr. 

Kelly Buck, 703–604–1130. 

SUPPLEMENTARY INFORMATION: 

Background 

The adjudicator’s role is to ensure a 

CAC is not issued to individuals if: (a) 

The individual is known to be or 

reasonably suspected of being a 

terrorist, (b) the employer is unable to 

verify the individual’s claimed identity, 

(c) there is a reasonable basis to believe 

the individual has submitted fraudulent 

information concerning his or her 

identity, (d) there is a reasonable basis 

to believe the individual will attempt to 

gain unauthorized access to classified 

documents, information protected by 

the Privacy Act, information that is 

proprietary in nature, or other sensitive 

or protected information, (e) there is a 

reasonable basis to believe the 

individual will use an identity 

credential outside the workplace 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 55623 

unlawfully or inappropriately, (f) there 

is a reasonable basis to believe the 

individual will use Federally-controlled 

information systems unlawfully, make 

unauthorized modifications to such 

systems, corrupt or destroy such 

systems, or engage in inappropriate uses 

of such systems, (g) there is a reasonable 

basis to believe, based on the 

individual’s misconduct or negligence 

in employment, that issuance of a CAC 

poses an unacceptable risk, (h) there is 

a reasonable basis to believe, based on 

the individual’s criminal or dishonest 

conduct, that issuance of a CAC poses 

an unacceptable risk, (i) there is a 

reasonable basis to believe, based on the 

individual’s material, intentional false 

statement, deception, or fraud in 

connection with Federal or contract 

employment, that issuance of a CAC 

poses an unacceptable risk, (j) there is 

a reasonable basis to believe, based on 

the nature or duration of the 

individual’s alcohol abuse without 

evidence of substantial rehabilitation, 

that issuance of a CAC poses an 

unacceptable risk, (k) there is a 

reasonable basis to believe, based on the 

nature or duration of the individual’s 

illegal use of narcotics, drugs, or other 

controlled substances without evidence 

of substantial rehabilitation, that 

issuance of a CAC poses an 

unacceptable risk, (l) a statutory or 

regulatory bar prevents the individual’s 

contract employment; or would prevent 

Federal employment under 

circumstances that furnish a reasonable 

basis to believe that issuance of a CAC 

poses an unacceptable risk; or (m) the 

individual has knowingly and willfully 

engaged in acts or activities designed to 

overthrow the U.S. Government by 

force. 

I. Purpose 

a. The Need for the Regulatory Action 

and How the Action Will Meet That 

Need 

This interim final rule establishes 

policy, assigns responsibilities, and 

prescribes procedures for investigating 

and adjudicating eligibility to hold the 

DoD CAC. The CAC is the DoD personal 

identity verification (PIV) credential. 

On August 27, 2004, the President 

issued Homeland Security Policy 

Directive 12, ‘‘Policy for a Common 

Identification Standard for Federal 

Employees and Contractors, which 

mandated a requirement for a common 

identification standard for secure and 

reliable forms of identification for 

federal employees and contractors. 

Pursuant to section 2.3(b) of Executive 

Order 13467, on July 31, 2008, the U.S. 

Office of Personnel Management OPM 

issued its final government-wide 

credentialing standards and mandated 

that all Federal departments and 

agencies use them in determining 

whether to issue or revoke PIV cards to 

their employees and contractor 

personnel, including those who are nonUnited States citizens. 

Pending the issuance of this interim 

final rule, the DoD promulgated two 

Directive-type memoranda: DTM 08– 

006, ‘‘DoD Implementation of Homeland 

Security Presidential Directive—12 

(HSPD–12), issued on November 26, 

2008, established DoD policy for 

implementation of HSPD–12. Pursuant 

to DTM 08–006, DTM 08–003, ‘‘Next 

Generation Common Access Card (CAC) 

Implementation Guidance,’’ December 

1, 2008, was issued to provide interim 

implementation guidance governing the 

CAC. DTM 08–006 was subsequently 

cancelled with issuance of DoDI 

1000.13, ‘‘Identification (ID) Cards for 

members of the Uniformed Services, 

Their Dependents, and Other Eligible 

Individuals,’’ January 23, 2014. DTM 

08–003 was subsequently cancelled 

with issuance of DoD Manual 1000.13, 

Volume 1, ‘‘DoD Identification (ID) 

Cards: ID Card Life-Cycle,’’ January 23, 

2014. This interim final rule 

implements HSPD–12 for the DoD by 

establishing policy and assigning 

responsibilities for investigating and 

adjudicating eligibility to hold a CAC, 

procedures upon revocation of a CAC, 

and processing of appeals. 

b. Legal Authority for the Regulatory 

Action 

Homeland Security Presidential 

Directive-12, ‘‘Policy for a Common 

Identification Standard for Federal 

Employees and Contractors,’’ August 27, 

2014, requires the government-wide 

standard for secure and reliable forms of 

identification for Federal employees and 

contractors. The Department of 

Commerce issued Federal Information 

Processing Standard 201–2 as the 

standard. Executive Order 13467 of June 

30, 2008, ‘‘Reforming Processes Related 

to Suitability for Government 

Employment, Fitness for Contractor 

Employees, and Eligibility for Access to 

Classified National Security 

Information’’ established the Office of 

Personnel Management (OPM) to serve 

as the Suitability Executive Agent 

regarding suitability and eligibility for 

logical and physical access. As such, 

OPM issued the ‘‘Final Credentialing 

Standards for Issuing Personal Identity 

Verification Cards Under HSPD–12’’ on 

July 31, 2008. 

II. Summary of the Major Provisions 

This rule: 

a. Provides investigative requirements 

and credentialing standards for issuing, 

denying, or revoking a CAC. 

b. Provides guidance for applying 

credentialing standards during 

adjudication. 

c. Provides for an appeal process. 

d. Establishes procedures upon 

revocation of a CAC. 

III. Costs and Benefits 

The interim final rule does not 

impose direct costs onto the public 

because costs associated with the 

implementation of the investigation and 

adjudicative standards will be borne by 

the Department. However, the HSPD–12 

mandate will increase overall costs for 

the DoD to investigate and adjudicate 

individuals covered by the Instruction 

who would not otherwise undergo an 

adjudication to determine suitability for 

the competitive service, eligibility for a 

national security sensitive position, or 

fitness for appointment to the excepted 

service or to perform work under a 

Government contract. The costs to the 

Department are not driven by the policy 

contained in this interim final rule, but 

rather HSPD–12 and the U.S. 

Department of Commerce’s National 

institute of Standards and Technology’s 

Federal Information Processing 

Standards Publication 201–2 (FIPS 201– 

2), August 2013, mandate for 

investigating and adjudicating eligibility 

to hold a CAC. 

This interim final rule provides for 

protections against unauthorized access 

to federal facilities and federally 

controlled information systems and 

other sensitive or protected information. 

This policy manages risk and creates 

efficiencies by ensuring persons are 

vetted to uniform national standards. 

Standardized investigative and 

adjudicative guidance will eliminate 

inter-agency variations that have existed 

in the quality and security of 

identification used to gain access to 

secure facilities where there is potential 

for terrorist attacks. Establishing a 

mandatory, Department-wide standard 

for secure and reliable forms of 

identification that the Department 

issues to its employees and contractors 

enhances security, increases 

Government efficiency, reduces identity 

fraud, and protects personal privacy. 

Implementing policies and 

procedures that apply across the 

Department will also result in 

significant intra-agency efficiencies. 

Absent this Department-wide 

guidance—which leverages already 

established processes and capabilities— 

the individual components may handle 

HSPD–12 compliance in multiple ways, 

duplicating effort and expending 


asabaliauskas on DSK5VPTVN1PROD with RULES
55624 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 

valuable resources. Thus the cost of 

complying with the HSPD–12 mandate 

will be even greater in the absence of 

DoD-wide policy and procedures. 

Interim Final Rule Justification 

This rule is being published as an 

interim final rule as DoD’s current 

efforts to comply with HSPD–12 need 

extensive procedural guidance to ensure 

consistency of implementation of 32 

CFR part 156 and DoD Instruction 

5200.02. This interim final rule provides 

DoD components and Component Heads 

with detailed policy and procedures 

specific to the DoD regarding 

investigation, adjudication, and appeals 

for DoD CAC issuance. This rule 

consolidates, clarifies, and elaborates 

DoD CAC policy as appropriate to 

ensure that Components’ policies and 

procedures for CAC applications, 

investigations, adjudications, 

management, oversight, and appeals are 

aligned across the Department using 

consistent standards and practices in 

cost-effective, timely, and efficient 

ways. 

If this rule is not published as an 

interim final rule, it will prolong the 

vulnerability of DoD’s personnel, 

information, and facilities to risks that 

are created by a current lack of 

uniformity in how DoD Components 

define and implement roles, 

responsibilities and requirements 

associated with DoD CAC-issuance. As 

one example, circumstances 

surrounding the shooting at the 

Washington Navy Yard highlight the 

importance of consistent and specific 

requirements for revocation and 

retrieval of credentials for personnel 

who have been identified as posing 

unacceptable risks. As such, this policy 

mandates revocation and retrieval of 

credentials and timely updates to 

physical and logical accesses, when 

appropriate, to prevent use of 

invalidated credentials. 

Additionally, to better consistently 

protect DoD’s personnel, systems, and 

facilities, the DoD Components’ 

concurred with applying both basic and 

supplemental credentialing standards 

and this policy helps codify that 

agreement. As such, the DoD ensures 

that all behaviors that suggest 

unacceptable risks to life, safety, or 

health of DoD personnel, information, or 

property are uniformly considered in all 

adjudications for credentials. 

To ensure that all individuals are 

consistently afforded opportunity to 

respond to any official decision that 

they are not acceptable risks for 

issuance of a CAC, this interim rule 

provides standard procedures for use 

across the DoD by individuals who wish 

to appeal denials or revocations of 

CACs. 

This rule is subject to update 

whenever additional policy guidance is 

provided by the Office of Management 

and Budget or the U.S. Office of 

Personnel Management. Further, DoD 

will consider public comments received 

in response to this interim rule in the 

formation of the Department’s final rule. 

Executive Order 12866, ‘‘Regulatory 

Planning and Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

We have consulted with the Office of 

Management and Budget (OMB) and 

determined this interim final rule meets 

the criteria for a significant regulatory 

action under Executive Order 12866, as 

supplemented by Executive Order 

13563, and was subject to OMB review. 

Sec. 202, Public Law 104–4, ‘‘Unfunded 

Mandates Reform Act’’ 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

(Pub. L. 104–4) requires agencies assess 

anticipated costs and benefits before 

issuing any rule whose mandates 

require spending in any 1 year of $100 

million in 1995 dollars, updated 

annually for inflation. In 2014, that 

threshold is approximately $141 

million. This document will not 

mandate any requirements for State, 

local, or tribal governments, nor will it 

affect private sector costs. 

Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

It has been certified that 32 CFR part 

157 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) 

This rule does impose reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act of 1995. This 

collection has been approved by the 

Office of Management and Budget under 

OMB Control Number 0704–0415 titled 

‘‘Application for Department of Defense 

Common Access Card—DEERS 

Enrollment’’. 

Executive Order 13132, ‘‘Federalism’’ 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

This document will not have a 

substantial effect on State and local 

governments. 

List of Subjects in 32 CFR Part 157 

Common Access Card (CAC), 

Contractors; Federal employees, Federal 

facilities, Federally-controlled 

information systems, HSPD–12 

credentialing standards, Identity 

verification, Personal identity 

verification (PIV) card, Sensitive or 

protected information, Terrorist; 

Unauthorized access. 

Accordingly 32 CFR part 157 is added 

to read as follows: 

PART 157—DOD INVESTIGATIVE AND 

ADJUDICATIVE GUIDANCE FOR 

ISSUING THE COMMON ACCESS 

CARD (CAC) 

Sec. 

157.1 Purpose. 

157.2 Applicability. 

157.3 Definitions. 

157.4 Policy. 

157.5 Responsibilities. 

157.6 Procedures. 

Authority: HSPD–12, E.O 13467, E.O. 

13488, FIPS 201–2, and OPM Memorandum. 

§ 157.1 Purpose. 

This part establishes policy, assigns 

responsibilities, and prescribes 

procedures for investigating and 

adjudicating eligibility to hold a 

Common Access Card (CAC). The CAC 

is the DoD personal identity verification 

(PIV) credential. 

§ 157.2 Applicability. 

This part applies to: 

(a) the Office of the Secretary of 

Defense, the Military Departments 

(including the Coast Guard at all times, 

including when it is a Service in the 

Department of Homeland Security by 

agreement with that Department), 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 DoD 

(hereinafter referred to collectively as 

the ‘‘DoD Components’’). 

(b) The Commissioned Corps of the 

U.S. Public Health Service (USPHS), 

under agreement with the Department of 

Health and Human Services, and the 

National Oceanic and Atmospheric 

Administration (NOAA), under 

agreement with the Department of 

Commerce. 

§ 157.3 Definitions. 

These terms and their definitions are 

for the purpose of this part. 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 55625 

Actionable information. Information 

that potentially justifies an unfavorable 

credentialing determination. 

CAC. The DoD Federal PIV card. 

Contractor. Defined in Executive 

Order 13467, ‘‘Reforming Processes 

Related to Sustainability for 

Government Employment, Fitness for 

Contractor Employees, and Eligibility 

for Access to Classified National 

Security Information’’. 

Contractor employee fitness. Defined 

in E.O. 13467. 

Debarment. A prohibition from taking 

a competitive service examination or 

from being hired (or retained in) a 

covered position for a specific time 

period.. 

Drugs. Mood and behavior-altering 

substances, including drugs, materials, 

and other chemical compounds 

identified and listed in 21 U.S.C. 801– 

830 (also known as ‘‘The Controlled 

Substances Act of 1970, as amended’’) 

(e.g., marijuana or cannabis, 

depressants, narcotics, stimulants, 

hallucinogens), and inhalants and other 

similar substances. 

Drug abuse. The illegal use of a drug 

or use of a legal drug in a manner that 

deviates from approved medical 

direction. 

Employee. Defined in E.O. 12968, 

‘‘Access to Classified Information’’. 

Fitness. Defined in E.O. 13488, 

‘‘Granting Reciprocity on Excepted 

Service and Federal Contractor 

Employee Fitness and Reinvestigating 

Individuals in Positions of Public 

Trust’’. 

Fitness determination. Defined in E.O. 

13488. 

Logical and physical access. Defined 

in E.O. 13467. 

Material. Defined in 5 CFR part 731. 

Reasonable basis. A reasonable basis 

to believe occurs when a disinterested 

observer, with knowledge of the same 

facts and circumstances, would 

reasonably reach the same conclusion. 

Terrorism. Defined in 19 U.S.C. 2331. 

Unacceptable risk. A threat to the life, 

safety, or health of employees, 

contractors, vendors, or visitors; to the 

U.S. Government physical assets or 

information systems; to personal 

property; to records, including 

classified, privileged, proprietary, 

financial, and medical records; or to the 

privacy rights established by The 

Privacy Act of 1974, as amended, or 

other law that is deemed unacceptable 

when making risk management 

determinations. 

U.S. National. Defined in U.S. OPM 

Memorandum, ‘‘Final Credentialing 

Standards for Issuing Personal Identity 

Verification Cards Under HSPD–12’’ 

(available at http://www.opm.gov/

investigate/resources/final_

credentialing_standards.pdf). 

§ 157.4 Policy. 

It is DoD policy that: 

(a) Individuals appropriately 

sponsored for a CAC consistent with 

DoD Manual 1000.13, Volume 1, ‘‘DoD 

Identification Cards: ID Card LifeCycle,’’ January 23, 2014, (available at 

http://www.dtic.mil/whs/directives/

corres/pdf/100013_vol1.pdf) must be 

investigated and adjudicated in 

accordance with this part. Individuals 

not CAC eligible may be processed for 

local or regional base passes in 

accordance with Under Secretary of 

Defense for Intelligence (USD(I)) policy 

guidance for DoD physical access 

control consistent with DoD Regulation 

5200.08–R, ‘‘Physical Security Program’’ 

(available at http://www.dtic.mil/whs/

directives/corres/pdf/520008r.pdf) and 

local installation security policies and 

procedures. 

(b) A favorably adjudicated National 

Agency Check with Inquiries (NACI) or 

equivalent in accordance with revised 

Federal investigative standards is the 

minimum investigation required for a 

final credentialing determination for a 

CAC. 

(c) Individuals requiring a CAC must 

meet the credentialing standards in 

accordance with the U.S. Office of 

Personnel Management (OPM) 

Memorandum, ‘‘Final Credentialing 

Standards for Issuing Personal Identity 

Verification Cards Under HSPD–12’’; 

and U.S. Office of Personnel 

Management Memorandum, 

‘‘Introduction of Credentialing, 

Suitability, and Security Clearance 

Decision-Making Guide (available at 

http://www.opm.gov/investigate/

resources/decision_making_guide.pdf) 

and this part. 

(d) A CAC may be issued on an 

interim basis based on a favorable 

National Agency Check or a Federal 

Bureau of Investigation (FBI) National 

Criminal History Check (fingerprint 

check) adjudicated by appropriate 

approved automated procedures or by a 

trained security or human resource (HR) 

specialist and successful submission to 

the investigative service provider (ISP) 

of a NACI, or a personnel security 

investigation (PSI) equal to or greater in 

scope than a NACI. Additionally, the 

CAC applicant must present two 

identity source documents, at least one 

of which is a valid Federal or State 

government-issued picture 

identification. 

(e) The subsequent final credentialing 

determination will be made upon 

receipt of the completed investigation 

from the ISP. 

(f) Discretionary judgments used to 

render an adjudicative determination for 

issuing the CAC are inherently 

governmental functions and must only 

be performed by trained U.S. 

Government personnel who have 

successfully completed required 

training and possess a minimum level of 

investigation (NACI or equivalent in 

accordance with revised Federal 

investigative standards). Established 

administrative processes in 32 CFR part 

156 and DoD Directive 5220.6, ‘‘Defense 

Industrial Personnel Security Clearance 

Review Program’’ (available at http://

www.dtic.mil/whs/directives/corres/pdf/

522006p.pdf) must be applied. 

(g) Adjudications rendered for 

eligibility for access to classified 

information, eligibility to hold a 

sensitive position, suitability, or fitness 

for Federal employment based on a 

NACI or higher level investigation may 

result in a concurrent CAC decision for 

that position. 

(h) Favorable credentialing 

adjudications from another Federal 

department or agency will be 

reciprocally accepted in accordance 

with conditions stated in the procedural 

guidance in this part. Reciprocity must 

be based on final favorable adjudication 

only. 

(i) CAC applicants or holders may 

appeal CAC denial or revocation in 

accordance with the conditions stated in 

the procedural guidance in this part. 

Appeals must be processed as indicated 

in the procedural guidance in this part. 

(j) Non-U.S. nationals at foreign 

locations are not eligible to receive a 

CAC on an interim basis. Special 

considerations for conducting 

background investigations of non-U.S. 

nationals are addressed in U.S. OPM 

Memorandum, ‘‘Final Credentialing 

Standards for Issuing Personal Identity 

Verification Cards Under HSPD–12.’’ An 

interim CAC may be issued to non-U.S. 

nationals in the U.S. or U.S. territories 

if they have resided in the U.S. or U.S. 

territory for at least 3 years, and they 

satisfy the requirements of paragraph (e) 

of this section and paragraph 

(a)(4)(ii)(A) of § 157.6. 

(k) Individuals who have been denied 

a CAC or have had a CAC revoked due 

to an unfavorable credentialing 

determination are eligible to reapply for 

a credential 1 year after the date of final 

adjudicative denial or revocation. 

(l) Individuals with a statutory or 

regulatory bar are not eligible for 

reconsideration while under debarment, 

see paragraph (d)(6) of § 157.6. 

(m) The Deputy Secretary of Defense 

directed all reports of investigations 

conducted as required for compliance 

with Homeland Security Presidential 


asabaliauskas on DSK5VPTVN1PROD with RULES
55626 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 

Directive-12, ‘‘Policy for a Common 

Identification Standard for Federal 

Employees and Contractors’’ (available 

at http://www.dhs.gov/homelandsecurity-presidential-directive-12) to be 

sent to the consolidated DoD Central 

Adjudications Facility. 

(n) When eligibility is denied or 

revoked, CACs shall be recovered 

whenever practicable, and shall 

immediately be rendered inoperable. In 

addition, agencies’ physical and logical 

access systems shall be immediately 

updated to eliminate the use of a CAC 

for access. 

§ 157.5 Responsibilities. 

(a) The USD(I) must: 

(1) 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 adjudication 

procedures to support CAC 

credentialing decisions in accordance 

with DoD Manual 1000.13, Volume 1, 

‘‘DoD Identification (ID) Cards; ID Card 

Life-Cycle’’; U.S. Office of Personnel 

Management Memorandum, ‘‘Final 

Credentialing Standards for Issuing 

Personal Identity Verification Cards 

Under HSPD–12’’; U.S. Office of 

Personnel Management Memorandum, 

‘‘Introduction of Credentialing, 

Suitability, and Security Clearance 

Decision-Making Guide; Office of 

Management and Budget Memorandum 

M–05–24, ‘‘Implementation of 

Homeland Security Presidential 

Directive (HSPD) 12—Policy for a 

Common Identification Standard for 

Federal Employees and Contractors’’ 

(available at http://

www.whitehouse.gov/sites/default/files/

omb/memoranda/fy2005/m05-24.pdf); 

U.S. Office of Personnel Management 

Federal Investigations Notice Number 

06–04, ‘‘HSPD 12—Advanced 

Fingerprint Results’’ (available at 

http://www.opm.gov/extra/investigate/

FIN06_04.pdf); Homeland Security 

Presidential Directive-12, ‘‘Policy for a 

Common Identification Standard for 

Federal Employees and Contractors’’; 5 

U.S.C. 552, 552a and 7313; Federal 

Information Processing Standards 

Publication 201–2, ‘‘Personal Identity 

Verification (PIV) of Federal Employees 

and Contractors’’ (available at http://

csrc.nist.gov/publications/

PubsFIPS.html); Executive Order 13467, 

‘‘Reforming Processes Related to 

Suitability for Government 

Employment, Fitness for Contractor 

Employees, and Eligibility for Access to 

Classified National Security 

Information’’; Executive Order 13488, 

‘‘Granting Reciprocity on Excepted 

Service and Federal Contractor 

Employee Fitness and Reinvestigating 

Individuals in Positions of Public 

Trust’’; 15 U.S.C. 278g–3; 40 U.S.C. 

11331; and U.S. Office of Personnel 

Management Federal Investigations 

Notice Number 10–05, ‘‘Reminder to 

Agencies of the Standards for Issuing 

Identity Credentials Under HSPD–12’’ 

(available at http://www.opm.gov/

investigate/fins/2010/fin10-05.pdf) for 

issuing a CAC to Service members and 

DoD civilian personnel. 

(2) In coordination with the Under 

Secretary of Defense for Acquisition, 

Technology, and Logistics (USD(AT&L)) 

and the GC, DoD, establish adjudication 

procedures to support a CAC 

credentialing decision for contractors in 

accordance with the terms of applicable 

contracts and the references cited in 

paragraph (a)(1) of this section, the 

Federal Acquisition Regulation 

(available at http://

www.acquisition.gov/far/current/pdf/

FAR.pdf), and the Defense Federal 

Acquisition Regulation Supplement 

(available at http://www.acq.osd.mil/

dpap/dars/dfarspgi/current/

index.html). 

(3) Issue, interpret, and clarify CAC 

investigative and adjudicative guidance 

in coordination with the Suitability 

Executive Agent as necessary. 

(b) The USD(P&R) must, in 

coordination with the GC, DoD, 

implement CAC PSI and adjudication 

procedures established herein as 

necessary to support issuance of a CAC 

to Service members and DoD civilian 

personnel in accordance with the 

references cited in paragraph (a)(1) of 

this section. 

(c) The USD(AT&L) must, in 

coordination with the GC, DoD, 

implement CAC PSI and adjudication 

procedures established by the USD(I) for 

contractors in accordance with the 

terms of applicable contracts and the 

references cited in paragraph (a)(1) of 

this section, Federal Acquisition 

Regulation, current edition; and Defense 

Federal Acquisition Regulation 

Supplement, current edition. 

(d) The GC, DoD must: 

(1) Provide advice and guidance as to 

the legal sufficiency of procedures and 

standards involved in adjudicating CAC 

investigations. 

(2) Perform functions relating to the 

DoD Homeland Security Presidential 

Directive (HSPD)–12 Program in 

accordance with DoD Directive 5220.6, 

‘‘Defense Industrial Personnel Security 

Clearance Review Program’’ (available at 

http://www.dtic.mil/whs/directives/

corres/pdf/522006p.pdf) and DoD 

Directive 5145.01, ‘‘General Counsel of 

the Department of Defense’’ (available at 

http://www.dtic.mil/whs/directives/

corres/pdf/514501p.pdf) including 

maintenance and oversight of the 

Defense Office of Hearings and Appeals 

(DOHA) and its involvement in 

contractor CAC revocations as specified 

in paragraph (b)(6)(i)(B) of § 157.6 of 

this part. 

(3) Coordinate on USD(P&R) 

implementation of CAC PSI and 

adjudication procedures, in accordance 

with the references cited in paragraph 

(a)(1) of this section, for Service 

members and DoD civilian personnel, 

and USD(AT&L) implementation of 

USD(I) procedures for CAC PSI and 

adjudication in accordance with the 

terms of applicable contracts and the 

references cited in paragraph (a)(1) of 

this section, Federal Acquisition 

Regulation and Defense Federal 

Acquisition Regulation Supplement. 

(e) The Heads of the DoD Components 

must: 

(1) Comply with and implement this 

part. 

(2) Provide resources for PSIs, 

adjudication, appeals, and recording of 

final adjudicative results in a 

centralized database. 

(3) Require individuals sponsored for 

a CAC to meet eligibility requirements 

stated in DTM 08–003. 

(4) Provide appeals boards for those 

individuals appealing CAC denial or 

revocation as specified in paragraph 

(b)(6)(i)(A) of § 157.6. 

(5) Enforce requirements for reporting 

of derogatory information, unfavorable 

administrative actions, and adverse 

actions to personnel security, HR, and 

counterintelligence official(s), as 

appropriate. 

(6) Require all PSIs submitted for nonDoD personnel to be supported by and 

comply with DoD PIV procedures in 

contracts that implement requirements 

of paragraphs 4.1303 and 52.204–9 of 

Federal Acquisition Regulation, current 

edition. 

(7) Require all investigations and 

adjudications required for non-DoD 

personnel to be in response to a current, 

active contract or agreement and that 

the number of personnel submitted for 

investigation and adjudication does not 

exceed the specific requirements of that 

contract or agreement while ensuring 

compliance with HSPD–12. 

§ 157.6 Procedures. 

(a) CAC Investigative Procedures— (1) 

Investigative Requirements. (i) A 

personnel security investigation (NACI 

or greater) completed by an authorized 

ISP is required to support a CAC 

credentialing determination based on 

the established credentialing standards 

promulgated by OPM Memorandum, 

‘‘Final Credentialing Standards for 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 55627 

Issuing Personal Identity Verification 

Cards Under HSPD–12’’. 

(ii) 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. 

(iii) 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. 

(2) Submission of Investigations. 

Investigative packages must be 

submitted promptly by HR or security 

personnel to the authorized ISP. 

Fingerprints for CAC applicants must be 

taken by HR or security personnel. DoD 

Components using the OPM as the ISP 

may request advanced fingerprint check 

results in accordance with OPM Federal 

Investigations Notice Number 06–04. 

(3) Reciprocity. (i) The sponsoring 

Component must not re-adjudicate CAC 

determinations for individuals 

transferring from another Federal 

department or agency, provided: 

(A) The individual’s former 

department or agency verifies 

possession of a valid PIV. 

(B) The individual has undergone the 

required NACI or other equivalent (or 

greater) suitability or national security 

investigation and received favorable 

adjudication from the former 

department or agency. 

(C) There is no break in service 2 

years or more and the individual has no 

actionable information since the date of 

the last completed investigation. 

(ii) Interim CAC determinations are 

not eligible to be transferred or 

reciprocally accepted. Reciprocity must 

be based on final favorable adjudication 

only. 

(4) Foreign (Non-U.S.) Nationals. DoD 

Components must apply the 

credentialing process and standards in 

this part to non-U.S. nationals who 

work as employees or contractor 

employees for the DoD. However, 

special considerations apply to non-U.S. 

nationals. 

(i) At Foreign Locations. (A) DoD 

Components must initiate and ensure 

completion of a background 

investigation before applying the 

credentialing standards to a non-U.S. 

national at a foreign location. The 

background investigation must be 

favorably adjudicated before a CAC can 

be issued to a non-U.S. national at a 

foreign location. The type of background 

investigation may vary based on 

standing reciprocity treaties concerning 

identity assurance and information 

exchanges that exist between the U.S. 

and its allies or agency agreements with 

the host country. 

(B) The investigation of a non-U.S. 

national at a foreign location must be 

consistent with a NACI, to the extent 

possible, and include a fingerprint 

check against the FBI criminal history 

database, an FBI investigations files 

(name check) search, and a name check 

against the terrorist screening database. 

(ii) At U.S.-Based Locations and in 

U.S. Territories (Other than American 

Samoa and Commonwealth of the 

Northern Mariana Islands). (A) 

Individuals who are non-U.S. nationals 

in the United States or U.S. territory for 

3 years or more must have a NACI or 

equivalent investigation initiated after 

employment authorization is 

appropriately verified. 

(B) Non-U.S. nationals who have been 

in the United States or U.S. territory for 

less than 3 years do not meet the 

investigative requirements for CAC 

issuance. DoD Components may delay 

the background investigation of a NonU.S. national who has been in the U.S. 

or U.S. territory for less than 3 years 

until the individual has been in the 

United States or U.S. territory for at 

least 3 years. In the event of such a 

delay, an alternative facility access 

identity credential may be issued at the 

discretion of the relevant DoD 

Component official, as appropriate 

based on a risk determination in 

accordance with DoD 5200.08–R, 

‘‘Physical Security Program’’ (available 

at http://www.dtic.mil/whs/directives/

corres/pdf/520008r.pdf) and U.S. Office 

of Personnel Management 

Memorandum, ‘‘Final Credentialing 

Standards for Issuing Personal Identity 

Verification Cards Under HSPD–12.’’ 

(C) The U.S. territories of American 

Samoa and the Commonwealth of the 

Northern Mariana Islands are not 

included in the ‘‘United States’’ as 

defined by the Immigration and 

Nationality Act of 1952, as amended 

(Pub. L. 82–414). 

(5) Investigations Acceptable for CAC 

Adjudication. A list of investigations 

acceptable for CAC adjudication is 

located in the Table. These 

investigations are equivalent to or 

greater than a NACI. This list will be 

updated by the USD(I) as revisions to 

the Federal investigative standards are 

implemented. 

TABLE—FAVORABLY ADJUDICATED INVESTIGATIONS ACCEPTABLE FOR CAC ADJUDICATION

Investigation Description 

ANACI ........................ Access National Agency Check and Inquires. 

BGI–0112 .................. Upgrade Background Investigation (1–12 months from LBI). 

BGI–1336 .................. Upgrade Background Investigation (13–36 months from LBI). 

BGI–3760 .................. Upgrade Background Investigation (37–60 months from LBI). 

BI ............................... Background Investigation. 

BIPN .......................... Background Investigation plus Current National Agency Check. 

BIPR .......................... Periodic Reinvestigation of Background Investigation. 

BITN .......................... Background Investigation (10 year scope). 

CNCI .......................... Child Care National Agency Check plus Written Inquires and Credit. 

IBI .............................. Interview Oriented Background Investigation. 

LBI ............................. Limited Background Investigation. 

LBIP ........................... Limited Background Investigation plus Current National Agency Check. 

LBIX ........................... Limited Background Investigation—Expanded. 

MBI ............................ Moderate Risk Background Investigation. 

MBIP .......................... Moderate Risk Background Investigation plus Current National Agency Check. 

MBIX .......................... Moderate Risk Background Investigation—Expanded. 

NACB ......................... National Agency Check/National Agency Check plus Written Inquires and Credit Check plus Background Investigation 

Requested. 

NACI .......................... National Agency Check and Inquires. 

NACLC ...................... National Agency Check with Law and Credit. 

NACS ......................... National Agency Check/National Agency Check plus Written Inquires and Credit Check plus Single Scope B.I. Requested. 

NACW ........................ National Agency Check plus Written Inquires and Credit. 


asabaliauskas on DSK5VPTVN1PROD with RULES
55628 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 

TABLE—FAVORABLY ADJUDICATED INVESTIGATIONS ACCEPTABLE FOR CAC ADJUDICATION—Continued 

Investigation Description 

NACZ ......................... National Agency Check plus Written Inquires and Credit plus Special Investigative Inquiry. 

NLC ........................... National Agency Check, Local Agency Check and Credit. 

NNAC ........................ National Agency Check plus Written Inquires and Credit Plus Current National Agency Check. 

NSI ............................. NSI—NACI/Suitability Determination. 

PRI ............................. Periodic Reinvestigation. 

PRS ........................... Periodic Reinvestigation Secret. 

PRSC ......................... Periodic Reinvestigation Secret or Confidential. 

PPR ........................... Phased Periodic Reinvestigation. 

SPR ........................... Secret Periodic Reinvestigation. 

SSBI .......................... Single Scope Background Investigation. 

SSBI–PR ................... Periodic Reinvestigation for SSBI. 

(b) CAC Adjudicative Procedures.—(1) 

Guidance for Applying Credentialing 

Standards During Adjudication. (i) As 

established in Homeland Security 

Presidential Directive–12, credentialing 

adjudication considers whether or not 

an individual is eligible for long-term 

access to Federally controlled facilities 

and/or information systems. The 

ultimate determination to authorize, 

deny, or revoke the CAC based on a 

credentialing determination of the PSI 

must be made after consideration of 

applicable credentialing standards in 

OPM Memorandum, ‘‘Final 

Credentialing Standards for Issuing 

Personal Identity Verification Cards 

Under HSPD–12.’’ 

(ii) Each case is unique. Adjudicators 

must examine conditions that raise an 

adjudicative concern, the overriding 

factor for all of these conditions is 

unacceptable risk. Factors to be applied 

consistently to all information available 

to the adjudicator are: 

(A) The nature and seriousness of the 

conduct. The more serious the conduct, 

the greater the potential for an adverse 

CAC determination. 

(B) The circumstances surrounding 

the conduct. Sufficient information 

concerning the circumstances of the 

conduct must be obtained to determine 

whether there is a reasonable basis to 

believe the conduct poses a risk to 

people, property or information 

systems. 

(C) The recency and frequency of the 

conduct. More recent or more frequent 

conduct is of greater concern. 

(D) The individual’s age and maturity 

at the time of the conduct. Offenses 

committed as a minor are usually 

treated as less serious than the same 

offenses committed as an adult, unless 

the offense is very recent, part of a 

pattern, or particularly heinous. 

(E) Contributing external conditions. 

Economic and cultural conditions may 

be relevant to the determination of 

whether there is a reasonable basis to 

believe there is an unacceptable risk if 

the conditions are currently removed or 

countered (generally considered in cases 

with relatively minor issues). 

(F) The absence or presence of efforts 

toward rehabilitation, if relevant, to 

address conduct adverse to CAC 

determinations. 

(1) Clear, affirmative evidence of 

rehabilitation is required for a favorable 

adjudication (e.g., seeking assistance 

and following professional guidance, 

where appropriate; demonstrating 

positive changes in behavior and 

employment). 

(2) Rehabilitation may be a 

consideration for most conduct, not just 

alcohol and drug abuse. While formal 

counseling or treatment may be a 

consideration, other factors (such as the 

individual’s employment record) may 

also be indications of rehabilitation. 

(iii) CAC adjudicators must 

successfully complete formal training 

through a DoD CAC adjudicator course 

from the Defense Security Service 

Center for Development of Security 

Excellence or a course approved by the 

Suitability Executive Agent. 

(2) Credentialing Standards. HSPD–12 

credentialing standards contained in 

OPM Memorandum, ‘‘Final 

Credentialing Standards for Issuing 

Personal Identity Verification Cards 

Under HSPD–12’’ must be used to 

render a final determination whether to 

issue or revoke a CAC based on results 

of a qualifying PSI. 

(i) Basic Standards. CAC 

credentialing standards and the 

adjudicative guidelines described in 

paragraph (c) of this section are 

designed to guide the adjudicator who 

must determine, based on results of a 

qualifying PSI, whether CAC issuance is 

consistent with the basic standards, 

would create an unacceptable risk for 

the U.S. Government, or would provide 

an avenue for terrorism. 

(ii) Supplemental Standards. The 

supplemental standards are intended to 

ensure that the issuance of a CAC to an 

individual does not create unacceptable 

risk. The supplemental credentialing 

standards must be applied, in addition 

to the basic credentialing standards. In 

this context, an unacceptable risk refers 

to an unacceptable risk 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, including 

classified, privileged, proprietary, 

financial, or medical records; or to the 

privacy of data subjects. 

The supplemental credentialing 

standards, in addition to the basic 

credentialing standards, must be used 

for CAC adjudication of individuals 

who are not also subject to the following 

types of adjudication: 

(A) Eligibility to hold a sensitive 

position or for access to classified 

information, 

(B) Suitability for Federal 

employment in the competitive service, 

or 

(C) Qualification for Federal 

employment in the excepted service. 

(3) Application of the Standards. (i) 

CAC credentialing standards shall be 

applied to all DoD civilian employees, 

Service members, and contractors who 

are CAC eligible, have been sponsored 

by a DoD entity, and require: (a) 

Physical access to DoD facilities or nonDoD facilities on behalf of DoD; (b) 

logical access to information systems 

(whether on site or remotely); or (c) 

remote access to DoD networks that use 

only the CAC logon for user 

authentication. 

(ii) If an individual is found 

unsuitable for competitive civil service 

consistent with 5 CFR part 731, 

ineligible for access to classified 

information pursuant to E.O. 12968, or 

disqualified from appointment in the 

excepted service or from working on a 

contract, the unfavorable decision may 

be sufficient basis for non-issuance or 

revocation of a CAC, but does not 

necessarily mandate this result. 

(4) Adjudication. The CAC 

adjudicators will consider the 

information provided by the CAC PSI in 

rendering a CAC credentialing 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 55629 

determination. The determination will 

be unfavorable if there is a reasonable 

basis to conclude that a disqualifying 

factor in accordance with the basic CAC 

credentialing standards is substantiated, 

or when there is a reasonable basis to 

conclude that derogatory information or 

conduct relating to supplemental CAC 

credentialing standards presents an 

unacceptable risk for the U.S. 

Government. 

(i) If a DoD Component or DOHA 

proposes to deny or revoke a CAC under 

conditions other than those cited in 

paragraph (b)(3)(ii) of this section, the 

DoD Component or DOHA, as 

appropriate in accordance with 

paragraph (b)(6)(i) of this section, must 

issue the individual a written statement 

(also known as a letter of denial (LOD) 

or revocation (LOR)) identifying the 

disqualifying condition(s). The 

statement must contain a summary of 

the concerns and supporting adverse 

information, instructions for 

responding, and copies of the relevant 

CAC credentialing standards and 

adjudicative guidelines from this 

section. The written LOD or LOR must 

be as comprehensive and detailed as 

permitted by the requirements of 

national security and to protect sources 

that were granted confidentiality, and as 

allowed pursuant to provisions of 5 

U.S.C. 552 and 552a. (Section 552a is 

also known and hereinafter referred to 

as ‘‘The Privacy Act of 1974, as 

amended.’’) 

(ii) The individual may elect to 

respond in writing to the DoD 

Component or DOHA, as appropriate, 

within 30 calendar days from the date 

of the LOD or LOR. Failure to respond 

to the LOD or LOR will result in 

automatic CAC denial or revocation. 

(iii) When, subsequent to issuance of 

an interim or final CAC, the U.S. 

Government receives credible 

information that raises questions as to 

whether a current CAC holder continues 

to meet the applicable credentialing 

standards, the DoD Component may 

reconsider the credentialing 

determination using the procedures in 

this part. 

(5) Denial or Revocation. (i) DoD 

Components must deny or revoke a CAC 

if the individual fails to respond to the 

LOD or LOR within the specified timeframe or the response to the written 

statement has not provided a basis to 

reverse the decision. 

(ii) Denial or revocation of a CAC 

must comply with applicable governing 

laws and regulations: 

(A) The U.S. Coast Guard shall afford 

individuals appeal rights as established 

in applicable Department of Homeland 

Security and U.S. Coast Guard 

Issuances. 

(B) CAC provides Service members 

with Geneva Convention protection in 

accordance with DoD Instruction 

1000.1, ‘‘Identification (ID) Cards 

Required by the Geneva Conventions’’ 

(available at http://www.dtic.mil/whs/

directives/corres/pdf/100001p.pdf), and 

authorized benefits (e.g. medical) and 

must not be revoked or denied pursuant 

to the provisions of this part. CAC for 

Military Service members will be 

surrendered only upon separation, 

discharge, or retirement. 

(C) In certain instances a CAC 

provides other benefits or specific 

privileges to civilian employees (e.g. 

medical, post exchange and 

commissary) when assigned overseas 

long-term; or protected status to civilian 

employees and contractors who are 

accompanying U.S. forces during 

overseas deployments in accordance 

with DoD Instruction 1000.1. CAC for 

DoD civilians or contractors in this 

circumstance will not be revoked 

pursuant to the provisions of this part, 

but may be surrendered as part of other 

adverse employment or contracting 

actions or procedures. 

(iii) When eligibility is denied or 

revoked, the CAC shall be recovered 

whenever practicable, and shall 

immediately be rendered inoperable. In 

addition, agency’s physical and logical 

access systems shall immediately be 

updated to eliminate the use of the CAC 

for access. 

(6) Appeals. (i) Individuals who have 

been denied a CAC or have had a CAC 

revoked due to an unfavorable 

credentialing determination must be 

entitled to appeal the determination in 

accordance with the following 

procedures: 

(A) Except as stated in paragraph 

(b)(6)(ii) of this section, new civilian 

and contractor applicants who have 

been denied a CAC may elect to appeal 

to a three member board composed of 

not more than one security 

representative and one human resources 

representative. 

(B) Contractor employees who have 

had their CAC revoked may appeal the 

unfavorable determination to the DOHA 

in accordance with the established 

administrative process set out in DoD 

Directive 5220.6. 

(ii) This appeal process does not 

apply when a CAC is denied or revoked 

as a result of either an unfavorable 

suitability determination consistent 

with 5 CFR part 731 or a decision to 

deny or revoke eligibility for access to 

classified information or eligibility for a 

sensitive national security position, 

since the person is already entitled to 

seek review in accordance with 

applicable suitability or national 

security procedures. Likewise, there is 

no right to appeal when the decision to 

deny the CAC is based on the results of 

a separate determination to disqualify 

the person from an appointment in the 

excepted service or to bar the person 

from working for or on behalf of a 

Federal department or agency. 

(iii) The DoD Component will notify 

the individual in writing of the final 

determination and provide a statement 

that this determination is not subject to 

further appeal. 

(7) Recording Final Determination. 

Immediately following final 

adjudication, the sponsoring activity 

must record the final eligibility 

determination (e.g., active, revoked, 

denied) in the OPM Central Verification 

System as directed by OPM 

Memorandum, ‘‘Final Credentialing 

Standards for Issuing Personal Identity 

Verification Cards Under HSPD–12.’’ 

DoD Component records will document 

the adjudicative rationale. Adjudicative 

records shall be made available to 

authorized recipients as required for 

appeal purposes. 

(c) Basic Adjudicative Standards. (1) 

A CAC will not be issued to a person if 

the individual is known to be or 

reasonably suspected of being a 

terrorist. 

(i) A CAC must not be issued to a 

person if the individual is known to be 

or reasonably suspected of being a 

terrorist. Individuals entrusted with 

access to Federal property and 

information systems must not put the 

U.S. Government at risk or provide an 

avenue for terrorism. 

(ii) Therefore, conditions that may be 

disqualifying include evidence that the 

individual has knowingly and willfully 

been involved with reportable domestic 

or international terrorist contacts or 

foreign intelligence entities, 

counterintelligence activities, 

indicators, or other behaviors described 

in DoD Directive 5240.06, 

‘‘Counterintelligence Awareness and 

Reporting (CIAR)’’ (available at http://

www.dtic.mil/whs/directives/corres/pdf/

524006p.pdf). 

(2) A CAC will not be issued to a 

person if the employer is unable to 

verify the individual’s claimed identity. 

(i) A CAC must not be issued to a 

person if the DoD component is unable 

to verify the individual’s claimed 

identity. To be considered eligible for a 

CAC, the individual’s identity must be 

clearly authenticated. The CAC must 

not be issued when identity cannot be 

authenticated. 

(ii) Therefore, conditions that may be 

disqualifying include: 


asabaliauskas on DSK5VPTVN1PROD with RULES
55630 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 

(A) The individual claimed it was not 

possible to provide two identity source 

documents from the list of acceptable 

documents in Form I–9, Office of 

Management and Budget No. 1115– 

0136, ‘‘Employment Eligibility 

Verification,’’(available at http://

www.uscis.gov/files/form/i-9.pdf) or 

provided only one identity source 

document from the list of acceptable 

documents. 

(B) The individual did not appear in 

person as required by Federal 

Information Processing Standards 

Publication 201–2. 

(C) The individual refused to 

cooperate with the documentation and 

investigative requirements to validate 

his or her identity. 

(D) The investigation failed to confirm 

the individual’s claimed identity. 

(iii) No conditions can mitigate 

inability to verify the applicant’s 

identity. 

(3) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe the individual has submitted 

fraudulent information concerning his 

or her identity. 

(i) A CAC must not be issued to a 

person if there is a reasonable basis to 

believe the individual has submitted 

fraudulent information concerning his 

or her identity in an attempt to obtain 

the current credential. 

(A) Substitution occurred in the 

identity proofing process; the individual 

who appeared on one occasion was not 

the same person that appeared on 

another occasion. 

(B) The fingerprints associated with 

the identity do not belong to the person 

attempting to obtain a CAC. 

(ii) No conditions can mitigate 

submission of fraudulent information in 

an attempt to obtain a current 

credential. 

(4) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe the individual will attempt to 

gain unauthorized access to classified 

documents, information protected by 

the Privacy Act, information that is 

proprietary in nature, or other sensitive 

or protected information. 

(i) Individuals must comply with 

information-handling regulations and 

rules. Individuals must properly handle 

classified and protected information 

such as sensitive or proprietary 

information. 

(ii) Individuals should not attempt to 

gain unauthorized access to classified 

documents or other sensitive or 

protected information. Unauthorized 

access to U.S. Government information 

or improper use of U.S. Government 

information once access is granted may 

pose a significant risk to national 

security, may compromise individual 

privacy, and may make public 

information that is proprietary in 

nature, thus compromising the 

operations and missions of Federal 

agencies. 

(iii) A CAC must not be issued if there 

is a reasonable basis to believe the 

individual will attempt to gain 

unauthorized access to classified 

documents, information protected by 

the Privacy Act of 1974, as amended, 

information that is proprietary in 

nature, or other sensitive or protected 

information. 

(iv) Therefore, conditions that may be 

disqualifying include any attempt to 

gain unauthorized access to classified, 

sensitive, proprietary or other protected 

information. 

(v) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) Since the time of the last act or 

activities, the person has demonstrated 

a favorable change in behavior. 

(B) The behavior happened so long 

ago, was minor, or happened under 

such unusual circumstances that it is 

unlikely to recur and does not cast 

doubt on the individual’s ability to 

safeguard protected information. 

(5) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe the individual will use an 

identity credential outside the 

workplace unlawfully or 

inappropriately. 

(i) A CAC must not be issued to a 

person if there is a reasonable basis to 

believe the individual will use an 

identity credential outside the 

workplace unlawfully or 

inappropriately. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) Documented history of fraudulent 

requests for credentials or other official 

documentation. 

(B) Previous incidents in which the 

individual used credentials or other 

official documentation to circumvent 

rules or regulations. 

(C) A history of incidents involving 

misuse of credentials that put physical 

assets or personal property at risk. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The behavior happened so long 

ago, was minor, or happened under 

such unusual circumstances that it is 

unlikely to recur and does not cast 

doubt on the individual’s ability and 

willingness to use credentials lawfully 

and appropriately. 

(6) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe the individual will use 

Federally-controlled information 

systems unlawfully, make unauthorized 

modifications to such systems, corrupt 

or destroy such systems, or engage in 

inappropriate uses of such systems. 

(i) Individuals must comply with 

rules, procedures, guidelines, or 

regulations pertaining to information 

technology systems and properly protect 

sensitive systems, networks, and 

information. The individual should not 

attempt to use federally-controlled 

information systems unlawfully, make 

unauthorized modifications, corrupt or 

destroy, or engage in inappropriate uses 

of such systems. A CAC must not be 

issued to a person if there is a 

reasonable basis to believe the 

individual will do so or has done so in 

the past. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) Illegal, unauthorized, or 

inappropriate use of an information 

technology system or component. 

(B) Unauthorized modification, 

destruction, manipulation of 

information, software, firmware, or 

hardware to corrupt or destroy 

information technology systems or data. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The behavior happened so long 

ago, was minor, or happened under 

such unusual circumstances that it is 

unlikely to recur and does not cast 

doubt on the individual’s ability and 

willingness to conform to rules and 

regulations for use of information 

technology systems. 

(d) Supplemental Adjudicative 

Standards. (1) A CAC will not be issued 

to a person if there is a reasonable basis 

to believe, based on the individual’s 

misconduct or negligence in 

employment, that issuance of a CAC 

poses an unacceptable risk. 

(i) An individual’s employment 

misconduct or negligence may put 

people, property, or information 

systems at risk. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) A previous history of intentional 

wrongdoing on the job, disruptive, 

violent, or other acts that may pose an 

unacceptable risk to people, property, or 

information systems. 

(B) A pattern of dishonesty or rule 

violations in the workplace which put 

people, property or information at risk. 

(C) A documented history of misusing 

workplace information systems to view, 

download, or distribute pornography. 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 55631 

(D) Violation of written or recorded 

commitments to protect information 

made to an employer, such as breach(es) 

of confidentiality or the release of 

proprietary or other information. 

(E) Failure to comply with rules or 

regulations for the safeguarding of 

classified, sensitive, or other protected 

information. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The behavior happened so long 

ago, was minor, or happened under 

such unusual circumstances that it is 

unlikely to recur and does not cast 

doubt on the individual’s current 

trustworthiness or good judgment 

relating to the safety of people and 

proper safeguarding of property and 

information systems. 

(B) The individual was not adequately 

warned that the conduct was 

unacceptable and could not reasonably 

be expected to know that the conduct 

was wrong. 

(C) The individual made prompt, 

good-faith efforts to correct the 

behavior. 

(D) The individual responded 

favorably to counseling or remedial 

training and has since demonstrated a 

positive attitude toward the discharge of 

information-handling or security 

responsibilities. 

(2) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe, based on the individual’s 

criminal or dishonest conduct, that 

issuance of a CAC poses an 

unacceptable risk. 

(i) An individual’s conduct involving 

questionable judgment, lack of candor, 

dishonesty, or unwillingness to comply 

with rules and regulations can raise 

questions about his or her reliability or 

trustworthiness and may put people, 

property, or information systems at risk. 

An individual’s past criminal or 

dishonest conduct may put people, 

property, or information systems at risk. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) A single serious crime or multiple 

lesser offenses which put the safety of 

people at risk or threaten the protection 

of property or information. A person’s 

convictions for burglary may indicate 

that granting a CAC poses an 

unacceptable risk to the U.S. 

Government’s physical assets and to 

employees’ personal property on a U.S. 

Government facility. 

(B) Charges or admission of criminal 

conduct relating to the safety of people 

and proper protection of property or 

information systems, regardless of 

whether the person was formally 

charged, formally prosecuted, or 

convicted. 

(C) Dishonest acts (e.g., theft, 

accepting bribes, falsifying claims, 

perjury, forgery, or attempting to obtain 

identity documentation without proper 

authorization). 

(D) Deceptive or illegal financial 

practices such as embezzlement, 

employee theft, check fraud, income tax 

evasion, expense account fraud, filing 

deceptive loan statements, or other 

intentional financial breaches of trust. 

(E) Actions involving violence or 

sexual behavior of a criminal nature that 

poses an unacceptable risk if access is 

granted to federally-controlled facilities 

or federally-controlled information 

systems. For example, convictions for 

sexual assault may indicate that 

granting a CAC poses an unacceptable 

risk to the life and safety of persons on 

U.S. Government facilities. 

(F) Financial irresponsibility may 

raise questions about the individual’s 

honesty and put people, property or 

information systems at risk, although 

financial debt should not in and of itself 

be cause for denial. 

(G) Deliberate omission, concealment, 

or falsification of relevant facts or 

deliberately providing false or 

misleading information to an employer, 

investigator, security official, competent 

medical authority, or other official U.S. 

Government representative, particularly 

when doing so results in personal 

benefit or which results in a risk to the 

safety of people and proper safeguarding 

of property and information systems. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The behavior happened so long 

ago, was minor in nature, or happened 

under such unusual circumstances that 

it is unlikely to recur. 

(B) Charges were dismissed or 

evidence was provided that the person 

did not commit the offense and details 

and reasons support his or her 

innocence. 

(C) Improper or inadequate advice 

from authorized personnel or legal 

counsel significantly contributed to the 

individual’s omission, of information. 

When confronted, the individual 

provided an accurate explanation and 

made prompt, good-faith effort to 

correct the situation. 

(D) Evidence has been supplied of 

successful rehabilitation, including but 

not limited to remorse or restitution, job 

training or higher education, good 

employment record, constructive 

community involvement, or passage of 

time without recurrence. 

(3) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe, based on the individual’s 

material, intentional false statement, 

deception, or fraud in connection with 

Federal or contract employment, that 

issuance of a CAC poses an 

unacceptable risk. 

(i) The individual’s conduct involving 

questionable judgment, lack of candor, 

or unwillingness to comply with rules 

and regulations can raise questions 

about an individual’s honesty, 

reliability, trustworthiness, and put 

people, property, or information 

systems at risk. 

(ii) Therefore, conditions that may be 

disqualifying include material, 

intentional falsification, deception or 

fraud related to answers or information 

provided during the employment 

process for the current or a prior Federal 

or contract employment (e.g., on the 

employment application or other 

employment, appointment or 

investigative documents, or during 

interviews.) 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The misstated or omitted 

information was so long ago, was minor, 

or happened under such unusual 

circumstances that it is unlikely to 

recur. 

(B) The misstatement or omission was 

unintentional or inadvertent and was 

followed by a prompt, good-faith effort 

to correct the situation. 

(4) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe, based on the nature or duration 

of the individual’s alcohol abuse 

without evidence of substantial 

rehabilitation, that issuance of a CAC 

poses an unacceptable risk. 

(i) An individual’s abuse of alcohol 

may put people, property, or 

information systems at risk. Alcohol 

abuse can lead to the exercise of 

questionable judgment or failure to 

control impulses, and may put people, 

property, or information systems at risk, 

regardless of whether he or she is 

diagnosed as an abuser of alcohol or 

alcohol dependent. A person’s longterm abuse of alcohol without evidence 

of substantial rehabilitation may 

indicate that granting a CAC poses an 

unacceptable safety risk in a U.S. 

Government facility. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) A pattern of alcohol-related 

arrests. 

(B) Alcohol-related incidents at work, 

such as reporting for work or duty in an 


asabaliauskas on DSK5VPTVN1PROD with RULES
55632 Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 

intoxicated or impaired condition, or 

drinking on the job. 

(C) Current continuing abuse of 

alcohol. 

(D) Failure to follow any court order 

regarding alcohol education, evaluation, 

treatment, or abstinence. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The individual acknowledges his 

or her alcoholism or issues of alcohol 

abuse, provides evidence of actions 

taken to overcome this problem, and has 

established a pattern of abstinence (if 

alcohol dependent) or responsible use 

(if an abuser of alcohol). 

(B) The individual is participating in 

counseling or treatment programs, has 

no history of previous treatment or 

relapse, and is making satisfactory 

progress. 

(C) The individual has successfully 

completed inpatient or outpatient 

counseling or rehabilitation along with 

any required aftercare. He or she has 

demonstrated a clear and established 

pattern of modified consumption or 

abstinence in accordance with treatment 

recommendations, such as participation 

in an alcohol treatment program. The 

individual has received a favorable 

prognosis by a duly qualified medical 

professional or a licensed clinical social 

worker who is a staff member of a 

recognized alcohol treatment program. 

(5) A CAC will not be issued to a 

person if there is a reasonable basis to 

believe, based on the nature or duration 

of the individual’s illegal use of 

narcotics, drugs, or other controlled 

substances without evidence of 

substantial rehabilitation, that issuance 

of a CAC poses an unacceptable risk. 

(i) An individual’s abuse of drugs may 

put people, property, or information 

systems at risk. Illegal use of narcotics, 

drugs, or other controlled substances, to 

include abuse of prescription or overthe-counter drugs, can raise questions 

about his or her trustworthiness, or 

ability or willingness to comply with 

laws, rules, and regulations. For 

example, a person’s long-term illegal 

use of narcotics without evidence of 

substantial rehabilitation may indicate 

that granting a CAC poses an 

unacceptable safety risk in a U.S. 

Government facility. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) Current or recent illegal drug use, 

serious narcotic, or other controlled 

substance offense. 

(B) A pattern of drug-related arrests or 

problems in employment. 

(C) Illegal drug possession, including 

cultivation, processing, manufacture, 

purchase, sale, or distribution of illegal 

drugs, or possession of drug 

paraphernalia. 

(D) Diagnosis by a duly qualified 

medical professional (e.g., physician, 

clinical psychologist, or psychiatrist) of 

drug abuse or drug dependence. 

(E) Evaluation of drug abuse or drug 

dependence by a licensed clinical social 

worker who is a staff member of a 

recognized drug treatment program. 

(F) Failure to successfully complete a 

drug treatment program prescribed by a 

duly qualified medical professional. 

(G) Any illegal drug use after formally 

agreeing to comply with rules or 

regulations prohibiting drug use. 

(H) Any illegal use or abuse of 

prescription or over-the-counter drugs. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The behavior happened so long 

ago, was so infrequent, or happened 

under such circumstances that it is 

unlikely to recur (e.g., clear, lengthy 

break since last use; strong evidence the 

use will not occur again). 

(B) A demonstrated intent not to 

abuse any drugs in the future, such as: 

(1) Abstaining from drug use. 

(2) Disassociating from drug-using 

associates and contacts. 

(3) Changing or avoiding the 

environment where drugs were used. 

(C) Abuse of prescription drugs 

followed a severe or prolonged illness 

during which these drugs were 

prescribed and abuse has since ended. 

(D) Satisfactory completion of a 

prescribed drug treatment program, 

including but not limited to 

rehabilitation and aftercare 

requirements without recurrence of 

abuse, and a favorable prognosis by a 

duly qualified medical professional. 

(6) A CAC will not be issued to a 

person if a statutory or regulatory bar 

prevents the individual’s contract 

employment; or would prevent Federal 

employment under circumstances that 

furnish a reasonable basis to believe that 

issuance of a CAC poses an 

unacceptable risk. 

(i) The purpose of this standard is to 

verify whether there is a bar on contract 

employment, and whether the contract 

employee is subject to a Federal 

employment debarment for reasons that 

also pose an unacceptable risk in the 

contracting context. For example, a 

person’s 5-year bar on Federal 

employment based on a felony 

conviction related to inciting a riot or 

civil disorder, as specified in 5 U.S.C. 

7313, may indicate that granting a CAC 

poses an unacceptable risk to persons, 

property, and assets in U.S. Government 

facilities. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) A debarment was imposed by 

OPM, DoD, or other Federal agencies 

when the conduct poses an 

unacceptable risk to people, property, or 

information systems. 

(B) The suitability debarment was 

based on the presence of serious 

suitability issues when the conduct 

poses an unacceptable risk to people, 

property, or information systems. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) Applicant proves the reason(s) for 

the debarment no longer exists. 

(B) The debarment is job or positionspecific and is not applicable to the job 

currently under consideration. 

(7) A CAC will not be issued to a 

person if the individual has knowingly 

and willfully engaged in acts or 

activities designed to overthrow the U.S. 

Government by force. 

(i) Individuals entrusted with access 

to U.S. Government property and 

information systems must not put the 

U.S. Government at risk. 

(ii) Therefore, conditions that may be 

disqualifying include: 

(A) Illegal involvement in, support of, 

training to commit, or advocacy of any 

act of sabotage, espionage, treason or 

sedition against the United States of 

America. 

(B) Association or agreement with 

persons who attempt to or commit any 

of the acts in paragraph (d)(7)(ii)(A) of 

this section with the specific intent to 

further those unlawful aims. 

(C) Association or agreement with 

persons or organizations that advocate, 

threaten, or use force or violence, or use 

any other illegal or unconstitutional 

means in an effort to overthrow or 

influence the U.S. Government. 

(iii) Circumstances relevant to the 

determination of whether there is a 

reasonable basis to believe there is an 

unacceptable risk include: 

(A) The behavior happened so long 

ago, was minor, or happened under 

such unusual circumstances that it is 

unlikely to recur and does not cast 

doubt on the individual’s current 

trustworthiness. 

(B) The person was not aware of the 

person’s or organization’s dedication to 

illegal, treasonous, or seditious 

activities or did not have the specific 

intent to further the illegal, treasonous, 

or seditious ends of the person or 

organization. 

(C) The individual did not have the 

specific intent to incite others to 


asabaliauskas on DSK5VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Rules and Regulations 55633 

1All comments received in response to the NPRM 

can be found on the Copyright Office’s Web site at 

http://copyright.gov/rulemaking/recordationpractices/docket2014-4/comments/. 2See Motion Picture Ass’n of Am., Inc., 

Comments Submitted in Response to U.S. Copyright 

Office’s July 16, 2014 Notice of Proposed 

Rulemaking (Aug. 15, 2014) (‘‘MPAA Comments’’); 

Barbara Jones-Binns, Comments Submitted in 

Response to U.S. Copyright Office’s July 16, 2014 

Notice of Proposed Rulemaking (Aug. 15, 2014). 

3Author Services, Inc., Comments Submitted in 

Response to U.S. Copyright Office’s July 16, 2014 

Notice of Proposed Rulemaking (Aug. 11, 2014). 

4Recording Industry Ass’n of Am., Inc., 

Comments Submitted in Response to U.S. Copyright 

Office’s July 16, 2014 Notice of Proposed 

Rulemaking (Aug. 15, 2014) (‘‘RIAA Comments’’). 

The Office received an additional comment 

regarding return receipts for electronic deposits 

submitted as part of registration, an issue that is 

outside the scope of this rulemaking. 

advocate, threaten, or use force or 

violence, or use any other illegal or 

unconstitutional means to engage in 

illegal, treasonous, or seditious 

activities. 

(D) The individual’s involvement in 

the activities was for an official purpose. 

Dated: September 11, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–22034 Filed 9–16–14; 8:45 am] 

BILLING CODE 5001–06–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 201 

[Docket No. 2014–04] 

Changes to Recordation Practices 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Final rule. 

SUMMARY: The U.S. Copyright Office is 

amending its regulations for the 

recordation of copyright transfers and 

other documents. The rule is intended 

to reduce the amount of time the Office 

requires to process certain types of 

documents submitted for recordation 

and help to alleviate remitter concerns 

regarding the receipt of documents for 

processing. To these ends, the revised 

regulations encourage remitters to 

include a cover sheet with the 

documents they submit for processing; 

allow remitters to submit long title lists 

in electronic format; and provide 

remitters with the option to request 

return receipts that acknowledge that 

the Office has received a submission. 

DATES: Effective October 17, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline C. Charlesworth, General 

Counsel and Associate Register of 

Copyrights, by email at jcharlesworth@

loc.gov or by telephone at 202–707– 

8350; or Sarang V. Damle, Special 

Advisor to the General Counsel, by 

email at sdam@loc.gov or by telephone 

at 202–707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On July 16, 2014, the Copyright Office 

published a Notice of Proposed 

Rulemaking (‘‘NPRM’’) setting forth 

proposed regulatory amendments 

designed to speed processing of 

documents submitted for recordation 

under section 205 of title 17 of the 

United States Code. See 79 FR 41470. 

The NPRM encompassed three 

recommended changes to the Office’s 

recordation regulations. First, the NPRM 

proposed amending the regulations to 

reflect the fact that the Office has 

created a Recordation Document Cover 

Sheet (Form DCS) to assist with the 

processing of documents submitted for 

recordation under section 205. As the 

NPRM explained, remitters are not 

required to use Form DCS unless they 

are requesting a return receipt, but use 

of the form is encouraged to facilitate 

better recordkeeping and 

communication between the Office and 

remitters. Id. at 41471. Second, the 

NPRM proposed a rule to permit (but 

not require) the submission of electronic 

lists of titles of copyrighted works 

associated with remitted documents, 

where such lists include 100 or more 

titles. Id. at 41471–72. The NPRM noted 

that submission of lengthy title lists in 

electronic format would speed 

processing of documents by eliminating 

the need for manual transcription of 

titles into the Office’s Public Catalog. Id. 

at 41471. Third, the NPRM specified a 

procedure by which a remitter could 

receive a return receipt indicating that 

the Office had received a document 

submitted for recordation. Id. at 41472. 

Five comments were received in 

response to the NPRM.1 The Motion 

Picture Association of America, Inc. 

(‘‘MPAA’’) and Barbara Jones-Binns 

endorsed the proposed amendments in 

full, and had no further suggestions.2

Author Services, Inc., also supported 

the proposed rule, but stated it would be 

interested if, as a ‘‘next step,’’ the Office 

would ‘‘move towards being able to 

submit the titles of documents 

electronically for less than 100 titles.’’ 3

Finally, the Recording Industry 

Association of America, Inc. (‘‘RIAA’’) 

submitted comments that were largely 

supportive of the proposed rule, but 

contained three substantive concerns 

that are addressed in more detail 

below.4

II. Final Rule 

No commenter opposed the 

provisions of the proposed rule relating 

to Form DCS (section 201.4(b)) or the 

procedures for obtaining a return receipt 

(section 201.4(f)). Accordingly, those 

provisions of the proposed rule are 

adopted in the final rule without 

alteration. 

With respect to the proposed rule for 

submission of electronic title lists, 

commenters universally endorsed the 

basic approach of allowing remitters to 

file electronic lists of 100 or more titles, 

and expressed no concerns regarding 

the format or submission requirements 

for electronic title lists. For example, the 

RIAA ‘‘commend[ed] the Office for its 

proposal’’ and ‘‘agree[d] that [it] should 

relieve the Office of some of the burden 

of cataloging recordations of copyright 

documents involving large numbers of 

titles and expedite the processing of 

such documents.’’ RIAA Comments at 2. 

With respect to the suggestion of 

Author Services, Inc. that the Office 

consider allowing submission of 

electronic title lists containing fewer 

than 100 titles as a ‘‘next step,’’ at this 

time the Office finds that ‘‘electronic 

submission will prove more efficient 

only when indexing 100 or more titles,’’ 

79 FR at 41472. This view is based on 

the fact that, when a document pertains 

to 100 or fewer titles, the Office can 

create the basic record of the document 

and manually transcribe all of the titles 

in a single sitting, and make the record 

immediately available in the Public 

Catalog. As a result, while use of an 

electronic title list is expected to result 

in a much shorter turnaround time than 

manual processing of documents 

pertaining to 100 or more titles, the 

same cannot be said with respect to 

documents pertaining to fewer than 100 

titles. 

The RIAA offered three substantive 

comments on the proposed rule for 

submission of electronic title lists. First, 

it expressed concern with the rule’s 

specification that remitters would be 

legally responsible for errors in the 

electronic title lists. RIAA Comments at 

2–5. Second, it urged the Office to 

implement a process of quality control 

checks for electronic title lists. Id. at 2. 

Third, and finally, it suggested that the 

Office specify a mechanism for 

correction of errors in electronic title 

lists. Id. at 5. We address each comment 

in turn. 

1. Remitter Responsibility for 

Inaccuracies in Electronic Title Lists 

The RIAA disagreed with the 

proposed rule’s specification that 

remitters would bear the legal 


asabaliauskas on DSK5VPTVN1PROD with RULES