Department of Defense Personnel Security Program (PSP)

SUMMARY: This rule updates policies and responsibilities for the Department of Defense (DoD) Personnel Security Program (PSP) in accordance with the provisions of current U.S. Code, Public Laws, and Executive Orders (E.O.). This rule establishes policy and assigns responsibilities related to the operation of the DoD PSP, including investigative and adjudicative policy for determining eligibility to hold a national security position. This rule also establishes investigative and adjudicative policy for the Department's personal identity verification (PIV) credential.

EFFECTIVE DATE: Effective Date: This rule is effective May 1, 2014.

FOR FURTHER INFORMATION CONTACT: Dr. Kelly Buck, (703) 604-1130.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose and Legal Authority for This Rule

This rule updates policies, assigns responsibilities, and prescribes procedures for the Department of Defense (DoD) Personnel Security Program (PSP) in accordance with the provisions of current U.S. Code, Public Laws, and Executive Orders (E.O.). This rule establishes PSP policy related to the operation of the DoD PSP, including investigative and adjudicative policy for determining eligibility to hold national security positions. This rule also establishes Homeland Security Presidential Directive (HSPD)-12 investigative and adjudicative policy for the Department's personal identity verification (PIV) credential. Legal authorities for this rule are E.O. 12968, as amended; E.O. 10450, as amended; E.O. 10865, as amended; E.O. 13526; E.O. 12829, as amended; E.O. 13467; E.O. 13488; E.O. 12333, as amended; 5 U.S.C. 301 and 7532; section 1072 of Public Law 110-181, as amended; 15 U.S.C. 278g-3; 40 U.S.C. section 11331; 10 U.S.C. 1564; 50 U.S.C.; 3343; 5 CFR parts 731, 732 and 736, and Homeland Security Presidential Directive (HSPD)-12.

II. Summary of Major Provisions of This Rule

The DoD Directive (DoDD) 5200.2, Personnel Security Program (PSP), codified at 32 CFR Part 156, was issued April 9, 1999. The Department is reissuing the DoD Directive as a DoD Instruction to update existing policy regarding operation of the DoD Personnel Security Program and to establish new policy implementing HSPD-12.

The updated policy incorporates Joint Security and Suitability Reform Team efforts to revise Executive branch-wide policy and procedures needed to implement reform. The Intelligence Reform and Terrorism Prevention Act of 2004, E.O. 13467, E.O. 12968, as amended, E.O. 10865, and HSPD-12 are some of the current Federal laws, directives and statutes that affect the DoD PSP. Since this rule was last published, additional executive orders have been issued directing alignment of security, suitability and reciprocal acceptance of prior investigations and determinations.

The procedural guidance for the DoD PSP is currently being updated and will subsequently be proposed as a rule codified at 32 CFR Part 154. The investigative and adjudication procedural guidance for the DoD Federal PIV credential pursuant HSPD-12 is undergoing coordination and will also be proposed a separate rule.

III. Costs and Benefits of This Rule

This is an update to an existing rule regarding personnel security investigative and adjudicative policy and implements new department policy related to HSPD-12. The personnel security program has no discernable increase in anticipated costs and benefits as the program is being updated to conform to current national security guidance. The latter dealing with HSPD-12 is an unfunded mandate. However, this rule does not increase costs; rather it implements the requirements of HSPD-12 in the most efficient and effective manner possible by ensuring uniform implementation. The benefits inherent to both the personnel security and HSPD-12 programs enhance security as directed by the Intelligence Reform and Terrorism Prevention Act of 2004 and subsequent implementing policies.

Public Comments

The Department of Defense (DoD) published a proposed rule on February 2, 2011 (76 FR 5729). One comment was received and is addressed below:

Comment: Given the increasing use of DNA (deoxyribonucleic acid) as an investigatory tool by federal, state, and local law enforcement agencies, the DoD should consider requiring applicants to provide a DNA sample. That provided DNA sample would be profiled and compared to available databases. This would help insure that no applicant for a clearance is a subject of an active federal, state, or local criminal investigation based on DNA evidence.

This would achieve the same end as the current collection of fingerprints from applicants that are run against Federal Bureau of Investigation databases. However, the additional use of DNA would recognize the greater prevalence of DNA evidence in criminal investigations.

I do note that DNA is distinctly different from fingerprints in that a search of databases may produce a result that does not link to the DoD clearance applicant but could instead provide a linkage to a familial relative of the applicant. This secondary issue would have to be examined by DoD and the legal community.

I also believe other federal agencies with similar personnel security programs should consider the collection of DNA samples from applicants to insure appropriate reciprocity of clearances between those agencies and DoD.

DoD Response: The Federal Government is looking into the feasibility of using biometric identifiers other than fingerprints in the security clearance process. However, any such requirement such as the suggested collection of DNA from clearance applicants would be covered in a separate rulemaking. As the comment correctly notes, such a policy would be best coordinated with the other federal agencies with personnel security programs to insure appropriate reciprocity of clearances between agencies.

Additional Changes by DoD: Other changes were made to the final rule from what was in the proposed due to additional coordination within the Department. These changes include:

(a) The title for SEC 156.5 has been changed from "Procedures-sensitive positions, duties, and classified access" to "National Security Positions" to incorporate the positions, duties, and access into one common phrase. The term is listed in the definitions section and its use in the part provides for ease of reading.

(b) Adjustments were made to the part to apply correct U.S. Code, Public Laws, or Executive Orders to the appropriate paragraph(s).

(c) Changes were made in the "Responsibilities" section to update the new title name for the Deputy Under Secretary of Defense for Intelligence and Security (previously known as the Deputy Under Secretary of Defense for HUMINT, Counterintelligence, and Security).

(d) Required responsibilities were also added for the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Under Secretary of Defense for Policy.

(e) Verbiage was added that prohibits the use of DoD adjudication systems of record for use as a pre-hiring tool. Additional language directs the removal of personnel from national security positions who have received unfavorable security determinations.

(f) Any other changes made to the part were made for ease and clarity of reading.

Regulatory Procedures

E.O. 12866, "Regulatory Planning and Review" and EO 13563, "Improving Regulation and Regulatory Review"

It has been certified that 32 CFR Part 156 does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

Section 202, Public Law 104-4, "Unfunded Mandates Reform Act"

It has been certified that 32 CFR Part 156 does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, "Regulatory Flexibility Act" (5 U.S.C. 601)

It has been certified that 32 CFR Part 156 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

Public Law 96-511, "Paperwork Reduction Act" (44 U.S.C. Chapter 35)

It has been certified that 32 CFR Part 156 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

E.O. 13132, "Federalism"

It has been certified that 32 CFR Part 156 does not have federalism implications, as set forth in E.O. 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

List of Subjects in 32 CFR Part 156

Government employees, Security measures.

Accordingly, 32 CFR Part 156 is revised to read as follows:

PART 156--DEPARTMENT OF DEFENSE PERSONNEL SECURITY PROGRAM (PSP)

Sec.

156.1 Purpose.

156.2 Applicability.

156.3 Policy.

156.4 Responsibilities.

--This is a summary of a Federal Register article originally published on the page number listed below--

Final rule.

CFR Part: "32 CFR Part 156"

RIN Number: "RIN 0790-AI42"

Citation: "79 FR 18161"

Document Number: "DOD-2008-OS-0160"

Federal Register Page Number: "18161"

"Rules and Regulations"