(a) To establish policies and procedures to ensure that acceptance and retention of personnel in the Armed Forces, acceptance and retention of civilian employees in the Department of Defense (DoD), and granting members of the Armed Forces, DoD civilian employees, DoD contractors, and other affiliated persons access to classified information are clearly consistent with the interests of national security.

(b) This part: (1) Establishes DoD personnel security policies and procedures;

(2) Sets forth the standards, criteria and guidelines upon which personnel security determinations shall be based;

(3) Prescribes the kinds and scopes of personnel security investigations required;

(4) Details the evaluation and adverse action procedures by which personnel security determinations shall be made; and

(5) Assigns overall program management responsibilities.

(a) This part implements the Department of Defense Personnel Security Program and takes precedence over all other departmental issuances affecting that program.

(b) All provisions of this part apply to DoD civilian personnel, members of the Armed Forces, excluding the Coast Guard in peacetime, contractor personnel and other personnel who are affiliated with the Department of Defense except that the unfavorable administrative action procedures pertaining to contractor personnel requiring access to classified information are contained in DoD 5220.22-R and in 32 CFR part 155.

(c) The policies and procedures which govern the National Security Agency are prescribed by Public Laws 88-290 and 86-36, Executive Orders 10450 and 12333, DoD Directive 5210.451 , Director of Central Intelligence Directive (DCID) 1/142 and regulations of the National Security Agency.

(d) Under combat conditions or other military exigencies, an authority in paragraph A, Appendix E, may waive such provisions of this part as the circumstances warrant.

(a) Access. The ability and opportunity to obtain knowledge of classified information. An individual, in fact, may have access to classified information by being in a place where such information is kept, if the security measures that are in force do not prevent him from gaining knowledge of such information.

(b) Adverse action. A removal from employment, suspension from employment of more than 14 days, reduction in grade, reduction in pay, or furlough of 30 days or less.

(c) Background Investigation (BI). A personnel security investigation consisting of both record reviews and interviews with sources of information as prescribed in paragraph 3, Appendix A, this part, covering the most recent 5 years of an individual's life or since the 18th birthday, whichever is shorter, provided that at least the last 2 years are covered and that no investigation will be conducted prior to an individual's 16th birthday.

(d) Classified information. Official information or material that requires protection in the interests of national security and that is classified for such purpose by appropriate classifying authority in accordance with the provisions of Executive Order 12356.

(e) Defense Clearance and Investigative Index (DCII). The DCII is the single, automated, central DoD repository which identifies investigations conducted by DoD investigative agencies, and personnel security determinations made by DoD adjudicative authorities.

(f) DoD component. Includes the Office of the Secretary of Defense; the Military Departments; Chairman of the Joint Chiefs of Staff; Directors of Defense Agencies and the Unified and Specified Commands.

(g) Entrance National Agency Check (ENTNAC). A personnel security investigation scoped and conducted in the same manner as a National Agency Check except that a technical fingerprint search of the files of the Federal Bureau of Investigation is not conducted.

(h) Head of DoD component. The Secretary of Defense; the Secretaries of the Military Departments; the Chairman of Joint Chiefs of Staff; and the Commanders of Unified and Specified Commands; and the Directors of Defense Agencies.

(i) Immigrant alien. Any alien lawfully admitted into the United States under an immigration visa for permanent residence.

(j) Interim security clearance. A security clearance based on the completion of minimum investigative requirements, which is granted on a temporary basis, pending the completion of the full investigative requirements.

(k) Limited access authorization. Authorization for access to Confidential or Secret information granted to non-US. citizens and immigrant aliens, which is limited to only that information necessary to the successful accomplishment of their assigned duties and based on a background investigation scoped for 10 years (paragraph 3, Appendix A).

(l) Minor derogatory information. Information that, by itself, is not of sufficient importance or magnitude to justify an unfavorable administrative action in a personnel security determination.

(m) National Agency check (NAC). A personnel security investigation consisting of a records review of certain national agencies as prescribed in paragraph 1, Appendix A, this part, including a technical fingerprint search of the files of the Federal Bureau of Investigation (FBI).

(n) National Agency Check Plus Written Inquiries (NACI). A personnel security investigation conducted by the Office of Personnel Management, combining a NAC and written inquiries to law enforcement agencies, former employers and supervisors, references and schools.

(o) National security. National security means the national defense and foreign relations of the United States.

(p) Need-to-know. A determination made by a possessor of classified information that a prospective recipient, in the interest of national security, has a requirement for access to, knowledge, or possession of the classified information in order to perform tasks or services essential to the fulfillment of an official U.S. Government program. Knowledge, possession of, or access to, classified information shall not be afforded to any individual solely by virtue of the individual's office, position, or security clearance.

(q) Periodic Reinvestigation (PR). An investigation conducted every five years for the purpose of updating a previously completed background investigation, special background investigation, single scope background investigation or PR on persons occupying positions referred to in § 154.19. Investigative requirements are as prescribed in appendix A to part 154, section 5. The period of investigation will not normally exceed the most recent 5-year period.

(r) Personnel Security Investigation (PSI). Any investigation required for the purpose of determining the eligibility of DoD military and civilian personnel, contractor employees, consultants, and other persons affiliated with the Department of Defense, for access to classified information, acceptance or retention in the Armed Forces, assignment or retention in sensitive duties, or other designated duties requiring such investigation. PSIs include investigations of affiliations with subversive organizations, suitability information, or hostage situations (see § 154.9(d)) conducted for the purpose of making personnel security determinations. They also include investigations of allegations that arise subsequent to adjudicative action and require resolution to determine an individual's current eligibility for access to classified information or assignment or retention in a sensitive position.

(s) Scope. The time period to be covered and the sources of information to be contacted during the prescribed course of a PSI.

(t) Security clearance. A determination that a person is eligible under the standards of this part for access to classified information.

(u) Senior Officer of the Intelligence Community (SOIC). The DoD Senior Officers of the Intelligence Community include: the Director, National Security Agency/Central Security Service; Director, Defense Intelligence Agency; Assistant Chief of Staff for Intelligence, U.S. Army; Assistant Chief of Staff for Intelligence, U.S. Air Force; and the Director of Naval Intelligence, U.S. Navy.

(v) Sensitive position. Any position so designated within the Department of Defense, the occupant of which could bring about, by virtue of the nature of the position, a materially adverse effect on the national security. All civilian positions are either critical-sensitive, noncritical-sensitive, or nonsensitive as described in § 154.13(b).

(w) Significant derogatory information. Information that could, in itself, justify an unfavorable administrative action, or prompt an adjudicator to seek additional investigation or clarification.

(x) Special access program. Any program imposing “need-to-know” or access controls beyond those normally provided for access to Confidential, Secret, or Top Secret information. Such a program may include, but not be limited to, special clearance, adjudication, investigative requirements, material dissemination restrictions, or special lists of persons determined to have a need-to-know.

(y) Special Background Investigation (SBI). A personnel security investigation consisting of all of the components of a BI plus certain additional investigative requirements as prescribed in paragraph 4, Appendix B, this part. The period of investigation for an SBI is the last 15 years or since the 18th birthday, whichever is shorter, provided that the last 2 full years are covered and that no investigation will be conducted prior to an individual's 16th birthday.

(z) Special Investigative Inquiry (SII). A supplemental personnel security investigation of limited scope conducted to prove or disprove relevant allegations that have arisen concerning a person upon whom a personnel security determination has been previously made and who, at the time of the allegation, holds a security clearance or otherwise occupies a position that requires a personnel security determination under the provisions of this part.

(aa) Service. Honorable active duty (including attendance at the military academies), membership in ROTC Scholarship Program, Army and Air Force National Guard, Military Reserve Force (including active status and ready reserve), civilian employment in Government service, or civilian employment with a DoD contractor or as a consultant involving access under the DoD Industrial Security Program. Continuity of service is maintained with change from one status to another as long as there is no single break in service greater than 12 months.

(bb) Unfavorable administrative action. Adverse action taken as the result of personnel security determinations and unfavorable personnel security determinations as defined in this part.

(cc) Unfavorable personnel security determination. A denial or revocation of clearance for access to classified information; denial or revocation of access to classified information; denial or revocation of a Special Access authorization (including access to SCI); nonappointment to or nonselection for appointment to a sensitive position; nonappointment to or nonselection for any other position requiring a trustworthiness determination under this part; reassignment to a position of lesser sensitivity or to a nonsensitive position; and nonacceptance for or discharge from the Armed Forces when any of the foregoing actions are based on derogatory information of personnel security significance.

(dd) United States Citizen (Native Born). A person born in one of the 50 United States, Puerto Rico, Guam, American Samoa, Northern Mariana Islands, U.S. Virgin Islands; or Panama Canal Zone (if the father or mother (or both) was or is, a citizen of the United States).

(a) General. Only U.S. citizens shall be granted a personnel security clearance, assigned to sensitive duties, or granted access to classified information unless an authority designated in Appendix E has determined that, based on all available information, there are compelling reasons in furtherance of the Department of Defense mission, including, special expertise, to assign an individual who is not a citizen to sensitive duties or grant a Limited Access Authorization to classified information. Non-U.S. citizens may be employed in the competitive service in sensitive civilian positions only when specifically approved by the Office of Personnel Management, pursuant to E.O. 11935. Exceptions to these requirements shall be permitted only for compelling national security reasons.

(b) Clearance and sensitive position standard. The personnel security standard that must be applied to determine whether a person is eligible for access to classified information or assignment to sensitive duties is whether, based on all available information, the person's loyalty, reliability, and trustworthiness are such that entrusting the person with classified information or assigning the person to sensitive duties is clearly consistent with the interests of national security.

(c) Military service standard. The personnel security standard that must be applied in determining whether a person is suitable under national security criteria for appointment, enlistment, induction, or retention in the Armed Forces is that, based on all available information, there is no reasonable basis for doubting the person's loyalty to the Government of the United States.

The ultimate decision in applying either of the security standards set forth in § 154.6 (b) and (c) must be an overall common sense determination based upon all available facts. The criteria for determining eligibility for a clearance under the security standard shall include, but not be limited to the following:

(a) Commission of any act of sabotage, espionage, treason, terrorism, anarchy, sedition, or attempts thereat or preparation therefor, or conspiring with or aiding or abetting another to commit or attempt to commit any such act.

(b) Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, terrorist, revolutionist, or with an espionage or other secret agent or similar representative of a foreign nation whose interests may be inimical to the interests of the United States, or with any person who advocates the use of force or violence to overthrow the Government of the United States or to alter the form of Government of the United States by unconstitutional means.

(c) Advocacy or use of force or violence to overthrow the Government of the United States or to alter the form of Government of the United States by unconstitutional means.

(d) Knowing membership with the specific intent of furthering the aims of, or adherence to and active participation in any foreign or domestic organization, association, movement, group or combination of persons (hereafter referred to as organizations) which unlawfully advocates or practices the commission of acts of force or violence to prevent others from exercising their rights under the Constitution or laws of the U.S. or of any State or which seeks to overthrow the Government of the U.S. or any State or subdivision thereof by unlawful means.

(e) Unauthorized disclosure to any person of classified information, or of other information, disclosure of which is prohibited by statute, Executive Order or regulation.

(f) Performing or attempting to perform one's duties, acceptance and active maintenance of dual citizenship, or other acts conducted in a manner which serve or which could be expected to serve the interests of another government in preference to the interests of the United States.

(g) Disregard of public law, statutes, Executive Orders or regulations including violation of security regulations or practices.

(h) Criminal or dishonest conduct.

(i) Acts of omission or commission that indicate poor judgment, unreliability or untrustworthiness.

(j) Any behavior or illness, including any mental condition, which, in the opinion of competent medical authority, may cause a defect in judgment or reliability with due regard to the transient or continuing effect of the illness and the medical findings in such case.

(k) Vulnerability to coercion, influence, or pressure that may cause conduct contrary to the national interest. This may be

(1) The presence of immediate family members or other persons to whom the applicant is bonded by affection or obligation in a nation (or areas under its domination) whose interests may be inimical to those of the United States, or

(2) Any other circumstances that could cause the applicant to be vulnerable.

(l) Excessive indebtedness, recurring financial difficulties, or unexplained affluence.

(m) Habitual or episodic use of intoxicants to excess.

(n) Illegal or improper use, possession, transfer, sale or addiction to any controlled or psychoactive substance, narcotic, cannabis or other dangerous drug.

(o) Any knowing and willful falsification, coverup, concealment, misrepresentation, or omission of a material fact from any written or oral statement, document, form or other representation or device used by the Department of Defense or any other Federal agency.

(p) Failing or refusing to answer or to authorize others to answer questions or provide information required by a congressional committee, court, or agency in the course of an official inquiry whenever such answers or information concern relevant and material matters pertinent to an evaluation of the individual's trustworthiness, reliability, and judgment.

(q) Acts of sexual misconduct or perversion indicative of moral turpitude, poor judgment, or lack of regard for the laws of society.

(a) General. The types of personnel security investigations authorized below vary in scope of investigative effort required to meet the purpose of the particular investigation. No other types are authorized. The scope of a PSI may be neither raised nor lowered without the approval of the Deputy Under Secretary of Defense for Policy.

(b) National Agency Check. Essentially, a NAC is a records check of designated agencies of the Federal Government that maintain record systems containing information relevant to making a personnel security determination. An ENTNAC is a NAC (scope as outlined in paragraph 1, Appendix A) conducted on inductees and first-term enlistees, but lacking a technical fingerprint search. A NAC is also an integral part of each BI, SBI, and Periodic Reinvestigation (PR). Subpart C prescribes when an NAC is required.

(c) National Agency Check plus written inquiries. The Office of Personnel Management (OPM) conducts a NAC plus Written Inquiries (NACIs) on civilian employees for all departments and agencies of the Federal Government, pursuant to E.O. 10450. NACIs are considered to meet the investigative requirements of this regulation for a nonsensitive or noncritical sensitive position and/or up to a Secret clearance and, in addition to the NAC, include coverage of law enforcement agencies, former employers and supervisors, references, and schools covering the last 5 years.

(d) DoD National Agency check plus written inquiries. DIS will conduct a DNACI, consisting of the scope contained in paragraph 2, Appendix A, for DoD military and contractor personnel for access to Secret information. Subpart C prescribes when a DNACI is required.

(e) Background investigation. The BI is the principal type of investigation conducted when an individual requires Top Secret clearance or is to be assigned to a critical sensitive position. The BI normally covers a 5-year period and consists of a subject interview, NAC, LACs, credit checks, developed character references (3), employment records checks, employment references (3), and select scoping as required to resolve unfavorable or questionable information. (See paragraph 3, Appendix A). Subpart C prescribes when a BI is required.

(f) Special background investigation. (1) An SBI is essentially a BI providing additional coverage both in period of time as well as sources of information, scoped in accordance with the provisions of DCID 1/14 but without the personal interview. While the kind of coverage provided for by the SBI determines eligibility for access to SCI, DoD has adopted this coverage for certain other Special Access programs. Subpart C prescribes when an SBI is required.

(2) The OPM, FBI, Central Intelligence Agency (CIA), Secret Service, and the Department of State conduct specially scoped BIs under the provisions of DCID 1/14. Any investigation conducted by one of the above-cited agencies under DCID 1/14 standards is considered to meet the SBI investigative requirements of this part.

(3) The detailed scope of an SBI is set forth in paragraph 4, Appendix A.

(g) Special investigative inquiry. (1) A Special Investigative Inquiry is a personnel security investigation conducted to prove or disprove allegations relating to the criteria outlined in § 154.7(a) of this part except current criminal activities (see § 154.9(c)(4)), that have arisen concerning an individual upon whom a personnel security determination has been previously made and who, at the time of the allegation, holds a security clearance or otherwise occupies a position that requires a trustworthiness determination.

(2) Special Investigative Inquiries are scoped as necessary to address the specific matters requiring resolution in the case concerned and generally consist of record checks and/or interviews with potentially knowledgeable persons. An SII may include an interview with the subject of the investigation when necessary to resolve conflicting information and/or to provide an opportunity to refute or mitigate adverse information.

(3) In those cases when there is a disagreement between Defense Investigative Service (DIS) and the requester as to the appropriate scope of the investigation, the matter may be referred to the Deputy Under Secretary of Defense for Policy for resolution.

(h) Periodic reinvestigation. As referred to in § 154.19(a) and other national directives, certain categories of duties, clearance, and access require the conduct of a PR every five years according to the scope outlined in paragraph 5, Appendix A. The PR scope applies to military, civilian, contractor, and foreign national personnel.

(i) Personal interview. Investigative experience over the years has demonstrated that, given normal circumstances, the subject of a personnel security investigation is the best source of accurate and relevant information concerning the matters under consideration. Further, restrictions imposed by the Privacy Act of 1974 dictate that Federal investigative agencies collect information to the greatest extent practicable directly from the subject when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs. Accordingly, personal interviews are an integral part of the DoD personnel security program and shall be conducted in accordance with the requirements set forth in the following paragraphs of this section.

(1) BI/PR. A personal interview shall be conducted by a trained DIS agent as part of each BI and PR.

(2) Resolving adverse information. A personal interview of the subject shall be conducted by a DIS agent (or, when authorized, by investigative personnel of other DoD investigative organizations designated in this Regulation to conduct personnel security investigations), when necessary, as part of each Special Investigative Inquiry, as well as during the course of initial or expanded investigations, to resolve or clarify any information which may impugn the subject's moral character, threaten the subject's future Federal employment, raise the question of subject's security clearability, or be otherwise stigmatizing.

(3) Hostage situation. A personal interview shall be conducted by a DIS agent (or, when authorized, by investigative personnel of other DoD investigative organizations designated in this Regulation to conduct personnel security investigations) in those instances in which an individual has immediate family members or other persons bound by ties of affection or obligation who reside in a nation whose interests are inimical to the interests of the United States. (See § 154.9(d).

(4) Applicants/potential nominees for DoD military or civilian positions requiring access to SCI or other positions requiring an SBI. A personal interview of the individual concerned shall be conducted, to the extent feasible, as part of the selection process for applicants/potential nominees for positions requiring access to SCI or completion of an SBI. The interview shall be conducted by a designee of the Component to which the applicant or potential nominee is assigned. Clerical personnel are not authorized to conduct these interviews. Such interviews shall be conducted utilizing resources in the order of priority indicated below:

(i) Existing personnel security screening systems (e.g., Air Force Assessment Screening Program, Naval Security Group Personnel Security Interview Program, U.S. Army Personnel Security Screening Program); or

(ii) Commander of the nominating organization or such official as he or she has designated in writing (e.g., Deputy Commander, Executive Officer, Security Officer, Security Manager, S-2, Counterintelligence Specialist, Personnel Security Specialist, or Personnel Officer); or

(iii) Agents of investigative agencies in direct support of the Component concerned.

(5) Administrative procedures. (i) The personal interview required by paragraph (i)(4) of this section shall be conducted in accordance with Appendix F.

(ii) For those investigations requested subsequent to the personal interview requirements of paragraph (i)(4) of this section the following procedures apply:

(A) The DD Form 1879 (Request for Personnel Security Investigation) shall be annotated under Item 20 (Remarks) with the statement “Personal Interview Conducted by (cite the duty assignment of the designated official (e.g., Commander, Security Officer, Personnel Security Specialist, etc.))” in all cases in which an SBI is subsequently requested.

(B) Unfavorable information developed through the personal interview required by paragraph (i)(4) of this section, will be detailed in a written report attached to the DD Form 1879 to include full identification of the interviewer. Failure to provide such information may result in conduct of an incomplete investigation by DIS.

(C) Whenever it is determined that it is not feasible to conduct the personal interview required by paragraph (i)(4) of this section prior to requesting the SBI, the DD Form 1879 shall be annotated under Item 20 citing the reason for not conducting the interview.

(j) Expanded investigation. If adverse or questionable information relevant to a security determination is developed during the conduct of a personnel security investigation, regardless of type, the investigation shall be expanded, consistent with the restrictions in § 154.10(e) to the extent necessary to substantiate or disprove the adverse or questionable information.

(a) General. The DIS provides a single centrally directed personnel security investigative service to conduct personnel security investigations within the 50 States, District of Columbia, and Commonwealth of Puerto Rico for DoD Components, except as provided for in DoD Directive 5100.23.1 DIS will request the Military Departments or other appropriate Federal Agencies to accomplish DoD investigative requirements in other geographic areas beyond their jurisdiction. No other DoD Component shall conduct personnel security investigations unless specifically authorized by the Deputy Under Secretary of Defense for Policy. In certain instances provided for below, the DIS shall refer an investigation to other investigative agencies.

(b) Subversive affiliations—(1) General. In the context of DoD investigative policy, subversion refers only to such conduct as is forbidden by the laws of the United States. Specifically, this is limited to information concerning the activities of individuals or groups that involve or will involve the violation of Federal law, for the purpose of:

(i) Overthrowing the Government of the United States or the government of a State;

(ii) Substantially impairing for the purpose of influencing U.S. Government policies or decisions:

(A) The functions of the Government of the United States, or

(B) The functions of the government of a State;

(iii) Depriving persons of their civil rights under the Constitution or laws of the United States.

(2) Military Department/FBI jurisdiction. Allegations of activities covered by § 154.7 (a) through (f) are in the exclusive investigative domain of either the counterintelligence agencies of the Military Departments or the FBI, depending on the circumstances of the case and the provisions of the Agreement Governing the Conduct of Defense Department Counterintelligence Activities in Conjunction with the FBI. Whenever allegations of this nature are developed, whether before or after a security clearance has been issued or during the course of a personnel security investigation conducted by DIS, they shall be referred immediately to either the FBI or to a military department counterintelligence agency, as appropriate.

(3) DIS jurisdiction. Allegations of activities limited to those set forth in § 154.7 (g) through (j) of this part shall be investigated by DIS.

(c) Suitability information—(1) General. Most derogatory information developed through personnel security investigations of DoD military or civilian personnel is so-called suitability information, that is, information pertaining to activities or situations covered by § 154.7 (g) through (q). Almost all unfavorable personnel security determinations made by DoD authorities are based on derogatory suitability information, although such information is often used as a basis for unfavorable administrative actions not of a security nature, such as action under the Uniform Code of Military Justice or removal from Federal employment under OPM regulations.

(2) Pre-clearance investigation. Derogatory suitability information, except that covered in paragraph (c)(4) of this section, developed during the course of a personnel security investigation, prior to the issuance of an individual's personnel security clearance, shall be investigated by DIS to the extent necessary to confirm or refute its applicability to § 154.7 (g) through (q).

(3) Postadjudication investigation. Derogatory suitability allegations, except those covered by paragraph (c)(4) of this section arising subsequent to clearance requiring investigation to resolve and to determine the individual's eligibility for continued access to classified information, reinstatement of clearance/access, or retention in a sensitive position shall be referred to DIS to conduct a Special Investigative Inquiry. Reinvestigation of individuals for adjudicative reconsideration due to the passage of time or evidence of favorable behavior shall also be referred to DIS for investigation. In such cases, completion of the appropriate statement of personal history by the individual constitutes consent to be investigated. Individual consent or completion of a statement of personal history is not required when § 154.19(b) applies. Postadjudication investigation of allegations of a suitability nature required to support other types of unfavorable personnel security determinations or disciplinary procedures independent of a personnel security determination shall be handled in accordance with applicable Component administrative regulations. These latter categories of allegations lie outside the DoD personnel security program and are not a proper investigative function for departmental counterintelligence organizations, Component personnel security authorities, or DIS.

(4) Allegations of criminal activity. Any allegations of conduct of a nature indicating possible criminal conduct, including any arising during the course of a personnel security investigation, shall be referred to the appropriate DoD, military department or civilian criminal investigative agency. Military department investigative agencies have primary investigative jurisdiction in cases where there is probable cause to believe that the alleged conduct will be the basis for prosecution under the Uniform Code of Military Justice.

(d) Hostage situations—(1) General. A hostage situation exists when a member of an individual's immediate family or such other person to whom the individual is bound by obligation or affection resides in a country whose interests are inimical to the interests of the United States. The rationale underlying this category of investigation is based on the possibility that an individual in such a situation might be coerced, influenced, or pressured to act contrary to the best interests of national security.

(2) DIS jurisdiction. In the absence of evidence of any coercion, influence or pressure, hostage investigations are exclusively a personnel security matter, rather than counterintelligence, and all such investigations shall be conducted by DIS.

(3) Military Department and/or FBI jurisdiction. Should indications be developed that hostile intelligence is taking any action specifically directed against the individual concerned—or should there exist any other evidence that the individual is actually being coerced, influenced, or pressured by an element inimical to the interests of national security—then the case becomes a counterintelligence matter (outside of investigative jurisdiction of DIS) to be referred to the appropriate military department or the FBI for investigation.

(e) Overseas personnel security investigations. Personnel security investigations requiring investigation overseas shall be conducted under the direction and control of DIS by the appropriate military department investigative organization. Only postadjudication investigations involving an overseas subject may be referred by the requester directly to the military department investigative organization having investigative responsibility in the overseas area concerned (see Appendix I) with a copy of the investigative request sent to DIS. In such cases, the military department investigative agency will complete the investigation, forward the completed report of investigation directly to DIS, with a copy to the requester.

(a) Authorized requesters and personnel security determination authorities. Personnel security investigations may be requested and personnel security clearances (including Special Access authorizations as indicated) granted only by those authorities designated in § 154.31 and Appendix E.

(b) Limit investigations and access. The number of persons cleared for access to classified information shall be kept to a minimum, consistent with the requirements of operations. Special attention shall be given to eliminating unnecessary clearances and requests for personnel security investigations.

(c) Collection of investigative data. To the greatest extent practicable, personal information relevant to security determinations shall be obtained directly from the subject of a personnel security investigation. Such additional information required to make the necessary personnel security determination shall be obtained as appropriate from knowledgeable personal sources, particularly the subject's peers, and through checks of relevant records including school, employment, credit, medical, and law enforcement records.

(d) Privacy Act notification. Whenever personal information is solicited from an individual preparatory to the initiation of a personnel security investigation, the individual must be informed of—

(1) The authority (statute or Executive order that authorized solicitation);

(2) The principal purpose or purposes for which the information is to be used;

(3) The routine uses to be made of the information;

(4) Whether furnishing such information is mandatory or voluntary;

(5) The effect on the individual, if any, of not providing the information and

(6) That subsequent use of the data may be employed as part of an aperiodic, random process to screen and evaluate continued eligibility for access to classified information.

(e) Restrictions on investigators. Investigation shall be carried out insofar as possible to collect only as much information as is relevant and necessary for a proper personnel security determination. Questions concerning personal and domestic affairs, national origin, financial matters, and the status of physical health thus should be avoided unless the question is relevant to the criteria of § 154.7. Similarly, the probing of a person's thoughts or beliefs and questions about conduct that have no personnel security implications are unwarranted. When conducting investigations under the provisions of this part, investigators shall:

(1) Investigate only cases or persons assigned within their official duties.

(2) Interview sources only where the interview can take place in reasonably private surroundings.

(3) Always present credentials and inform sources of the reasons for the investigation. Inform sources of the subject's accessibility to the information to be provided and to the identity of the sources providing the information. Restrictions on investigators relating to Privacy Act advisements to subjects of personnel security investigations are outlined in paragraph (d) of this section.

(4) Furnish only necessary identity data to a source, and refrain from asking questions in such a manner as to indicate that the investigator is in possession of derogatory information concerning the subject of the investigation.

(5) Refrain from using, under any circumstances, covert or surreptitious investigative methods, devices, or techniques including mail covers, physical or photographic surveillance, voice analyzers, inspection of trash, paid informants, wiretap, or eavesdropping devices.

(6) Refrain from accepting any case in which the investigator knows of circumstances that might adversely affect his fairness, impartiality, or objectivity.

(7) Refrain, under any circumstances, from conducting physical searches of the subject or his property.

(8) Refrain from attempting to evaluate material contained in medical files. Medical files shall be evaluated for personnel security program purposes only by such personnel as are designated by DoD medical authorities. However, review and collection of medical record information may be accomplished by authorized investigative personnel.

(f) Polygraph restrictions. The polygraph may be used as a personnel security screening measure only in those limited instances authorized by the Secretary of Defense in DoD Directive 5210.48.1

(a) Designation of sensitive positions. Certain civilian positions within the Department of Defense entail duties of such a sensitive nature, including access to classified information, that the misconduct, malfeasance, or nonfeasance of an incumbent in any such position could result in an unacceptably adverse impact upon the national security. These positions are referred to in this part as sensitive positions. It is vital to the national security that great care be exercised in the selection of individuals to fill such positions. Similarly, it is important that only positions which truly meet one or more of the criteria set forth in paragraph (b) of this section be designated as sensitive.

(b) Criteria for security designation of positions. Each civilian position within the Department of Defense shall be categorized, with respect to security sensitivity, as either nonsensitive, noncritical-sensitive, or critical-sensitive.

(1) The criteria to be applied in designating a position as sensitive are:

(i) Critical-sensitive.

(A) Access to Top Secret information.

(B) Development or approval of plans, policies, or programs that affect the overall operations of the Department of Defense or of a DoD Component.

(C) Development or approval of war plans, plans or particulars of future major or special operations of war, or critical and extremely important items of war.

(D) Investigative and certain investigative support duties, the issuance of personnel security clearances or access authorizations, or the making of personnel security determinations.

(E) Fiduciary, public contact, or other duties demanding the highest degree of public trust.

(F) Duties falling under Special Access programs.

(G) Category I automated data processing (ADP) positions.

(H) Any other position so designated by the head of the Component or designee.

(ii) Noncritical-sensitive.

(A) Access to Secret or Confidential information.

(B) Security police/provost marshal-type duties involving the enforcement of law and security duties involving the protection and safeguarding of DoD personnel and property.

(C) Category II automated data processing positions.

(D) Duties involving education and orientation of DoD personnel.

(E) Duties involving the design, operation, or maintenance of intrusion detection systems deployed to safeguard DoD personnel and property.

(F) Any other position so designated by the head of the Component or designee.

(2) All other positions shall be designated as nonsensitive.

(c) Authority to designate sensitive positions. The authority to designate sensitive positions is limited to those authorities designated in paragraph G, Appendix E. These authorities shall designate each position within their jurisdiction as to its security sensitivity and maintain these designations current vis-a-vis the specific duties of each position.

(d) Limitation of sensitive positions. It is the responsibility of those authorities authorized to designate sensitive positions to insure that only those positions are designated as sensitive that meet the criteria of paragraph (b) and (c) of this section that the designation of sensitive positions is held to a minimum consistent with mission requirements. Designating authorities shall maintain an accounting of the number of sensitive positions by category, i.e., critical or non-critical sensitive. Such information will be included in annual report required in subpart K.

(e) Billet control system for Top Secret. (1) To standardize and control the issuance of Top Secret clearances within the Department of Defense, a specific designated billet must be established and maintained for all DoD military and civilian positions requiring access to Top Secret information. Only persons occupying these billet positions will be authorized a Top Secret clearance. If an individual departs from a Top Secret billet to a billet/position involving a lower level clearance, the Top Secret clearance will be administratively rescinded. This Top Secret billet requirement is in addition to the existing billet structure maintained for SCI access.

(2) Each request to DIS for a BI or SBI that involves access to Top Secret or SCI information will require inclusion of the appropriate billet reference, on the request for investigation. Each Component head should in corporate, to the extent feasible, the Top Secret billet structure into the component Manpower Unit Manning Document. Such a procedure should minimize the time and effort required to maintain such a billet structure.

(3) A report on the number of established Top Secret billets will be submitted each year to the DUSD(P) as part of the annual clearance report referred to in subpart K.

(a) General. The appointment of each civilian employee in any DoD Component is subject to investigation, except for reappointment when the break in employment is less than 12 months. The type of investigation required is set forth in this section according to position sensitivity.

(b) Nonsensitive positions. In accordance with the OPM Federal Personnel Manual, a NACI shall be requested not later than 3 working days after a person is appointed to a nonsensitive position. Although there is normally no investigation requirement for per diem, intermittent, temporary or seasonal employees in nonsensitive positions provided such employment does not exceed an aggregate of 120 days in either a single continuous or series of appointments, a NAC may be requested of DIS where deemed appropriate by the employing activity.

(c) Noncritical-sensitive positions. (1) An NACI shall be requested and the NAC portion favorably completed before a person is appointed to a noncritical-sensitive position (for exceptions see paragraph (e) (1) and (2) of this section). An ENTNAC, NAC or DNACI conducted during military or contractor employment may also be used for appointment provided a NACI has been requested from OPM and there is no more than 12 months break in service since completion of the investigation.

(2) Seasonal employees (including summer hires) normally do not require access to classified information. For those requiring access to classified information the appropriate investigation is required. The request for the NAC (or NACI) should be submitted to DIS by entering “SH” (summer hire) in red letters approximately one inch high on the DD Form 398-2, Personnel Security Questionnaire (National Agency Checklist). Additionally, to ensure expedited processing by DIS, summer hire requests should be assembled and forwarded to DIS in bundles, when appropriate.

(d) Critical-sensitive positions. A BI shall be favorably completed prior to appointment to critical-sensitive positions (for exceptions see paragraph (e) (1) and (2) of this section. Certain critical-sensitive positions require a preappointment SBI in accordance with § 154.17. Preappointment BIs and SBIs will be conducted by DIS.

(e) Exceptions—(1) Noncritical-sensitive. In an emergency, a noncritical-sensitive position may be occupied pending the completion of the NACI if the head of the requesting organization finds that the delay in appointment would be harmful to the national security and such finding is reduced to writing and made part of the record. In such instances, the position may be filled only after the NACI has been requested.

(2) Critical-sensitive. In an emergency, a critical-sensitive position may be occupied pending completion of the BI (or SBI, as appropriate) if the head of the requesting organization finds that the delay in appointment would be harmful to the national security and such finding is reduced to writing and made a part of the record. In such instances, the position may be filled only when the NAC portion of the BI (or SBI) or a previous valid NACI, NAC or ENTNAC has been completed and favorably adjudicated.

(f) Mobilization of DoD civilian retirees. The requirements contained in paragraph (a) of this section, regarding the type of investigation required by position sensitivity for DoD civilian retirees temporary appointment when the break in employment is greater than 12 months, should either be expedited or waived for the purposes of mobilizing selected reemployed annuitants under the provisions of title 5, United States Code, depending upon the degree of sensitivity of the position to which assigned. Particular priority should be afforded to newly assigned personnel assigned to the defense intelligence and security agencies with respect to granting security clearances in an expeditious manner under paragraph (a) of this section.

(a) General. The appointment, enlistment, and induction of each member of the Armed Forces or their Reserve Components shall be subject to the favorable completion of a personnel security investigation. The types of investigation required are set forth in this section.

(b) Entrance investigation. (1) An ENTNAC shall be conducted on each enlisted member of the Armed Forces at the time of initial entry into the service. A DNACI shall be conducted on each commissioned officer, except as permitted by paragraph (d) of this section, warrant officer, cadet, midshipman, and Reserve Officers Training Candidate, at the time of appointment. A full NAC shall be conducted upon reentry of any of the above when there has been a break in service greater than 12 months.

(2) If an officer or warrant officer candidate has been the subject of a favorable NAC or ENTNAC and there has not been a break in service of more than 12 months, a new NAC is not authorized. This includes ROTC graduates who delay entry onto active duty pending completion of their studies.

(3) All derogatory information revealed during the enlistment or appointment process that results in a moral waiver will be fully explained on a written summary attached to the DD Form 398-2.

(c) Reserve Components and National Guard. Reserve Component and National Guard personnel not on active duty are subject to the investigative requirements of this section.

(d) Exceptions for certain commissioned officers of Reserve Components. The requirements for entrance investigation shall be rigidly adhered to except as follows. Health professionals, chaplains, and attorneys may be commissioned in the Reserve Components prior to completion of a DNACI provided that:

(1) A DNACI is initiated at the time an application for a commission is received; and

(2) The applying health professional, chaplain, or attorney agrees in writing that, if the results of the investigation are unfavorable, he or she will be subject to discharge if found to be ineligible to hold a commission. Under this exception, commissions in Reserve Components other than the National Guard may be tendered to immigrant alien health professionals, chaplains, and attorneys.

(e) Mobilization of military retirees. The requirements contained in paragraph (c) of this section, regarding a full NAC upon reentry to active duty of any officer or enlisted regular/reserve military retiree or Individual Ready Reserve who has been separated from service for a period of greater than 12 months, should be waived for the purposes of partial or full mobilization under provisions of title 10, (title 14, pertaining to the U.S. Coast Guard as an element of the Navy) U.S. Code, to include the period of prescribed service refresher training. Particular priority should be afforded to military retirees mobilized and assigned to the defense intelligence and security agencies communities.

(a) General. (1) The authorities designated in paragraph A, Appendix E are the only authorities authorized to grant, deny or revoke DoD personnel security clearances. The granting of such clearances shall be limited to only those persons who require access to classified information for mission accomplishment.

(2) Military, DoD civilian, and contractor personnel who are employed by or serving in a consultant capacity to the DoD, may be considered for access to classified information only when such access is required in connection with official duties. Such individuals may be granted either a final or interim personnel security clearance provided the investigative requirements set forth below are complied with, and provided further that all available information has been adjudicated and a finding made that such clearance would be clearly consistent with the interests of national security.

(b) Investigative requirements for clearance—(1) Top Secret. (i) Final Clearance:

(A) BI.

(B) Established billet per § 154.13(e) (1) through (3) (except contractors).

(ii) Interim Clearance:

(A) Favorable NAC, ENTNAC, DNACI, or NACI completed

(B) Favorable review of DD Form 398/SF-86/SF-171/DD Form 49

(C) BI or SBI has been initiated

(D) Favorable review of local personnel, base/military police, medical, and other security records as appropriate.

(E) Established billet per § 154.13(e) (1) through (3) (except contractors)

(F) Provisions of paragraph § 154.14(e) (1) and (2) have been met regarding civilian personnel.

(2) Secret. (i) Final Clearance:

(A) DNACI: Military (except first-term enlistees) and contractor employees

(B) NACI: Civilian employees

(C) ENTNAC: First-term enlistees

(ii) Interim Clearance:

(A) When a valid need to access Secret information is established, an interim Secret clearance may be issued in every case, provided that the steps outlined in paragraphs (b)(2)(ii) (B) through (E) of this section have been complied with.

(B) Favorable review of DD Form 398-2/SF-85/SF-171/DD Form 48.

(C) NACI, DNACI, or ENTNAC initiated.

(D) Favorable review of local personnel, base military police, medical, and security records as appropriate.

(E) Provisions of § 154.14(e) have been complied with regarding civilian personnel.

(3) Confidential. (i) Final Clearance:

(A) NAC or ENTNAC: Military and contractor employees (except for Philippine national members of the United States Navy on whom a BI shall be favorably completed.)

(B) NACI: Civilian employees (except for summer hires who may be granted a final clearance on the basis of a NAC).

(ii) Interim Clearance:

(A) Favorable review of DD Form 398-2/SF 85/SF 171/ DD Form 48.

(B) NAC, ENTNAC or NACI initiated.

(C) Favorable review of local personnel, base military police, medical, and security records as appropriate.

(D) Provisions of § 154.14(e) (1) and (2) have been complied with regarding civilian personnel.

(4) Validity of previously granted clearances. Clearances granted under less stringent investigative requirements retain their validity; however, if a higher degree of clearance is required, investigative requirements of this directive will be followed.

(c) Access to classified information by non-U.S. citizens. (1) Only U.S. citizens are eligible for a security clearance. Therefore, every effort shall be made to ensure that non-United States citizens are not employed in duties that may require access to classified information. However, when there are compelling reasons to grant access to classified information to an immigrant alien or a foreign national in furtherance of the mission of the Department of Defense, such individuals may be granted a “Limited Access Authorization” (LAA) under the following conditions:

(i) LAAs will be limited to Secret and Confidential level only; LAAs for Top Secret are prohibited.

(ii) Access to classified information is not inconsistent with that determined releasable by designated disclosure authorities, in accordance with DoD Directive 5230.111 to the country of which the individual is a citizen.

(iii) Access to classified information must be limited to information relating to a specific program or project.

(iv) Favorable completion of an BI (scoped for 10 years); where the full investigative coverage cannot be completed, a counterintelligence scope polygraph examination will be required in accordance with the provisions of DoD Directive 5210.48.

(v) Security clearances previously issued to immigrant aliens will be reissued as LAAs.

(vi) The Limited Access Authorization determination shall be made only by an authority designated in paragraph B, Appendix E.

(vii) LAAs issued by the Unified and Specified Commands shall be reported to the central adjudicative facility of the appropriate military department in accordance with the assigned responsibilities in DoD Directive 5100.31 for inclusion in the Defense Central Index of Investigation (DCII).

(2) In each case of granting a Limited Access Authorization, a record shall be maintained as to:

(i) The identity (including current citizenship) of the individual to whom the Limited Access Authorization is granted, to include name and date and place of birth;

(ii) Date and type of most recent investigation to include the identity of the investigating agency;

(iii) The nature of the specific program material(s) to which access is authorized (delineated as precisely as possible);

(iv) The classification level to which access is authorized; and

(v) The compelling reasons for granting access to the materials cited in (iii).

(vi) Status of the individual (i.e., immigrant alien or foreign national).

(3) Individuals granted LAAs under the foregoing provisions shall be the subject of a 5-year periodic reinvestigation as set forth in paragraph 5, Appendix A.

(4) Foreign nationals who are LAA candidates must agree to submit to a counterintelligence-scope polygraph examination prior to being granted access in accordance with DoD Directive 5210.48.

(5) If geographical and political situations prevent the full completion of the BI (and/or counterintelligence-scope polygraph) issuance of an LAA shall not be authorized; exceptions to the policy may only be authorized by the DUSD(P).

(6) A report on all LAAs in effect, including the data required in paragraphs (d)(2) (i) through (vi) of this section shall be furnished to the Deputy Under Secretary of Defense for Policy within 60 days after the end of each fiscal year. (See § 154.77).

(d) Access by persons outside the Executive Branch. (1) Access to classified information by persons outside the Executive Branch shall be accomplished in accordance with 32 CFR part 159. The investigative requirement shall be the same as for the appropriate level of security clearance, except as indicated below.

(2) Members of the U.S. Senate and House of Representatives do not require personnel security clearances. They may be granted access to DoD classified information which relates to matters under the jurisdiction of the respective Committees to which they are assigned and is needed to perform their duties in connection with such assignments.

(3) Congressional staff members requiring access to DoD classified information shall be processed for a security clearance in accordance with 32 CFR part 353 and the provisions of this part. The Director, Washington Headquarters Services (WHS) will initiate the required investigation (initial or reinvestigation) to DIS, adjudicate the results and grant, deny or revoke the security clearance, as appropriate. The Assistant Secretary of Defense (Legislative Affairs) will be notified by WHS of the completed clearance action.

(4) State governors do not require personnel security clearances. They may be granted access to specifically designated classified information, on a “need-to-know” basis, based upon affirmation by the Secretary of Defense or the head of a DoD Component or single designee, that access, under the circumstances, serves the national interest. Staff personnel of a governor's office requiring access to classified information shall be investigated and cleared in accordance with the prescribed procedures of this part when the head of a DoD Component, or single designee, affirms that such clearance serves the national interest. Access shall also be limited to specifically designated classified information on a “need-to-know” basis.

(5) Members of the U.S. Supreme Court, the Federal judiciary and the Supreme Courts of the individual States do not require personnel security clearances. They may be granted access to DoD classified information to the extent necessary to adjudicate cases being heard before these individual courts.

(6) Attorneys representing DoD military, civilian or contractor personnel, requiring access to DoD classified information to properly represent their clients, shall normally be investigated by DIS and cleared in accordance with the prescribed procedures in paragraph (b) of this section. This shall be done upon certification of the General Counsel of the DoD Component involved in the litigation that access to specified classified information, on the part of the attorney concerned, is necessary to adequately represent his or her client. In exceptional instances, when the exigencies of a given situation do not permit timely compliance with the provisions of § 154.16(b), access may be granted with the written approval of an authority designated in Appendix E provided that as a minimum: a favorable name check of the FBI and the DCII has been completed, and a DoD Non-Disclosure Agreement has been executed. In post-indictment cases, after a judge has invoked the security procedures of the Classified Information Procedures Act (CIPA) the Department of Justice may elect to conduct the necessary background investigation and issue the required security clearance, in coordination with the affected DoD Component.

(e) Restrictions on issuance of personnel security clearances. Personnel security clearances must be kept to the absolute minimum necessary to meet mission requirements. Personnel security clearances shall not be issued:

(1) To persons in nonsensitive positions.

(2) To persons whose regular duties do not require authorized access to classified information.

(3) For ease of movement of persons within a restricted, controlled, or industrial area, whose duties do not require access to classified information.

(4) To persons who may only have inadvertent access to sensitive information or areas, such as guards, emergency service personnel, firemen, doctors, nurses, police, ambulance drivers, or similar personnel.

(5) To persons working in shipyards whose duties do not require access to classified information.

(6) To persons who can be prevented from accessing classified information by being escorted by cleared personnel.

(7) To food service personnel, vendors and similar commercial sales or service personnel whose duties do not require access to classified information.

(8) To maintenance or cleaning personnel who may only have inadvertent access to classified information unless such access cannot be reasonably prevented.

(9) To persons who perform maintenance on office equipment, computers, typewriters, and similar equipment who can be denied classified access by physical security measures.

(10) To perimeter security personnel who have no access to classified information.

(11) To drivers, chauffeurs and food service personnel.

(f) Dual citizenship. Persons claiming both U.S. and foreign citizenship shall be processed under § 154.16(b) and adjudicated in accordance with the “Foreign Preference” standard in Appendix I.

(g) One-time access. Circumstances may arise where an urgent operational or contractual exigency exists for cleared DoD personnel to have one-time or short duration access to classified information at a higher level than is authorized by the existing security clearance. In many instances, the processing time required to upgrade the clearance would preclude timely access to the information. In such situations, and only for compelling reasons in furtherance of the DoD mission, an authority referred to in paragraph (h)(1) of this section, may grant higher level access on a temporary basis subject to the terms and conditions prescribed below. This special authority may be revoked for abuse, inadequate record keeping, or inadequate security oversight. These procedures do not apply when circumstances exist which would permit the routine processing of an individual for the higher level clearance. Procedures and conditions for effecting emergency one-time access to the next higher classification level are as follows:

(1) Authorization for such one-time access shall be granted by a flag or general officer, a general court-martial convening authority or equivalent Senior Executive Service member, after coordination with appropriate security officials.

(2) The recipient of the one-time access authorization must be a U.S. citizen, possess a current DoD security clearance, and the access required shall be limited to classified information one level higher than the current clearance.

(3) Such access, once granted, shall be cancelled promptly when no longer required, at the conclusion of the authorized period of access, or upon notification from the granting authority.

(4) The employee to be afforded the higher level access shall have been continuously employed by a DoD Component or a cleared DoD contractor for the preceding 24-month period. Higher level access is not authorized for part-time employees.

(5) Pertinent local records concerning the employee concerned shall be reviewed with favorable results.

(6) Whenever possible, access shall be confined to a single instance or at most, a few occasions. The approval for access shall automatically expire 30 calendar days from date access commenced. If the need for access is expected to continue for a period in excess of 30 days, written approval of the granting authority is required. At such time as it is determined that the need for access is expected to extend beyond 90 days, the individual concerned shall be promptly processed for the level of clearance required. When extended access has been approved, such access shall be cancelled at or before 90 days from original date of access.

(7) Access at the higher level shall be limited to information under the control and custody of the authorizing official and shall be afforded under the general supervision of a properly cleared employee. The employee charged with providing such supervision shall be responsible for:

(i) Recording the higher-level information actually revealed,

(ii) The date(s) such access is afforded; and

(iii) The daily retrieval of the material accessed.

(8) Access at the next higher level shall not be authorized for COMSEC, SCI, NATO, or foreign government information.

(9) The exercise of this provision shall be used sparingly and repeat use within any 12 month period on behalf of the same individual is prohibited. The approving authority shall maintain a record containing the following data with respect to each such access approved:

(i) The name, and SSN of the employee afforded higher level access.

(ii) The level of access authorized.

(iii) Justification for the access, to include an explanation of the compelling reason to grant the higher level access and specifically how the DoD mission would be furthered.

(iv) An unclassified description of the specific information to which access was authorized and the duration of access along with the date(s) access was afforded.

(v) A listing of the local records reviewed and a statement that no significant adverse information concerning the employee is known to exist.

(vi) The approving authority's signature certifying (h)(9) (i) through (v) of this section.

(vii) Copies of any pertinent briefing/debriefings administered to the employee.

(h) Access by retired flag/general officers. (1) Upon determination by an active duty flag/general officer that there are compelling reasons, in furtherance of the Department of Defense mission, to grant a retired flag/general officer access to classified information in connection with a specific DoD program or mission, for a period not greater than 90 days, the investigative requirements of this part may be waived. The access shall be limited to classified information at a level commensurate with the security clearance held at the time of retirement—not including access to SCI.

(2) The flag/general officer approving issuance of the clearance shall, provide the appropriate DoD Component central clearance facility a written record to be incorporated into the DCII detailing:

(i) Full identifying data pertaining to the cleared subject;

(ii) The classification of the information to which access was authorized.

(3) Such access may be granted only after the compelling reason and the specific aspect of the DoD mission which is served by granting such access has been detailed and under the condition that the classified materials involved are not removed from the confines of a government installation or other area approved for storage of DoD classified information.

(a) General. It is the policy of the Department of Defense to establish, to the extent possible, uniform and consistent personnel security investigative requirements. Accordingly, investigations exceeding established requirements are authorized only when mandated by statute, national regulations, or international agreement. In this connection, there are certain Special Access programs originating at the national or international level that require personnel security investigations and procedures of a special nature. These programs and the special investigative requirements imposed by them are described in this section. A Special Access program is any program designed to control access, distribution, and protection of particularly sensitive information established pursuant to section 4-2 of Executive Order 12356 and prior Orders. Title 32 CFR part 159 governs the establishment of Departmental Special Access Programs.

(b) Sensitive Compartmented Information (SCI). (1) The investigative requirements for access to SCI is an SBI (See paragraph 4, Appendix A) including a NAC on the individual's spouse or cohabitant. When conditions indicate, additional investigation shall be conducted on the spouse of the individual and members of the immediate family (or other persons to whom the individual is bound by affection or obligation) to the extent necessary to permit a determination by the adjudication agency that the Personnel Security standards of DCID 1/14 are met.

(2) A previous investigation conducted within the past five years which substantially meets the investigative requirements prescribed by this section may serve as a basis for granting access approval provided that there has been no break in the individual's military service, DoD civilian employment, or access to classified information under the Industrial Security Program greater than 12 months. The individual shall submit one copy of an updated PSQ covering the period since the completion of the last SBI.

(c) Single Integrated Operation Plan—Extremely Sensitive Information (SIOP-ESI). The investigative requirement for access to SIOP-ESI is an SBI, including a NAC on the spouse and the individual's immediate family who are 18 years of age or over and who are U.S. citizens other than by birth or who are resident aliens.

(d) Presidential support activities. (1) DoD Directive 5210.55 1 prescribes the policies and procedures for the nomination, screening, selection, and continued evaluation of DoD military and civilian personnel and contractor employees assigned to or utilized in Presidential Support activities. The type of investigation of individuals assigned to Presidential Support activities varies according to whether the person investigated qualifies for Category One or Category Two as indicated below:

(i) Category one. (A) Personnel assigned on a permanent or full-time basis to duties in direct support of the President (including the office staff of the Director, White House Military Office, and all individuals under his control):

(1) Presidential aircrew and associated maintenance and security personnel.

(2) Personnel assigned to the White House communications activities and the Presidential retreat.

(3) White House transportation personnel.

(4) Presidential mess attendants and medical personnel.

(5) Other individuals filling administrative positions at the White House.

(B) Personnel assigned on a temporary or part-time basis to duties supporting the President:

(1) Military Social Aides.

(2) Selected security, transportation, flight-line safety, and baggage personnel.

(3) Others with similar duties.

(C) Personnel assigned to the Office of the Military Aide to the Vice President.

(ii) Category two. (A) Personnel assigned to honor guards, ceremonial units, and military bands who perform at Presidential functions and facilities.

(B) Employees of contractors who provide services or contractors employees who require unescorted access to Presidential Support areas, activities, or equipment—including maintenance of the Presidential retreat, communications, and aircraft.

(C) Individuals in designated units requiring a lesser degree of access to the President or Presidential Support activities.

(2) Personnel nominated for Category One duties must have been the subject of an SBI, including a NAC on the spouse and all members of the individual's immediate family of 18 years of age or over who are U.S. citizens other than by birth or who are resident aliens. The SBI must have been completed within the 12 months preceding selection for Presidential Support duties. If such an individual marries subsequent to the completion of the SBI, the required spouse check shall be made at that time.

(3) Personnel nominated for Category Two duties must have been the subject of a BI, including a NAC on the spouse and all members of the individual's immediate family of 18 years of age or over who are U.S. citizens other than by birth or who are resident aliens. The BI must have been completed within the 12 months preceding selection for Presidential Support duties. It should be noted that duties (separate and distinct from their Presidential Support responsibilities) of some Category Two personnel may make it necessary for them to have special access clearances which require an SBI.

(4) The U.S. citizenship of foreign-born immediate family members of all Presidential Support nominees must be verified by investigation.

(5) A limited number of Category One personnel having especially sensitive duties have been designated by the Director, White House Military Office as “Category A.” These personnel shall be investigated under special scoping in accordance with the requirements of the Memorandum of Understanding between the Director, White House Military Office and the Special Assistant to the Secretary and Deputy Secretary of Defense, July 30, 1980.

(e) Nuclear Weapon Personnel Reliability Program (PRP). (1) DoD Directive 5210.42 1 sets forth the standards of individual reliability required for personnel performing duties associated with nuclear weapons and nuclear components. The investigative requirement for personnel performing such duties is:

(i) Critical position: BI. In the event that it becomes necessary to consider an individual for a critical position and the required BI has not been completed, interim certification may be made under carefully controlled conditions as set forth below.

(A) The individual has had a favorable DNACI, NAC (or ENTNAC) within the past 5 years without a break in service or employment in excess of 1 year.

(B) The BI has been requested.

(C) All other requirements of the PRP screening process have been fulfilled.

(D) The individual is identified to supervisory personnel as being certified on an interim basis.

(E) The individual is not used in a two-man team with another such individual.

(F) Justification of the need for interim certification is documented by the certifying official.

(G) Should the BI not be completed within 150 days from the date of the request, the certifying official shall query the Component clearance authority, who shall ascertain from DIS the status of the investigation. On the basis of such information, the certifying official shall determine whether to continue or to withdraw the interim certification.

(ii) Controlled position: DNACI/NACI. (A) An ENTNAC completed for the purpose of first term enlistment or induction into the Armed Forces does not satisfy this requirement.

(B) Interim certification is authorized for an individual who has not had a DNACI/NACI completed within the past 5 years, subject to the following conditions:

(1) The individual has had a favorable ENTNAC/NAC, or higher investigation, that is more than 5 years old and has not had a break in service or employment in excess of 1 year.

(2) A DNACI/NACI has been requested at the time of interim certification.

(3) All other requirements of the PRP screening process have been fulfilled.

(4) Should the DNACI/NACI not be completed within 90 days from the date of the request, the procedures set forth in paragraph (e)(1)(i)(G) of this section for ascertaining the delay of the investigation in the case of a critical position shall apply.

(iii) Additional requirements apply. (A) The investigation upon which certification is based must have been completed within the last 5 years from the date of initial assignment to a PRP position and there must not have been a break in service or employment in excess of 1 year between completion of the investigation and initial assignment.

(B) In those cases in which the investigation was completed more than 5 years prior to initial assignment or in which there has been a break in service or employment in excess of 1 year subsequent to completion of the investigation, a reinvestigation is required.

(C) Subsequent to initial assignment to the PRP, reinvestigation is not required so long as the individual remains in the PRP.

(D) A medical evaluation of the individual as set forth in DoD Directive 5210.42.

(E) Review of the individual's personnel file and other official records and information locally available concerning behavior or conduct which is relevant to PRP standards.

(F) A personal interview with the individual for the purpose of informing him of the significance of the assignment, reliability standards, the need for reliable performance, and of ascertaining his attitude with respect to the PRP.

(G) Service in the Army, Navy and Air Force Reserve does not constitute active service for PRP purposes.

(f) Access to North Atlantic Treaty Organization (NATO) classified information. (1) Personnel assigned to a NATO staff position requiring access to NATO Cosmic (Top Secret), Secret, or Confidential information shall have been the subject of a favorably adjudicated BI (10 year scope), DNACI/NACI or NAC/ENTNAC, current within five years prior to the assignment, in accordance with USSAN Instruction 1-69 and § 154.19(f).

(2) Personnel not assigned to a NATO staff position, but requiring access to NATO Cosmic, Secret or Confidential information in the normal course of their duties, must possess the equivalent final U.S. security clearance based upon the appropriate personnel security investigation (Appendix A) required by §§ 154.16(b) and 154.19(j) of this part.

(g) Other special access programs. Special investigative requirements for Special Access programs not provided for in this paragraph may not be established without the written approval of the Deputy Under Secretary of Defense for Policy.

(a) General. DoD Directive 5200.8 1 outlines the authority of military commanders under the Internal Security Act of 1950 to issue orders and regulations for the protection of property or places under their command. Essential to carrying out this responsibility is a commander's need to protect the command against the action of untrustworthy persons. Normally, the investigative requirements prescribed in this part should suffice to enable a commander to determine the trustworthiness of individuals whose duties require access to classified information or appointment to positions that are sensitive and do not involve such access. However, there are certain categories of positions or duties which, although not requiring access to classified information, if performed by untrustworthy persons, could enable them to jeopardize the security of the command or otherwise endanger the national security. The investigative requirements for such positions or duties are detailed in this section.

(b) Access to restricted areas, sensitive information or equipment not involving access to classified information. (1) Access to restricted areas, sensitive information or equipment by DoD military, civilian or contractor personnel shall be limited to those individuals who have been determined trustworthy as a result of the favorable completion of a NAC (or ENTNAC) or who are under the escort of appropriately cleared personnel. Where escorting such persons is not feasible, a NAC shall be conducted and favorably reviewed by the appropriate component agency or activity prior to permitting such access. DoD Components shall not request, and shall not direct or permit their contractors to request, security clearances to permit access to areas when access to classified information is not required in the normal course of duties or which should be precluded by appropriate security measures. In determining trustworthiness under this paragraph, the provisions of § 154.7 and Appendix H will be utilized.

(2) In meeting the requirements of this paragraph, approval shall be obtained from one of the authorities designated in paragraph A, Appendix E of this part, for authority to request NACs on DoD military, civilian or contractor employees. A justification shall accompany each request which shall detail the reasons why escorted access would not better serve the national security. Requests for investigative requirements beyond a NAC shall be forwarded to the Deputy Under Secretary of Defense for Policy for approval.

(3) NAC requests shall—

(i) Be forwarded to DIS in accordance with the provisions of paragraph B, Appendix C,

(ii) Contain a reference to this paragraph on the DD Form 398-2, and

(iii) List the authority in Appendix E who approved the request.

(4) Determinations to deny access under the provisions of this paragraph must not be exercised in an arbitrary, capricious, or discriminatory manner and shall be the responsibility of the military or installation commander as provided for in DoD Directive 5200.8.

(c) Nonappropriated fund employees. Each Nonappropriated Fund employee who is employed in a position of trust as designated by an official authorized in paragraph H, Appendix E, shall have been the subject of a NAC completed no longer than 12 months prior to employment or a prior personnel security investigation with no break in Federal service or employment greater than 12 months in accordance with DoD Manual 1401.1-M. An individual who does not meet established suitability requirements may not be employed without prior approval of the authorizing official. Issuance of a Confidential or Secret clearance will be based on a DNACI or NACI in accordance with § 154.16(b).

(d) Customs inspectors. DoD employees appointed as customs inspectors, under waivers approved in accordance with DoD 5030.49-R shall have undergone a favorably adjudicated NAC completed within the past 5 years unless there has been a break in DoD employment greater than 1 year in which case a current NAC is required.

(e) Red Cross/United Service Organizations personnel. A favorably adjudicated NAC shall be accomplished on Red Cross or United Service Organizations personnel as prerequisite for assignment with the Armed Forces overseas (32 CFR part 253).

(f) Officials authorized to issue security clearances. Any person authorized to adjudicate personnel security clearances shall have been the subject of a favorably adjudicated BI.

(g) Personnel security clearance adjudication officials. Any person selected to serve with a board, committee, or other group responsible for adjudicating personnel security cases shall have been the subject of a favorably adjudicated BI.

(h) Persons requiring DoD building passes. Pursuant to DoD Directive 5210.46 1 each person determined by the designated authorities of the Components concerned as having an official need for access to DoD buildings in the National Capital Region shall be the subject of a favorably, adjudicated NAC prior to issuance of a DoD building pass. Conduct of a BI for this purpose is prohibited unless approved in advance by ODUSD(P).

(i) Foreign national employees overseas not requiring access to classified information. Foreign nationals employed by DoD organizations overseas, whose duties do not require access to classified information, shall be the subject of the following record checks, initiated by the appropriate military department investigative organization consistent with § 154.9(e) prior to employment:

(1) Host government law enforcement and security agency checks at the city, state (province), and national level, whenever permissible by the laws of the host government; and

(2) DCII.

(3) FBI-HQ/ID. (Where information exists regarding residence by the foreign national in the United States for one year or more since age 18).

(j) Special agents and investigative support personnel. Special agents and those noninvestigative personnel assigned to investigative agencies whose official duties require continuous access to complete investigative files and material require an SBI.

(k) Persons requiring access to chemical agents. Personnel whose duties involve access to or security of chemical agents shall be screened initially for suitability and reliability and shall be evaluated on a continuing basis at the supervisory level to ensure that they continue to meet the high standards required. At a minimum, all such personnel shall have had a favorably adjudicated NAC completed within the last 5 years prior to assignment in accordance with the provisions of DoD Directive 5210.65.1

(l) Education and orientation personnel. Persons selected for duties in connection with programs involving the education and orientation of military personnel shall have been the subject of a favorably adjudicated NAC prior to such assignment. This does not include teachers/administrators associated with university extension courses conducted on military installations in the United States. Non-US citizens from a country listed in Appendix G shall be required to undergo a BI if they are employed in a position covered by this paragraph.

(m) Contract guards. Any person performing contract guard functions shall have been the subject of a favorably adjudicated NAC prior to such assignment.

(n) Transportation of arms, ammunition and explosives (AA&E). Any DoD military, civilian or contract employee (including commercial carrier) operating a vehicle or providing security to a vehicle transporting Category I, II or Confidential AA&E shall have been the subject of a favorably adjudicated NAC or ENTNAC.

(o) Personnel occupying information systems positions designated ADP-I, ADP-II & ADP-III. DoD military, civilian personnel, consultants, and contractor personnel performing on unclassified automated information systems may be assigned to one of three position sensitivity designations (in accordance with Appendix J) and investigated as follows:

(p) Others. Requests for approval to conduct an investigation on other personnel, not provided for in § 154.18 (b) through (o) considered to fall within the general provisions of § 154.18(a) shall be submitted, detailing the justification therefor, for approval to the Deputy Under Secretary of Defense for Policy. Approval of such requests shall be contingent upon an assurance that appropriate review procedures exist and that adverse determinations will be made at no lower than major command level.

(a) General. DoD policy prohibits unauthorized and unnecessary investigations. There are, however, certain situations and requirements that necessitate reinvestigation of an individual who has already been investigated under the provisions of this part. It is the policy to limit reinvestigation of individuals to the scope contained in paragraph 5, Appendix A to meet overall security requirements. Reinvestigation, generally, is authorized only as follows:

(1) To prove or disprove an allegation relating to the criteria set forth in § 154.7 of this part with respect to an individual holding a security clearance or assigned to a position that requires a trustworthiness determination;

(2) To meet the periodic reinvestigation requirements of this part with respect to those security programs enumerated below; and

(3) Upon individual request, to assess the current eligibility of individuals who did not receive favorable adjudicative action after an initial investigation, if a potential clearance need exists and there are reasonable indications that the factors upon which the adverse determination was made no longer exists.

(b) Allegations related to disqualification. Whenever questionable behavior patterns develop, derogatory information is discovered, or inconsistencies arise related to the disqualification criteria outlined in § 154.7 that could have an adverse impact on an individual's security status, a Special Investigative Inquiry (SII), psychiatric, drug or alcohol evaluation, as appropriate, may be requested to resolve all relevant issues in doubt. If it is essential that additional relevant personal data is required from the investigative subject, and the subject fails to furnish the required data, the subject's existing security clearance or assignment to sensitive duties shall be terminated in accordance with § 154.56(b).

(c) Access to Sensitive Compartmented Information (SCI). Each individual having current access to SCI shall be the subject of a PR conducted on a 5-year recurring basis scoped as set forth in paragraph 5, Appendix A.

(d) Critical-sensitive positions. Each DoD civilian employee occupying a critical sensitive position shall be the subject of a PR conducted on a 5-year recurring basis scoped as set forth in paragraph 5, Appendix A.

(e) Presidential support duties. Each individual assigned Presidential Support duties shall be the subject of a PR conducted on a 5-year recurring basis scoped as set forth in paragraph 5, Appendix A.

(f) NATO staff. Each individual assigned to a NATO staff position requiring a COSMIC clearance shall be the subject of a PR conducted on a 5-year recurring basis scoped as set forth in paragraph 5, Appendix A. Those assigned to a NATO staff position requiring a NATO SECRET clearance shall be the subject of a new NAC conducted on a 5-year recurring basis.

(g) Extraordinarily sensitive duties. In extremely limited instances, extraordinary national security implications associated with certain SCI duties may require very special compartmentation and other special security measures. In such instances, a Component SOIC may, with the approval of the Deputy Under Secretary of Defense for Policy, request PR's at intervals of less than 5 years as outlined in paragraph 5, Appendix A. Such requests shall include full justification and a recommendation as to the desired frequency. In reviewing such requests, the Deputy Under Secretary of Defense for Policy shall give due consideration to:

(1) The potential damage that might result from the individual's defection or abduction.

(2) The availability and probable effectiveness of means other than reinvestigation to evaluate factors concerning the individual's suitability for continued SCI access.

(h) Foreign nationals employed by DoD organizations overseas. Foreign nationals employed by DoD organizations overseas who have been granted a “Limited Access Authorization” pursuant to § 154.16(d) shall be the subject of a PR, as set forth in paragraph 5, Appendix A, conducted under the auspices of DIS by the appropriate military department or other U.S. Government investigative agency consistent with § 154.9(e) and Appendix I of this part.

(i) Persons accessing very sensitive information classified Secret. (1) Heads of DoD Components shall submit a request to the Deputy Under Secretary of Defense for Policy for approval to conduct periodic reinvestigations on persons holding Secret clearances who are exposed to very sensitive Secret information.

(2) Generally, the Deputy Under Secretary of Defense for Policy will only approve periodic reinvestigations of persons having access to Secret information if the unauthorized disclosure of the information in question could reasonably be expected to:

(i) Jeopardize human life or safety.

(ii) Result in the loss of unique or uniquely productive intelligence sources or methods vital to U.S. security.

(iii) Compromise technologies, plans, or procedures vital to the strategic advantage of the United States.

(3) Each individual accessing very sensitive Secret information who has been designated by an authority listed in paragraph A, Appendix E as requiring periodic reinvestigation, shall be the subject of a PR conducted on a 5-year recurring basis scoped as stated in paragraph 5, Appendix A.

(j) Access to Top Secret information. Each individual having current access to Top Secret information shall be the subject of a PR conducted on a 5-year recurring basis scoped as outlined in paragraph 5, Appendix A.

(k) Personnel occupying computer positions designated ADP-1. All DoD military, civilians, consultants, and contractor personnel occupying computer positions designated ADP-I, shall be the subject of a PR conducted on a 5-year recurring basis as set forth in paragraph 5, Appendix A.

Authorized officials. Only an official designated in paragraph G, Appendix E, is empowered to waive the investigative requirements for appointment to a sensitive position, assignment to sensitive duties or access to classified information pending completion of the investigation required by this section. Such waiver shall be based upon certification in writing by the designated official that such action is necessary to the accomplishment of a DoD mission. A minor investigative element that has not been met should not preclude favorable.

Previously conducted investigations and previously rendered personnel security determinations shall be accepted within DoD in accordance with the policy set forth below.

As long as there is no break in military service/civilian employment greater than 12 months, any previous personnel security investigation conducted by DoD investigative organizations that essentially is equivalent in scope to an investigation required by this part will be accepted without requesting additional investigation. There is no time limitation as to the acceptability of such investigations, subject to the provisions of §§ 154.8(h) and 154.25(b) of this part.

(a) Adjudicative determinations for appointment in sensitive positions, assignment to sensitive duties or access to classified information (including those pertaining to SCI) made by designated DoD authorities will be mutually and reciprocally accepted by all DoD Components without requiring additional investigation, unless there has been a break in the individual's military service/civilian employment of greater than 12 months or unless derogatory information that occurred subsequent to the last prior security determination becomes known. A check of the DCII should be conducted to accomplish this task.

(b) Whenever a valid DoD security clearance or Special Access authorization (including one pertaining to SCI) is on record, Components shall not request DIS or other DoD investigative organizations to forward prior investigative files for review unless:

(1) Significant derogatory information or investigation completed subsequent to the date of last clearance or Special Access authorization, is known to the requester; or

(2) The individual concerned is being considered for a higher level clearance (e.g., Secret or Top Secret) or the individual does not have a Special Access authorization and is being considered for one; or

(3) There has been a break in the individual's military service/civilian employment of greater than 12 months subsequent to the issuance of a prior clearance.

(4) The most recent SCI access authorization of the individual concerned was based on a waiver.

(c) Requests for prior investigative files authorized by this part shall be made in writing, shall cite the specific justification for the request (i.e., upgrade of clearance, issue Special Access authorization, etc.), and shall include the date, level, and issuing organization of the individual's current or most recent security clearance or Special Access authorization.

(d) All requests for non-DoD investigative files, authorized under the criteria prescribed by paragraphs (a), (b) (1), (2), (3), and (4) and (c) of this section shall be:

(1) Submitted on DD Form 398-2 to DIS;

(2) Annotated as a “Single Agency Check” of whichever agency or agency developed the investigative file or to obtain the check of a single national agency.

(e) When further investigation is desired, in addition to an existing non-DoD investigative file, a DD Form 1879 will be submitted to DIS with the appropriate security forms attached. The submission of a Single Agency Check via DD Form 398-2 will be used to obtain an existing investigative file or check a single national agency.

(f) Whenever a civilian or military member transfers from one DoD activity to another, the losing organization's security office is responsible for advising the gaining organization of any pending action to suspend, deny or revoke the individual's security clearance as well as any adverse information that may exist in security, personnel or other files. In such instances the clearance shall not be reissued until the questionable information has been adjudicated.

(a) Whenever a prior investigation or personnel security determination (including clearance for access to information classified under E.O. 12356 of another agency of the Federal Government meets the investigative scope and standards of this part, such investigation or clearance may be accepted for the investigative or clearance purposes of this part, provided that the employment with the Federal agency concerned has been continuous and there has been no break longer than 12 months since completion of the prior investigation, and further provided that inquiry with the agency discloses no reason why the clearance should not be accepted. If it is determined that the prior investigation does not meet the provisions of this paragraph, supplemental investigation shall be requested.

(b) A NACI conducted by OPM shall be accepted and considered equivalent to a DNACI for the purposes of this part.

(c) Department of Defense policy on reciprocal acceptance of clearances with the Nuclear Regulatory Commission and the Department of Energy is set forth in DoD Directive 5210.2.1

Requests for personnel security investigations shall be limited to those required to accomplish the Defense mission. Such requests shall be submitted only by the authorities designated in § 154.31. These authorities shall be held responsible for determining if persons under their jurisdiction require a personnel security investigation. Proper planning must be effected to ensure that investigative requests are submitted sufficiently in advance to allow completion of the investigation before the time it is needed to grant the required clearance or otherwise make the necessary personnel security determination.

Requests for personnel security investigation shall be accepted only from the requesters designated below:

(a) Military Departments. (1) Army.

(i) Central Clearance Facility.

(ii) All activity commanders.

(iii) Chiefs of recruiting stations.

(2) Navy (including Marine Corps).

(i) Central Adjudicative Facility.

(ii) Commanders and commanding officers of organizations listed on the Standard Navy Distribution List.

(iii) Chiefs of recruiting stations.

(3) Air Force.

(i) Air Force Security Clearance Office.

(ii) Assistant Chief of Staff for Intelligence.

(iii) All activity commanders.

(iv) Chiefs of recruiting stations.

(b) Defense Agencies—Directors of Security and activity commanders.

(c) Organization of the Joint Chiefs of Staff—Chief, Security Division.

(d) Office of the Secretary of Defense—Director for Personnel and Security, Washington Headquarters Services.

(e) Commanders of Unified and Specified Commands or their designees.

(f) Such other requesters approved by the Deputy Under Secretary of Defense for Policy.

Authorized requesters shall use the tables set forth in Appendix C to determine the type of investigation that shall be requested to meet the investigative requirement of the specific position or duty concerned.

To insure efficient and effective completion of required investigations, all requests for personnel security investigations shall be prepared and forwarded in accordance with Appendix B and the investigative jurisdictional policies set forth in § 154.9.

To insure that personnel security investigations are conducted in an orderly and efficient manner, requests for priority for individual investigations or categories of investigations shall be kept to a minimum. DIS shall not assign priority to any personnel security investigation or categories of investigations without written approval of the Deputy Under Secretary of Defense for Policy.

(a) To conduct the required investigation, it is necessary that the investigative agency be provided certain relevant data concerning the subject of the investigation. The Privacy Act of 1974 requires that, to the greatest extent practicable, personal information shall be obtained directly from the subject individual when the information may result in adverse determinations affecting an individual's rights, benefits, and privileges under Federal programs.

(b) Accordingly, it is incumbent upon the subject of each personnel security investigation to provide the personal information required by this part. At a minimum, the individual shall complete the appropriate investigative forms, provide fingerprints of a quality acceptable to the FBI, and execute a signed release, as necessary, authorizing custodians of police, credit, education, employment, and medical and similar records, to provide relevant record information to the investigative agency. When the FBI returns a fingerprint card indicating that the quality of the fingerprints is not acceptable, an additional set of fingerprints will be obtained from the subject. In the event the FBI indicates that the additional fingerprints are also unacceptable, no further attempt to obtain more fingerprints need be made; this aspect of the investigation will then be processed on the basis of the name check of the FBI files. As an exception, a minimum of three attempts will be made for all Presidential Support cases, for SCI access nominations if the requester so indicates, and in those cases in which more than minor derogatory information exists. Each subject of a personnel security investigation conducted under the provisions of this part shall be furnished a Privacy Act Statement advising of the authority for obtaining the personal data, the principal purpose(s) for obtaining it, the routine uses, whether disclosure is mandatory or voluntary, the effect on the individual if it is not provided, and that subsequent use of the data may be employed as part of an aperiodic review process to evaluate continued eligibility for access to classified information.

(c) Failure to respond within the time limit prescribed by the requesting organization with the required security forms or refusal to provide or permit access to the relevant information required by this part shall result in termination of the individual's security clearance or assignment to sensitive duties utilizing the procedures of § 154.59 or further administrative processing of the investigative request.

(a) The issuance of a personnel security clearance (as well as the function of determining that an individual is eligible for access to Special Access program information, or is suitable for assignment to sensitive duties or such other duties that require a trustworthiness determination) is a function distinct from that involving the granting of access to classified information. Clearance determinations are made on the merits of the individual case with respect to the subject's suitability for security clearance. Access determinations are made solely on the basis of the individual's need for access to classified information in order to perform official duties. Except for suspension of access pending final adjudication of a personnel security clearance, access may not be finally denied for cause without applying the provisions of § 154.56(b).

(b) Only the authorities designated in paragraph A, Appendix E are authorized to grant, deny or revoke personnel security clearances or Special Access authorizations (other than SCI). Any commander or head of an organization may suspend access for cause when there exists information raising a serious question as to the individual's ability or intent to protect classified information, provided that the procedures set forth in § 154.55(b) of this part are complied.

(c) All commanders and heads of DoD organizations have the responsibility for determining those position functions in their jurisdiction that require access to classified information and the authority to grant access to incumbents of such positions who have been cleared under the provisions of this part.

(a) Authorities designated in paragraph A, Appendix E shall record the issuance, denial or revocation of a personnel security clearance in the DCII (see § 154.43). A record of the clearance issued shall also be recorded in an individual's personnel/security file or official personnel folder, as appropriate.

(b) A personnel security clearance remains valid until the individual is separated from the Armed Forces, separated from DoD civilian employment, has no further official relationship with DoD, official action has been taken to deny, revoke or suspend the clearance or access, or regular access to the level of classified information for which the individual holds a clearance is no longer necessary in the normal course of his or her duties. If an individual resumes his or her affiliation with DoD no single break in the individual's relationship with DoD exists greater than 24 months and/or, the need for regular access to classified information at or below the previous level recurs, and no record of an unfavorable administrative action exists, the appropriate clearance shall be reissued without further investigation or adjudication provided there has been no additional investigation or development of derogatory information.

(c) Personnel security clearances of DoD military personnel shall be granted denied or revoked only by the designated authority of the parent Military Department. Issuance, reissuance, denial, or revocation of a personnel security clearance by any DoD Component concerning personnel who have been determined to be eligible for clearance by another component is expressly prohibited. Investigations conducted on Army, Navy, and Air Force personnel by DIS will be returned only to the parent service of the subject for adjudication regardless of the source of the original request. The adjudicative authority will be responsible for expeditiously transmitting the results of the clearance determination. As an exception, the employing DoD Component may issue an interim clearance to personnel under their administrative jurisdiction pending a final eligibility determination by the individual's parent Component. Whenever an employing DoD Component issues an interim clearance to an individual from another Component, written notice of the action shall be provided to the parent Component.

(d) When a Defense agency, to include Chairman of the Joint Chiefs of Staff, initiates an SBI (or PR) for access to SCI on a military member, DIS will return the completed investigation to the appropriate Military Department adjudicative authority in accordance with paragraph (c) of this section for issuance (or reissuance) of the Top Secret clearance. Following the issuance of the security clearance, the military adjudicative authority will forward the investigative file to the Defense agency identified in the “Return Results To” block of the DD Form 1879. The receiving agency will then forward the completed SBI on to DIA for the SCI adjudication in accordance with DCID 1/14.

(e) The interim clearance shall be recorded in the DCSI (§ 154.43) by the parent DoD Component in the same manner as a final clearance.

As set forth in § 154.48 the personnel security clearance and access eligibility must be withdrawn when the events described therein occur. When regular access to a prescribed level of classified information is no longer required in the normal course of an individual's duties, the previously authorized access eligibility level must be administratively downgraded or withdrawn, as appropriate.

(a) General. For purposes of this part, an unfavorable administrative action includes any adverse action which is taken as a result of a personnel security determination, as defined at § 154.3 and any unfavorable personnel security determination, as defined at § 154.3. This subpart is intended only to provide guidance for the internal operation of the Department of Defense and is not intended to, does not, and may not be relied upon, to create or enlarge the jurisdiction or review authority of any court or administrative tribunal, including the Merit Systems Protection Board.

(b) Referral for action. (1) Whenever derogatory information relating to the criteria and policy set forth in § 154.7(a) and Appendix H of this part is developed or otherwise becomes available to any DoD element, it shall be referred by the most expeditious means to the commander or the security officer of the organization to which the individual is assigned for duty. The commander or security officer of the organization to which the subject of the information is assigned shall review the information in terms of its security significance and completeness. If further information is needed to confirm or disprove the allegations, additional investigation should be requested. The commander of the duty organization shall insure that the parent Component of the individual concerned is informed promptly concerning the derogatory information developed and any actions taken or anticipated with respect thereto. However, referral of derogatory information to the commander or security officer shall in no way affect or limit the responsibility of the central adjudication facility to continue to process the individual for denial or revocation of clearance or access to classified information, in accordance with § 154.56(b), if such action is warranted and supportable by the criteria and policy contained in § 154.7(a) and Appendix H. No unfavorable administrative action as defined in § 154.3 may be taken by the organization to which the individual is assigned for duty without affording the person the full range of protections contained in § 154.56(b) or, in the case of SCI, Annex B, DCID 1/14.

(2) The Director DIS shall establish appropriate alternative means whereby information with potentially serious security significance can be reported other than through DoD command or industrial organization channels. Such access shall include utilization of the DoD Inspector General “hotline” to receive such reports for appropriate follow-up by DIS. DoD Components and industry will assist DIS in publicizing the availability of appropriate reporting channels. Additionally, DoD Components will augment the system when and where necessary. Heads of DoD Components will be notified immediately to take action if appropriate.

(c) Suspension.

(1) The commander or head of the organization shall determine whether, on the basis of all facts available upon receipt of the initial derogatory information, it is in the interests of national security to continue subject's security status unchanged or to take interim action to suspend subject's access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), if information exists which raises serious questions as to the individual's ability to intent to protect classified information or execute sensitive duties (or other duties requiring a trustworthiness determination) until a final determination is made by the appropriate authority designated in appendix F to this part.

(2) Whenever a determination is made to suspend a security clearance for access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), the individual concerned must be notified of the determination in writing by the commander, or head of the component or adjudicative authority, to include a brief statement of the reason(s) for the suspension action consistent with the interests of national security.

(3) Component field elements must promptly report all suspension actions to the appropriate central adjudicative authority, but not later than 10 working days from the date of the suspension action. The adjudicative authority will immediately update the DCII Eligibility and Access fields to alert all users to the individual's changed status.

(4) Every effect shall be made to resolve suspension cases as expeditiously as circumstances permit. Suspension cases exceeding 180 days shall be closely monitored and managed by the DoD Component concerned until finally resolved. Suspension cases pending in excess of 12 months will be reported to the DASD(CI&SCM) for review and appropriate action.

(5) A final security clearance eligibility determination shall be made for all suspension actions and the determination entered in the DCII. If, however, the individual under suspension leaves the jurisdiction of the Department of Defense and no longer requires a clearance (or trustworthiness determination), entry of the “Z” Code (adjudication action incomplete due to loss of jurisdiction) if the clearance eligibility field is appropriate. In no case shall a “suspension” code (Code Y) remain as a permanent record in the DCII.

(6) A clearance or access entry in the DCII shall not be suspended or downgraded based solely on the fact that a periodic reinvestigation was not conducted precisely within the 5 year time period for TOP SECRET/SCI or within the period prevailing for SECRET clearances under departmental policy. While every effort should be made to ensure that PRs are conducted within the prescribed time frame, agencies must be flexible in their administration of this aspect of the personnel security program so as not to undermine the ability of the Department of Defense to accomplish its mission.

(d) Final unfavorable administrative actions. The authority to make personnel security determinations that will result in an unfavorable administrative action is limited to those authorities designated in Appendix E, except that the authority to terminate the employment of a civilian employee of a military department or Defense agency is vested solely in the head of the DoD component concerned and in such other statutory official as may be designated. Action to terminate civilian employees of the Office of the Secretary of Defense and DoD Components, on the basis of criteria listed in § 154.7 (a) through (f), shall be coordinated with the Deputy Under Secretary of Defense for Policy prior to final action by the head of the DoD Component. DoD civilian employees or members of the Armed Forces shall not be removed from employment or separated from the Service under provisions of this part if removal or separation can be effected under OPM regulations or administrative (nonsecurity) regulations of the military departments. However, actions contemplated in this regard shall not affect or limit the responsibility of the central adjudication facility to continue for process the individual for denial or revocation of a security clearance, access to classified information on or assignment to a sensitive position if warranted and supportable by the criteria and standards contained in this part.

(a) General. No final personnel security determination shall be made on a member of the Armed Forces, an employee of the Department of Defense, a consultant to the Department of Defense, or any other person affiliated with the Department of Defense without granting the individual concerned the procedural benefits set forth in paragraph (b) of this section when such determination results in an unfavorable administrative action (see § 154.55(a)). As an exception, Red Cross/United Service Organizations employees shall be afforded the procedures prescribed by 32 CFR part 253.

(b) Unfavorable administrative action procedures. Except as provided for below, no unfavorable administrative action shall be taken under the authority of this part unless the person concerned has been given:

(1) A written statement of the reasons why the unfavorable administrative action is being taken. The statement shall be as comprehensive and detailed as the protection of sources afforded confidentiality under the provisions of the Privacy Act of 1974 (5 U.S.C. 552a) and national security permit. The statement will also provide the name and address of the agencies (agencies) to which the individual may write to obtain a copy of the investigative file(s) upon which the unfavorable administrative action is being taken. Prior to issuing a statement of reasons to a civilian employee for suspension or removal action, the issuing authority must comply with the provisions of Federal Personnel Manual, chapter 732, subchapter 1, paragraph 1-6b. The signature authority must be as provided for in § 154.41(b) (1)(ii) and (2)(ii).

(2) An opportunity to reply in writing to such authority as the head of the Component concerned may designate;

(3) A written response to any submission under subparagraph b. stating the final reasons therefor, which shall be as specific as privacy and national security considerations permit. The signature authority must be as provided for in § 154.41(b) (1)(ii) and (2)(ii). Such response shall be as prompt as individual circumstances permit, not to exceed 60 days from the date of receipt of the appeal submitted under paragraph (b)(2) of this section provided no additional investigative action is necessary. If a final response cannot be completed within the time frame allowed, the subject must be notified in writing of this fact, the reasons therefor, and the date a final response is expected, which shall not, in any case, exceed a total of 90 days from the date of receipt of the appeal under paragraph (b) of this section.

(4) An opportunity to appeal to a higher level of authority designated by the Component concerned.

(c) Exceptions to policy. Notwithstanding paragraph (b) of this section or any other provision of this part, nothing in this part shall be deemed to limit or affect the responsibility and powers of the Secretary of Defense to find that a person is unsuitable for entrance or retention in the Armed Forces, or is ineligible for a security clearance or assignment to sensitive duties, if the national security so requires, pursuant to section 7532, title 5, U.S. Code. Such authority may not be delegated and may be exercised only when it is determined that the procedures prescribed in paragraph (b) of this section are not appropriate. Such determination shall be conclusive.

(a) General. A personnel security determination is an effort to assess the future trustworthiness of an individual in terms of the likelihood of the individual preserving the national security. Obviously it is not possible at a given point to establish with certainty that any human being will remain trustworthy. Accordingly the issuance of a personnel security clearance or the determination that a person is suitable for assignment to sensitive duties cannot be considered as a final personnel security action. Rather, there is the clear need to assure that, after the personnel security determination is reached, the individual's trustworthiness is a matter of continuing assessment. The responsibility for such assessment must be shared by the organizational commander or manager, the individual's supervisor and, to a large degree, the individual himself. Therefore, the heads of DoD Components shall establish and maintain a program designed to evaluate on a continuing basis the status of personnel under their jurisdiction with respect to security eligibility. This program should insure close coordination between security authorities and personnel, medical, legal and supervisory personnel to assure that all pertinent information available within a command is considered in the personnel security process.

(b) Management responsibility. (1) Commanders and heads of organizations shall insure that personnel assigned to sensitive duties (or other duties requiring a trustworthiness determination under the provisions of this part) are initially indoctrinated and periodically instructed thereafter on the national security implication of their duties and on their individual responsibilities.

(2) The heads of all DoD components are encouraged to develop programs designed to counsel and assist employees in sensitive positions who are experiencing problems in their personal lives with respect to such areas as financial, medical or emotional difficulties. Such initiatives should be designed to identify potential problem areas at an early stage so that any assistance rendered by the employing activity will have a reasonable chance of precluding long term, job-related security problems.

(c) Supervisory responsibility. Security programs shall be established to insure that supervisory personnel are familiarized with their special responsibilities in matters pertaining to personnel security with respect to personnel under their supervision. Such programs shall provide practical guidance as to indicators that may signal matters of personnel security concern. Specific instructions should be disseminated concerning reporting procedures to enable the appropriate authority to take timely corrective action to protect the interests of national security as well as to provide any necessary help to the individual concerned to correct any personal problem which may have a bearing upon the individual's continued eligibility for access.

(1) In conjunction with the submission of PRs stated in § 154.19, and paragraph 5, Appendix A, supervisors will be required to review an individual's DD Form 398 to ensure that no significant adverse information of which they are aware and that may have a bearing on subject's continued eligibility for access to classified information is omitted.

(2) If the supervisor is not aware of any significant adverse information that may have a bearing on the subject's continued eligibility for access, then the following statement must be documented, signed and dated, and forwarded to DIS with the investigative package.

(3) If the supervisor is aware of such significant adverse information, the following statement shall be documented, signed and dated and forwarded to DIS with the investigative package, and a written summary of the derogatory information forwarded to DIS with the investigative package:

(4) In conjunction with regularly scheduled fitness and performance reports of military and civilian personnel whose duties entail access to classified information, supervisors will include a comment in accordance with paragraphs (c) (2) and (3) of this section as well as a comment regarding an employee's discharge of security responsibilities, pursuant to their Component guidance.

(d) Individual responsibility. (1) Individuals must familiarize themselves with pertinent security regulations that pertain to their assigned duties. Further, individuals must be aware of the standards of conduct required of persons holding positions of trust. In this connection, individuals must recognize and avoid the kind of personal behavior that would result in rendering one ineligible for continued assignment in a position of trust. In the final analysis, the ultimate responsibility for maintaining continued eligibility for a position of trust rests with the individual.

(2) Moreover, individuals having access to classified information must report promptly to their security office:

(i) Any form of contact, intentional or otherwise, with individuals of any nationality, whether within or outside the scope of the employee's official activities, in which:

(A) Illegal or unauthorized access is sought to classified or otherwise sensitive information.

(B) The employee is concerned that he or she may be the target of exploitation by a foreign entity.

(ii) Any information of the type referred to in § 154.7 or appendix H to this part.

(e) Co-worker responsibility. Co-workers have an equal obligation to advise their supervisor or appropriate security official when they become aware of information with potentially serious security significance regarding someone with access to classified information or employed in a sensitive position.

(a) General. The effectiveness of an individual in meeting security responsibilities is proportional to the degree to which the individual understands them. Thus, an integral part of the DoD security program is the indoctrination of individuals on their security responsibilities. Moreover, such indoctrination is essential to the efficient functioning of the DoD personnel security program. Accordingly, heads of DoD Components shall establish procedures in accordance with this chapter whereby persons requiring access to classified information, or being assigned to positions that require the occupants to be determined trustworthy are periodically briefed as to their security responsibilities.

(b) Initial briefing. (1) All persons cleared for access to classified information or assigned to duties requiring a trustworthiness determination under this part shall be given an initial security briefing. The briefing shall be in accordance with the requirements of 32 CFR part 159 and consist of the following elements:

(i) The specific security requirements of their particular job.

(ii) The techniques employed by foreign intelligence activities in attempting to obtain classified information and their responsibility for reporting such attempts.

(iii) The prohibition against disclosing classified information, by any means, to unauthorized persons or discussing or handling classified information in a manner that would make it accessible to unauthorized persons.

(iv) The penalties that may be imposed for security violations.

(2) If an individual declines to execute Standard Form 312, “Classified Information Nondisclosure Agreement” (replaced the Standard Form 189), the DoD Component shall initiate action to deny or revoke the security clearance of such person in accordance with § 154.56(b).

(c) Refresher briefing. Programs shall be established to provide, at a minimum, annual security training for personnel having continued access to classified information. The elements outlined in 32 CFR part 159 shall be tailored to fit the needs of experienced personnel.

(d) Foreign travel briefing. While world events during the past several years have diminished the threat to our national security from traditional cold-war era foreign intelligence services, foreign intelligence service continue to pursue the unauthorized acquisition of classified or otherwise sensitive U.S. Government information, through the recruitment of U.S. Government employees with access to such information. Through security briefings and education, the Department of Defense continues to provide for the protection of information and technology considered vital to the national security interests from illegal or unauthorized acquisition by foreign intelligence services.

(1) DoD Components will establish appropriate internal procedures requiring all personnel possessing a DoD security clearance to report to their security office all contacts with individuals of any nationality, whether within or outside the scope of the employee's official activities, in which:

(i) Illegal or unauthorized access is sought to classified or otherwise sensitive information.

(ii) The employee is concerned that he or she may be the target of exploitation by a foreign entity.

(2) The DoD security manager, security specialist or other qualified individual will review and evaluate the reported information. Any facts or circumstances of a reported contact with a foreign national that appear to:

(i) Indicate an attempt or intention to obtain unauthorized access to proprietary, sensitive, or classified information or technology;

(ii) Offer a reasonable potential for such; or

(iii) Indicate the possibility of continued contact with the foreign national for such purposes, shall be promptly reported to the appropriate counterintelligence agency.

(e) Termination briefing. (1) Upon termination of employment administrative withdrawal of security clearance, or contemplated absence from duty or employment for 60 days or more, DoD military personnel and civilian employees shall be given a termination briefing, return all classified material, and execute a Security Termination Statement. This statement shall include:

(i) An acknowledgment that the individual has read the appropriate provisions of the Espionage Act, other criminal statutes, DoD Regulations applicable to the safeguarding of classified information to which the individual has had access, and understands the implications thereof;

(ii) A declaration that the individual no longer has any documents or material containing classified information in his or her possession;

(iii) An acknowledgment that the individual will not communicate or transmit classified information to any unauthorized person or agency; and

(iv) An acknowledgment that the individual will report without delay to the FBI or the DoD Component concerned any attempt by any unauthorized person to solicit classified information.

(2) When an individual refuses to execute a Security Termination Statement, that fact shall be reported immediately to the security manager of the cognizant organization concerned. In any such case, the individual involved shall be debriefed orally. The fact of a refusal to sign a Security Termination Statement shall be reported to the Director, Defense Investigative Service who shall ensure that it is recorded in the Defense Clearance and Investigations Index.

(3) The Security Termination Statement shall be retained by the DoD Component that authorized the individual access to classified information for the period specified in the Component's records retention schedules, but for a minimum of 2 years after the individual is given a termination briefing.

(4) In addition to the provisions of paragraphs (e)(1), (e)(2), and (e)(3) of this section, DoD Components shall establish a central authority to be responsible for ensuring that Security Termination Statements are executed by senior personnel (general officers, flag officers and GS-16s and above). Failure on the part of such personnel to execute a Security Termination Statement shall be reported immediately to the Deputy Under Secretary of Defense for Policy.

In recognition of the sensitivity of personnel security reports and records, particularly with regard to individual privacy, it is Department of Defense policy that such personal information shall be handled with the highest degree of discretion. Access to such information shall be afforded only for the purpose cited herein and to persons whose official duties require such information. Personnel security investigative reports may be used only for the purposes of determining eligibility of DoD military and civilian personnel, contractor employees, and other persons affiliated with the Department of Defense, for access to classified information, assignment or retention in sensitive duties or other specifically designated duties requiring such investigation, or for law enforcement and counterintelligence investigations. Other uses are subject to the specific written authorization of the Deputy Under Secretary of Defense for Policy.

DoD authorities responsible for administering the DoD personnel security program and all DoD personnel authorized access to personnel security reports and records shall ensure that the use of such information is limited to that authorized by this part and that such reports and records are safeguarded as prescribed herein. The heads of DoD Components and the Deputy Under Secretary of Defense for Policy for the Office of the Secretary of Defense shall establish internal controls to ensure adequate safeguarding and limit access to and use of personnel security reports and records as required by §§ 154.67 and 154.68.

Access to personnel security investigative reports and personnel security clearance determination information shall be authorized only in accordance with 32 CFR parts 286 and 286a and with the following:

(a) DoD personnel security investigative reports shall be released outside of the DoD only with the specific approval of the investigative agency having authority over the control and disposition of the reports.

(b) Within DoD, access to personnel security investigative reports shall be limited to those designated DoD officials who require access in connection with specifically assigned personnel security duties, or other activities specifically identified under the provisions of § 154.65.

(c) Access by subjects of personnel security investigative reports shall be afforded in accordance with 32 CFR part 286a.

(d) Access to personnel security clearance determination information shall be made available, other than provided for in paragraph (c) of this section, through security channels, only to DoD or other officials of the Federal Government who have an official need for such information.

Personnel security investigative reports and personnel security determination information shall be safeguarded as follows:

(a) Authorized requesters shall control and maintain accountability of all reports of investigation received.

(b) Reproduction, in whole or in part, of personnel security investigative reports by requesters shall be restricted to the minimum number of copies required for the performance of assigned duties.

(c) Personnel security investigative reports shall be stored in a vault, safe, or steel file cabinet having at least a lockbar and an approved three-position dial-type combination padlock or in a similarly protected area/container.

(d) Reports of DoD personnel security investigations shall be sealed in double envelopes or covers when transmitted by mail or when carried by persons not authorized access to such information. The inner cover shall bear a notation substantially as follows:

(e) An individual's status with respect to a personnel security clearance or a Special Access authorization is to be protected as provided for in 32 CFR part 286.

(a) Personnel security investigative reports, to include OPM NACIs may be retained by DoD recipient organizations, only for the period necessary to complete the purpose for which it was originally requested. Such reports are considered to be the property of the investigating organization and are on loan to the recipient organization. All copies of such reports shall be destroyed within 90 days after completion of the required personnel security determination. Destruction shall be accomplished in the same manner as for classified information in accordance with 32 CFR part 159.

(b) DoD record repositories authorized to file personnel security investigative reports shall destroy PSI reports of a favorable or of a minor derogatory nature 15 years after the date of the last action. That is, after the completion date of the investigation or the date on which the record was last released to an authorized user—whichever is later. Personnel security investigative reports resulting in an unfavorable administrative personnel action or court-martial or other investigations of a significant nature due to information contained in the investigation shall be destroyed 25 years after the date of the last action. Files in this latter category that are determined to be of possible historical value and those of widespread public or congressional interest may be offered to the National Archives after 15 years.

(c) Personnel security investigative reports on persons who are considered for affiliation with DoD will be destroyed after 1 year if the affiliation is not completed.

Information that is classified by a foreign government is exempt from public disclosure under the Freedom of Information and Privacy Acts. Further, information provided by foreign governments requesting an express promise of confidentiality shall be released only in a manner that will not identify or allow unauthorized persons to identify the foreign agency concerned.

To ensure uniform implementation of the DoD personnel security program throughout the Department, program responsibility shall be centralized at DoD Component level.

(a) The Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C31)) shall have primary responsibility for providing guidance, oversight, development and approval for policy and procedures governing personnel security program matters within the Department:

(1) Provide program management through issuance of policy and operating guidance.

(2) Provide staff assistance to the DoD Components and defense agencies in resolving day-to-day security policy and operating problems.

(3) Conduct inspections of the DoD Components for implementation and compliance with DoD security policy and operating procedures.

(4) Provide policy, oversight, and guidance to the component adjudication functions.

(5) Approve, coordinate and oversee all DoD personnel security research initiatives and activities.

(b) The General Counsel shall ensure that the program is administered in a manner consistent with the laws; all proceedings are promptly initiated and expeditiously completed; and that the rights of individuals involved are protected, consistent with the interests of national security. The General Counsel shall also ensure that all relevant decisions of the courts and legislative initiatives of the Congress are obtained on a continuing basis and that analysis of the foregoing is accomplished and disseminated to DoD personnel security program management authorities.

(c) The Heads of the Components shall ensure that:

(1) The DoD personnel security program is administered within their area of responsibility in a manner consistent with this part.

(2) A single authority within the office of the head of the DoD Component is assigned responsibility for administering the program within the Component.

(3) Information and recommendations are provided the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C31)) and the General Counsel at their request concerning any aspect of the program.

(a) The OASD(C31) shall be provided personnel security program management data by the Defense Data Manpower Center (DMDC) by December 31 each year for the preceding fiscal year. To facilitate accurate preparation of this report, all adjudicative determinations must be entered into the DC11 by all DoD central adjudication facilities no later than the end of the fiscal year. The information required below is essential for basic personnel security program management and in responding to requests from the Secretary of Defense and Congress. The report shall cover the preceding fiscal year, broken out by clearance category, according to military (officer or enlisted), civilian or contractor status and by the central adjudication facility that took the action, using the enclosed format:

(1) Number of Top Secret, Secret, and Confidential clearances issued;

(2) Number of Top Secret, Secret, and Confidential clearances denied;

(3) Number of Top Secret, Secret, and Confidential clearances revoked;

(4) Number of SCI access determinations issued;

(5) Number of SCI access determinations denied;

(6) Number of SCI access determinations revoked; and

(7) Total number of personnel holding a clearance for Top Secret, Secret, Confidential and Sensitive Compartmented Information as of the end of the fiscal year.

(b) The Defense Investigative Service (DIS) shall provide the OASD(C3I) a quarterly report that reflects investigative cases opened and closed during the most recent quarter, by case category type, and by major requester. The information provided by DIS is essential for evaluating statistical data regarding investigative workload and the manpower required to perform personnel security investigations. Case category types include National Agency Checks (NACs); Expanded NACs; Single Scope Background Investigations (SSBIs), Periodic Reinvestigations (PRs); Secret Periodic Reinvestigations (SPRs); Post Adjudicative (PA); Special Investigative Inquiries (SIIs); and Limited Inquiries (LIs). This report shall be forwarded to OASD(C3I) within 45 days after the end of each quarter.

(c) The reporting requirement for DMDC and DIS has been assigned Report Control Symbol DD-C3I(A) 1749.

The heads of DoD Components shall assure that personnel security program matters are included in their administrative inspection programs.

Information of the Department of Defense relating to national security shall be protected against unauthorized disclosure as long as required by national security considerations. This part establishes a system for classification, downgrading and declassification of information; sets forth policies and procedures to safeguard such information; and provides for oversight and administrative sanctions for violations.

This part governs the DoD Information Security Program and takes precedence over all DoD Component regulations that implement that Program. Under 32 CFR part 159, E.O. 12356, and Information Security Oversight Office (ISOO) Directive No. 1, it establishes, for the Department of Defense, uniform policies, standards, criteria, and procedures for the security classification, downgrading, declassification, and safeguarding of information that is owned by, produced for or by, or under the control of the Department of Defense or its Components.

Except as otherwise provided herein, the provisions of this part that are relevant to operations of nongovernment personnel entrusted with classified information shall be made applicable thereto by contracts or other legally binding instruments. (See DOD Directive 5220.22 1 , DoD 5220.22-R 2 , and DoD 5220.22-M 3 .

The provisions of this part relating to accountability, dissemination, transmission, or safeguarding of classified information may be modified by military commanders but only to the extent necessary to meet local conditions in connection with combat or combat-related operations. Classified information should be introduced into forward combat areas or zones or areas of potential hostile activity only when essential to accomplish the military mission.

Nothing in this part supersedes any requirement related to “Restricted Data” in the Atomic Energy Act of August 30, 1954, as amended, or the regulations of the Department of Energy under that Act. “Restricted Data” and material designated as “Formerly Restricted Data,” shall be handled, protected, classified, downgraded, and declassified to conform with Pub. L. 83-703 and the regulations issued pursuant thereto.

(a) Sensitive Compartmented Information (SCI) and Communications Security (COMSEC) Information shall be handled and controlled in accordance with applicable national directives and DOD Directives and Instructions. Other classified information, while in established SCI or COMSEC areas, may be handled in the same manner as SCI or COMSEC information. Classification principles and procedures, markings, downgrading, and declassification actions prescribed in this part apply to SCI and COMSEC information.

(b) Pursuant to 32 CFR part 159, the Director, National Security Agency/Chief, Central Security Service may prescribe special rules and procedures for the handling, reporting of loss, storage, and access to classified communications security devices, equipments, and materials in mobile, hand-held or transportable systems, or that are used in conjunction with commercial telephone systems, or in similar circumstances where operational demands preclude the application of standard safeguards. These special rules may include procedures for safeguarding such devices and materials, and penalties for the negligent loss of government property.

This part applies to protection of classified information processed, stored or used in, or communicated, displayed or disseminated by an automatic data processing (ADP) system. Additional security policy, responsibilities, and requirements applicable specifically to ADP systems are contained in DoD Directive 5200.28 4 and DoD 5200.28-M.

(a) Access. The ability and opportunity to obtain knowledge of classified information.

(b) Applicable Associated Markings. The markings, other than classfication markings, and warning notices listed or refered to in § 159a.31(d).

(c) Carve-Out. A classified contract issued in connection with an approved Special Access Program in which the Defense Investigative Service has been relieved of inspection, responsibility in whole or in part under the Defense Industrial Security Program.

(d) Classification Authority. The authority vested in an official of the Department of Defense to make an initial determination that information requires protection against unauthorized disclosure in the interest of national security.

(e) Classification Guide. A document issued by an authorized original classifier that prescribes the level of classification and appropriate declassification instructions for specified information to be classified derivatively. For purposes of this part, this term does not include DD Form 254, “Contract Security Classification Specification.”

(f) Classified Information. Information or material that is:

(1) Owned by, produced for or by, or under the control of the U.S. Government; and

(2) Determined under E.O. 12356 or prior orders and this part to require protection against unauthorized disclosure; and

(3) So designated.

(g) Classifier. An individual who makes a classification determination and applies a security classification to information or material. A classifier may be an original classification authority or a person who derivatively assigns a security classification based on a property classified source or a classification guide.

(h) Communications Security (COMSEC). The protection resulting from all measures designed to deny unauthorized persons information of value which might be derived from the possession and study of telecommunications and to ensure the authenticity of such communications. COMSEC includes cryptosecurity, emission security, transmission security, and physical security of COSMEC material and information.

(i) Compromise. The disclosure of classified information to persons not authorized access thereto.

(j) Confidential Source. Any individual or organization that has provided, or that may reasonably be expected to provide, information to the United States on matters pertaining to the national security with the expectation, expressed or implied, that the information or relationship, or both, be held in confidence.

(k) Continental United States (CONUS). United States territory, including adjacent territorial waters, located within the North American continent between Canada and Mexico.

(l) Controlled Cryptographic Item (CCI). A secure telecommunications or information handling equipment ancillary device, or associated cryptographic component, which is unclassified but controlled.

(m) Critical Nuclear Weapon Design Information. That Top Secret Restricted Data or Secret Restricted Data revealing the theory of operation or design of the components of a thermo-nuclear or implosion-type fission bomb, warhead, demolition munition or test device. Specifically excluded is information concerning arming, fuzing, and firing systems; limited life components; and total contained quantities of fissionable, fusionable, and high explosive materials by type. Among these excluded items are the components which DoD personnel set, maintain, operate, test, or replace.

(n) Custodian. An individual who has possession of or is otherwise charged with the responsibility for safeguarding or accounting for classified information.

(o) Declassification. The determination that classified information no longer requires, in the interest of national security, any degree of protection against unauthorized disclosure, together with a removal or cancellation of the classification designation.

(p) Declassification Event. An event that eliminates the need for continued classification of information.

(q) Derivative Classification. A determination that information is in substance the same as information currently classified, and the application of the classification markings.

(r) Document. Any recorded information regardless of its physical form or characteristics, including, without limitation, written or printed matter, data processing cards and tapes, maps, charts, paintings, drawings, engravings, sketches, working notes and papers, or reproductions by any means or process, and sound, voice, magnetic or electronic recordings in any form.

(s) DoD Component. The Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified and Specified Commands, and the Defense Agencies.

(t) Downgrade. A determination that classified information requires, in the interest of national security, a lower degree of protection against unauthorized disclosure than currently provided, together with a changing of the classification designation to reflect such lower degree of protection.

(u) Foreign Government Information. Information that is:

(1) Provided to the United States by a foreign government or governments, an international organization of governments, or any element thereof with the expectation, expressed or implied, that the information, the source of the information, or both, are to be held in confidence; or

(2) Produced by the United States pursuant to or as a result of a joint arrangement with a foreign government or governments or an international organization of governments, or any element thereof, requiring that the information, the arrangement, or both, are to be held in confidence.

(v) Formerly Restricted Data. Information removed from the Restricted Data category upon a joint determination by the Department of Energy (or antecedent agencies) and the Department of Defense that such information relates primarily to the military utilization of atomic weapons and that such information can be safeguarded adequately as classified defense information. For purposes of foreign dissemination, however, such information is treated in the same manner as Restricted Data.

(w) Information. Knowledge that can be communicated by any means.

(x) Information Security. The result of any system of policies and procedures for identifying, controlling, and protecting from unauthorized disclosure, information whose protection is authorized by executive order or statute.

(y) Intelligence Activity. An activity that an agency within the Intelligence Community is authorized to conduct under E.O. 12333.

(z) Limited Dissemination. Restrictive controls for classified information established by an original classification authority to emphasize need-to-know protective measures available within the regular security system.

(aa) Material. Any product or substance on, or in which, information is embodied.

(bb) National Security. The national defense and foreign relations of the United States.

(cc) Need-to-know. A determination made by a possessor of classified information that a prospective recipient, in the interest of national security, has a requirement for access to, or knowledge, or possession of the classified information in order to accomplish lawful and authorized Government purposes.

(dd) Original Classification. An initial determination that information requires, in the interest of national security, protection against unauthorized disclosure, together with a classification designation signifying the level of protection required.

(ee) Regrade. A determination that classified information requires a different degree of protection against unauthorized disclosure than currently provided, together with a change of classification designation that reflects such different degree of protection.

(ff) Restricted Data. All data concerning:

(1) Design, manufacture or utilization of atomic weapons;

(2) The production of special nuclear material; or

(3) The use of special nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted Data category under section 142 of Pub. L. 83-703.

(gg) Security Clearance. A determination that a person is eligible under the standards of DoD 5200.2-R for access to classified information.

(hh) Senior Information Security Authority. A senior official designated in writing by the head of each DoD Component to be responsible for implementation of the Information Security Program within the Component.

(ii) Sensitive Compartmented Information. Information and material that requires special controls for restricted handling within compartmented intelligence systems and for which compartmentation is established.

(jj) Special Access Program. Any program approved in accordance with subpart M of this part which imposes need-to-know or access controls beyond those normally required for access to Confidential, Secret, or Top Secret information.

(kk) Special Activity. An activity, or functions in support of such activity, conducted in support of national foreign policy objectives abroad that is planned and executed so that the role of the U.S. Government is neither apparent nor acknowledged publicly; but that is not intended to influence U.S. political processes, public opinion, policies, or media, and does not include diplomatic activities or the collection and production of intelligence or related support functions.

(ll) Unauthorized Disclosure. A communication or physical transfer of classified information to an unauthorized recipient.

(mm) United States and Its Territories, Possessions, Administrative, and Commonwealth Areas. The 50 States; the District of Columbia; the Commonwealth of Puerto Rico; the Territories of Guam, American Samoa, and the Virgin Islands; the Trust Territory of the Pacific Islands; and the Possessions, Midway and Wake Islands.

(nn) Upgrade. A determination that certain classified information requires, in the interest of national security, a higher degree of protection against unauthorized disclosure than currently provided, together with a changing of the classification designation to reflect such higher degree.

(a) Classification—(1) Basic Policy. Except as provided in the Atomic Energy Act of 1954, as amended, E.O. 12356, as implemented by the ISOO Directive No. 1, and this part, provides the only basis for classifying information. It is the policy of the Department of Defense to make available to the public as much information concerning its activities as possible consistent with the need to protect the national security. Accordingly, security classification shall be applied only to protect the national security.

(2) Resolution of Doubts. Unnecessary classification and higher than necessary classification should be avoided. If there is reasonable doubt about the need to classify information, it shall be safeguarded as if it were classsified “Confidential” pending a determination by an original classification authority, who shall make this determination within 30 days. If there is reasonable doubt about the appropriate level of classification, it shall be safeguarded at the higher level of classification pending a determination by an original classification authority, who shall make this determination within 30 days. Upon a classification determination, markings shall be applied in accordance with subpart E of this part.

(3) Duration. Information shall be classified as long as required by national security considerations. Each decision to classify requires a simultaneous determination of the duration such classification must remain in force or that the duration of classification cannot be determined.

(b) Declassification. Decisions concerning declassification shall be based on the loss of the information's sensitivity with the passage of time or upon the occurrence of a declassification event.

(c) Safeguarding. Information classified under this part shall be afforded the level of protection against unauthorized disclosure commensurate with the level of classification assigned under the varying conditions that may arise in connection with its use, dissemination, storage, movement or transmission, and destruction.

(a) General. Information or material that requires protection against unauthorized disclosure in the interest of national security shall be classified in one of three designations, namely: “Top Secret,” “Secret,” or “Confidential.” The markings “For Official Use Only,” and “Limited Official Use” shall not be used to identify classified information. Moreover, no other term such as “Sensitive,” “Conference,” or “Agency” shall be used in conjunction with the authorized classification designations to identify classified information.

(b) Top Secret. “Top Secret” shall be applied only to information or material the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security. Examples of exceptionally grave damage include armed hostilities against the United States or its allies; disruption of foreign relations vitally affecting the national security; the compromise of vital national defense plans or complex cryptologic and communications intelligence systems; the revelation of sensitive intelligence operations; and the disclosure of scientific or technological developments vital to national security.

(c) Secret. “Secret” shall be applied only to information or material the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security. Examples of serious damage include disruption of foreign relations significantly affecting the national security; significant impairment of a program or policy directly related to the national security; revelation of significant military plans or intelligence operations; compromise of significant military plans or intelligence operations; and compromise of significant scientific or technological developments relating to national security.

(d) Confidential. “Confidential” shall be applied only to information or material the unauthorized disclosure of which reasonably could be expected to cause damage to the national security. Examples of damage include the compromise of information that indicates strength of ground, air, and naval forces in the United States and overseas areas; disclosure of technical information used for training, maintenance, and inspection of classified munitions of war; revelation of performance characteristics, test data, design, and production data on munitions of war.

(a) Original Classification Authority—(1) Control. Authority for original classification of information as Top Secret, Secret, or Confidential may be exercised only by the Secretary of Defense, the Secretaries of the Military Departments, and by officials to whom such authority is specifically delegated in accordance with and subject to the restrictions of this section of the part. In the absence of an original classification authority, the person designated to act in his or her absence may exercise the classifier's authority.

(2) Delegation of Classification Authority. Original classification authority shall not be delegated to persons who only reproduce, extract, or summarize classified information, or who only apply classification markings derived from source material or as directed by a classification guide. Delegations of original classification authority shall be limited to the minimum number required for efficient administration and to those officials whose duties involve the origination and evaluation of information warranting classification at the level stated in the delegation.

(i) Top Secret. Only the Secretary of Defense, the Secretaries of the Military Departments, and the senior official designated by each under § 5.3(a) of E.O. 12356, provided that official has original Top Secret classification authority, may delegate original Top Secret classification authority. Such delegation may only be made to officials who are determined to have a demonstrable and continuing need to exercise such authority.

(ii) Secret and Confidential. Only the Secretary of Defense, the Secretaries of the Military Departments, the senior official designated by each under § 5.3(a) of E.O. 12356, and officials with original Top Secret classification authority, may delegate original Secret and Confidential classification authority to officials whom they determine respectively to have a demonstrable and continuing need to exercise such authority.

(iii) Each delegation of original classification authority shall be in writing and shall specify the title of the position held by the recipient.

(3) Requests for Classification Authority. (i) A request for the delegation of original classification authority shall be made only when there is a demonstrable and continuing need to exercise such authority and the following conditions exist:

(A) The normal course of operations or missions of the organization results in the origination of information warranting classification;

(B) There is a substantial degree of local autonomy in operations or missions as distinguished from dependence upon a higher level of command or supervision for relatively detailed guidance;

(C) There is adequate knowledge by the originating level to make sound classification determinations as distinguished from having to seek such knowledge from a higher level of command or supervision; and

(D) There is a valid reason why already designated classification authorities in the originator's chain of command or supervision have not issued or cannot issue classification guidance to meet the originator's normal needs.

(ii) Each request for a delegation of original classification authority shall:

(A) Identify the title of the position held by the nominee and the nominee's organization;

(B) Contain a description of the circumstances, consistent with paragraph (a)(3)(i) of this section, that justify the delegation of such authority; and

(C) Be submitted through established channels to the Secretary of Defense, the Secretary of the Military Department concerned, the senior official designated by each under § 5.3(a) of E.O. 12356, or the appropriate Top Secret classification authority.

(4) Training Requirements for Original Classification Authorities. Heads of DoD Component shall establish procedures to ensure that all original classification authorities in their Component, to include themselves, are indoctrinated in the fundamentals of security classification, limitations on their authority to classify information, and their responsibilities as such. This indoctrination shall be a prerequisite to the exercise of such authority and shall be a matter of record that is subject to audit. Heads of DoD Components shall ensure this indoctrination is given to all present original classification authorities within 12 months of the effective date of this part.

(b) Derivative Classification Responsibility. Derivative application of classification markings is a responsibility of those who incorporate, paraphrase, restate, or generate in new form, information that is already classified, or those who apply markings in accordance with guidance from an original classification authority. Persons who apply derivative classifications should take care to determine whether their paraphrasing, restating, or summarizing of classified information has removed all or part of the basis for classification. Persons who apply such derivative classification markings shall:

(1) Respect original classification decisions;

(2) Verify the information's current level of classification as far as practicable before applying the markings; and

(3) Carry forward to any newly created documents the assigned dates or events for declassification and any additional authorized markings.

(c) Record and Report Requirements. (1) Records of designations of original classification authority shall be maintained as follows:

(i) Top Secret Authorities. A current listing by title and organization of officials designated to exercise original Top Secret classification authority shall be maintained by:

(A) The Office of the Deputy Under Secretary of Defense (Policy) (ODUSD(P)) for the Office of the Secretary of Defense; the Organization of the Joint Chiefs of Staff; the headquarters of each Unified Command and the headquarters of subordinate Joint Commands; and the Defense Agencies.

(B) The Offices of the Secretaries of the Military Departments for the officials of their respective departments, including Specified Commands but excluding officials from their respective departments wo are serving in headquarters elements of Unified Commands and headquarters of Joint Commands subordinate thereto.

(ii) Secret and Confidential Authorities. A current listing by title and organization of officials designated to exercise original Secret and Confidential classification authority shall be maintained by:

(A) The ODUSD(P) for the Office of the Secretary of Defense.

(B) The offices of the Secretaries of the Military Departments for the officials of their respective departments, including Specified Commands but excluding officials from their respective departments who are serving in headquarters elements of Unified Commands and headquarters elements of Joint Commands subordinate thereto.

(C) The Director, Joint Staff, for the OJCS.

(D) The Commanders-in-Chief of the Unified Commands, for their respective headquarters and the headquarters of subordinate Joint Commands.

(E) The Directors of the Defense Agencies, for their respective agencies.

(iii) If the listing of titles of positions and organizations prescribed in paragraphs (c)(1) (i) and (ii) of this section discloses intelligence or other information that either qualifies for security classification protection or otherwise qualifies to be withheld from public release under statute, some other means may be recommended by the DoD Component by which original classification authorities can be readily identified. Such recommendations shall be submitted to ODUSD(P) for approval.

(iv) The listings prescribed in paragraphs (c)(1) (i) and (ii) of this section shall be reviewed at least annually by the senior official designated in or pursuant to § 159a.92(a)(1), § 159a.93 (a) or (b) or designee to ensure that officials so listed have demonstrated a continuing need to exercise original classification authority.

(2) The DoD Components that maintain listings of designated original classification authorities shall, upon request, submit copies of such listings to ODUSD(P).

(d) Declassification and Downgrading Authority. (1) Authority to declassify and downgrade information classified under provisions of this part shall be exercised as follows:

(i) By the Secretary of Defense and the Secretaries of the Military Departments, with respect to all information over which their respective Departments exercise final classification jurisdiction;

(ii) By the official who authorized the original classification, if that official is still serving in the same position, by a successor, or by a supervisory official of either; and

(iii) By other officials designated for the purpose in accordance with paragraph (d)(2) of this section.

(2) The Secretary of Defense, the Secretaries of the Military Departments, the Chairman of the Joint Chiefs of Staff, the Directors of the Defense Agencies, or their senior officials designated under § 159a.93 (b) or (c) may designate additional officials at the lowest practicable echelons of command and supervision to exercise declassification and downgrading authority over classified information in their functional areas of interest. Records of officials so designated shall be maintained in the same manner as prescribed in § 159a.12(c)(1)(i) for records of designations of original classification authority.

(a) Accountability of Classifiers. (1) Classifiers are accountable for the propriety of the classifications they assign, whether by exercise of original classification authority or by derivative classification.

(2) An official who classifies a document or other material and is identified thereon as the classifier is and continues to be an accountable classifier even though the document or material is approved or signed at a higher level in the same organization.

(b) Classification Approval. (1) When an official signs or approves a document or other material already marked to reflect a particular level of classification, he or she shall review the information contained therein to determine if the classification markings are appropriate. If, in his or her judgment, the classification markings are not supportable, he or she shall, at that time, cause such markings to be removed or changed as appropriate to reflect accurately the classification of the information involved.

(2) A higher level official through or to whom a document or other material passes for signature or approval becomes jointly responsible with the accountable classifier for the classification assigned. Such official has discretion to decide whether a subordinate who has classification authority shall be identified as the accountable classifier when he or she has exercised that authority.

(c) Classification Planning. (1) Advance classification planning is an essential part of the development of any plan, operation, program, research and development project, or procurement action that involves classified information. Classification must be considered from the outset to assure adequate protection for the information and for the activity itself, and to eliminate impediments to the execution or implementation of the plan, operations order, program, project or procurement action.

(2) The official charged with developing any plan, program or project in which classification is a factor, shall include under an identifiable title or heading, classification guidance covering the information involved. The guidance shall conform to the requirements contained in § 159a.17.

(d) Challenges to Classification. If holders of classified information have substantial reason to believe that the information is classified improperly or unnecessarily, they shall communicate that belief to their security manager or the classifier of the information to bring about any necessary correction.

(1) Each DoD Component shall establish procedures whereby holders of classified information may challenge the decision of the classifier.

(2) Challenges to classification made under this subsection shall include sufficient description of the information being challenged to permit identification of the information and its classifier with reasonable effort. Challenges to classification shall also include the reason or reasons why the challenger believes that the information is classified improperly or unnecessarily.

(3) Challenges received under this subsection shall be acted upon within 30 days of receipt. The challenger shall be notified of any changes made as a result of the challenge or the reasons why no change is made.

(4) Pending final determination of a challenge to classification, the information or document in question shall be safeguarded as required for the level of classification initially assigned.

(5) The fact that an employee or military member of the Department of Defense has issued a challenge to classification shall not in any way result in or serve as a basis for adverse personnel action.

(6) The provisions of this paragraph do not apply to or affect declassification review actions undertaken under the mandatory review requirements of § 159a.26 of this part or under the provisions of 32 CFR part 285.

(a) Reasoned Judgment. Reasoned judgment shall be exercised in making classification decisions. A positive basis must exist for classification. Both advantages and disadvantages of classification must be weighed. If, after consideration of the provisions of this section, there is reasonable doubt, the provisions of § 159a.10(a)(2) apply.

(b) Identification of Specific Information. Before a classification determination is made, each item of information that may require protection shall be identified. This requires identification of that specific information that comprises the basis for a particular national advantage or advantages that, if the information were compromised, would or could be damaged, minimized, or lost, thereby adversely affecting national security.

(c) Specific Classifying Criteria. A determination to classify shall be made only by an original classification authority when, first, the information is within paragraphs (c) (1) through (10) of this section; and second, the unauthorized disclosure of the information, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security. The determination involved in the first step is separate and distinct from that in the second. Except as provided in paragraph (d) of this section, the fact that the information falls under one or more of the criteria shall not mean that the information automatically meets the damage criteria. Information shall be considered for classification if it concerns:

(1) Military plans, weapons, or operations;

(2) Vulnerabilities or capabilities of systems, installations, projects, or plans relating to the national security;

(3) Foreign government information;

(4) Intelligence activities including special activities, or intelligence sources or methods;

(5) Foreign relations or foreign activities of the United States;

(6) Scientific, technological, or economic matters relating to the national security;

(7) U.S. Government programs for safeguarding nuclear materials or facilities;

(8) Cryptology;

(9) A confidential source; or

(10) Other categories of information that are related to national security and that require protection against unauthorized disclosure as determined by the Secretary of Defense or Secretaries of the Military Departments. Recommendations concerning the need to designate additional categories of information that may be considered for classification shall be forwarded through channels to the appropriate Secretary for determination. Each such determination shall be reported promptly to the Director of Security Plans and Programs, ODUSD(P), for promulgation in an Appendix to this part and reporting to the Director, ISOO.

(d) Presumption of Damage. Unauthorized disclosure of foreign government information, the identity of a confidential foreign source, or intelligence sources or methods is presumed to cause damage to the national security.

(e) Limitations on Classification. (1) classification may not be used to conceal violations of law, inefficiency, or administrative error, to prevent embarrassment to a person, organization or agency, or to restrain competition.

(2) Basic scientific research information not clearly related to national security may not be classified.

(3) A product of nongovernment research and development that does not incorporate or reveal classified information to which the producer or developer was given prior access may not be classified until and unless the government acquires a proprietary interest in the product. This prohibition does not affect the provisions of the Patent Secrecy Act of 1952.

(4) References to classified documents that do not reveal classified information may not be classified or used as a basis for classification.

(5) Classification may not be used to limit dissemination of information that is not classifiable under the provisions of E.O. 12356 or this part or to prevent or delay public release of such information.

(6) Information may be classified or reclassified after receiving a request for it under the Freedom of Information Act, the Privacy Act, or the mandatory review provisions of this part (§ 159a.26) if such classification is consistent with this part and is accomplished personally and on a document-by-document basis, except as provided in paragraph (e)(7) of this section, by the Secretary or Deputy Secretary of Defense, by the Secretaries or Under Secretaries of the Military Departments, by the senior official designated by each Secretary under § 5.3(a) of E.O. 12356, or by an official with original Top Secret classification authority.

(7) The Secretary of Defense and the Secretaries of the Military Departments may reclassify information previously declassified and disclosed, and they may classify unclassified information that has been disclosed, if they determine in writing that the information requires protection in the interest of national security and the information may reasonably be recovered. Any such reclassification or classification shall be reported to the DUSD(P) for subsequent reporting to the Director, ISOO.

(f) Classifying Scientific Research Data. Ordinarily, except for information that meets the definition of Restricted Data, basic scientific research or its results shall not be classified. However, classification would be appropriate if the information concerns an unusually significant scientific breakthrough and there is sound reason to believe that it is not known or within the state-of-the-art of other nations, and it supplies the United States with an advantage directly related to national security.

(g) Classifying Documents. Each document and portion thereof shall be classified on the basis of the information it contains or reveals. The fact that a document makes reference to a classified document is not a basis for classification unless the reference citation, standing alone, reveals classified information. The overall classification of a document or group of physically-connected documents shall be at least as high as that of the most highly classified component. The subject or title of a classified document normally should be unclassified. When the information revealed by a subject or title warrants classification, an unclassified short title should be added for reference purposes.

(h) Classifying Material Other Than Documents. (1) Items of equipment or other physical objects shall be classified only when classified information may be derived from them by visual observation of their internal or external appearance or structure, or by their operation, test, application, or use. The overall classification assigned to end items of equipment or objects shall be at least as high as the highest classification of any of its integrated parts.

(2) If mere knowledge of the existence of the item of equipment or object would compromise or nullify its national security advantage, its existence would warrant classification.

(i) State of the Art and Intelligence. Classification requires consideration of the information available from intelligence sources concerning the extent to which the same or similar information is known or is available to others. It is also important to consider whether it is known, publicly or internationally, that the United States has the information or even is interested in the subject matter. The state-of-the-art in other nations may often be a vital consideration.

(j) Effect of Open Publication. Classified information shall not be declassified automatically as a result of any unofficial publication or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information. Appearance in the public domain of information currently classified or being considered for classification does not preclude initial or continued classification. However, such disclosures require immediate determination of the degree of damage to the national security and reevaluation of the information to determine whether the publication has so compromised the information that downgrading or declassification is warranted. Similar consideration must be given to related items of information in all programs, projects, or items incorporating or pertaining to the compromised items of information. Holders should continue classification until advised to the contrary by a competent government authority.

(k) Reevaluation of Classification Because of Compromise. Classified information, and information related thereto, that has been lost or possibly compromised, shall be reevaluated and acted upon as follows:

(1) The original classifying authority, upon learning that a loss or possible compromise of specific classified information has occurred, shall prepare a written damage assessment and;

(i) Reevaluate the information involved and determine whether (A) Its classification should be continued without change; (B) The specific information, or parts therof, should be modified to minimize or nullify the effects of the reported compromise and the classification retained; (C) Declassification, downgrading, or upgrading is warranted; and (D) Counter-measures are appropriate and feasible to negate or minimize the effect of the compromise.

(ii) Give prompt notice to all holders of such information when the determination is within categories (A), (C), or (D) of paragraph (k)(1)(i) of this section.

(2) Upon learning that a compromise or probable compromise has occurred, any official having original classification jurisdiction over related information shall reevaluate the related information and determine whether one of the courses of action enumerated in paragraph (k)(1)(i) of this section should be taken or, instead, whether upgrading of the related information is warranted. When such a determination is within categories (B), (C), or (D) of paragraph (k)(1)(i) of this section, that upgrading of the related items is warranted, prompt notice of the determination shall be given to all holders of the related information.

(l) Compilation of Information. Certain information that would otherwise be unclassified may require classification when combined or associated with other unclassified information. However, a compilation of unclassified items of information should normally not be classified. In unusual circumstances, classification may be required if the combination of unclassified items of information provides an added factor that warrants classification under paragraph (c) of this section. Classification on this basis shall be fully supported by a written explanation that will be provided with the material so classified.

(m) Extracts of Information. Information extracted from a classified source shall be derivatively classified or not classified in accordance with the classification markings shown in the source. The overall and internal markings of the source should supply adequate classification guidance. If internal markings or classification guidance are not found in the source, and no reference is made to an applicable and available classification guide, the extracted information shall be classified according either to the overall marking of the source, or guidance obtained from the classifier of the source material.

(a) General. When a determination is made by an official with authority to classify originally information as Top Secret, Secret, or Confidential, such official must also determine how long the classification shall remain in effect.

(b) Duration of Classification. (1) Information shall be classified as long as required by national security considerations.

(2) When it can be determined, a specific date or event for declassification shall be set by the original classification authority at the time the information is classified originally. Such dates or events shall be consistent with national security. Any event specified for declassification shall be an event certain to occur.

(3) Original classification authorities may not be able to predetermine a date or event for automatic declassification in which case they shall provide for the indefinite duration of classification.

(4) Information classified under predecessor orders and marked for declassification review shall remain classified until reviewed for declassification under the provisions of this part.

(c) Subsequent Extension of Duration of Classification. The duration of classification specified at the time of original classification may be extended only by officials with requisite original classification authority and only if all known holders of the information can be notified of such action before the date or event previously set for declassification. Any decision to continue classification of information designated for automatic declassification under E.O. 12065 or predecessor orders, other than on a document-by-document basis, shall be reported to the DUSD(P) who shall, in turn, report to the Director, ISOO.

(a) General. (1) A classification guide shall be issued for each classified system, program, plan, or project as soon as practicable before the initial funding or implementation of the system, program, plan or project. Successive operating echelons shall prescribe more detailed supplemental guides that are considered essential to assure accurate and consistent classification. In preparing classification guides, originators shall review DoD 5200.1-H 5.

(2) Classification guides shall:

(i) Identify the information elements to be protected, using categorization to the extent necessary to ensure that the information involved can be identified readily and uniformly;

(ii) State which the classification designations (that is, Top Secret, Secret, or Confidential) applies to each element or category of information;

(iii) State declassification instructions for each element or category of information in terms of a period of time, the occurrence of an event, or a notation that the information shall not be declassified automatically without approval of the originating agency; and

(iv) State any special public release procedures and foreign disclosure considerations.

(3) Each classification guide shall be approved personally and in writing by an official who:

(i) Has program or supervisory responsibility over the information or is the senior agency official designated by the Secretary of Defense or Secretaries of the Military Departments in accordance with § 5.3(a) of E.O. 12356; and

(ii) Is authorized to classify information originally at the highest level of classification prescribed in the guide.

(b) Multiservice Interest. For each classified system, program, project, plan, or item involving more than one DoD Component, a classification guide shall be issued by: (1) The element in the Office of the Secretary of Defense that assumes or is expressly designated to exercise overall cognizance over it; or (2) The DoD Component that is expressly designated to serve as the executive or administrative agent for the particular effort. When there is doubt which Component has cognizance of the information involved, the matter shall be referred to the DUSD(P) for resolution.

(c) Research, Development, Test, and Evaluation. A program security classification guide shall be developed for each system and equipment development program that involves research, development, test, and evaluation (RDT&E) of classified technical information. For each such program covered by an approved Decision Coordinating Paper (DCP) or Program Objective Memorandum (POM), initial basic classification guidance applicable to technical characteristics of the system or equipment shall be developed and submitted with the proposed DCP or POM to the Director, Defense Research and Engineering for approval. A detailed classification guide shall be developed and issued as near in time as possible to the approval of the DCP or POM.

(d) Project Phases. Whenever possible, classification guides shall cover specifically each phase of transition, that is, RDT&E, procurement, production, service use, and obsolescence, with changes in assigned classifications to reflect the changing sensitivity of the information involved.

(e) Review of Classification Guides. (1) Classification guides shall be reviewed by the originator for currency and accuracy not less than once every 2 years. Changes shall be issued promptly. If no changes are made, the originator shall so annotate the record copy and show the date of the review.

(2) Classification guides issued before August 1, 1982, that are in current use must be updated to meet the requirements of paragraph (a)(2) of this section. Such updating shall be accomplished by the next biennial review. Converting previous declassification determinations directed by classification guides shall be accomplished in accordance with the following:

(i) Automatic declassification dates or events remain in force unless changed by competent authority in accordance with § 159a.16(c).

(ii) Dates for declassification review shall be changed to automatic declassification dates or provide for the indefinite duration of classification.

(f) Distribution of Classification Guides. (1) A copy of each approved classification guide and changes thereto other than those covering SCI or a Special Access Program and which discloses information that require special access, shall be sent to the Director of Freedom of Information and Security Review, Office of the Assistant Secretary of Defense (Public Affairs), and to the Director of Security Plans and Programs, ODUSD(P). A copy of each approved classification guide covering SCI shall be submitted to and maintained by the Senior Intelligence Officer who has security cognizance over the issuing activity.

(2) Two copies of each approved classification guide and its changes shall be sent by the originator to the Administrator, Defense Technical Information Center (DTIC), Defense Logistic Agency, unless such guide is classified Top Secret, or covers SCI, or is determined by the approval authority of the guide to be too sensitive for automatic secondary distribution to DoD Components, such as a Special Access Program guide revealing the nature of the Program. Each classification guide forwarded to DTIC must bear distribution statement B, C, D, E, F, or X from DoD Directive 5230.24 6 on its front cover or first page if there is no cover.

(g) Index of Security Classification Guides. (1) All security classification guides, except as provided in paragraph (g)(2) of this section, issued under this part shall be listed in DoD 5200.1-I 7 , on the basis of information provided on DD Form 2024, “DoD Security Classification Guide Data Elements.” The originator of each guide shall execute DD Form 2024 when the guide is approved, changed, revised, reissued, or canceled, and when its biennial review is accomplished. The original copy of each executed DD Form 2024 shall be forwarded to the Director of Security Plans and Programs, ODUSD(P) who will maintain the Index. Report Control Symbol DD-POL (B&AR)1418 applies to this information collection system.

(2) Any classification guide that because of classification considerations is not listed in accordance with paragraph (g)(1) of this section, shall be reported by the originator to the Director of Security Plans and Programs, ODUSD(P). The report shall include the title of the guide, its date, the classification of the guide, and identification of the originating activity. A separate classified list of such guides will be maintained. Report Control Symbol DD-POL(B&AR)1418 applies to this information collection system.

(a) General. When two or more offices, headquarters, or activities disagree concerning a classification, declassification, or regrading action, the disagreement must be resolved promptly.

(b) Procedures. If agreement cannot be reached by informal consultation, the matter shall be referred for decision to the lowest superior common to the disagreeing parties. If agreement cannot be reached at the major command (or equivalent) level, the matter shall be referred for decision to the headquarters office having overall classification management responsibilities for the Component. That office shall also be advised of any disagreement at any echelon if prompt resolution is not likely to occur.

(c) Final Decision. Disagreements between DoD Component headquarters, if not resolved promptly, shall be referred for final resolution to the ODUSD(P).

(d) Timing. Action under this section at each level of consideration shall be completed within 30 days. Failure to reach a decision within 30 days shall be cause for referral to the next level for consideration.

Procedures. If a person not authorized to classify originates or develops information that he or she believes should be safeguarded, he or she shall:

(a) Safeguard the information in the manner prescribed for the intended classification.

(b) Mark the information (or cover sheet) with the intended classification designation prescribed in § 159a.11;

(c) Transmit the information under appropriate safeguards to an appropriate classification authority for evaluation. The transmittal shall state that the information is tentatively marked to protect it in transit. If such authority is not readily identifiable, the information should be forwarded to a headquarters activity of a DoD Component, to the headquarters office having overall classification management responsibilities for a DoD Component, or to the DUSD(P). A determination whether to classify the information shall be made within 30 days of receipt;

(d) Upon decision by the classifying authority, the tentative marking shall be removed. If a classification is assigned, appropriate markings shall be applied; but

(e) In an emergency requiring immediate communication of the information, after taking the action prescribed by paragraphs (a) and (b) of this section transmit the information and then proceed in accordance with paragraph (c) of this section.

(a) General. There are some circumstances in which information not meeting the definition in § 159a.9(f) may warrant protection in the interest of national security.

(b) Patent Secrecy Act. The Patent Secrecy Act of 1952 provides that the Secretary of Defense, among others, may determine that disclosure of an invention by granting of a patent would be detrimental to national security. See DoD Directive 5535.2 8 . A patent application on which a secrecy order has been imposed shall be handled as follows within the Department of Defense:

(1) If the patent application contains information that warrants classification, it shall be assigned a classification and be marked and safeguarded accordingly.

(2) If the patent application does not contain information that warrants classification, the following procedures shall be followed:

(i) A cover sheet (or cover letter for transmittal) shall be placed on the application with substantially the following language:

(ii) The information shall be withheld from public release; its dissemination within the Department of Defense shall be controlled; the applicant shall be instructed not to disclose it to any unauthorized person; and the patent application (or other document incorporating the protected information) shall be safeguarded in the manner prescribed for equivalent classified material.

(3) If filing of a patent application with a foreign government is approved under provisions of the Patent Secrecy Act of 1952 and agreements on interchange of patent information for defense purposes, the copies of the patent application prepared for foreign registration (but only those copies) shall be marked at the bottom of each page as follows:

(c) Independent Research and Development. (1) Information in a document or material that is a product of government-sponsored independent research and development conducted without access to classified information may not be classified unless the government first acquires a proprietary interest in such product.

(2) If no prior access was given but the person or company conducting the independent research or development believes that protection may be warranted in the interest of national security, the person or company should safeguard the information in accordance with § 159a.19 and submit it to an appropriate DoD element for evaluation. The DoD element receiving such a request for evaluation shall make or obtain a determination whether a classification would be assigned if it were government information. If the determination is negative, the originator shall be advised that the information is unclassified. If the determination is affirmative, the DoD element shall make or obtain a determination whether a proprietary interest in the research and development will be acquired. If so, the information shall be assigned proper classification. If not, the originator shall be informed that there is no basis for classification and the tentative classification shall be canceled.

(d) Other Private Information. The procedure specified in § 159a.19 shall apply in any case not specified in paragraph (c) of this section, such as an unsolicited contract bid, in which private information is submitted to a DoD element for a determination of classification.

(a) Raising to a Higher Level of Classification. The upgrading of classified information to a higher level than previously determined by officials with appropriate classification authority and jurisdiction over the subject matter is permitted only when all known holders of the information:

(1) Can be notified promptly of such action, and

(2) Are authorized access to the higher level of classification, or the information can be retrieved from those not authorized access to information at the contemplated higher level of classification.

(b) Classification of Information Previously Determined to be Unclassified. Unclassified information, once communicated as such, may be classified only when the classifying authority:

(1) Makes the determination required for upgrading in paragraph (a) of this section;

(2) Determines that control of the information has not been lost by such communication and can still be prevented from being lost; and

(3) In the case of information released to secondary distribution centers, such as the DTIC, determines that no secondary distribution has been made and can still be prevented (see also § 159a.15(e) (6) and (7)).

(c) Notification. All known holders of information that has been upgraded shall be notified promptly of the upgrading action.

(d) Downgrading. When it will serve a useful purpose, original classification authorities may, at the time of original classification, specify that downgrading of the assigned classification will occur on a specified date or upon the occurrence of a stated event.

(a) Classification in Industrial Operations. Classification of information in private industrial operations shall be based only on guidance furnished by the government. Industrial management may not make original classification determinations and shall implement the classification decisions of the U.S. Government contracting authority.

(b) Contract Security Classification Specification. DD Form 254, “Contract Security Classification Specification,” shall be used to convey contractual security classification guidance to industrial management. DD Forms 254 shall be changed by the originator to reflect changes in classification guidance and reviewed for currency and accuracy not less than once every 2 years. Changes shall conform with this part and DoD 5220.22-R and DoD 5220.22-M and shall be provided to all holders of the DD Form 254 as soon as possible. When no changes are made as a result of the biennial review, the originator shall so notify all holders of the DD Form 254 in writing.

(a) Policy. Information classified under E.O. 12356 and prior orders shall be declassified or downgraded as soon as national security considerations permit. Decisions concerning declassification shall be based on the loss of sensitivity of the information with the passage of time or on the occurrence of an event that permits declassification. Information that continues to meet the classification requirements of § 159a.15(c) despite the passage of time will continue to be protected in accordance with this part.

(b) Responsibility of Officials. Officials authorized under § 159a.12(c) to declassify or downgrade information that is under the final classification jurisdiction of the Department of Defense shall take such action in accordance with this subpart.

(c) Declassification Coordination. DoD Component declassification review of classified information shall be coordinated with any other DoD or non-DoD office, Component, or agency that has a direct interest in the subject matter.

(d) Declassification by the Director of the ISOO. If the Director of the ISOO determines that information is classified in violation of E.O. 12356, the Director may require the activity that originally classified the information to declassify it. Any such decision by the Director may be appealed through the Director of Security Plans and Programs, ODUSD(P), to the National Security Council (NSC). The information shall remain classified pending a prompt decision on the appeal.

(a) Assistance to the Archivist of the United States. The Secretary of Defense and the Secretaries of the Military Departments shall designate experienced personnel to assist the Archivist of the United States in the systematic review of classified information. Such personnel shall:

(1) Provide guidance and assistance to National Archives and Records Administration (NARA) employees in identifying and separating documents and specific categories of information within documents that are deemed to require continued classification; and

(2) Refer doubtful cases to the DoD Component having classification jurisdiction over the information or material for resolution.

(b) Systematic Review Guidelines. The Director of Security Plans and Programs, ODUSD(P), in coordination with DoD Components, shall review, evaluate, and recommend revisions of DoD Directive 5200.30 9 at least every 5 years.

(c) Systematic Review Procedures. (1) Except as noted in this subsection, classified information transferred to the NARA that is permanently valuable will be reviewed systematically for declassification by the Archivist of the United States with the assistance of the DoD personnel designated for that purpose under paragraph (a) of this section as it becomes 30 years old. Information concerning intelligence (including special activities), sources, or methods created after 1945, and information concerning cryptology created after 1945, accessioned into the NARA will be reviewed systematically as it becomes 50 years old. Such information shall be downgraded or declassified by the Archivist of the United States under E.O. 12356, the directives of the ISOO, and DoD Directive 5200.30.

(2) All DoD classified information that is permanently valuable and in the possession or control of DoD Components, including that held in Federal Records Centers or other storage areas, may be reviewed systematically for declassification by the DoD Component exercising control of such information. Systematic declassification review conducted by DoD Components and personnel designated under paragraph (a) of this section shall proceed as follows:

(i) Information over which the Department of Defense exercises exclusive or final original classification authority and that under DoD Directive 5200.30, the responsible reviewer determines is to be declassified, shall be marked accordingly.

(ii) Information over which the Department of Defense exercises exclusive or final original classification authority that, after review, is determined to warrant continued protection shall remain classified as long as required by national security considerations.

(3) Classified information over which the Department of Defense does not exercise exclusive or final original classification authority encountered during DoD systematic review may not be declassified unless specifically authorized by the agency having classification jurisdiction over it.

(d) Systematic Review of Classified Cryptologic Information. Notwithstanding any other provision of this part, systematic review and declassification of classified cryptologic information shall be conducted in accordance with special procedures developed in consultation with affected agencies by the Director, National Security Agency/Chief, Central Security Service, and approved by the Secretary of Defense under E.O. 12356 and DoD Directive 5200.30.

(e) Systematic Review of Intelligence Information. Systematic review for declassification of classified information pertaining to intelligence activities (including special activities), or intelligence sources or methods shall be in accordance with special procedures to be established by the Director of Central Intelligence after consultation with affected agencies.

(a) Information Covered. Upon request by a U.S. citizen or permanent resident alien, a Federal agency, or a State or local government to declassify and release such information, any classified information (except as provided in paragraph (b) of this section) shall be subject to review by the originating or responsible DoD Component for declassification in accordance with this section.

(b) Presidential Information. Information originated by a President, the White House staff, committees, commissions, or boards appointed by the President, or others specifically providing advice and counsel to a President or acting on behalf of a President is exempt from the provisions of this section.

(c) Cryptologic Information. Requests for the declassification review of cryptologic information shall be processed in accordance with the provisions of DoD Directive 5200.30.

(d) Submission of Requests for Mandatory Declassification Review. Requests for mandatory review of DoD classified information shall be submitted as follows:

(1) Requests shall be in writing and reasonably describe the information sought with sufficient particularity to enable the Component to identify documents containing that information, and be reasonable in scope; for example, the request does not involve such a large number or variety of documents as to leave uncertain the identity of the particular information sought.

(2) Requests shall be submitted to the Office of the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) (entry point for OSD records), the Military Department, or other Component most concerned with the subject matter that is designated under 32 CFR part 285 to receive requests for records under the Freedom of Information Act. These offices are identified in appropriate parts of title 32 of the Code of Federal Regulations for each DoD Component.

(e) Requirements for Processing. Unless otherwise directed by the ASD(PA), requests for mandatory review shall be processed as follows:

(1) The designated office shall acknowledge receipt of the request. When a request does not satisfy the conditions of paragraph (d)(1) of this section, the requester shall be notified that unless additional information is provided or the scope of the request narrowed, no further action will be undertaken.

(2) DoD Component action upon the initial request shall be completed within 60 days (45 working days). If no determination has been made within 60 days (45 working days) of receipt of the request, the requester shall be notified of his right to appeal and of the procedures for making such an appeal.

(3) The designated office shall determine whether, under the declassification provisions of this part, the requested information may be declassified, and, if so, make such information available to the requester, unless withholding is otherwise warranted under applicable law. If the information may not be released in whole or in part, the requester shall be given a brief statement as to the reasons for denial, notice of the right to appeal the determination within 60 days (45 working days) to a designated appellate authority (including name, title, and address of such authority), and the procedures for such an appeal.

(4) When a request is received for information classified by another DoD Component or an agency outside the Department of Defense, the designated office shall:

(i) Forward the request to such DoD Component or outside agency for review together with a copy of the document containing the information requested, when practicable and when appropriate, with its recommendation to withhold any of the information;

(ii) Notify the requester of the referral unless the DoD Component or outside agency to which the request is referred objects to such notice on grounds that its association with the information requires protection; and

(iii) Request, when appropriate, that the DoD Component or outside agency notify the referring office of its determination.

(5) If the request requires the rendering of services for which fees may be charged under title 5 of the Independent Offices Appropriation Act in accordance with DoD Instruction 7230.7 1 0 the DoD Component may calculate the anticipated amount of fees to be charged and ascertain the requester's willingness to pay the allowable charges as a precondition to taking further action upon the request.

(6) A requester may appeal to the head of a DoD Component or designee whenever that DoD Component has not acted on an initial request within 60 days or the requester has been notified that requested information may not be released in whole or in part. Within 30 days after receipt, an appellate authority shall determine whether continued classification of the requested information is required in whole or in part, notify the requester of its determination, and make available to the requester any information determined to be releasable. If continued classification is required under this part, the requester shall be notified of the reasons therefor. If so requested, an appellate authority shall communicate its determination to any referring DoD Component or outside agency.

(7) The ASD(PA) shall act as appellate authority for all appeals regarding OSD, OJCS, and Unified Command records.

(f) Foreign Government Information. Requests for mandatory review for the declassification of foreign government information shall be processed and acted upon under the provisions of this section subject to § 159a.76(c).

(g) Prohibition. No DoD Component in possession of a document shall in response to a request under the Freedom of Information Act or this section refuse to confirm the existence or nonexistence of the document, unless the fact of its existence or nonexistence would itself be classifiable under this part.

(h) Restricted Data and Formerly Restricted Data. Any proposed action on a request, including requests from Presidential libraries, for DoD classified documents that are marked “Restricted Data” or “Formerly Restricted Data” must be coordinated with the Department of Energy.

(a) Material Officially Transferred. In the case of classified information or material transferred under statute, E.O., or directive from one department or agency or DoD Component to another in conjunction with a transfer of functions, as distinguished from transfers merely for purposes of storage, the receiving department, agency, or DoD Component shall be deemed to be the original classifying authority over such material for purposes of downgrading and declassification.

(b) Material Not Officially Transferred. When a DoD Component has in its possession classified information or material originated in an agency outside the Department of Defense that has ceased to exist and such information or material has not been transferred to another department or agency within the meaning of paragraph (a) of this section, or when it is impossible to identify the originating agency, the DoD Component shall be deemed to be the originating agency for the purpose of declassifying or downgrading such information or material. If it appears probable that another department, agency, or DoD Component may have a substantial interest in the classification of such information, the DoD Component deemed to be the originating agency shall notify such other department, agency, or DoD Component of the nature of the information or material and any intention to downgrade or declassify it. Until 60 days after notification, the DoD Component shall not declassify or downgrade such information or material without consulting the other department, agency, or DoD Component. During this period, the other department, agency, or DoD Component may express objections to downgrading or declassifying such information or material.

(c) Transfer for Storage or Retirement. Whenever practicable, classified documents shall be reviewed for downgrading or declassification before they are forwarded to a Records Center for storage or to the NARA for permanent preservation. Any downgrading or declassification determination shall be indicated on each document by markings as required by subpart E of this part.

(a) Automatic Downgrading. Classified information marked for automatic downgrading in accordance with this or prior regulations or E.Os. is downgraded accordingly without notification to holders.

(b) Downgrading Upon Reconsideration. Classified information not marked for automatic downgrading may be assigned a lower classification designation by the originator or by an official authorized to declassify the same information. Prompt notice of such downgrading shall be provided to known holders of the information.

(a) Notification of Changes in Declassification. When clasified material has been properly marked with specific dates or events for declassification, it is not necessary to issue notices of declassification to any holders. However, when declassification action is taken earlier than originally scheduled, or the duration of classification is extended, the authority making such changes shall ensure prompt notification of all holders to whom the information was originally transmitted. The notification shall specify the marking action to be taken, the authority therefor, and the effective date. Upon receipt of notification, recipients shall effect the proper changes and shall notify holders to whom they have transmitted the classified information. See § 159a.34 (a) and (e) for markings and the use of posted notices.

(b) Foreign Relations Series. In order to permit the State Department editors of Foriegn Relations of the United States to meet their mandated goal of publishing twenty years after the event, DoD Components shall assist the editors in the Department of State by easing access to appropriate classified materials in their custody and by expediting declassification review of items from their files selected for possible publication.

(c) Reproduction for Declassification Review. The provisions of § 159a.55(f) shall not restrict the reproduction of documents for the purpose of facilitating declassification review under the provisions of this subpart or the Freedom of Information Act, as amended. After review for declassification, however, those reproduced documents that remain classified must be destroyed in accordance with subpart J of this part.

(a) Designation. Subject to the exceptions in paragraph (c) of this section, information determined to require classification protection under this part shall be so designated. Designation by means other than physical marking may be used but shall be followed by physical marking as soon as possible.

(b) Purpose of Designation. Designation by physical marking, notation, or other means serves to warn the holder about the classification of the information involved; to indicate the degree of protection against unauthorized disclosure that is required for that particular level of classification; and to facilitate downgrading and declassification actions.

(c) Exceptions. (1) No article that has appeared, in whole or in part, in newspapers, magazines or elsewhere in the public domain, or any copy thereof, that is being reviewed and evaluated to compare its content with classified information that is being safeguarded in the Department of Defense by security classification, may be marked with any security classification, control or other kind of restrictive marking. The results of the review and evaluation, if classified, shall be separate from the article in question.

(2) Classified documents and material shall be marked in accordance with paragraph (d) of this section unless the markings themselves would reveal a confidential source or relationship not otherwise evident in the document, material, or information.

(3) The marking requirements of paragraph (d) (1)(iv) and (2)(iv) of this section do not apply to documents or other material that contain, in whole or in part, Restricted Data or Formerly Restricted Data information. Such documents or other material or portions thereof shall not be declassified without approval of the Department of Energy with respect to Restricted Data or Formerly Restricted Data information, and with respect to any other national security information contained therein, the approval of the originating agency.

(d) Documents or Other Material in General. (1) At the time of original classification, the following shall be shown on the face of all originally classified documents or clearly associated with other forms of classified information in a manner appropriate to the medium involved:

(i) The identity of the original classification authority by position title, unless he or she is the signer or approver of the document;

(ii) The agency and office of origin;

(iii) The overall classification of the document;

(iv) The date or event for automatic declassification or the notation “Originating Agency's Determination Required” or “OADR”; and, if applicable,

(v) Any downgrading action to be taken and the date or event thereof.

(2) At the time of derivative classification, the following shall be shown on the face of all derivatively classified documents or clearly associated with other forms of classified information in a manner appropriate to the medium involved:

(i) The source of classification, that is, a source document or classification guide. If classification is derived from more than one source, the phrase “Multiple Sources” will be shown and the identification of each source will be maintained with the file or record copy of the document;

(ii) The agency and office of origin of the derivatively classified document;

(iii) The overall classification of the document;

(iv) The date or event for declassification or the notation “Originating Agency's Determination Required” or “OADR,” carried forward from the classification source. If the classification is derived from multiple sources, either the most remote date or event for declassification marked on the sources or if required by any source, the notation “Originating Agency's Determination Required” or “OADR” shall be shown; and, if applicable,

(v) Any downgrading action to be taken and the date or event thereof.

(3) In addition to the foregoing, classified documents shall be marked as prescribed in § 159a.32, subpart L of this part, if the document contains foreign government information, and with any applicable special notation listed in § 159a.35. Such notations shall be carried forward from source documents to derivatively classified documents when appropriate. Provides illustrated guidance on the application of classification and associated markings to documents prepared by the Department of Defense.

(4) Material other than paper documents shall show the required information on the material itself or if that is not practical, in related or accompanying documentation.

(e) Identification of Classification Authority. (1) Identification of a classification authority shall be shown on the “Classified by” line prescribed under § 159a.34(c) and shall be sufficient, standing alone, to identify a particular official, source document or classification guide.

(i) If all information in a document or material is classified as an act of original classification, the classification authority who made the determination shall be identified on the “Classified by” line, unless the classifier is also the signer or approver of the document.

(ii) If the classification of all information in a document or material is derived from a single source (for example, a source document or classification guide), the “Classified by” line shall identify the source document or classification guide, including its date when necessary to insure positive identification.

(iii) If the classification of information contained in a document or material is derived from more than one original classification authority, or an original classification authority and another source, or from more than one source document, classification guide, or combination thereof, the “Classified by” line shall be marked “Multiple Sources” and identification of all such authorities and sources shall be maintained with the file or record copy of the document.

(iv) If an official with requisite classification authority has been designated by the head of an activity to approve security classifications assigned to all information leaving the activity, the title of that designated official shall be shown on the “Classified by” line. The designated official shall maintain records adequate to support derivative classification actions.

(2) Guidance concerning the identification of the classification authority on electronically transmitted messages is contained in § 159a.32(h).

(3) Guidance concerning the identification of the classification authority on DoD documents that contain only foreign or NATO classified information is contained in § 159a.77(d).

(f) Wholly Unclassified Material. Normally, unclassified material shall not be marked or stamped “Unclassified” unless it is essential to convey to a recipient of such material that it has been examined with a view to imposing a security classification and that it has been determined that it does not require classification. However, the marking “Unclassified” may be applied to formerly classified material.

(a) Overall and Page Marking. Except as otherwise specified for working papers, the overall classification of a document, whether or not permanently bound, or any copy or reproduction thereof, shall be conspicuously marked, stamped or affixed permanently at the top and bottom on the outside of the front cover (if any), on the title page (if any), on the first page, and on the outside of the back cover (if any). Each interior page, except those that are blank, shall be marked top and bottom according to its content, to include “Unclassified” when no classified information is contained on such a page. Alternatively, the overall classification of the document may be conspicuously marked or stamped at the top and bottom of each interior page when such marking is necessary to achieve production efficiency and the particular information to which classification is assigned is otherwise sufficiently identified consistent with the intent of paragraph (c) of § 159a.32. In any case, the classification marking of a page shall not supplant the classification marking of portions paragraph (c) of this section of the page marked with lower levels of classification.

(b) Marking Components. The major components of some complex documents are likely to be used separately. In such instances, each major component shall be marked as a separate document in accordance with § 159a.31. Examples include each annex, appendix, or similar component of a plan, program, or operations order; attachments and appendices to a memorandum or letter; and each major part of a report. If an entire major component is unclassified, the first page of the component may be marked at the top and bottom with the designation “UNCLASSIFIED” and a statement included, such as, “All portions of this (annex, appendix, etc.) are UNCLASSIFIED.” When this method of marking is used, no further markings are required on the unclassified major component.

(c) Portion Marking. (1) Each section, part, paragraph, or similar portion of a classified document shall be marked to show the level of classification of the information contained in or revealed by it, or that it is unclassified. Portions of documents shall be marked in a manner that eliminates doubt as to which of its portions contains or reveals classified information. Classification levels of portions of a document, except as provided in paragraph (e) of this section, shall be shown by the appropriate classification symbol placed immediately following the portion's letter or number, or in the absence of letters or numbers, immediately before the beginning of the portion. In marking sections, parts, paragraphs, or similar portions, the parenthetical symbols “(TS)” for Top Secret, “(S)” for Secret, “(C)” for Confidential, and “(U)” for unclassified, shall be used. When appropriate, the symbols “RD” for Restricted Data and “FRD” for Formerly Restricted Data shall be added, for example, “(S-RD)” or “(C-FRD).” In addition, portions that contain Critical Nuclear Weapon Design Information (CNWDI) will be marked “(N)” following the classification, for example, “(S-RD)(N).”

(2) Portion marking of DoD documents containing foreign government information shall be in accordance with § 159a.77(d).

(3) Illustrations, photographs, figures, graphs, drawings, charts and similar portions of classified documents will be clearly marked to show their classification or unclassified status. Such markings shall not be abbreviated and shall be prominent and placed within or contiguous to the portion. Captions of such portions shall be marked on the basis of their content alone by placing the symbol “(TS),” “(S),” “(C),” or “(U)” immediately preceding the caption.

(4) If, in an exceptional situation, parenthetical portion marking is determined to be impracticable, the document shall contain a statement sufficient to identify the information that is classified and the level of such classification. Thus, for example, each portion of a classified document need not be marked separately if all portions are classified at the same level, provided a statement to that effect is included in the document. In the case of classified compilations, the explanations required by paragraph (d) of this section meet this requirement.

(5) When elements of information in one portion require different classifications, but segregation into separate portions would destroy continuity or context, the highest classification required for any item shall be applied to that portion or paragraph.

(6) Waivers of the foregoing portion marking requirements may be granted for good cause. Any request by a DoD Component senior official for a waiver of portion marking requirements shall be submitted to the DUSD(P) and include the following:

(i) Identification of the information or class of documents for which such waiver is sought;

(ii) Detailed explanation of why the waiver should be granted;

(iii) The Component's judgment of the anticipated dissemination of the information or class of documents for which the waiver is sought, and

(iv) The extent to which such information subject to the waiver may be a basis for derivative classification. Waivers shall be granted only upon a written determination by the DUSD(P) as the designee of the Secretary of Defense, that there will be minimal circulation of the specified documents or information, and minimal potential usage of these documents or information as a source for derivative classification determinations; or there is some other basis to conclude that the benefits of portion marking are clearly outweighed by the increased administrative burdens. The granting and revocation of portion marking waivers shall be reported to the Director of the ISOO by the DUSD(P).

(d) Compilations—(1) Documents. When classification is required to protect a compilation of unclassified information pursuant to § 159a.15(1), the overall classification assigned to such documents shall be placed conspicuously at the top and bottom of each page and on the outside of the front and back covers, if any, and an explanation of the basis for the assigned classification shall be included on the document or on its text.

(2) Portions of Documents. If a classified document contains particular portions that are unclassified when standing alone, but classified information will be revealed when they are combined or associated, those portions shall be marked as unclassified, the page shall be marked with the highest classification of any information on or revealed by the page, and an explanation shall be added to the page, or to the document, to explain the classification of the combination or association to the holder. This method of marking also may be used if classified portions on a page, or within a document, will reveal information of a higher classification when they are combined or associated than when they are standing alone.

(e) Subjects and Titles of Documents. Subjects or titles of classified documents shall be marked with the appropriate symbol, “(TS),” “(S),” “(C),” or “(U)” placed immediately following and to the right of the item. When applicable, other appropriate symbols, for example, “(RD)” or “(FRD),” shall be added. (Subjects or titles of documents should be unclassified, if possible.)

(f) File, Folder, or Group of Documents. When a file, folder, or group of classified documents is removed from secure storage it shall be marked conspicuously with the highest classification of any classified document included therein or shall have an appropriate classified document cover sheet affixed.

(g) Transmittal Documents. A transmittal document, including endorsements and comments when such endorsements and comments are added to the basic communication, shall carry on its face a prominent notation of the highest classification of the information transmitted by it, and a legend showing the classification, if any, of the transmittal document, endorsement, or comment standing alone. For example, an unclassified document that transmits as an attachment a classified document shall bear a notation substantially as follows: “UNCLASSIFIED WHEN SEPARATED FROM CLASSIFIED ENCLOSURE.”

(h) Electronically Transmitted Messages. (1) The copy of a classified message (for example, DD Form 173, Joint Messageform) approved for electronic transmission and maintained as the record copy shall be marked as required by § 159a.31(d) for other documents. Additionally, copies not electronically transmitted (such as, mail and courier copies) shall be marked as required by § 159a.31(d).

(2) The first item of information in the text of a classified electronically transmitted message shall be its overall classification. Paper copies of classified electronically transmitted messages shall be marked at the top and bottom with the assigned classification. Portions shall be marked as prescribed herein for paper copies of documents. When such messages are printed by an automated system, classification markings may be applied by that system, provided that page markings so applied are clearly distinguishable on the face of the document from the printed text.

(3) The originator of a classified electronically transmitted message shall be considered the accountable classifier under § 159a.15(a). The highest level official identified on the message as the sender or, in the absence of such identification, the head of the organization originating the message, is deemed to be the classifier of the message. Thus, a “Classified by” line is not required on such messages. The originator is responsible for maintaining adequate records as required by § 159a.31(d)(2) to show the source of an assigned derivative classification.

(4) The last line of text of a classified electronically transmitted message shall show the date or event for downgrading, if appropriate, and the date or event for automatic declassification or “Originating Agency's Determination Required,” by abbreviated markings from § 159a.34. The foregoing is not required for messages that contain information identified as Restricted Data or Formerly Restricted Data.

(5) Any document, the classification of which is based solely upon the classification of the content of a classified electronically transmitted message, shall cite the message on the “Classified by” line of the newly created document.

(i) Translations. Translations of U.S. classified information into a language other than English shall be marked to show the United States as the country of origin, with the appropriate U.S. classification markings and the foreign language equivalent thereof (see Appendix A to this part).

(a) General Provisions. Security classification and applicable associated markings (see § 159a.31(d) and § 159a.33(k)) assigned by the classifier shall be conspicuously stamped, printed, written, painted, or affixed by means of a tag, sticker, decal, or similar device, on classified material other than paper copies of documents, and on containers of such material, if possible. If marking the material or container is not practicable, written notification of the security classification and applicable associated markings shall be furnished to recipients. The following procedures for marking various kinds of materials containing classified information are not all inclusive and may be varied to accommodate the physical characteristics of the material containing the classified information and to accommodate organizational and operational requirements.

(b) Charts, Maps, and Drawings. Charts, maps, and drawings shall bear the appropriate classification marking for the legend, title, or scale blocks in a manner that differentiates between the overall classification of the document and the classification of the legend or title itself. The higher of these markings shall be inscribed at the top and bottom of each such document. When folding or rolling charts, maps, or drawings would cover the classification markings, additional markings shall be applied that are clearly visible when the document is folded or rolled. Applicable associated markings shall be included in or near the legend, title, or scale blocks.

(c) Photographs, Films, and Recordings. Photographs, films (including negatives), recordings, and their containers shall be marked to assure that a recipient or viewer will know that classified information of a specified level of classification is involved.

(1) Photographs. Negatives and positives shall be marked, whenever practicable, with the appropriate classification designation and applicable associated markings. Roll negatives or positives may be so marked at the beginning and end of each strip. Negatives and positives shall be kept in containers bearing conspicuous classification markings. All prints and reproductions shall be conspicuously marked with the appropriate classification designation and applicable associated markings on the face side of the print if possible. When such markings cannot be applied to the face side, they may be stamped on the reverse side or affixed by pressure tape label, stapled strip, or other comparable means.

(2) Transparencies and Slides. Applicable classification markings shall be shown clearly in the image area of each transparency or slide, if possible. In the case of a 35mm or a similar size transparency or slide where the classification markings are not conspicuous unless projected on a screen, for example, the classification markings also shall be marked on its border, holder, or frame. Duplicate classification markings in image areas and on borders, holders, or frames are required if there is any doubt that the image area markings are not conspicuous enough to be seen when the transparencies or slides are not being projected. Other applicable associated markings shall be shown in the image area, or on the border, holder, or frame, or in accompanying documention. It is not necessary that each transparency or slide of a set of transparencies or slides bear applicable associated markings when the set is controlled as a single document. In such cases, the first transparency or slide shall bear the applicable associated markings.

(3) Motion Picture Films and Video Tapes. Classified motion picture films and video tapes shall be marked at the beginning and end by titles bearing the appropriate classification markings. Applicable associated markings shall be included at the beginning of such films or tapes. All such marking shall be visible when projected. Reels and cassettes shall be marked with the appropriate classification and kept in containers bearing conspicuous classification and applicable associated markings.

(4) Recordings. Sound, magnetic, or electronic recordings shall contain at the beginning and end a clear statement of the assigned classification that will provide adequate assurance that any listener or viewer will know that classified information of a specified level is involved. Recordings shall be kept in containers or on reels that bear conspicuous classification and applicable associated markings.

(5) Microforms. Microforms are images, usually produced photographically on transparent or opaque materials, in sizes too small to be read by the unaided eye. Accordingly, the assigned security classification and abbreviated applicable associated markings shall be conspicuously marked on the microform medium or its container, so as to be readable by the unaided eye. These markings shall also be included on the image so that when the image is enlarged and displayed or printed, the markings will be conspicuous and readable. Such marking will be accomplished as appropriate for the particular microform involved. For example, roll film microforms (or roll microfilm employing 16, 35, 70, or 105 mm films) may generally be marked as provided for roll motion picture film in § 159a.33(c)(3) and decks of “aperture cards” may be marked as provided in § 159a.33(d) for decks of automatic data processing punched cards. Whenever possible, microfiche, microfilm strips, and microform chips shall be marked in accordance with this paragraph.

(d) Decks of ADP Punched Cards. When a deck of classified ADP punched cards is handled and controlled as a single document, only the first and last card require classification markings. An additional card shall be added (or the job control card modified) to identify the contents of the deck and the highest classification therein. Such additional card shall include applicable associated markings. Cards removed for separate processing or use and not immediately returned to the deck shall be protected to prevent compromise of any classified information contained therein, and for this purpose shall be marked individually as prescribed in § 159a.32(a).

(e) Removable ADP and Word Processing Storage Media—(1) External. Removable information storage media and devices, used with ADP systems and typewriters or word processing systems, shall bear external markings clearly indicating the classification of the information and applicable associated markings. Included are media and devices that store information recorded in analog or digital form and that are generally mounted or removed by the users or operators. Examples include magnetic tape reels, cartridges, and cassettes; removable discs, disc cartridges, disc packs and diskettes; paper tape reels; and magnetic cards.

(2) Internal. ADP systems and word processing systems employing such media shall provide for internal classification marking to assure that classified information contained therein that is reproduced or generated, will bear applicable classification and associated markings. An exception may be made by the DoD Component head, or designee, for the purpose of exempting existing word processing systems when the internal classification and applicable associated markings cannot be implemented without extensive system modification, provided procedures are established to ensure that users and recipients of the media, or the information therein, are clearly advised of the applicable classification and associated markings. For ADP systems, exceptions may be authorized by the DoD Component Designated Approving Authority or Authorities, designated under DoD Directive 5200.28. For purposes of these exemption provisions, “existing systems” means word processing and ADP systems already acquired, or, in the case of associated automated information systems, those for which the life cycle management process has already progressed beyond the “definition/design” phase as set forth in DoD Directive 7920.1 11. Requirements for the security of nonremovable ADP storage media and clearance or declassification procedures for various ADP storage media are contained in DoD 5200.28-M 1 2.

(f) Documents Produced by ADP Equipment. The first page, and the front and back covers, if any, of documents produced by ADP equipment shall be marked as prescribed in § 159a.32(a). Interior pages also shall be marked as prescribed in § 159a.32(a) except that the classification markings of interior pages of fan-folded printouts may be applied by the ADP equipment. When the application of associated markings prescribed by § 159a.31(d) by the ADP equipment is not consistent with economical and efficient use of such equipment, such markings may be applied to a document produced by ADP equipment by superimposing upon the first page of such document a “Notice of Declassification Instructions and Other Associated Markings.” Such notice shall include the date or event for declassification or the notation “Originating Agency's Determination Required” or “OADR” and all other such applicable markings. If individual pages of a document produced by ADP equipment are removed or reproduced for distribution to other users, each such page or group of pages shall be marked as prescribed in § 159a.31(d) or by superimposing upon each such page or group of pages, a copy of any “Notice of Declassification Instructions and Other Associated Markings” applicable to such page or group of pages.

(g) Material for Training Purposes. In using unclassified documents or material to simulate classified documents or material for training purposes, such documents or material shall be marked clearly to indicate the actual unclassified status of the information, for example, “(insert classification designation) for training; otherwise unclassified” or “UNCLASSIFIED SAMPLE.”

(h) Miscellaneous Material. Documents and material such as rejected copy, typewriter ribbons, carbons, and similar items developed in connection with the handling, processing, production, and of use classified information shall be handled in a manner that assures adequate protection of the classified information involved and destruction at the earliest practicable time (see § 159a.32). Unless a requirement exists to retain this material or documents for a specific purpose, there is no need to mark, stamp, or otherwise indicate that the information is classified.

(i) Special Access Program Documents and Material. Additional markings as prescribed in directives, regulations and instructions relating to an approved Special Access Program shall be applied to documents and material containing information subject to the special access program. Such additional markings shall not serve as the sole basis for continuing classification of the documents or material to which the markings have been applied. When appropriate, such markings shall be excised to ease timely declassification, downgrading, or removal of the information from special control procedures.

(j) Secure Telecommunications and Information Handling Equipment. Applicable classification or Controlled Cryptographic Item (CCI) markings shall be applied to secure telecommunications and information handling equipment or associated cryptographic components. Safeguarding and control procedures for classified and CCI equipment and for safeguarding COMSEC facilities are contained in DoD Instruction 5230.22 12 a , National Communications Security Committee (NCSC) Policy Directive 6, DoD Directive C-5200.5 1 3 , National Telecommunications and Information Systems Security Instruction 4001, and National COMSEC Instruction 4003, 4006, and 4008.

(k) Associated Markings. Other applicable associated markings required for documents by § 159a.31(d) shall be accomplished as prescribed in this section or in any other appropriate manner.

(a) Declassification and Regrading Marking Procedures. When classified information is downgraded or declassified in accordance with the assigned downgrading or declassification markings, such markings shall be a sufficient notation of the authority for such action. Whenever classified information is downgraded or declassified earlier than originally scheduled, or upgraded, the material shall be marked promptly and conspicuously to indicate the change, the authority for the action, the date of the action and the identity of the person taking the action. In addition, except for upgrading (see paragraph (d) of this section), prior classification markings shall be canceled, if practicable, but in any event those on the cover (if any) and first page shall be canceled, and the new classification markings, if any, shall be substituted.

(b) Applying Derivative Declassification Dates. (1) New material that derives its classification from information classified on or after August 1, 1982, shall be marked with the declassification date, event, or the notation “Originating Agency's Determination Required” or “OADR” assigned to the source information.

(2) New material that derives its classification from information classified prior to August 1, 1982, shall be treated as follows:

(i) If the source material bears a declassification date or event, that date or event shall be carried forward to the new material;

(ii) If the source material bears no declassification date or event, or bears an indeterminate date or event such as “Upon Notification by Originator,” “Cannot Be Determined,” or “Impossible to Determine,” or is marked for declassification review, the new material shall be marked with the notation “Originating Agency's Determination Required” or “OADR”; or

(iii) If the source material is foreign government information bearing no date or event for declassification or is marked for declassification review, the new material shall be marked with the notation “Originating Agency's Determination Required” or “OADR.”

(3) New material that derives its classification from a classification guide issued prior to August 1, 1982, that has not been updated to conform with this Regulation shall be treated as follows:

(i) If the guide specifies a declassification date or event, that date or event shall be applied to the new material; or

(ii) If the guide specifies a declassification review date, the notation “Originating Agency's Determination Required” or “OADR” shall be applied to the new material.

(c) Commonly Used Markings. Each classified document is marked on its face with one or more of the following markings:

(1) Original Classification. The following markings are used in original classification § 159a.31(d)(1):

(2) Derivative Classification. The following markings are used in derivative classification § 159a.31(d)(2):

(3) Downgrading. The following marking is used to specify a downgrading § 159a.31(d) (1) and (2):

(4) There is no requirement for adding declassification instructions on documents with Restricted Data or Formerly Restricted Data markings (see § 159a.31(b)(3) and § 159a.35 (a) and (b)). Except for electronically transmitted messages, only a completed “Classified by” line is added to documents so marked.

(5) Electronically transmitted messages do not require a “classified by” line (See § 159a.32(h)(3)).

(6) DoD 5200.1-PH provides additional marking guidance.

(d) Upgrading. When material is upgraded it shall be promptly and conspicuously marked as prescribed in paragraph (a) of this section except that in all such cases the old classification markings shall be canceled and new markings substituted.

(e) Limited Use of Posted Notice for Large Quantities of Material. (1) When the volume of material is such that prompt remarking of each classified item cannot be accomplished without unduly interfering with operations, the custodian may attach downgrading and declassification notices to the storage unit instead of the remarking required by paragraph (a) of this section. Each notice shall specify the authority for the downgrading or declassification action, the date of the action, and the storage unit to which it applies.

(2) When individual documents or materials are permanently withdrawn from storage units, they shall be remarked promptly as prescribed by paragraph (a) of this section. However, when documents or materials subject to a downgrading or declassification notice are withdrawn from one storage unit solely for transfer to another, or a storage unit containing such documents or materials is transferred from one place to another, the transfer may be made without remarking if the notice is attached to or remains with each shipment.

(a) General Provisions. (1) In addition to the marking requirements prescribed in § 159a.31(d), the warning notices prescribed in this section shall be displayed prominently on classified documents or materials, when applicable. In the case of documents, these warning notices shall be marked conspicuously on the outside of the front cover, or on the first page if there is no front cover. Transmittal documents, including those that are unclassified (§ 159a.35(g)), also shall bear these additional warning notices, when applicable. In addition, abbreviated forms of the notices set forth in § 159a.35(a), (b), and (c) shall be included in portion markings, as applicable. Further, the warning notice in paragraph (d) of this section, in its short form, shall be included at least once on interior pages, as applicable.

(2) When display of warning notices on other materials is not possible, their applicability to the information shall be included in the written notification of the assigned classification.

(b) Restricted Data. Classified documents or material containing Restricted Data as defined in the Atomic Energy Act of 1954, as amended shall be marked as follows:

(c) Formerly Restricted Data. Classified documents or material containing Formerly Restricted Data, as defined in section 142.d, Atomic Energy Act of 1954, as amended, but no Restricted Data, shall be marked as follows:

(d) Intelligence Sources or Methods Information. (1) Documents that contain information relating to intelligence sources or methods shall include the following marking unless otherwise proscribed by DoD Instruction 5230.22:

(2) Existing stamps or preprinted labels containing the caveat “Warning Notice—Intelligence Sources and Methods Involved” may be used on documents created on or after the effective date of this part until replacement is required. Any replacement or additional stamps or labels purchased after the effective date of this part shall conform to the wording of paragraph (d)(1) of this section.

(e) COMSEC Material. Before release to contractors, COMSEC documents will indicate on the title page, or first page if no title page exists, the following notation:

(a) General. (1) Documents and material classified under E.O. 12065 and predecessor E.O.s that are marked for automatic downgrading or automatic declassification on a specific date or event shall be downgraded and declassified pursuant to such markings. Declassification instructions on such documents or material need not be restated to conform with § 159a.32(c). (See also § 159a.34(a)). Information extracted from these documents or material for use in new documents or material shall be marked for declassification on the date specified in accordance with § 159a.31(d)(2).

(2) Documents and material classified under DoD C-5105.21-M-1 16 and predecessor E.O.s that are not marked for automatic downgrading or automatic declassification on a specific date or event shall not be downgraded or declassified without authorization of the originator. Declassification instructions on such documents or material need not be restated to conform with § 159a.32(a). Information extracted from these documents or material for use in new documents or material shall be marked for declassification upon the determination of the originator, that is, the “Declassify on” line shall be completed with the notation “Originating Agency's Determination Required” or “OADR” in accordance with § 159a.31(d)(2).

(b) Earlier Declassification and Extension of Classification. Nothing in this section shall be construed to preclude declassification under subpart D of this part or subsequent extension of classification under § 159a.16(c).

(a) General Policy. Classified information shall be stored only under conditions adequate to prevent unauthorized persons from gaining access. The requirements specified in this part represent the minimum acceptable security standards. DoD policy concerning the use of force for the protection of property or information is specified in DoD Directive 5210.56 17

(b) Standards for Storage Equipment. The GSA establishes and publishes minimum standards, specifications, and supply schedules for containers, vault doors, alarm systems, and associated security devices suitable for the storage and protection of classified information. Heads of DoD Components may establish additional controls to prevent unauthorized access. Security filing cabinets conforming to Federal specifications bear a Test Certification Label on the locking drawer, attesting to the security capabilities of the container and lock. (On some older cabinets the label was affixed on the inside of the locked drawer compartment). Cabinets manufactured after February 1962 indicate “General Services Administration Approved Security Container” on the outside of the top drawer.

(c) Storage of Classified Information. Classified information that is not under the personal control and observation of an authorized person, will be guarded or stored in a locked security container as prescribed in the following:

(1) Top Secret. Top Secret information shall be stored in:

(i) A safe-type steel file container having a built-in, three-position, dial-type combination lock approved by the GSA or a Class A vault or vault type room that meets the standards established by the head of the DoD Component concerned. When located in buildings, structural enclosures, or other areas not under U.S. Government control, the storage container, vault, or vault-type room must be protected by an alarm system or guarded during nonoperating hours.

(ii) An alarmed area, provided such facilities are adjudged by the local responsible official to afford protection equal to or better than that prescribed in paragraph (c)(1) (i) of this section. When an alarmed area is used for the storage of Top Secret material, the physical barrier must be adequate to prevent:

(A) Surreptitious removal of the material, and

(B) Observation that would result in the compromise of the material. The physical barrier must be such that forcible attack will give evidence of attempted entry into the area. The alarm system must provide immediate notice to a security force of attempted entry. Under field conditions, the field commander will prescribe the measures deemed adequate to meet the storage standards contained in paragraphs (c)(1)(i) and (ii) of this section.

(2) Secret and Confidential. Secret and Confidential information shall be stored in the manner prescribed for Top Secret; or in a Class B vault, or a vault-type room, strong room, or secure storage room that meets the standards prescribed by the head of the DoD Component; or, until phased out, in a steel filing cabinet having a built-in, three-position, dial type combination lock; or, as a last resort, an existing steel filing cabinet equipped with a steel lock bar, provided it is secured by a GSA-approved changeable combination padlock. In this latter instance, the keeper or keepers and staples must be secured to the cabinet by welding, rivets, or peened bolts and DoD Components must prescribe supplementary controls to prevent unauthorized access.

(3) Specialized Security Equipment—(i) Field Safe and One-drawer Container. One-drawer field safes, and GSA approved security containers are used primarily for storage of classified information in the field and in transportable assemblages. Such containers must be securely fastened or guarded to prevent their theft.

(ii) Map and Plan File. A GSA-approved map and plan file has been developed for storage of odd-sized items such as computer cards, maps, and charts.

(4) Other Storage Requirements. Storage areas for bulky material containing classified information, other than Top Secret, shall have access openings secured by GSA-approved changeable combination padlocks (Federal specification FF-P110 series) or key-operated padlocks with high security cylinders (exposed shackle, military specification P-43951 series, or shrouded shackle, military specification P-43607 series).

(i) When combination padlocks are used, the provisions of paragraph (e) of this section apply.

(ii) When key-operated high security padlocks are used, keys shall be controlled as classified information with classification equal to that of the information being protected and:

(A) A key and lock custodian shall be appointed to ensure proper custody and handling of keys and locks;

(B) A key and lock control register shall be maintained to identify keys for each lock and their current location and custody;

(C) Keys and locks shall be audited each month;

(D) Keys shall be inventoried with each change of custodian;

(E) Keys shall not be removed from the premises;

(F) Keys and spare locks shall be protected in a secure container;

(G) Locks shall be changed or rotated at least annually, and shall be replaced upon loss or compromise of their keys; and

(H) Master keying is prohibited.

(d) Procurement and Phase-In of New Storage Equipment—(1) Preliminary Survey. DoD activities shall not procure new storage equipment until:

(i) A current survey has been made of on-hand security storage equipment and classified records; and

(ii) Based upon the survey, it has been determined that it is not feasible to use available equipment or to retire, return, declassify or destroy enough records on hand to make the needed security storage space available.

(2) Purchase of New Storage Equipment. New security storage equipment shall be procured from those items listed on the GSA Federal Supply Schedule. Exceptions may be made by heads of DoD Components, with notification to the DUSD(P).

(3) Nothing in this subpart shall be construed to modify existing Federal Supply Class Management Assignments made under DoD Directive 5030.47.18

(e) Designations and Combinations—(1) Numbering and Designating Storage Facilities. There shall be no external mark as to the level of classified information authorized to be stored therein. For identification purposes each vault or container shall bear externally an assigned number or symbol.

(2) Combinations to Containers—(i) Changing. Combinations to security containers shall be changed only by individuals having that responsibility and an appropriate security clearance. Combinations shall be changed:

(A) When placed in use;

(B) Whenever an individual knowing the combination no longer requires access;

(C) When the combination has been subject to possible compromise;

(D) At least annually; or

(E) When taken out of service. Built-in combination locks shall be reset to the standard combination 50-25-50; combination padlocks shall be reset to the standard combination 10-20-30.

(ii) Classifying Combinations. The combination of a vault or container used for the storage of classified information shall be assigned a security classification equal to the highest category of the classified information authorized to be stored therein.

(iii) Recording Storage Facility Data. A record shall be maintained for each vault, secure room, or container used for storing classified information, showing location of the container, the names, home addresses, and home telephone numbers of the individuals having knowledge of the combination. Standard Form 700, “Security Container Information” shall be used for this purpose. (Use of this Standard Form is required when existing supplies of similar purpose forms are exhausted or by September 30, 1986, whichever occurs earlier).

(iv) Dissemination. Access to the combination of a vault or container used for the storage of classified information shall be granted only to those individuals who are authorized access to the classified information stored therein.

(3) Electrically Actuated Locks. Electricially actuated locks (for example, cypher and magnetic strip card locks) do not afford the required degree of protection of classified information and may not be used as a substitute for the locks prescribed in paragraph (c) of this section.

(f) Repair of Damaged Security Containers. Neutralization of lock-outs or repair of any damage that affects the integrity of a security container approved for storage of classified information shall be accomplished only by authorized persons who are cleared or continuously escorted while so engaged.

(1) A GSA-approved security container is considered to have been restored to its original state of security integrity if:

(i) All damaged or altered parts (for example, locking drawer, and drawer head) are replaced; or

(ii) When a container has been drilled immediately adjacent to or through the dial ring to neutralize a lock-out, the replacement lock is equal to the original equipment, and the drilled hole is repaired with a tapered, hardened tool-steel pin, or a steel dowel, drill bit, or bearing with a diameter slightly larger than the hole and of such length that when driven into the hole there shall remain at each end of the rod a shallow recess not less than 1/8 inch nor more than 3/16 inch deep to permit the acceptance of substantial welds, and the rod is welded both on the inside and outside surfaces. The outside of the drawer head shall then be puttied, sanded, and repainted in such a way that no visible evidence of the hole or its repair remains on the outer surface after replacement of the damaged parts (for example, new lock).

(2) GSA-approved containers that have been drilled in a location or repaired in a manner other than as described in paragraph (f)(1) of this section, will not be considered to have been restored to their original state of security integrity. The Test Certification Label on the inside of the locking drawer and the “General Services Administration Approved Security Container” label, if any, on the outside of the top drawer shall be removed from such containers.

(3) If damage to a GSA-approved security container is repaired with welds, rivets, or bolts that cannot be removed and replaced without leaving evidence of entry, the cabinet is limited thereafter to the storage of Secret and Confidential material.

(4) If the damage is repaired using methods other than those permitted in paragraphs (f) (1) and (3) of this section, use of the container will be limited to unclassified material and a notice to this effect will be permanently marked on the front of the container.

(a) Responsibilities of Custodians. (1) Custodians of classified information shall be responsible for providing protection and accountability for such information at all times and for locking classified information in appropriate security equipment whenever it is not in use or under direct supervision of authorized persons. Custodians shall follow procedures that ensure that unauthorized persons do not gain access to classified information.

(2) Only the head of a DoD Component, or single designee at the headquarters and major command levels, may authorize removal of classified information from designated working areas in off-duty hours, for work at home or otherwise, provided that a GSA-approved security container is furnished and appropriate regulations otherwise provide for the maximum protection possible under the circumstances. (See also § 159a.55.) Any such arrangements approved before the effective date of this part shall be reevaluated and, if continued approval is warranted, compliance with this paragraph is necessary.

(b) Care During Working Hours. DoD personnel shall take precaution to prevent unauthorized access to classified information.

(1) Classified documents removed from storage shall be kept under constant surveillance and face down or covered when not in use. Cover sheets shall be Standard Forms 703, 704, and 705 for, respectively, Top Secret, Secret, and Confidential documents. (Use of these Standard Forms is required when existing supplies of similar purpose forms are exhausted or by September 30, 1986, whichever occurs earlier).

(2) Preliminary drafts, carbon sheets, plates, stencils, stenographic notes, worksheets, typewriter ribbons, and other items containing classified information shall be either destroyed immediately after they have served their purpose; or shall be given the same classification and secure handling as the classified information they contain.

(3) Destruction of typewriter ribbons from which classified information can be obtained shall be accomplished in the manner prescribed for classified working papers of the same classification. After the upper and lower sections have been cycled through and overprinted five times in all ribbon or typing positions, fabric ribbons may be treated as unclassified regardless of their classified use thereafter. Carbon and plastic typewriter ribbons and carbon paper that have been used in the production of classified information shall be destroyed in the manner prescribed for working papers of the same classification after initial usage. However, any ribbon in a typewriter that uses technology which enables the ribbon to be struck several times in the same area before it moves to the next position may be treated as unclassified.

(c) End-of-Day Security Checks. Heads of activities that process or store classified information shall establish a system of security checks at the close of each working day to ensure that the area is secure; Standard Form 701, “Activity Security Checklist” shall be used to record such checks. An integral part of the security check system shall be the securing of all vaults, secure rooms, and containers used for the storage of classified material; Standard Form 702, “Security Container Check Sheet” shall be used to record such actions. In addition, Standard Forms 701 and 702 shall be annotated to reflect after-hours, weekend, and holiday activity. (Use of these Standard Forms is required when existing supplies of similar purpose forms are exhausted or by September 30, 1986, whichever occurs earlier).

(d) Emergency Planning. (1) Plans shall be developed for the protection, removal, or destruction of classified material in case of fire, natural disaster, civil disturbance, terrorist activities, or enemy action. Such plans shall establish detailed procedures and responsibilities for the protection of classified material to ensure that the material does not come into the possession of unauthorized persons. These plans shall include the treatment of classified information located in foreign countries.

(2) These emergency planning procedures do not apply to material related to COMSEC. Planning for the emergency protection including emergency destruction under no-notice conditions of classified COMSEC material shall be developed in accordance with the requirements of NSA KAG I-D.

(3) Emergency plans shall provide for the protection of classified material in a manner that will minimize the risk of injury or loss of life to personnel. In the case of fire or natural disaster, the immediate placement of authorized personnel around the affected area, preinstructed and trained to prevent the removal of classified material by unauthorized personnel, is an acceptable means of protecting classified material and reducing casualty risk. Such plans shall provide for emergency destruction to preclude capture of classified material when determined to be required. This determination shall be based on an overall commonsense evaluation of the following factors:

(i) Level and sensitivity of classified material held by the activity;

(ii) Proximity of land-based commands to hostile or potentially hostile forces or to communist-controlled countries;

(iii) Flight schedules or ship deployments in the proximity of hostile or potentially hostile forces or near communist-controlled countries;

(iv) Size and armament of land-based commands and ships;

(v) Sensitivity of operational assignment; and

(vi) Potential for aggressive action of hostile forces.

(4) When preparing emergency destruction plans, consideration shall be given to the following:

(i) Reduction of the amount of classified material held by a command as the initial step toward planning for emergency destruction;

(ii) Storage of less frequently used classified material at more secure commands in the same geographical area (if available);

(iii) Transfer of as much retained classified material to microforms as possible, thereby reducing the bulk that needs to be evacuated or destroyed;

(iv) Emphasis on the priorities for destruction, designation of personnel responsible for destruction, and the designation of places and methods of destruction. Additionally, if any destruction site or any particular piece of destruction equipment is to be used by more than one activity or entity, the order or priority for use of the site or equipment must be clearly delineated;

(v) Identification of the individual who is authorized to make the final determination when emergency destruction is to begin and the means by which this determination is to be communicated to all subordinate elements maintaining classified information;

(vi) Authorization for the senior individual present in an assigned space containing classified material to deviate from established plans when circumstances warrant; and

(vii) Emphasis on the importance of beginning destruction sufficiently early to preclude loss of material. The effect of premature destruction is considered inconsequential when measured against the possibility of compromise.

(5) The emergency plan shall require that classified material holdings be assigned a priority for emergency evacuation or destruction. Priorities should be based upon the potential effect on national security should such holdings fall into hostile hands, in accordance with the following general guidelines:

(i) Priority One. Exceptionally grave damage (Top Secret material);

(ii) Priority Two. Serious damage (Secret material); and

(iii) Priority Three. Damage (Confidential material).

(6) If, as determined by appropriate threat analysis, Priority One material cannot otherwise be afforded a reasonable degree of protection from hostile elements in a no-notice emergency situation, provisions shall be made for installation of Anticompromise Emergency Destruct (ACED) equipment to ensure timely initiation and positive destruction of such material a in accordance with the following standard: “With due regard for personnel and structural safety, the ACED system shall reach a stage in destruction sequences at which positive destruction is irreversible within 60 minutes at shore installations, 30 minutes in ships, and 3 minutes in aircraft following activation of the ACED system.” b

(7) An ACED requirement is presumed to exist and provisions shall be made for an ACED system to protect Priority One material in the following environments:

(i) Shore-based activities located in or within 50 miles of potentially hostile countries, or located within or adjacent to countries with unstable governments;

(ii) Reconnaissance aircraft, both manned and unmanned, that operate within JCS-designated reconnaissance reporting areas (see Memorandum by the Secretary, Joint Chiefs of Staff (SM) 701-76, Volume II, “Peacetime Reconnaissance and Certain Sensitive Operations”; c

(iii) Naval surface noncombatant vessels operating in hostile areas when not accompanied by a combatant vessel;

(iv) Naval subsurface vessels operating in hostile areas; and

(v) U.S. Navy Special Project ships (Military Sealift Command-operated) operating in hostile areas.

(8) Except in the most extraordinary circumstances, ACED is not applicable to commands and activities located within the United States. Should there be reason to believe that an ACED requirement exists in environments other than in those listed in paragraph (d)(7) of this section, a threat and vulnerability study should be prepared and submitted to the head of the DoD Component concerned or his designee for approval. The threat and vulnerability study should include, at a minimum, the following data, classified if appropriate:

(i) Volume and type of Priority One material held by the activity, that is, paper products, microforms, magnetic tape, and circuit boards.

(ii) A statement certifying that the amount of Priority One material held by the activity has been reduced to the lowest possible level;

(iii) An estimate of the time, beyond the time frames cited above, required to initiate irreversible destruction of Priority One material held by the activity, and the methods by which destruction of that material would be attempted in the absence of an ACED system;

(iv) Size and composition of the activity;

(v) Location of the activity and the degree of control it, or other United States authority, exercises over security; and

(vi) Proximity to potentially hostile forces and potential for aggressive action by such forces.

(9) When a requirement is believed to exist for ACED equipment not in the GSA or DoD inventories, the potential requirement shall be submitted to the DUSD(P) for validation in accordance with subsection V. B. of DoD Directive 3224.3 19 ,d.

(10) In determining the method of destruction of other than Priority One material, any method specified for routine destruction or any other means that will ensure positive destruction of the material may be used. Ideally, any destruction method should provide for early attainment of a point at which the destruction process is irreversible. Additionally, classified material may be jettisoned at sea to prevent its easy capture. It should be recognized that such disposal may not prevent recovery of the material. Where none of the methods previously mentioned can be employed, the use of other means, such as dousing the classified material with a flammable liquid and igniting it, or putting to use the facility garbage grinders, sewage treatment plants, and boilers should be considered.

(11) Under emergency destruction conditions, destruction equipment may be operated at maximum capacity and without regard to pollution, preventive maintenance, and other constraints that might otherwise be observed.

(12) Commands and activities that are required to maintain an ACED system pursuant to paragraph (d)(7) of this section, shall conduct drills periodically to ensure that responsible personnel are familiar with the emergency plan. Such drills should be used to evaluate the anticipated effectiveness of the plan and the prescribed equipment and should be the basis for improvements in planning and equipment use. Actual destruction should not be initiated during drills.

(e) Telecommunications Conversations. Classified information shall not be discussed in telephone conversations except as authorized over approved secure communications circuits, that is, cryptographically protected circuits or protected distribution systems installed in accordance with National COMSEC Instruction 4009.

(f) Security of Meetings and Conferences. Security requirements and procedures governing disclosure of classified information at conferences, symposia, conventions, and similar meetings, and those governing the sponsorship and attendance of U.S. and foreign personnel at such meetings, are set forth in DoD Directive 5200.1220, DoD Instruction 5230.2021, DoD 5220.22-R, and DoD 5220.22-M.

(g) Safeguarding of U.S. Classified Information Located in Foreign Countries. Except for classified information that has been authorized for release to a foreign government or international organization pursuant to DoD Directive 5230.1122, and is under the security control of such government or organization, the retention of U.S. classified material in foreign countries may be authorized only when that material is necessary to satisfy specific U.S. Government requirements. This includes classified material temporarily transferred into a foreign country via U.S. Government personnel authorized to escort or handcarry such material pursuant to § 159a.59, as applicable. Whether permanently or temporarily retained, the classified materials shall be stored under U.S. Government control as follows:

(1) At a U.S. military installation, or a location where the United States enjoys extraterritorial status, such as an embassy or consulate.

(2) At a U.S. Government activity located in a building used exclusively by U.S. Government tenants, provided the building is under 24-hour control by U.S. Government personnel.

(3) At a U.S. Government activity located in a building not used exclusively by U.S. Government tenants nor under host government control, provided the classified material is stored in security containers approved by the GSA and is placed under 24-hour control by U.S. Government personnel.

(4) At a U.S. Government activity located in a building not used exclusively by U.S. Government tenants but which is under host government control, provided the classified material is stored in GSA-approved security containers which are further secured in a locked room or area to which only U.S. personnel have access.

(5) When host government and U.S. personnel are co-located, U.S. classified material that has not been authorized for release to the host government pursuant to DoD Directive 5230.11, shall, to the extent possible, be segregated from releasable classified material to facilitate physical control and prevent inadvertent compromise. However, U.S. classified material that is releasable to the host country need not be subject to the 24-hour U.S. control requirement provided the host government exercises its own control measures over the pertinent areas or containers during non-duty hours.

(6) Foreign nationals shall be escorted while in areas where nonreleasable U.S. classified material is handled or stored. However, when required by operational necessity, foreign nationals may be permitted, during duty hours, unescorted entry to such areas provided the nonreleasable information is properly stored or is under the direct personal supervision and control of cleared U.S. personnel who can prevent unauthorized access.

(a) Policy. (1) Commanders and heads of activities shall establish and maintain an inspection program to deter and detect unauthorized introduction or removal of classified material from DoD owned or leased installations and facilities. This program does not replace existing programs for facility and installation security and law enforcement inspection requirements.

(2) The inspection program shall be implemented in a manner which does not interfere unduly with the performance of assigned missions.

(3) The inspection program shall be implemented in a manner which does not significantly disrupt the ingress and egress of persons who are employees of, or visitors to, defense installations and facilities.

(4) Inspections carried out under this program shall be limited to the extent feasible to areas where classified work is being performed, and cover only persons employed within, or visiting, such areas.

(5) Inspections carried out under this program shall be performed at a sufficient frequency to provide a credible deterrent to those who would be inclined to remove classified materials without authority from the installation or facility in question.

(6) The method and frequency of such inspections at a given installation or facility is at the discretion of the commander or head of the installation or facility, or other designated official. Such inspections shall conform to the procedures set forth in the following:

(i) Inspection Frequency. (A) Inspections may be aperiodic, that is, at irregular intervals.

(B) Inspections may be accomplished at one or more designated entry/exit points; they need not be carried out at all entry/exit points at the same time.

(C) Inspections may be done on a random basis using any standard which may be appropriate, for example, every third person; every tenth person; every hundredth person, at the entry/exit point(s) designated.

(D) Inspections at a particular entry/exit point(s) may be limited as appropriate to various periods of time, for example, one week, one day, or one hour.

(E) Inspections shall be conducted at all entry/exit points after normal duty hours, including weekends and holidays, on a continuous basis, if practicable.

(b) Inspection Procedures and Identification. (1) Inspections shall be limited to that which is necessary to determine whether classified material is contained in briefcases, shoulder or handbags, luggage, athletic bags, packages, or other similar containers being removed from or taken into the premises. Inspections shall not be done of wallets, change purses, clothing, cosmetic cases, or other objects of an unusually personal nature.

(2) DoD Components shall provide employees who have a legitimate need to remove classified material from the installation or activity with written or printed authorizations to pass through designated entry/exit points. (See § 159a.59(f)) This may include:

(i) The authorization statements prescribed in § 159a.59.

(ii) If authorized in Component instructions, wallet-size cards which describe in general terms the purpose(s) for authorizing the employee to remove classified material from the facility (for example, use at meetings or transmission to authorized recipients).

(3) Inspectors are to ensure that personnel are not removing classified material without authorization. Where inspectors determine that individuals do not appear to have appropriate authorization to remove classified material, they shall request such individual to obtain appropriate authorization before exiting the premises. If, due to the circumstances, this is not feasible, the inspector should attempt to verify by telephone the authority of the individual in question to remove the classified material with the employing office. When such verification cannot be obtained, and if removal cannot be prevented, the inspector shall advise the employing office and appropriate security office as soon as feasible that classified material was removed by the named individual at a particular time and without apparent authorization.

(4) If the employing office determines that classified material was removed by one of its employees without authority, it shall request an investigation of the circumstances of the removal by appropriate investigative authorities. Where such investigation confirms a violation of security procedures, other than espionage or deliberate compromise, for which § 159a.50 applies, appropriate administrative, disciplinary, or legal action shall be taken.

Compromise of classified information presents a threat to the national security. Once a compromise is known to have occurred, the seriousness of damage to U.S. interests must be determined and appropriate measures taken to negate or minimize the adverse effect of such compromise. When possible, action also should be taken to regain custody of the documents or material that were compromised. In all cases, however, appropriate action must be taken to identify the source and reason for the compromise and remedial action taken to ensure further compromises do not occur. The provisions of DoD Instruction 5240.4 2 3 and DoD Directive 5210.50 2 4 apply to compromises covered by this subpart.

(a) The procedures for handling compromises of cryptographic information are set forth in NACSI 4006 and implementing instructions.

(b) The procedures for handling compromises of SCI information are set forth in DoD TS-5105.21-M-2 2 5 and DoD C-5105.21-M-1 2 6 .

(a) Any person who has knowledge of the loss or possible compromise of classified information shall immediately report such fact to the security manager of the person's activity (see § 159a.93(e)) or to the commanding officer or head of the activity in the security manager's absence.

(b) Any person who discovers classified information out of proper control shall take custody of such information and safeguard it in an appropriate manner, and shall notify immediately an appropriate security authority.

If it is determined that further investigation is warranted, such investigation will include the following:

(a) Identification of the source, date, and circumstances of the compromise.

(b) Complete description and classification of each item of classified information compromised;

(c) A thorough search for the classified information;

(d) Identification of any person or procedure responsible for the compromise. Any person so identified shall be apprised of the nature and circumstances of the compromise and be provided an opportunity to reply to the violation charged. If such person does not choose to make a statement, this fact shall be included in the report of investigation;

(e) An analysis and statement of the known or probable damage to the national security that has resulted or may result (See § 159a.15(k)), and the cause of the loss or compromise; or a statement that compromise did not occur or that there is minimal risk of damage to the national security;

(f) An assessment of the possible advantage to foreign powers resulting from the compromise; and

(g) A compilation of the data in paragraphs (a) through (f) of this section, in a report to the authority ordering the investigation to include an assessment of appropriate corrective, administrative, disciplinary, or legal actions. (Also see § 159a.100).

(a) The report of investigation shall be reviewed to ensure compliance with this part and instructions issued by DoD Components.

(b) The recommendations contained in the report of investigation shall be reviewed to determine sufficiency of remedial, administrative, disciplinary, or legal action proposed and, if adequate, the report of investigation shall be forwarded with recommendations through supervisory channels (See § 159a.98 and § 159a.99).

(c) Whenever an action is contemplated against any person believed responsible for the compromise of classified information, damage assessments shall be coordinated with the legal counsel of the DoD Component where the individual responsible is assigned or employed. Whenever a violation of criminal law appears to have occurred and a criminal prosecution is contemplated, the DoD Component responsible for the damage assessment shall apprise the General Counsel, Department of Defense. See § 159a.101.

Each DoD Component shall establish a system of controls and internal procedures to ensure that damage assessments are conducted when required and that records are maintained in a manner that facilitates their retrieval and use within the Component.

(a) Whenever a compromise involves the classified information or interests of more than one DoD Component or other agency, each such activity undertaking a damage assessment shall advise the others of the circumstances and findings that affect their information and interests. Whenever a damage assessment incorporating the product of two or more DoD Components or other agencies is needed, the affected activities shall agree upon the assignment of responsibility for the assessment.

(b) Whenever a compromise of U.S. classified information is the result of actions taken by foreign nationals, by foreign government officials, or by U.S. nationals employed by international organizations, the activity performing the damage assessment shall ensure, through appropriate intergovernmental liaison channels, that information pertinent to the assessment is obtained. Whenever more than one activity is responsible for the assessment, those activities shall coordinate the request prior to transmittal through appropriate channels.

Cases of espionage and deliberate unauthorized disclosure of classified information to the public shall be reported in accordance with DoD Instruction 5240.4 and DoD Directive 5210.50 and implementing issuances.

When an individual who has had access to classified information is on unauthorized absence, an inquiry as appropriate under the circumstances, to include consideration of the length of absence and the degree of sensitivity of the classified information involved, shall be conducted to detect if there are any indications of activities, behavior, or associations that may be inimical to the interest of national security. When such indications are detected, a report shall be made to the DoD Component counterintelligence organization.

(a) Policy. (1) Except as otherwise provided for in paragraph (c) of this section, no person may have access to classified information unless that person has been determined to be trustworthy and unless access is essential to the accomplishment of lawful and authorized Government purposes, that is, the person has the appropriate security clearance and a need-to-know. Further, cleared personnel may not have access until they have been given an initial security briefing (see § 159a.70). Procedures shall be established by the head of each DoD Component to prevent unnecessary access to classified information. There shall be a demonstrable need for access to classified information before a request for a personnel security clearance can be initiated. The number of people cleared and granted access to classified information shall be maintained at the minimum number that is consistent with operational requirements and needs. No one has a right to have access to classified information solely by virtue of rank or position. The final responsibility for determining whether an individual's official duties require possession of or access to any element or item of classified information, and whether the individual has been granted the appropriate security clearance by proper authority, rests upon the individual who has authorized possession, knowledge, or control of the information and not upon the prospective recipient. These principles are equally applicable if the prospective recipient is a DoD Component, including commands and activities, other Federal agencies, DoD contractors, foreign governments, and others.

(2) Because of the extreme importance to the national security of Top Secret information and information controlled within approved Special Access Programs, employees shall not be permitted to work alone in areas where such information is in use or stored and accessible by those employees. This general policy is an extra safeguarding measure for the nation's most vital classified information and it is not intended to cast doubt on the integrity of DoD employees. The policy does not apply in those situations where one employee with access is left alone for brief periods during normal duty hours. When compelling operational requirements indicate the need, DoD Component heads may waive this requirement in specific, limited cases. This waiver authority may be delegated to the senior official (§ 159a.93 (b) and (c)) of the DoD Component who may redelegate the authority but only if so authorized by the head of the DoD Component. (Any waiver should include provisions for periodically ensuring the health and welfare of individuals left alone in vaults or secure areas).

(b) Access by Persons Outside the Executive Branch. Classified information may be made available to individuals or agencies outside the Executive Branch provided that such information is necessary for performance of a function from which the Government will derive a benefit or advantage, and that such release is not prohibited by the originating department or agency. Heads of DoD Components shall designate appropriate officials to determine, before the release of classified information, the propriety of such action in the interest of national security and assurance of the recipient's trustworthiness and need-to-know.

(1) Congress. Access to classified information or material by Congress, its committees, members, and staff representatives shall be in accordance with DoD Directive 5400.4 2 7 . Any DoD employee testifying before a congressional committee in executive session in relation to a classified matter shall obtain the assurance of the committee that individuals present have a security clearance commensurate with the highest classification of the information that may be discussed. Members of Congress, by virtue of their elected positions, are not investigated or cleared by the Department of Defense.

(2) Government Printing Office (GPO). Documents and material of all classifications may be processed by the GPO, which protects the information in accordance with the DoD/GPO Security Agreement of February 20, 1981.

(3) Representatives of the General Accounting Office (GAO). Representatives of the GAO may be granted access to classified information originated by and in possession of the Department of Defense when such information is relevant to the performance of the statutory responsibilities of that office, as set forth in DoD Directive 7650.1 2 8 . Officials of the GAO, as designated in Appendix B to this part, are authorized to certify security clearances, and the basis therefor. Certifications will be made by these officials pursuant to arrangements with the DoD Component concerned. Personal recognition or presentation of official GAO credential cards are acceptable for identification purposes.

(4) Industrial, Educational, and Commercial Entities. (i) Bidders, contractors, grantees, educational, scientific or industrial organizations may have access to classified information only when such access is essential to a function that is necessary in the interest of the national security, and the recipients are cleared in accordance with DoD 5220.22-R.

(ii) Contractor employees whose duties do not require access to classified information are not eligible for personnel security clearance and cannot be investigated under the DISP. In exceptional situations, when a military command is vulnerable to sabotage and its mission is of critical importance to national security, National Agency Checks may be conducted on such individuals with the approval of the DUSD(P).

(5) Historical Researchers. Persons outside the Executive Branch who are engaged in historical research projects may be authorized access to classified information provided that an authorized official within the DoD Component with classification jurisdiction over the information:

(i) Makes a written determination that such access is clearly consistent with the interests of national security in view of the intended use of the material to which access is granted by certifying that the requester has been found to be trustworthy pursuant to paragraph (a)(1) of this section;

(ii) Limits such access to specific categories of information over which that DoD Component has classification jurisdiction and to any other category of information for which the researcher obtains the written consent of a DoD Component or non-DoD department or agency that has classification jurisdiction over information contained in or revealed by documents within the scope of the proposed historical research;

(iii) Maintains custody of the classified material at a DoD installation or activity or authorizes access to documents in the custody of the NARA;

(iv) Obtains the researcher's agreement to safeguard the information and to submit any notes and manuscript for review by all DoD Components or non-DoD departments or agencies with classification jurisdiction for a determination that no classified information is contained therein by execution of a statement entitled, “Conditions Governing Access to Official Records for Historical Research Purposes”; and

(v) Issues an authorization for access valid for not more than 2 years from the date of issuance that may be renewed under regulations of the issuing DoD Component.

(6) Former Presidential Appointees. Persons who previously occupied policy making positions to which they were appointed by the President may not remove classified information upon departure from office as all such material must remain under the security control of the U.S. Government. Such persons may be authorized access to classified information that they originated, received, reviewed, signed, or that was addressed to them while serving as such an appointee, provided that an authorized official within the DoD Component with classification jurisdiction for such information:

(i) Makes a written determination that such access is clearly consistent with the interests of national security in view of the intended use of the material to which access is granted and by certifying that the requester has been found to be trustworthy pursuant to paragraph (a)(1) of this section;

(ii) Limits such access to specific categories of information over which that DoD Component has classification jurisdiction and to any other category of information for which the former appointee obtains the written consent of a DoD Component or non-DoD department or agency that has classification jurisdiction over information contained in or revealed by documents with the scope of the proposed access;

(iii) Retains custody of the classified material at a DoD installation or activity or authorizes access to documents in the custody of the National Archives and Records Service; and

(iv) Obtains the former presidential appointee's agreement to safeguard the information and to submit any notes and manuscript for review by all DoD Components or non-DoD departments or agencies with classification jurisdiction for a determination that no classified information is contained therein.

(7) Judicial Proceedings. DoD Directive 5405.2 2 9 governs the release of classified information in litigation.

(c) Access by Foreign Nationals, Foreign Governments, and International Organizations. (1) Classified information may be released to foreign nationals, foreign governments, and international organizations only when authorized under the provisions of the National Disclosure Policy and DoD Directive 5230.11; and

(2) Access to COMSEC information by foreign persons and activities shall be in accordance with policy issuances of the National Telecommunications and Information Systems Security Committee (NTISSC).

(d) Other Situations. When necessary in the interests of national security, heads of DoD Components, or their single designee, may authorize access by persons outside the Federal government, other than those enumerated in paragraphs (b) and (c) of this section, to classified information upon determining that the recipient is trustworthy for the purpose of accomplishing a national security objective; and that the recipient can and will safeguard the information from unauthorized disclosure.

(e) Access Required by Other Executive Branch Investigative and Law Enforcement Agents. (1) Normally, investigative agents of other departments or agencies may obtain access to DoD information through established liaison or investigative channels.

(2) When the urgency or delicacy of a Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), or Secret Service investigation precludes use of established liaison or investigative channels, FBI, DEA, or Secret Service agents may obtain access to DoD information as required. However, this information shall be protected as required by its classification. Before any public release of the information so obtained the approval of the head of the activity or higher authority shall be obtained.

(f) Access by Visitors. Procedures shall be established to control access to classified information by visitors. (DoD Instruction 5230.20 provides further guidance regarding foreign visitors.)

(1) Except when a continuing, frequent working relationship is established, through which current security clearance and need-to-know are determined, DoD personnel visiting other activities of the Department of Defense, its contractors, and other agencies shall provide advance notification of the pending visit that establishes the visitor's security clearance and the purpose of the visit. Visit requests shall be signed by an official other than the visitor who is in a position to verify the visitor's security clearance.

(2) Visit requests normally should include the following:

(i) Full name, date and place of birth, social security number, and rank or grade of visitor;

(ii) Security clearance of the visitor;

(iii) Employing activity of the visitor;

(iv) Name and address of activity to be visited;

(v) Date and duration of proposed visit;

(vi) Purpose of visit in sufficient detail to establish need-to-know; and

(vii) Names of persons to be contacted.

(3) Visit requests may remain valid for not more than 1 year.

(a) Policy. DoD Components shall establish procedures consistent with this Regulation for the dissemination of classified material. The originating official or activity may prescribe specific restrictions on dissemination of classified information when necessary. (See § 159a.35(f). Particular emphasis shall be placed on traditional need-to-know measures to aid in the strict control of classified information.)

(b) Restraints on Special Access Requirements. Special requirements with respect to access, distribution, and protection of classified information shall require prior approval in accordance with subpart M of this part.

(c) Information Originating in a Non-DoD Department or Agency. Except under rules established by the Secretary of Defense, or as provided by section 102 of the National Security Act, classified information originating in a department or agency other than Department of Defense shall not be disseminated outside the Department of Defense without the consent of the originating department or agency.

(d) Foreign Intelligence Information. Dissemination of foreign intelligence information shall be in accordance with the provisions of DoD Instruction 5230.22 and DoD Directive C-5230.23 3 0 .

(e) Restricted Data and Formerly Restricted Data. Information bearing the warning notices prescribed in § 159a.35 (b) and (c) shall not be disseminated outside authorized channels without the consent of the originator. Access to and dissemination of Restricted Data by DoD personnel shall be subject to DoD Directive 5210.2.

(f) NATO Information. Classified information originated by NATO shall be safeguarded in accordance with DoD Directive 5100.55.

(g) COMSEC Information. COMSEC information shall be disseminated in accordance with NACSI 4005 and implementing instructions.

(h) Dissemination of Top Secret Information. (1) Top Secret information, originated within the Department of Defense, may not be disseminated outside the Department of Defense without the consent of the originating DoD Component, or higher authority.

(2) Top Secret information, whenever segregable from classified portions bearing lower classifications, shall be distributed separately.

(3) Standing distribution requirements for Top Secret information and materials, such as distribution lists, shall be reviewed at least annually to verify the recipients’ need-to-know.

(i) Dissemination of Secret and Confidential Information. (1) Secret and Confidential information, originated within the Department of Defense, may be disseminated within the Executive Branch, unless prohibited by the originator. (See § 159a.35(f)).

(2) Standing distribution requirements for Secret and Confidential information and materials, such as distribution lists, shall be reviewed at least annually to verify the recipients’ need-to-know.

(j) Code Words, Nicknames, and Exercise Terms. The use of code words, nicknames, and exercise terms is subject to the provisions of subpart M and Appendix C.

(k) Scientific and Technical Meetings. Use of classified information in scientific and technical meetings is subject to the provisions of DoD Directive 5200.12.

(l) Limited Dissemination (LIMDIS). This section establishes limits on measures for the protection of information beyond those involving access to classified information per se, but not so stringent as to require the establishment of a Special Access Program. It prohibits use of terminology indicating enhancements to need-to-know, such as Special Need-to-Know (SNTK), MUST KNOW, Controlled Need-to-Know (CNTK), or other similar security upgrade designations and associated unique security requirements such as specialized nondisclosure statements. Limited dissemination controls are the only security enhancement short of a Special Access Program which may be employed for control over specific information for specified periods of time. In this context, these procedures may be initiated and continued on a showing that additional access controls are required in order to assure the security of the designated information. The decision to apply these procedures shall be made at the original classification authority level of command or supervision in accordance with the implementing information security instructions promulgated by the DoD Component. Except by agreement, such requirements shall not be imposed outside of the approving DoD Component. LIMDIS protective measures are restricted to one or more of the following:

(1) Decentralized maintenance of disclosure listings, briefings concerning access limitations, and physical security restrictions limited to requirements such as placing the material in sealed envelopes within approved storage containers to avoid inadvertent disclosure and the commingling with other files;

(2) Using unclassified nicknames (no code words may be assigned to LIMDIS information);

(3) Marking the material as LIMDIS along with the assigned nickname;

(4) Marking inner envelopes containing designated LIMDIS information with the notation: “To be Opened Only By Personnel Authorized Access”;

(5) Requiring electronically transmitted messages containing designated information to be marked with the uniform caveat LIMDIS; and

(6) Prescribing unique oversight procedures to be accomplished by Component professional security personnel (industrial security inspections will be conducted in the normal manner by the Defense Investigative Service).

(a) Policy. Classified information may be transmitted or transported only as specified in this subpart.

(b) Top Secret Information. Transmission of Top Secret information shall be effected only by:

(1) The Armed Forces Courier Service (ARFCOS);

(2) Authorized DoD Component Courier Services,

(3) If appropriate, the Department of State Courier System;

(4) Cleared and designated U.S. military personnel and Government civilian employees traveling on a conveyance owned, controlled, or chartered by the U.S. Government or DoD contractors;

(5) Cleared and designated U.S. Military personnel and government civilian employees by surface transportation;

(6) Cleared and designated U.S. Military personnel and government civilian employees on scheduled commercial passenger aircraft within and between the United States, its Territories, and Canada, when approved in accordance with § 159a.59(d)(1).

(7) Cleared and designated U.S. Military personnel and government civilian employees on scheduled commercial passenger aircraft on flights outside the United States, its territories, and Canada, when approved in accordance with § 159a.59(d)(2).

(8) Cleared and designated DoD contractor employees within and between the United States and its Territories provided that the transmission has been authorized in writing by the appropriate contracting officer or his designated representative, and the designated employees have been briefed on their responsibilities as couriers or escorts for the protection of Top Secret material. Complete guidance for Top Secret transmission is specified in DoD 5220.22-R and DoD 5220.22-M.

(9) A cryptographic system authorized by the Director, NSA, or via a protected distribution system designed and installed to meet the standards included in the National COMSEC and Emanations Security (EMSEC) Issuance System.

(c) Secret Information. Transmission of Secret information may be effected by:

(1) Any of the means approved for the transmission of Top Secret information except that Secret information may be introduced into the ARFCOS only when the control of such information cannot be otherwise maintained in U.S. custody. This restriction does not apply to SCI and COMSEC information;

(2) Appropriately cleared contractor employees within and between the United States and its Territories provided that:

(i) The designated employees have been briefed in their responsibilities as couriers or escorts for protecting Secret information;

(ii) The classified information remains under the constant custody and protection of the contractor personnel at all times; and

(iii) The transmission otherwise meets the requirements specified in DoD 5220.22-R and DoD 5220.22-M. In other areas, appropriately cleared DoD contractor employees may transmit classified material only as prescribed by DoD 5220.22-R and DoD 5220.22-M.

(3) U.S. Postal Service registered mail within and between the United States and its Territories;

(4) U.S. Postal Service registered mail through Army, Navy, or Air Force Postal Service facilities outside the United States and its Territories, provided that the information does not at any time pass out of U.S. citizen control and does not pass through a foreign postal system or any foreign inspection;

(5) U.S. Postal Service and Canadian registered mail with registered mail receipt between U.S. Government and Canadian Government installations in the United States and Canada;

(6) Carriers authorized to transport Secret information by way of a Protective Security Service (PSS) under the DoD Industrial Security Program. This method is authorized only within the U.S. boundaries and only when the size, bulk, weight, and nature of the shipment, or escort considerations make the use of other methods impractical. Routings for these shipments will be obtained from the Military Traffic Management Command (MTMC);

(7) The following carriers under appropriate escort: government and government contract vehicles including aircraft, ships of the U.S. Navy, civil service-operated U.S. Naval ships, and ships of U.S. registry. Appropriately cleared operators of vehicles, officers of ships or pilots of aircraft who are U.S. citizens may be designated as escorts provided the control of the carrier is maintained on a 24-hour basis. The escort shall protect the shipment at all times, through personal observation or authorized storage to prevent inspection, tampering, pilferage, or unauthorized access. However, observation of the shipment is not required during the period it is stored in an aircraft or ship in connection with flight or sea transit, provided the shipment is loaded into a compartment that is not accessible to any unauthorized persons or in a specialized secure, safe-like container that is:

(i) Constructed of solid building material that provides a substantial resistance to forced entry;

(ii) Constructed in a manner that precludes surreptitious entry through disassembly or other means, and that attempts at surreptitious entry would be readily discernible through physical evidence of tampering; and

(iii) Secured by a numbered cable seal lock affixed to a substantial metal hasp in a manner that precludes surreptitious removal and provides substantial resistance to forced entry.

(8) Use of specialized containers aboard aircraft requires that:

(i) Appropriately cleared personnel maintain observation of the material as it is being loaded aboard the aircraft and that observation of the aircraft continues until it is airborne;

(ii) Observation by appropriately cleared personnel is maintained at the destination as the material is being off-loaded and at any intermediate stops. Observation will be continuous until custody of the material is assumed by appropriately cleared personnel.

(d) Confidential Information. Transmission of Confidential information may be effected by:

(1) Means approved for the transmission of Secret information. However, U.S. Postal Service registered mail shall be used for Confidential only as indicated in paragraph (c)(2) of this section;

(2) U.S. Postal Service registered mail for:

(i) Confidential information of NATO;

(ii) Other Confidential material to and from FPO or APO addressees located outside the United States and its Territories;

(iii) Other addressees when the originator is uncertain that their location is within U.S. boundaries. Use of return postal receipts on a case-by-case basis is authorized.

(3) U.S. Postal Service first class mail between DoD Component locations anywhere in the United States and its Territories. However, the outer envelope or wrappers of such Confidential material shall be endorsed “POSTMASTER: Address Correction Requested/Do Not Forward.” Certified or, if appropriate, registered mail shall be used for material directed to DoD contractors and to non-DoD agencies of the Executive Branch. U.S. Postal Service Express Mail Service may be used between DoD Component locations, between DoD contractors, and between DoD Components and DoD contractors.

(4) Within U.S. boundaries, commercial carriers that provide a Constant Surveillance Service (CSS). Information concerning commercial carriers that provide CSS may be obtained from the MTMC.

(5) In the custody of commanders or masters of ships of U.S. registry who are U.S. citizens. Confidential information shipped on ships of U.S. registry may not pass out of U.S. Government control. The commanders or masters must give and receive classified information receipts and agree to:

(i) Deny access to the Confidential material by unauthorized persons, including customs inspections, with the understanding that Confidential cargo that would be subject to customs inspection will not be unloaded; and

(ii) Maintain control of the cargo until a receipt is obtained from an authorized representative of the consignee.

(6) Such alternative or additional methods of transmission as the head of any DoD Component may establish by rule or regulation, provided those methods afford at least an equal degree of security.

(e) Transmission of Classified Material to Foreign Governments. After a determination by designated officials pursuant to DoD Directive 5230.11 that classified information or material may be released to a foreign government, the material shall be transferred between authorized representatives of each government in compliance with the provisions of this subpart. To assure compliance, each contract, agreement, or other arrangement that involves the release of classified material to foreign entities shall either contain transmission instructions or require that a separate transportation plan be approved by the appropriate DoD security and transportation officials prior to release of the material. (See DoD TS-5105.21-M-3 31 for guidance regarding SCI.)

(1) Classified material to be released directly to a foreign government representative shall be delivered or transmitted only to a person who has been designated in writing by the recipient government as its officer, agent, or employee (hereafter referred to as the designated representative). Foreign governments may designate a freight forwarder as their agent. This written designation shall contain assurances that such person has a security clearance at the appropriate level and that the person will assume full security responsibility for the material on behalf of the foreign government. The recipient will be required to execute a receipt for the material, regardless of the level of classification.

(2) Classified material that is suitable for transfer by courier or postal service, and which cannot be transferred directly to a foreign government's designated representative as specified in paragraph (e)(1) of this section, shall be transmitted by one of the methods specified in paragraph (b), (c), or (d) of this section, for the designated classification level to:

(i) An embassy, consulate, or other official agency of the recipient government having extraterritorial status in the United States, or to

(ii) A U.S. Embassy or a U.S. military organization in the recipient country or in a third-party country, if applicable, for delivery to a designated representative of the intended recipient government. In either case, the assurance in paragraph (e)(1) of this section, and a receipt, must be obtained.

(3) The shipment of classified material as freight via truck, rail, aircraft, or ship shall be in compliance with the following:

(i) Shipment Resulting from Foreign Military Sales (FMS). DoD officials authorized to approve a FMS transaction that involves the delivery of U.S. classified material to a foreign purchaser shall, at the outset of negotiation or consideration of proposal, consult with DoD transportation authorities (Military Traffic Management Command, Military Sealift Command, Military Airlift Command, or other, as appropriate) to determine whether secure shipment from the CONUS point of origin to the ultimate foreign destination is feasible. Normally, the United States will use the Defense Transportation System (DTS) to deliver classified material to the recipient government. If, in the course of FMS case processing, the foreign purchaser proposes to take delivery and custody of the classified material in the United States and use it own facilities and transportation for onward shipment to its territory, the foreign purchaser or its designated representative shall be required to submit a transportation plan for DoD review and approval. This plan, as a minimum, shall specify the storage facilities, delivery and transfer points, carriers, couriers or escorts, and methods of handling to be used from the CONUS point of origin to the final destination and return shipment when applicable. (See Appendix E to this part) Security officials of the DoD Component that initiates the FMS transaction shall evaluate the transportation plan to determine whether the plan adequately ensures protection of the highest level of classified material involved. Unless the DoD Component initiating the FMS transaction approves the transportation plan as submitted, or it is modified to meet U.S. security standards, shipment by other than DTS shall not be permitted. Transmission instructions or the requirement for an approved transportation plan shall be incorporated into the security requirements of the United States Department of Defense Offer and Acceptance (DD Form 1513).

(ii) Shipments Resulting from Direct Commercial Sales. Classified shipments resulting from direct commercial sales must comply with the same security standards that apply to FMS shipments. Defense contractors, therefore, will consult, as appropriate, with the purchasing government, the DIS Regional Security Office, and the owning Military Department prior to consummation of a commercial contract that will result in the shipment of classified material to obtain approval of the transportation plan.

(iii) Delivery within the United States, Its Territories, or Possessions. Delivery of classified material to a foreign government at a point within the United States, its territories, or its possessions, shall be made only to a person identified in writing by the recipient government as its designated representative as specified in paragraph (e)(1) of this section. The only authorized delivery points are:

(A) An embassy, consulate, or other official agency under the control of the recipient government.

(B) Point of origin. When a designated representative of the recipient government accepts delivery of classified U.S. material at the point of origin (for example, a manufacturing facility or depot), the DoD official who transfers custody shall obtain a receipt for the classified material and assure that the recipient is cognizant or secure means of onward movement of the classified material to its final destination, consistent with the approved transportation plan.

(C) Military or commercial ports of embarkation (POE) that are recognized points of departure from the United States, its territories, or possessions, for onloading aboard a ship, aircraft, or other carrier authorized under paragraph (e)(3)(v) of this section. In these cases, the transportation plan shall provide for U.S.-controlled secure shipment to the CONUS transshipment point and the identification of a secure storage facility, government or commercial, at or in proximity to the POE. A DoD official authorized to transfer custody is to supervise or observe the onloading of FMS material being transported via the DTS and other onloading wherein physical and security custody of the material has yet to be transferred formally to the foreign recipient. In the event that transfer of physical and security custody cannot be accomplished promptly, the DoD official shall ensure that the classified material is either returned to a secure storage facility of the U.S. shipper (government or contractor); or segregated and placed under constant surveillance of a duly cleared U.S. security force at the POE; or held in the secure storage facility (government or commercial) designated in the transportation plan.

(D) Freight forwarder facility that is identified by the recipient government as its designated representative and that is cleared in accordance with paragraph (e)(3)(vi) of this section, to the level of the classified material to be received. In these cases, a person identified as a designated representative must be present to accept delivery of the classified material and receipt for it, to include full acceptance of security responsibility.

(iv) Delivery Outside the United States, Its Territories, or Possessions—(A) Delivery within the recipient country. Classified U.S. material to be delivered to a foreign government within the recipient country shall be delivered on arrival in the recipient country to a U.S. Government representative who shall arrange for its transfer to a designated representative of the recipient government. If the shipment is escorted by a U.S. Government official authorized to accomplish the transfer of custody, the material may be delivered directly to the recipient government's designated representative upon arrival.

(B) Delivery Within a Third Country. Classified material to be delivered to a foreign government representative within a third country shall be delivered to an agency or installation of the United States, or of the recipient government, that has extraterritorial status or otherwise is exempt from the jurisdiction of the third country. Unless the material is accompanied by a U.S. Government official authorized to accomplish the transfer of custody, a U.S. Government official shall be designated locally to receive the shipment upon arrival and be vested with authority to effect delivery to the intended recipient government's designated representative.

(v) Overseas Carriers. Overseas shipments of U.S. classified material shall be made only via ships, aircraft, or other carriers that are:

(A) Owned or chartered by the U.S. Government or under U.S. registry,

(B) Owned or chartered by or under the registry of the recipient government, or

(C) Otherwise expressly authorized by the head of the DoD Component having classification jurisdiction over the material involved. Overseas shipments of classified material shall be escorted, prepared for shipment, packaged, and stored onboard as prescribed elsewhere in this subpart and in DoD 5220.22-R and DoD 5220.22-M.

(vi) Freight Forwarders. Only freight forwarders that have been granted an appropriate security clearance by the Department of Defense or the recipient government are eligible to receive, process, and store U.S. classified material authorized for release to foreign governments. However, a freight forwarder that does not have access to or custody of the classified material need not be cleared.

(f) Consignor-Consignee Responsibility for Shipment of Bulky Material. The consignor of a bulk shipment shall:

(1) Normally, select a carrier that will provide a single line service from the point of origin to destination, when such a service is available;

(2) Ship packages weighing less than 200 pounds in closed vehicles only;

(3) Notify the consignee, and military transshipping activities, of the nature of the shipment (including level of classification), the means of shipment, the number of seals, if used, and the anticipated time and date of arrival by separate communication at least 24 hours in advance of arrival of the shipment. Advise the first military transshipping activity that, in the event the material does not move on the conveyance originally anticipated, the transshipping activity should so advise the consignee with information of firm transshipping date and estimated time of arrival. Upon receipt of the advance notice of a shipment of classified material, consignees and transshipping activities shall take appropriate steps to receive the classified shipment and to protect it upon arrival.

(4) Annotate the bills of lading to require the carrier to notify the consignor immediately by the fastest means if the shipment is unduly delayed enroute. Such annotations shall not under any circumstances disclose the classified nature of the commodity. When seals are used, annotate substantially as follows:

(5) Require the consignee to advise the consignor of any shipment not received more than 48 hours after the estmated time of arrival furnished by the consignor or transshipping activity. Upon receipt of such notice, the consignor shall immediately trace the shipment. If there is evidence that the classified material was subjected to compromise, the procedures set forth in subpart G of this part for reporting compromises shall apply.

(g) Transmission of COMSEC Information. COMSEC information shall be transmitted in accordance with National COMSEC Instruction 4005.

(h) Transmission of Restricted Data. Restricted Data shall be transmitted in the same manner as other information of the same security classification. The transporting and handling of nuclear weapons or nuclear components shall be in accordance with DoD Directives 4540.1 32 and 5210.41 33 and applicable DoD Component directives and regulations.

(a) Envelopes or Containers. (1) Whenever classified information is transmitted, it shall be enclosed in two opaque sealed envelopes or simliar wrappings when size permits, except as provided by the following:

(2) Whenever classified material is transmitted of a size not suitable for transmission in accordance with paragraph (a)(1) of this section, it shall be enclosed in two opaque sealed containers, such as boxes or heavy wrappings.

(i) If the classified information is an internal component of a packageable item of equipment, the outside shell or body may be considered as the inner enclosure provided it does not reveal classified information.

(ii) If the classified material is an inaccessible internal component of a bulky item of equipment that is not reasonably packageable, the outside or body of the item may be considered to be a sufficient enclosure provided the shell or body does not reveal classified information.

(iii) If the classified material is an item or equipment that is not reasonably packageable and the shell or body is classified, it shall be concealed with an opaque covering that will hide all classified features.

(iv) Specialized shipping containers, including closed cargo transporters, may be used instead of the above packaging requirements. In such cases, the container may be considered the outer wrapping or cover.

(3) Material used for packaging shall be of such strength and durability as to provide security protection while in transit, prevent items from breaking out of the container, and to facilitate the detection of any tampering with the container. The wrappings shall conceal all classified characteristics.

(4) Closed and locked vehicles, compartments, or cars shall be used for shipments of classified information except when another method is authorized by the consignor. Alternative methods authorized by the consignor must provide security equivalent to or better than the methods specified herein. In all instances, individual packages weighing less than 200 pounds gross shall be shipped only in a closed vehicle.

(5) To minimize the possibility of compromise of classified material caused by improper or inadequate packaging thereof, responsible officials shall ensure that proper wrappings are used for mailable bulky packages. Responsible officials shall require the inspection of bulky packages to determine whether the material is suitable for mailing or whether it should be transmitted by other approved means.

(6) When classified material is hand-carried outside an activity, a locked briefcase may serve as the outer wrapper. In such cases, the addressing requirements of paragraph (b)(4) of this section do not apply; however, the requirements of paragraph (b)(3) of this section are applicable.

(b) Addressing. (1) Classified information shall be addressed to an official government activity or DoD contractor with a facility clearance and not to an individual. This is not intended, however, to prevent use of office code numbers or such phrases in the address as “Attention: Research Department,” or similar aids in expediting internal routing, in addition to the organization address.

(2) Classified written information shall be folded or packed in such a manner that the text will not be in direct contact with the inner envelope or container. A receipt form shall be attached to or enclosed in the inner envelope or container for all Secret and Top Secret information; Confidential information will require a receipt only if the originator deems it necessary. The mailing of written materials of different classifications in a single package should be avoided. However, when written materials of different classifications are transmitted in one package, they shall be wrapped in a single inner envelope or container. A receipt listing all classified information for which a receipt is requested shall be attached or enclosed. The inner envelope or container shall be marked with the highest classification of the contents.

(3) The inner envelope or container shall show the address of the receiving activity, classification, including, where appropriate, the “Restricted Data” marking, and any applicable special instructions. It shall be carefully sealed to minimize the possibility of access without leaving evidence of tampering.

(4) An outer or single envelope or container shall show the complete and correct address and the return address of the sender.

(5) An outer cover or single envelope or container shall not bear a classification marking, a listing of the contents divulging classified information, or any other unusual data or marks that might invite special attention to the fact that the contents are classified.

(6) Care must be taken to ensure that classified information intended only for U.S. elements of international staffs or other organizations is addressed specifically to those elements.

(c) Receipt Systems. (1) Top Secret information shall be transmitted under a chain of receipts covering each individual who gets custody.

(2) Secret information shall be covered by a receipt when transmitted to a foreign government (including foreign government embassies located in the United States) and when transmitted between major subordinate elements of DoD Components and other authorized addressees except that a receipt is not required when there is a hand-to-hand transfer between U.S. personnel and the recipient acknowledges responsibility for the Secret information.

(3) Receipts for Confidential information are not required except when the information is transmitted to a foreign government (including foreign government embassies located in the United States) or upon request.

(4) Receipts shall be provided by the transmitter of the material and the forms shall be attached to the inner cover.

(i) Postcard receipt forms may be used.

(ii) Receipt forms shall be unclassified and contain only such information as is necessary to identify the material being transmitted.

(iii) Receipts shall be retained for at least 2 years.

(5) In those instances where a fly-leaf (page check) form is used with classified publications, the postcard receipt will not be required.

(d) Exceptions. Exceptions may be authorized to the requirements contained in this subpart by the head of the Component concerned or designee, provided the exception affords equal protection and accountability to that provided above. Proposed exceptions that do not meet these minimum standards shall be submitted to the DUSD(P) for approval.

Documentary record information originated or received by a DoD Component in connection with the transaction of public business, and preserved as evidence of the organization, functions, policies, operations, decisions, procedures, or other activities of any U.S. Government department or agency or because of the informational value of the data contained therein, may be disposed of or destroyed only in accordance with DoD Component record management regulations. Nonrecord classified information, and other material of similar temporary nature, shall be destroyed when no longer needed under procedures established by the head of the cognizant DoD Component. These procedures shall incorporate means of verifying the destruction of classified information and material and be consistent with the following requirements.

Classified documents and material shall be destroyed by burning or, with the approval of the cognizant DoD Component head or designee, by melting, chemical decomposition, pulping, pulverizing, cross-cut shredding, or mutilation sufficient to preclude recognition or reconstruction of the classified information. (Strip shredders purchased prior to June 1, 1986 may continue to be used but only in circumstances where reconstruction of the residue is precluded. Shredding significant amounts of unclassified material together with classified material normally will meet this requirement.)

(a) Procedures shall be instituted that ensure all classified information intended for destruction actually is destroyed. Destruction records and imposition of a two-person rule, that is, having two cleared persons involved in the entire destruction process, will satisfy this requirement for Top Secret information. Imposition of a two-person rule, without destruction records, will satisfy this requirement for Secret information, as will use of destruction records without imposition of the two-person rule. Only one cleared person needs to be involved in the destruction process for Confidential information.

(b) When burn bags are used for the collection of classified material that is to be destroyed at central destruction facilities, such bags shall be controlled in a manner designed to minimize the possibility of their unauthorized removal and the unauthorized removal of their classified contents prior to actual destruction. When filled, burn bags shall be sealed in a manner that will facilitate the detection of any tampering with the bag.

(c) Procedures to ensure that all classified information intended for destruction actually is destroyed, other than those in paragraphs (a) and (b) of this section, shall be submitted to the DoD Component's senior official (§ 159a.93(b) and (c)) for approval.

(a) Records of destruction are required for Top Secret information. The record shall be dated and signed at the time of destruction by two persons cleared for access to Top Secret information. However, in the case of Top Secret information placed in burn bags for central disposal, the destruction record may be signed by the officials when the information is so placed and the bags are sealed. Top Secret burn bags shall be numbered serially and a record kept of all subsequent handling of the bags until they are destroyed. This record may be in lieu of actual burn bag receipts and shall be maintained for a minimum of 2 years.

(b) Records of destruction of Secret and Confidential information are not required except for NATO Secret and some limited categories of specially controlled Secret information. When records of destruction are used for Secret information, only one cleared person has to sign such records. (DoD Directive 5100.55 provides guidance on the destruction of NATO classified material.)

(c) Records of destruction shall be maintained for 2 years.

Waste material, such as handwritten notes, carbon paper, typewriter ribbons, and working papers that contains classified information must be protected to prevent unauthorized disclosure of the information. Classified waste shall be destroyed when no longer needed by a method described in § 159a.62. Destruction records are not required.

(a) Classified documents that are not permanently valuable records of the government shall not be retained more than 5 years from the date of origin, unless such retention is authorized by and in accordance with DoD Component record disposition schedules.

(b) Throughout the Department of Defense, the head of each activity shall establish at least one clean-out day each year where a portion of the work performed in every office with classified information stored is devoted to the destruction of unneeded classified holdings.

Heads of DoD Components shall establish security education programs for their personnel. Such programs shall stress the objectives of improving the protection of information that requires it. They shall also place emphasis on the balance between the need to release the maximum information appropriate under the Freedom of Information Act (32 CFR part 285) and the interest of the Government in protecting the national security.

The security education program shall include all personnel authorized or expected to be authorized access to classified information. Each DoD Component shall design its program to fit the requirements of different groups of personnel. Care must be exercised to assure that the program does not evolve into a perfunctory compliance with formal requirements without achieving the real goals of the program. The program shall, as a minimum, be designed to:

(a) Advise personnel of the adverse effects to the national security that could result from unauthorized disclosure and of their personal, moral, and legal responsibility to protect classified information within their knowledge, possession, or control;

(b) Indoctrinate personnel in the principles, criteria, and procedures for the classification, downgrading, declassification, marking, control and accountability, storage, destruction, and transmission of classified information and material, as prescribed in this Regulation, and alert them to the strict prohibitions against improper use and abuse of the classification system;

(c) Familiarize personnel with procedures for challenging classification descisions believed to be improper;

(d) Familiarize personnel with the security requirements of their particular assignment;

(e) Inform personnel of the techniques employed by foreign intelligence activities in attempting to obtain classified information, and their responsibility to report such attempts;

(f) Advise personnel of the penalties for engaging in espionage activities;

(g) Advise personnel of the strict prohibition against discussing classified information over an unsecure telephone or in any other manner that permits interception by unauthorized persons;

(h) Inform personnel of the penalties for violation or disregard of the provisions of this part (see § 159a.97(b));

(i) Instruct personnel that individuals having knowledge, possession, or control of classified information must determine, before disseminating such information, that the prospective recipient has been cleared for access by competent authority; needs the information in order to perform his or her official duties; and can properly protect (or store) the information.

DoD personnel granted a security clearance (see §159a.53) shall not be permitted to have access to classified information until they have received an initial security briefing and have signed Standard Form 189, “Classified Information Nondisclosure Agreement.” DoD 5200.1-PH-135 provides a sample briefing and additional information regarding Standard Form 189. Cleared personnel employed prior to June 1, 1986 must sign Standard Form 189 as soon as practicable but not later than February 28, 1990.

Programs shall be established to provide, at a minimum, annual security training for personnel having continued access to classified information. The elements outlined in § 159a.69 shall be tailored to fit the needs of experienced personnel.

(a) Personnel who have had access to classified information shall be given a foreign travel briefing, before travel, to alert them to their possible exploitation under the following conditions:

(1) Travel to or through communist-controlled countries; and

(2) Attendance at international scientific, technical, engineering or other professional meetings in the United States or in any country outside the United States where it can be anticipated that representatives of Communist-controlled countries will participate or be in attendance. (See also DoD Directive 5240.6 3 6 .)

(b) Individuals who travel frequently, or attend or host meetings of foreign visitors as described in paragraph (a)(2) of this section, need not be briefed for each occasion, but shall be provided a thorough briefing at least once every 6 months and a general reminder of security responsibilities before each such activity.

(a) Upon termination of employment, administrative withdrawal of security clearance, or contemplated absence from duty or employment for 60 days or more, DoD military personnel and civilian employees shall be given a termination briefing, return all classified material, and execute a Security Termination Statement. This statement shall include:

(1) An acknowledgment that the individual has read the appropriate provisions of the Espionage Act, other criminal statutes, DoD regulations applicable to the safeguarding of classified information to which the individual has had access, and understands the implications thereof;

(2) A declaration that the individual no longer has any documents or material containing classified information in his or her possession;

(3) An acknowledgement that the individual will not communicate or transmit classified information to any unauthorized person or agency; and

(4) An acknowledgement that the individual will report without delay to the FBI or the DoD Component concerned any attempt by any unauthorized person to solicit classified information.

(b) When an individual refuses to execute a Security Termination Statement, that fact shall be reported immediately to the security manager of the cognizant organization concerned. In any such case, the individual involved shall be debriefed orally. The fact of a refusal to sign a Security Termination Statement shall be reported to the Director, Defense Investigative Service who shall assure that it is recorded in the Defense Central Index of Investigations.

(c) The security termination statement shall be retained by the DoD Component that authorized the individual access to classified information for the period specified in the Component's record retention schedules, but for a minimum of 2 years after the individual is given a termination briefing.

(a) Classification. (1) Foreign government information classified by a foreign government or international organization of governments shall retain its original classification designation or be assigned a U.S. classification designation that will ensure a degree of protection equivalent to that required by the government or organization that furnished the information. Original classification authority is not required for this purpose.

(2) Foreign government information that was not classified by a foreign entity but was provided with the expectation, expressed or implied, that the information, the source of the information, or both, are to be held in confidence must be classified by an original classification authority. The two-step procedure for classification prescribed in § 159a.15(c) does not apply to the classification of such foreign government information because E.O. 12356 states a presumption of damage to the national security in the event of unauthorized disclosure of such information. Therefore, foreign government information shall be classified at least Confidential, but higher whenever the damage criteria of § 159a.11 (b) or (c) are determined to be met.

(b) Duration of Classification. (1) Foreign government information shall not be assigned a date or event for automatic declassification unless specified or agreed to by the foreign entity.

(2) Foreign government information classified by the Department of Defense under this or previous regulations shall be protected for an indefinite period (see § 159a.77(e)).

(a) Policy. In considering the possibility of declassification of foreign government information, officials shall respect the intent of this regulation to protect foreign government information and confidential foreign sources.

(b) Systematic Review. When documents containing foreign government information are encountered during the systematic review process they shall be referred to the originating agency for a declassification determination. Consultation with the foreign originator through appropriate channels may be necessary before final action can be taken.

(c) Mandatory Review. Requests for mandatory review for declassification of foreign government information shall be processed and acted upon in accordance with the provisions of § 159a.26, except that foreign government information will be declassified only in accordance with the guidelines developed for such purpose and after necessary consultation with other DoD Components or government agencies with subject matter interest. When these guidelines cannot be applied to the foreign government information requested, or in the absence of such guidelines, consultation with the foreign originator through appropriate channels normally should be effected prior to final action taken on the request. When the responsibile DoD Component is knowledgeable of the foreign originator's view toward declassification or continued classification of the types of information requested, consultation with the foreign originator may not be necessary.

(a) Equivalent U.S. Classification Designations. Except for the foreign security classification designation RESTRICTED, foreign classification designations, including those of international organizations of governments, that is, NATO, generally parallel U.S. classification designations. A table of equivalents is contained in Appendix A to this part.

(b) Marking NATO Documents. Classified documents originated by NATO, if not already marked with the appropriate classification in English, shall be so marked. Markings required under § 159a.34(c) shall not be placed on documents originated by NATO. Documents originated by NATO that are marked RESTRICTED shall be marked with the following additional notation: “To be safeguarded in accordance with USSAN Instruction 1-69” (see DoD Directive 5100.55).

(c) Marking Other Foreign Government Documents. (1) If the security classification designation of foreign government documents is shown in English, no other classification marking shall be applied. If the foreign classification designation is not shown in English, the equivalent overall U.S. classification designation (see Appendix A to this part) shall be marked conspicuously on the document. When foreign government documents are marked with a classification designation having no U.S. equivalent, as in the last column of Appendix A to this part, such documents shall be marked in accordance with paragraph (c)(2) of this section.

(2) Certain foreign governments use a fourth classification designation as shown in the last column of Appendix A to this part. Such designations equate to the foreign classification RESTRICTED. If the foreign government documents are marked with any of the classification designations listed in the last column of Appendix A to this part, no other classification marking shall be applied. In all such cases, the notation, “This classified material is to be safeguarded in accordance with DoD 5200.1-R or DoD 5220.22-M,” shall be shown on the face of the document.

(3) Other marking requirements prescribed by this Regulation for U.S. classified documents are not applicable to documents of foreign governments or international organizations of governments.

(d) Marking of DoD Classification Determinations. Foreign documents containing foreign government information not classified by the foreign government but provided to the Department of Defense in confidence shall be classified as prescribed in § 159a.75(a)(2) and marked with the appropriate U.S. classification.

(e) Marking of Foreign Government Information in DoD Documents. (1) Except where such markings would reveal that information is foreign government information when that fact must be concealed, or reveal a confidential source or relationship not otherwise evident in the document or information, foreign government information incorporated in DoD documents shall be identified in a manner that ensures that such information is not declassified prematurely or made accessible to nationals of a third country without consent of the originator. This requirement may be satisfied by marking the face of the document “FOREIGN GOVERNMENT INFORMATION,” or with another marking that otherwise indicates that the information is foreign government information, and by including the appropriate identification in the portion or paragraph classification markings, for example, (NS) or (U.K.-C). All other markings prescribed by § 159a.31(d) are applicable to these documents. In addition, DoD classified documents that contain extracts of NATO classified information shall bear a marking substantially as follows on the cover or first page: “THIS DOCUMENT CONTAINS NATO CLASSIFIED INFORMATION.”

(2) When foreign RESTRICTED or NATO RESTRICTED information is included in an otherwise unclassified DoD document, the DoD document shall be marked CONFIDENTIAL. All requirements of § 159a.31(d) apply to such documents. Portion markings on such a document include, for example “(U),” “(NR),” and “(FRG-R).” In addition, the appropriate caveat from paragraph (a) of this section, shall be included on the face of the document.

(3) The “Classified by” line of DoD documents containing only foreign government information normally shall be completed with the identity of the foreign government or international organization involved, for example, “Classified by Government of Australia” or “Classfied by NATO,” provided that other requirements of § 159a.31(e) do not pertain to such documents.

(4) The “Declassify on” line of DoD documents containing foreign government information normally shall be completed with the notation “Originating Agency's Determination Required” or “OADR” (see § 159a.36 and § 159a.75(b)).

(a) NATO Classified Information. NATO classified information shall be safeguarded in accordance with the provisions of DoD Directive 5100.55.

(b) Other Foreign Government Information. (1) Classified foreign government information other than NATO information shall be protected as is prescribed by this part for U.S. classified information of a comparable classification.

(2) Foreign government information, unless it is NATO information, that is marked under § 159a.77(c)(2) or § 159a.77(e)(2) shall be protected as U.S. CONFIDENTIAL, except that such information may be stored in locked filing cabinets, desks, or other similar closed spaces that will prevent access by unauthorized persons.

It is the policy of the Department of Defense to use the security classification categories and the applicable sections of E.O. 12356 and its implementing ISOO Directive, to limit access to classified information on a “need-to-know” basis to personnel who have been determined to be trustworthy. It is further policy to apply the “need-to-know” principle in the regular system so that there will be no need to resort to formal Special Access Programs. Also, need-to-know control principles shall be applied within Special Access Programs. In this context, Special Access Programs may be created or continued only on specific showing that:

(a) Normal management and safeguarding procedures are not sufficient to limit “need-to-know” or access; and

(b) The number of persons who will need access will be reasonably small and commensurate with the objective of providing extra protection for the information invoved.

(a) Procedures for the establishment of Special Access Programs involving NATO classified information are based on international treaty requirements (see DoD Directive 5100.55).

(b) The policies and procedures for access to and dissemination of Restricted Data and Critical Nuclear Weapon Design Information are contained in DoD Directive 5210.2.

(c) Special Access Programs for foreign intelligence information under the cognizance of the Director of Central Intelligence, or those of the National Telecommunications and Information Systems Security Committee originate outside the Department of Defense. However, coordination with the DUSD(P) and the Component's central point of contact is necessary before the establishment or implementation of any such Programs by any DoD Component. The information required by § 159a.80(f)(1) will be provided.

(d) Excluding those Programs and that information specified in paragraphs (a)(1), (2), and (3) of this section, Special Access Programs shall be established within the Military Departments by:

(1) Submitting to the Secretary of the Department the information required under § 159a.80(f)(1).

(2) Obtaining written approval from the Secretary of the Department;

(3) Providing to the DUSD(P) notice of the approval; and

(4) Maintaining the information and rationale upon which approval was granted within the Military Department's central office.

(e) Excluding those Programs and that information in paragraphs (d)(1), (2), and (3) of this section, Special Access Programs that are desired to be established in any DoD Component other than the Military Departments shall be submitted with the information referred to in § 159a.80(f)(1) to the DUSD(P) for approval.

(f) Upon specific written notice to one of the appropriate DoD Special Access Program approval officials, receipt of their written concurrence, protective Special Access Program controls may be applied to a prospective Special Access Program for up to a 6-month period from the date of such notice. However, in all instances, the Program must be terminated as a prospective Special Access Program or formally approved as a Special Access Program by the end of the 6-month time period.

(g) Unless under DoD Directive S-5210.36 3 7 , Special Access Programs which involve one or more DoD Components, or a DoD Component and a non-DoD activity, shall be covered by a written agreement which must document who has the principal security responsibility, who is the primary sponsor of the Program, and who is responsible for obtaining Special Access Program approval.

(a) Excluding those Programs specified in § 159a.81 (a), (b), or (c), each Special Access Program shall be reviewed annually by the DoD Component responsible for establishment of the Program. To accommodate such reviews, DoD Components shall institute procedures to ensure the conduct of annual security inspections, with or without prior notice, and regularly scheduled audits by security, contract administration, and audit organizations. Also, Program managers shall ensure that Special Access Program activities have undergone a current review by legal counsel for compliance with law, executive order, regulation, and national policy. To accomplish such reviews, specially cleared pools of attorneys may be utilized, but in all cases legal counsel shall be provided with all information necessary to perform such reviews.

(b) Special Access Programs, excluding those specified in § 159a.81 (a), (b), or (c), or those required by treaty or international agreement, shall terminate automatically every 5 years unless reestablished in accordance with the procedures contained in § 159a.81.

(a) Special Access Programs shall be controlled and managed in accordance with DoD Directive 5205.7 3 8 . Each DoD Component shall appoint a Special Access Program coordinator to establish and maintain a central office and to serve as a single point of contact for information concerning the establishment and security administration of all Special Access Programs established by or existing in the Component. These officials shall report to the DUSD(P) on the status of DoD Special Access Programs within the Component to include:

(1) The establishment of a Special Access Program as required by § 159a.81(d)(3); and

(2) Changes in Program status as required by § 159a.85 (b) or (c).

(b) Officials serving as single points of contact, as well as members of their respective staffs and other persons providing support to Special Access Programs who require access to multiple sets of particularly sensitive information, shall be subject to a counterintelligence-scope polygraph examination periodically but not less than once every 5 years. Additionally, such testing will be subject to the limitations imposed by Congress. The program for each DoD Component, as well as requests for waiver, shall be submitted for approval by the DUSD(P).

Excluding those Programs specified in § 159a.81 (a), (b), and (c), each Special Access Program will be assigned a classified code word, or an unclassified nickname, or both. DoD Components other than Military Departments may request codewords and nicknames from the DUSD(P) individually or in block. If codewords or nicknames are obtained in block, however, the issuing Component shall promptly notify the DUSD(P) upon activitation and assignment.

(a) Report of Establishment. Reports to the Secretary of the Military Department or the DUSD(P) required under § 159a.81 for Special Access Programs shall include:

(1) The responsible department, agency, or DoD Component, including office identification;

(2) The codeword and/or nickname of the Program;

(3) The relationship, if any, to other Special Access Programs in the Department of Defense or other government agencies;

(4) The rationale for establishing the Special Access Program including the reason why normal management and safeguarding procedures for classified information are inadequate;

(5) The estimated number of persons granted special access in the responsible DoD Component; other DoD Components; other government agencies; contractors; and the total of such personnel;

(6) A summary statement pertaining to the Program security requirements with particular emphasis upon those personnel security requirements governing access to Program information;

(7) The date of Program establishment;

(8) The estimated number and approximate dollar value, if known, of carve-out contracts that will be or are required to support the Program; and

(9) The DoD Component official who is the point of contact (last name, first name, middle initial; position or title; mailing address; and telephone number).

(10) A security plan and appropriate security classification guide and notification that a proper DD Form 254, “Contract Security Classification Specification,” has been issued to contractors participating in the Program.

(b) Annual Reports. DoD Component annual reports from other than the Military Departments to the DUSD(P) shall be submitted not later than January 31 of each year, showing the changes in information provided under paragraph (a) of this section, as well as the date of last review. Annual reports shall reflect actual rather than estimated numbers of carve-out contracts and persons granted access and shall summarize the results of the inspections and audits required by § 159a.82(a). Reports from the Military Departments which have approval authority will summarize the required reviews which have been conducted during the year by the central offices, to include details and numbers of carve-out contracts associated with approved Special Access Programs and their overall security posture and numbers of approved Programs by type. Additionally, the Military Department Secretaries authorized to approve such Programs shall furnish a name listing, by unclassified nickname if practicable, or approved Special Access Programs under their cognizance, and they will report any changes to the listing as they occur pursuant to the notification requirements of § 159a.81(d)(3), that is, additions, deletions, and corrections to the DUSD(P). The effective date of information in the annual reports shall be December 31.

(c) Termination Reports. The DUSD(P) shall be notified upon termination of a Special Access Program.

Each of the central offices which must be identified in accordance with § 159a.83(a) shall maintain a complete listing of currently approved DoD Special Access Programs which encompasses the information outlined in § 159a.85(a). These listings shall be readily available to the DUSD(P) or his designated representatives.

Access to data reported under this subpart shall be limited to the DUSD(P) and the minimum number of properly indoctrinated staff necessary to perform the functions assigned the DUSD(P) herein. Access may not be granted to any other person for any purpose without the approval of the DoD Components sponsoring the Special Access Programs concerned.

(a) The Secretaries of the Military Departments and the DUSD(P), or their designees, shall ensure that, in those Special Access Programs involving contractors, special access controls are made applicable by legally binding instruments.

(b) To the extent necessary for DIS to execute its security responsibilities with respect to Special Access Programs under its security cognizance, DIS personnel shall have access to all information relating to the administration of these Programs.

(c) Excluding those Programs specified in § 159a.81(c), the use of “carve-out” contracts that relieve the DIS from inspection responsibility under the Defense Industrial Security Program is prohibited unless:

(1) Such contract supports a Special Access Program approved and administered under § 159a.81;

(2) Mere knowledge of the existence of a contract or of its affiliation with the Special Access Program is classified information; and

(3) Carve-out status is approved for each contract by the Secretary of a Military Department, the Director, NSA, the DUSD(P), or their designees.

(d) Approval to establish a “carve-out” contract must be requested from the Secretary of a Military Department, or designee(s), the Director, NSA, or designee(s), or in the case of other DoD Components, from the DUSD(P). Approved “carve-out” contracts shall be assured the support necessary for the requisite protection of the classified information involved. The support shall be specified through a system of controls that shall provide for:

(1) A written security plan, oral waivers of which are prohibited except in critical situations that must be documented as soon as possible after the fact.

(2) Professional security personnel at the sponsoring DoD Component performing security inspections at each contractor's facility which shall be conducted, at a minimum, with the frequency prescribed by paragraph 4-103 of DoD 5220.22-R;

(3) “Carve-out” contracting procedures;

(4) A central office of record; and

(5) An official to be the single point of contact for security control and administration. DoD Components other than the Military Departments and NSA shall submit such appropriate rationale and security plan along with requests for approval to the DUSD(P).

(e) An annual inventory of carve-out contracts shall be conducted by each DoD Component which participates in Special Access Programs.

(f) This subsection relates back to the date of execution for each contract to which carve-out contracting techniques are applied. The carve-out status of any contract expires upon termination of the Special Access Program which it supports.

(a) DUSD(P) shall conduct oversight reviews, as required, to determine compliance with this subpart.

(b) Pursuant to statutory authority, the Inspector General, Department of Defense, shall conduct oversight of Special Access Programs.

(a) National Security Council. Pursuant to the provisions of E.O. 12356, the NSC shall provide overall policy direction for the Information Security Program.

(b) Administrator of General Services. The Administrator of General Services is responsible for implementing and monitoring the Information Security Program established under E.O. 12356. In accordance with E.O. 12356, the Administrator delegates the implementation and monitorship functions of the Program to the Director of the ISOO.

(c) Information Security Oversight Office—(1) Composition. The ISOO has a full-time director appointed by the Administrator of General Services with approval of the President. The Director has the authority to appoint a staff for the office.

(2) Functions. The Director of the ISOO is charged with the following principal functions that pertain to the Department of Defense:

(i) Oversee DoD actions to ensure compliance with E.O. 12356 implementing directives, for example, the ISOO Directive No. 1 and this part;

(ii) Consider and take action on complaints and suggestions from persons within or outside the government with respect to the administration of the Information Security Program;

(iii) Report annually to the President through the NSC on the implementation of E.O. 12356;

(iv) Review this Regulation and DoD guidelines for systematic declassification review; and

(v) Conduct on-site reviews of the Information Security Program of each DoD Component that generates or handles classified information.

(3) Information Requests. The Director of the ISOO is authorized to request information or material concerning the Department of Defense, as needed by the ISOO in carrying out its functions.

(4) Coordination. Heads of DoD Components shall ensure that any significant requirements levied directly on the Component by the ISOO are brought to the attention of the Director of Security Plans and Programs, ODUSD(P).

(a) Management Responsibility. (1) The DUSD(P) is the Senior DoD Information Security Authority having DoD-wide authority and responsibility to ensure effective and uniform compliance with and implementation of E.O. 12356 and its implementing ISOO Directive No. 1. As such, the DUSD(P) shall have primary responsibility for providing guidance, oversight and approval of policy and procedures governing the DoD Information Security Program. The DUSD(P) or his designee may approve waivers or exceptions to the provisions of this part to the extent such action is consistent with E.O. 12356 and ISOO Directive No. 1.

(2) The heads of DoD Components may approve waivers to the provisions of this part only as specifically provided for herein.

(3) The Director, NSA/Chief, Central Security Service, under 32 CFR part 159, is authorized to impose special requirements with respect to the marking, reproduction, distribution, accounting, and protection of and access to classified cryptologic information. In this regard, the Director, NSA, may approve waivers or exceptions to these special requirements. Except as provided in § 159a.6 the authority to lower any COMSEC security standards rests with the Secretary of Defense. Requests for approval of such waivers or exceptions to established COMSEC security standards which, if adopted, will have the effect of lowering such standards, shall be submitted to the DUSD(P) for approval by the Secretary of Defense.

(a) General. The head of each DoD Component shall establish and maintain an Information Security Program designed to ensure compliance with the provisions of this part throughout the Component.

(b) Military Departments. In accordance with 32 CFR part 159 the Secretary of each Military Department shall designate a Senior Information Security Authority who shall be responsible for complying with and implementing this part within the Department.

(c) Other Components. In accordance with 32 CFR part 159, the head of each other DoD Component shall designate a Senior Information Security Authority who shall be responsible for complying with and implementing this Regulation within their respective Component.

(d) Program Monitorship. The Senior Information Security Authorities designated under paragraphs (b) and (c) of this section, are responsible within their respective jurisdictions for monitoring, inspecting with or without prior announcement, and reporting on the status of administration of the DoD Information Security Program at all levels of activity under their cognizance.

(e) Field Program Management. (1) Throughout the Department of Defense, the head of each activity shall appoint, in writing, an official to serve as security manager for the activity. This official shall be responsible for the administration of an effective Information Security Program in that activity with particular emphasis on security education and training, assignment of proper classifications, downgrading and declassification, safeguarding, and monitorship, to include sampling classified documents for the purpose of assuring compliance with this part.

(2) Activity heads shall ensure that officials appointed as security managers either possess, or obtain within a reasonable time after appointment, knowledge of and training in the Information Security Program commensurate with the needs of their positions. The Director of Security Plans and Programs, ODUSD(P) shall, with the assistance of the Director, Defense Security Institute, develop minimum standards for training of activity security managers. Such training should result in appropriate certifications to be recorded in the personnel files of the individuals involved.

(3) Activity heads shall ensure that officials appointed as security managers are authorized direct and ready access to the appointing official on matters concerning the Information Security Program. They also shall provide sufficient resources of time, staff, and funds to permit accomplishment of the security manager's responsibilities, to include meaningful oversight of the Information Security Program at all levels of the activity.

(a) Information Requirements. DoD Components shall submit on a fiscal year basis a consolidated report concerning the Information Security Program of the Component on SF 311, “Agency Information Security Program Data,” to reach the ODUSD(P) by October 20 of each year. SF 311 shall be completed in accordance with the instructions thereon and augmenting instructions issued by the ODUSD(P). The ODUSD(P) shall submit the DoD report (SF 311) to the ISOO by October 31 of each year. Interagency Report Control Number 0230-GSA-AN applies to this information collection system as well as to that contained in § 159a.12.

(a) Purpose. The Defense Information Security Committee (DISC) is established to advise and assist the DUSD(P) and the Director, Security Plans and Programs (ODUSD(P) in the formulation of DoD Information Security Program policy and procedures.

(b) Direction and Membership. The DISC shall meet at the call of the DUSD(P) or the Director, Security Plans and Programs. It is comprised of the DUSD(P) as Chairman; the Director, Security Plans and Programs, as Vice Chairman; and the senior officials (designated in accordance with section E.3.a., DoD Directive 5200.1,39 or their representatives) responsible for directing and administering the Information Security Program of the OJCS, the Departments of the Army, Navy, and Air Force, the Defense Intelligence Agency, the Defense Nuclear Agency, the National Security Agency, and the Defense Investigative Service. Other DoD Components may be invited to attend meetings of particular interest to them.

All personnel, civilian or military, of the Department of Defense are responsible individually for complying with the provisions of this part.

(a) DoD Military and civilian personnel are subject to administrative sanctions if they:

(1) Knowingly and willfully classify or continue the classification of information in violation of E.O. 12356, any implementing issuances, or this part.

(2) Knowingly, willfully, or negligently disclose to unauthorized persons information properly classified under E.O. 12356 or prior orders; or

(3) Knowingly and willfully violate any other provision of E.O. 12356, any implementing issuances or this part.

(b) Sanctions include but are not limited to a warning notice, reprimand, termination of classification authority, suspension without pay, forfeiture of pay, removal or discharge, and will be imposed upon any person, regardless of office or level of employment, who is responsible for a violation specified under this paragraph as determined appropriate under applicable law and DoD regulations. Nothing in this part prohibits or limits action under the Uniform Code of Military Justice based upon violations of that Code.

The Secretary of Defense, the Secretaries of the Military Departments, and the heads of other DoD Components shall ensure that appropriate and prompt corrective action is taken whenever a violation under § 159a.98(a) occurs or repeated administrative discrepancies or repeated disregard of requirements of this Regulation occur (see § 159a.100). Commanders and supervisors, in consultation with appropriate legal counsel, shall utilize all appropriate criminal, civil, and administative enforcement remedies against employees who violate the law and security requirements as set forth in this part and other pertinent DoD issuances.

Repeated administrative discrepancies in the marking and handling of classified information and material such as failure to show classification authority; failure to apply internal classification markings; failure to adhere to the requirements of this part that pertain to dissemination, storage, accountability, and destruction, and that are determined not to constitute a violation under § 159a.98(a) may be grounds for adverse administrative action including warning, admonition, reprimand or termination of classification authority as determined appropriate under applicable policies and procedures.

(a) Whenever a violation under § 159a.98(a)(2) occurs, the Director of Counterintelligence and Investigative Programs, ODUSD(P) shall be informed of the date and general nature of the occurrence including the relevent parts of this part, the sanctions imposed, and the corrective action taken. Whenever a violation under § 159a.98(a) (1) or (3) occurs, the Director of Security Plans and Programs, OSUSD(P) shall be provided the same information. Notification of such violations shall be furnished to the Director of the ISOO in accordance with § 5.4(d) of E.O. 12356 by the ODUSD(P).

(b) Any action resulting in unauthorized disclosure of properly classified information that constitutes a violation of the criminal statutes and evidence reflected in classified information of possible violations of Federal criminal law by a DoD employee and of possible violations by any other person of those Federal criminal laws specified in guidelines adopted by the Attorney General shall be the subject of a report processed in accordance with DoD Directive 5210.50 and DoD Instruction 5240.4.

(c) Any action reported under paragraph (b) of this section, shall be reported to the Attorney General by the General Counsel, Department of Defense.

(d) Reports shall be made to appropriate counterintelligence, investigative, and personnel security authorities concerning any employee who is known to have been responsible for repeated security violations over a period of a year, for appropriate evaluation, including readjudication of the employee's security clearance.