[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR17.47]

[Page 403-404]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 17_CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO CLASSIFIED 
 
               Subpart C_Access to Classified Information
 
Sec. 17.47  Denial or revocation of eligibility for access to classified 

information.

    (a) Applicants and employees who are determined to not meet the 
standards for access to classified information established in section 
3.1 of Executive order 12968 shall be:
    (1) Provided with a comprehensive and detailed written explanation 
of the basis for that decision as the national security interests of the 
United States and other applicable law permit and informed of their 
right to be represented by counsel or other representative at their own 
expense;
    (2) Permitted 30 days from the date of the written explanation to 
request any documents, records, or reports including the entire 
investigative file upon which a denial or revocation is based; and
    (3) Provided copies of documents requested pursuant to this 
paragraph (a) within 30 days of the request to the extent such documents 
would be provided if requested under the Freedom of Information Act (5 
U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), and as the 
national security interests and other applicable law permit.
    (b) An applicant or employee may file a written reply and request 
for review of the determination within 30 days after written 
notification of the determination or receipt of the copies of the 
documents requested pursuant to this subpart, whichever is later.
    (c) An applicant or employee shall be provided with a written notice 
of and reasons for the results of the review, the identity of the 
deciding authority, and written notice of the right to appeal.
    (d) Within 30 days of receipt of a determination under paragraph (c) 
of this section, the applicant or employee may appeal that determination 
in writing to the ARC, established under Sec. 17.15. The applicant or 
employee may request an opportunity to appear personally before the ARC 
and to present relevant documents, materials, and information.
    (e) An applicant or employee may be represented in any such appeal 
by an attorney or other representative of his or her choice, at his or 
her expense. Nothing in this section shall be construed as requiring the 
Department to grant such attorney or other representative eligibility 
for access to classified information, or to disclose to such attorney or 
representative, or permit the applicant or employee to disclose to such 
attorney or representative, classified information.
    (f) A determination of eligibility for access to classified 
information by the ARC is a discretionary security decision. Decisions 
of the ARC shall be in writing and shall be made as expeditiously as 
possible. Access shall be granted only where facts and circumstances 
indicate that access to classified information is clearly consistent 
with the national security interest of the United States, and any doubt 
shall be resolved in favor of the national security.
    (g) The Department Security Officer shall have an opportunity to 
present relevant information in writing or, if the applicant or employee 
appears personally, in person. Any such written submissions shall be 
made part of the applicant's or employee's security record and, as the 
national security interests of the United States and other applicable 
law permit, shall also be provided to the applicant or employee. Any 
personal presentations shall be, to the extent consistent with the 
national security and other applicable law, in the presence of the 
applicant or employee.
    (h) When the Attorney General or Deputy Attorney General personally 
certifies that a procedure set forth in

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this section cannot be made available in a particular case without 
damaging the national security interests of the United States by 
revealing classified information, the particular procedure shall not be 
made available. This is a discretionary and final decision not subject 
to further review.
    (i) This section does not limit the authority of the Attorney 
General pursuant to any other law or Executive Order to deny or 
terminate access to classified information if the national security so 
requires and the Attorney General determines that the appeal procedures 
set forth in this section cannot be invoked in a manner that is 
consistent with the national security. Nothing in this section requires 
that the Department provide any procedures under this section to an 
applicant where a conditional offer of employment is withdrawn for 
reasons of suitability or any reason other than denial of eligibility 
for access to classified information. Suitability determinations shall 
not be used for the purpose of denying an applicant or employee the 
review proceedings of this section where there has been a denial or 
revocation of eligibility for access to classified information.