WASHINGTON,
D.C. 20250
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DEPARTMENTAL REGULATION |
Number: 4600-002 |
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SUBJECT: Procedures for Denial or Revocation for Access to National Security Information |
DATE: February 11, 2002 |
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OPI: Office of Procurement and Property
Management |
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To
establish an appeals process for the United States Department of Agriculture
(USDA) employees determined ineligible for access to classified information
pursuant to Executive Order (E.O.) 12968.
E.O.
12968 requires USDA to establish review proceedings for denials or revocations
of eligibility for access to classified information. E.O. 12968 sets forth that any individual
whose eligibility for access to classified information is denied or revoked
will be provided an opportunity to appeal in writing to the Department’s
Personnel Security Review Board (PSRB).
The establishment of the PSRB was delegated to the Assistant Secretary
for Administration through a decision memorandum approved by the Secretary on
July 16, 2001. The PSRB will be
comprised of at least three members, two of whom would be selected from outside
the security field. In addition to the
written appeal, the employee will be provided an opportunity to appear
personally to present relevant documents, material, and information prior to
the PSRB rendering a final determination.
a Suspension: When derogatory information is brought to the
attention of the Personnel Security Division (PSD), of the Office of Crisis
Planning and Management (OCPM), the Personnel Security Officer (Director, OCPM)
will make a determination whether, on the basis of all the facts available, it
is in the interests of national security to continue the employee’s security
status unchanged, or to take interim action to suspend the employee’s access to
classified information or assignment to sensitive duties, until a final
determination is made as described below.
Whenever a decision is made to suspend an employee’s security clearance
for access to classified information or assignment to sensitive duties, the
Personnel Security Officer shall notify the employee in writing, which will
include a brief statement of the reason(s) for the suspension action consistent
with the interests of national security.
A final security clearance eligibility determination will be made for
all suspensions as described below.
b Letter
Of Intent: After the PSD reviews an
employee’s background investigation, or any other developed information and/or
internal investigation, and determines that there is sufficient adverse
information to deem the employee ineligible for access to classified
information, the PSD will provide the employee with a Letter of Intent (LOI) to
revoke or deny the employee’s access to classified information. A copy of the LOI will be forwarded to the
employing agency/office to take any necessary administrative action as deemed
appropriate. The LOI shall include a
statement of reasons (SOR), which will inform the employee of PSD’s intention to deny or revoke his/her security
clearance and includes all findings of the investigation and/or information on
which this action is based. The SOR will
include a copy of the E.O. 12968 and other relevant federal and departmental
rules and regulations and also inform the employee of the following:
(1)
He/she may request within 30
days any documents, records and reports used as the basis for the denial or
revocation, which will be provided within 30 days of such request, to the
extent such documents would be provided if requested under the Freedom of
Information and the Privacy Acts from the appropriate Agencies.
(2)
He/she may request within 30
days the entire investigative file, as permitted by the national security and
other applicable laws, which will be provided within 30 days of such request.
(3)
Information, such as
investigative reports, not under the control of the USDA, must be requested
directly from the originating Agency/Department, such as the Office of
Personnel Management (OPM). PSD will
provide the name and address of the Agency/Department, for the employee to
request the investigative files. PSD must receive a copy of any requests for
information and/or investigations made, within the 30 days of the date of the
LOI, to Agencies/Departments outside of USDA.
The copy of the request(s) will become a permanent part of the official
security file.
(4)
His/her right to be
represented by counsel or other representative at his/her own expense.
(5) He/she will be provided 30 days from the
date he/she receives that last requested document to respond to the SOR in
writing and provide any mitigating factors for the action(s)/behavior.
c Adjudication: The PSD will review the employee’s written
response, if any, along with all case material, within 30 days of receipt to
determine whether the evidence in the record indicates that the employee poses
a risk to national security. The PSD
will make a recommendation to the Department Personnel Security Officer who
will render an adjudicative determination that either reinstates, denies or
revokes the employee’s eligibility for access to national security information.
d Formal
Notification: Within 10 days of the
adjudicative determination, the Department Personnel Security Officer will
provide the employee and the employee’s agency a Letter of Notification with
the reasons for and results of the determination concerning the employee’s
eligibility for access to classified information. If the employee is deemed ineligible for
access to classified information, the Letter of Notification will also inform
the employee of the following:
(1) His/her right to appeal in writing to the PSRB.
(2) His/her right to appear in person and to present relevant
documents, materials and evidence before a presiding officer of the Office of
Administrative Law Judges.
e The
Appeal: From the formal notification
of denial or revocation of access to classified information, the employee has
30 days to request an appeal of the determination. Unless this time limit is extended for good
cause by the Personnel Security Officer, if the employee fails to request an
appeal or meet the submission deadline, the employee is ineligible for further
proceedings and the denial or revocation will be implemented 30 days from the
Letter of Notification.
(1) If the employee elects to appeal the
determination, the appeal must be made in writing and address only those
disqualifying factors listed in the adjudicative determination. The written appeal must be submitted within
30 days from the Letter of Notification to:
USDA
Office of Crisis Planning and Management
Attn:
Personnel Security Division
1400 Independence Avenue, SW Mail Stop
9305
Washington, DC 20250-9305
(2)
The written appeal should contain:
(a) Three
copies of all relevant documentation the employee wishes the PSRB to consider;
and
(b) A
statement regarding whether the employee elects to appear in person before a
presiding officer of the Office of the Administrative Law Judges (OALJ).
(3) The employee shall be granted official
time to prepare the written appeal, and if applicable, time to prepare for the
personal appearance as deemed reasonable and necessary by the employing
Agency/Office.
(4) If the employee does not elect to appear
in person, proceed to Section g of the Appeals Process.
f Personal
Appearance: The personal appearance
will be scheduled within 30 days of the request. The employee will receive written
notification of the date and location for the personal appearance. The appearance will provide the employee or
his/her representative with an opportunity to address the reasons for the
adjudicative determination and to address the information provided in his/her
written appeal.
Below
are the guidelines for the personal appearance.
(1)
Except in extraordinary
circumstances, the appearance should not exceed one hour in duration.
(2)
The scope of the personal
appearance shall be limited to the reasons for the adjudicative determination
and the documents, material or information presented in the written appeal.
(3)
The appearance shall be before
a presiding officer of the OALJ who will preside at the personal appearance.
(4)
The Office of the Hearing
Clerk will arrange to have a transcript prepared of the personal appearance.
(5)
If the employee has additional
relevant documents, materials, or information that was not initially provided
in the written appeal, the employee must submit the information to the PSD two
weeks prior to the appearance for the PSRB’s
review. The PSRB will decide whether the
information is relevant to the case and if it may be entered into the
record. If the information is approved
for entry, the material will be included as an addendum to the written appeal.
(6)
Any expenses incurred for the
appearance (e.g., transcript recordings, etc.) will be borne by the employee’s
Agency or Office.
(7)
The employing Agency/Office
shall bear the travel costs for the employee to make a personal
appearance.
(8)
All personal appearances shall
be held in the Washington, DC metro area.
Within
15 days of the appearance, the presiding officer will certify a copy of the
transcript of the personal appearance to the PSRB for review. The official transcript will be made a permanent
part of the employee’s security file. A
copy of the transcript will be provided to the employee at his/her
request.
The
presiding officer will facilitate the proceedings and ensure that only relevant
material is presented in the oral argument.
The presiding officer will not render any decision or opinion on the
case. Participants in the appearance
will include the presiding officer, the employee, the employee’s counsel or
representative, the Department Personnel Security Official, or designee. No others will be present in the
proceedings. The PSRB will limit its
review to the written record of the case, including the appearance transcript,
to maintain impartiality and ensure integrity of the process.
g Decision: The PSD will provide all case documentation
including the written appeal, and the summary of the personal appearance if one
is held, for the PSRB’s review. The PSRB will have 30 days to review all
documentation and meet to render a decision.
The PSRB will, within 30 days of meeting to render a decision, issue a
written decision. This decision will be
final and may not be appealed to the Secretary.
The denial or revocation is not an adverse action and is not subject to
the provisions of the Merit Systems Protection Board. The
PSRB may decide either to: 1) re-affirm the Department Personnel Security
Officer’s determination; 2) reverse the Department Personnel Security Officer’s
decision; or 3) grant the employee access to classified information with
conditions. The PSRB will notify the
Department Personnel Security Officer of the decision in writing, and if
applicable, provide instructions to enforce any terms of conditions
established. The Department Personnel
Security Officer will notify the Administrator or Director of the employing
Agency or Office and the employee of the PSRB’s
decision. Further, if the determination
is favorable to the employee, the PSD will grant the employee the appropriate
level of access to classified information.
If the PSRB upholds the Department Personnel Security Officer’s
decision, the employing agency will take any necessary administrative action,
as deemed appropriate, to ensure the employee does not have access to
classified information.