state, or local law. When it is determined that an applicant for a security clearance, or a person holding a clearance, has engaged in conduct which would constitute a felony under the laws of the United States, the clearance of such person shall be denied or revoked unless it is determined that there are compelling reasons to grant or continue such clearance. Compelling reasons can only be shown by clear and convincing evidence of the following:

(1) The felonious conduct (i) did not involve an exceptionally grave offense; (ii) was an isolated episode; and (iii) the individual has demonstrated trustworthiness and respect for the law over an extended period since the offense occurred; or

(2) The felonious conduct (i) did not involve an exceptionally grave offense; (ii) was an isolated episode; (iii) was due to the immaturity of the individual at the time it occurred; and (iv) the individual has demonstrated maturity, trustworthiness, and respect for the law since that time; or

(3) In cases where the individual has committed felonious conduct but was not convicted of a felony, there are extenuating circumstances which mitigate the seriousness of the conduct such that it does not reflect a lack of trustworthiness or respect for the law. These criteria supersede all criteria previously used to adjudicate criminal conduct involving felonies. Involvement in criminal activities which does not constitute a felony shall be evaluated in accordance with the criteria set forth in paragraph (c) of this section. (For purposes of this paragraph, the term "felony" means any crime punishable by imprisonment for more than a year. The term "exceptionally grave offense" includes crimes against the Federal Government, its instrumentalities, officers, employees or agents; or involves dishonesty, fraud, bribery or false statement; or involves breach of trust or fiduciary duty; or involves serious threat to life or public safety.)"

(c) Factors which may be considered in determining whether to deny or revoke a clearance: (1) Criminal conduct: (i) An established pattern of criminal conduct.

(ii) Failure to complete a rehabilitation program resulting from disposition of a criminal proceeding.

(iii) Criminal conduct that is so recent in time as to preclude a determination that recurrence is unlikely.

(iv) Close and continuing association with persons known to be involved in criminal activities.

(v) Criminal conduct indicative of a serious mental aberration, lack of remorse, or insufficient probability of rehabilitation success.

(vi) Disposition (A) Conviction.

(B) Disposition on a legal issue not going to the merits of the crime. (C) Arrest or indictment pending trial.

(2) Arrest record. In evaluating an arrest record, information that indicates that the individual was acquitted, that the charges were dropped or the subject of a stet of nolle prosequi, that the record was expunged, or that the case was dismissed due to error not going to the merits does not necessarily negate the security significance of the arrest. Personnel security determinations are to be made on the basis of all available information concerning a person's conduct and actions rather than the legal outcome of a criminal proceeding.

[51 FR 23757, July 1, 1986]

gence Activities," January 24, 1978; and Executive Order 12065, "National Security Information," June 28, 1978, establishes the DoD Personnel Security Program, supersedes existing Part 156 of this title; DoD Directive 5210.8, "Policy on Investigation and Clearance of DoD Personnel for Access to Classified Defense Information," February 15, 1962; DoD Directive 5210.9, "Military Personnel Security Program," June 19, 1956; and DoD Instruction 5210.31, "Uniform Guidelines for Arriving at Common Sense Determinations in the Military Personnel Security Program," January 16, 1957; and authorizes the issuance of DoD 5200.2-R, "DoD Personnel Security Program."

§ 156.2 Applicability and scope.

(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, the Defense Agencies and activities administratively supported by OSD (hereafter referred to as "DoD Components"), except that, with respect to the National Security Agency, the provisions of the part apply to that agency only to the extent that is consistent with policy and procedures prescribed by Public Laws 86-36, "National Security Agency-Officers and Employees" and 88-290, "Personnel Security Procedures in the National Security Agency," Executive Orders 10450 and 12036, and DoD Directive 5210.45, "Personnel Security in the National Security Agency," May 9, 1964.

1

(b) Its provisions apply to DoD civilian personnel, members of the Armed Forces of the United States, excluding the Coast Guard in peacetime, and other personnel who are affiliated with the Department of Defense.

(c) Only the investigative provisions apply to contractor personnel. Clearance procedures pertaining to contractor personnel are contained in DoD 5220.22-R, “Industrial Security Regu

1 1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Code 301.

lation," January 29, 1979, and in Part 155 of this title.

§ 156.3 Policy.

(a) No person shall be appointed as a civilian employee of the Department of Defense, accepted for entrance into the Armed Forces of the United States, authorized access to classified information, or assigned to duties that are subject to investigation under the provisions of this part unless such appointment, acceptance, clearance, or assignment is clearly consistent with the interests of national security.

(b) In furtherance of this policy, a Personnel Security Investigation shall be conducted in connection with:

(1) The appointment of each civilian employee in any DoD Component;

(2) The entry of a person in the Armed Forces of the United States; (3) The granting of clearance for access to classified information; or

(4) The assignment of an individual to such other duties designated in accordance with DoD 5200.2-R which require a determination of trustworthi

ness.

(c) Criteria established by the Deputy Under Secretary of Defense for Policy Review shall be used in reaching a determination as to whether a person meets the personnel security standard set forth in paragraph (a) of this section. Determinations shall be made on a case-by-case basis, depending upon the particular facts and circumstances in each case.

(d) A final adverse determination may not be taken unless administrative procedures are made available that will give the individual an opportunity to refute allegations made against him or her. Implementing procedures in this connection shall be prescribed in DoD 5200.2-R.

§ 156.4 Responsibilities.

(a) The Deputy Under Secretary of Defense for Policy review shall be responsible for overall policy guidance and management of the DoD Personnel Security Program, and shall:

(1) Develop policies and plans for the DoD Personnel Security Program. (2) Issue and maintain DoD 5200.2-R consistent with provisions of DoD Di

rective 5025.1,1 “Department of Defense Directives System" November 18, 1977.

(3) Conduct an active oversight program to ensure that the DoD Personnel Security Program requirements are complied with.

(4) Submit recommendations to the Secretary of Defense bi-annually to correct any deficiencies in the program that are inconsistent with the interests of national security or the rights of an individual under the Constitution, the laws of the United States, or this directive.

(b) The General Counsel, DoD, shall exercise surveillance over the DoD personnel Program to ensure that:

(1) The program is administered in a manner consistent with the law.

(2) All proceedings are promptly initiated and expeditiously completed.

(3) The rights of individuals involved are protected, consistent with the interests of national security (DoD Directive 5145.3, "Surveillance of DoD Security Programs," October 19, 1962).

1

(4) The Defense Investigative Service is operated in accordance with the provisions of Part 361 of this title.

(c) The Heads of DoD Components shall:

(1) Designate a senior official within their immediate office who shall be responsible for compliance with the implementation of this Directive.

(2) Ensure that the DoD Personnel Security Program is administered within their area of responsibility in a manner consistent with this Directive.

(3) Ensure that information and recommendations are provided the Deputy Under Secretary of Defense for Policy Review and the General Counsel, DoD, at their request, concerning any aspect of the program.

SOURCE: 45 FR 17988, Mar. 25, 1980, unless otherwise noted.

§ 157.1 Purpose.

This part: (a) Consolidates into one document this part and parts of DoD Instruction 5100.38, "Defense Documentation Center for Scientific and Technical Information," March 29, 1965;

(b) Supplements DoD Directive 5100.36, "Department of Defense Technical Information," December 31, 1962, and DoD Instruction 5129.43, "Assignment of Functions for the Defense Scientific and Technical Information Program," January 22, 1963;

(c) Provides policy and assigns responsibilities for the dissemination of DoD technical information;

(d) Establishes certification procedures for access to DoD technical information.

§ 157.2 Applicability and scope.

(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as "DoD Components"), and other U.S. Government agencies disseminating or requesting access to DoD technical information.

(b) The procedures established by this part shall be used by technical Information Dissemination Activities to control access to DoD technical information. The access afforded through use of these procedures does not override special consideration or approvals that affect the flow of controlled information.

(c) This part does not apply to primary distribution of technical information or to interlibrary loan within Department of Defense.

§ 157.3 Policy.

The purpose of the DoD Technical Information Program is to ensure the complete and timely exchange among DoD technical activities, including both the in-house and DoD contractor communities, of all technical information generated by or relevant to the pursuit of DoD technical programs

with due consideration of security requirements and access restrictions. All DoD Components responsible for dissemination of technical information shall make a positive effort to provide users accurate and timely technical information, utilizing the most effective media, including symposia, newsletters, technical reports, inquiry responses, online data networks, consultation and other media, and making optimum use of computer technology to store, sort, select, and package data and information.

§ 157.4 Responsibilities.

(a) The Under Secretary of Defense for Research and Engineering (USDRE), or designee, the Deputy Under Secretary of Defense for Research and Engineering (Research and Advanced Technology) shall:

(1) Manage and disseminate DoD technical information, as provided in DoD Directive 5100.36, "Department of Defense Technical Information," December 31, 1962.

(2) Approve service charges collected by Information Dissemination Activities to provide partial reimbursement and to prevent excessive, unwarranted use of these services.

(b) The Heads of DoD Components shall:

(1) Pursue organized, coordinated, and comprehensive programs for technical information dissemination. These programs shall provide for the interchange of technical information within Department of Defense; between Department of Defense and other Federal agencies and their contractors; among Department of Defense, NATO governments and other allies; and between Department of Defense and the national and international scientific and technical community in accordance with DoD 5200.1-R, "Information Security Program Regulation," December 1978, and Parts 286 and 286a of this title.

(2) Within the limits of security and access restrictions necessary to ensure adequate intra-DoD technical information exchange.

(i) Vigorously pursue a policy that ensures that technical information generated within activities under their cognizance is provided for public use

through appropriate Federal agencies and technology transfer programs according to approved DoD clearance procedures; and

(ii) Wherever possible, provide unclassified technical documents and other information to expedite the information transfer procedures. However, all critical technology to which the Department of Defense has title or proprietary interest shall be classified at the appropriate level.

(3) Certify access for DoD technical information users as described in

§ 157.6.

(4) Introduce an active technology transfer program aimed at transferring to the public as much DoD-developed technology as is consistent with the DoD mission. Active participation by DoD laboratories, centers, and other organizations in Federal and local government technology transfer organizations, such as the Federal Laboratory Consortium, is encouraged.

(5) Support a program for the domestic dissemination of DoD-developed technology that, because of its commercial significance, should be made available as early as possible, but only by means that will ensure the continued applicability of the International Traffic in Arms Regulations, the Export Administration Act of 1969, Export Administration Amendments of 1977, and the Export Administration Regulations of the Department of Commerce as to when the technology should not be exported.

(6) Make planning and technical requirements information available through Industry Information Centers so that industry can plan and apply its resources effectively.

(7) Make technical information on selected technologies available through Information Analysis Centers to support the DoD mission.

(8) Sponsor or support technical symposia, conferences and meetings for disseminating technical information in accordance with DoD Directive 5200.12, "Security Sponsorship and Procedures for Scientific and Technical Meetings Involving Disclosure of Classified Military Information," June 15, 1979, when the requirement exists to disseminate the information more rapidly than normal publishing proce

dures permit. In accordance with DoD Instruction 5129.43,1 “Assignment of Functions for the Defense Scientific and Technical Information Program," January 22, 1963, certain data concerning DoD-sponsored technical symposia will be transmitted to the USDR&E.

(9) Ensure compliance with provisions of DoD Directive 5000.11,1 which prescribes policy and procedures for the "Data Elements and Data Codes Standardization Program," where applicable, to assigned functions for disseminating DoD technical information.

(c) The Defense Technical Information Center (DTIC) shall operate and maintain certification and registration procedures as described in § 157.6 and shall provide appropriate forms and instructions.

(d) Technical information dissemination activities shall collect service charges, as approved by the USDRE, to prevent excessive, unwarranted use of their services and to provide partial reimbursement of costs.

(a) Technical information. Information, including scientific information, which relates to research, development, engineering, test, evaluation, production, operation, use, and maintenance of munitions and other military supplies and equipment.

(b) Technical information dissemination activity. Any activity, such as DTIC, that operates to assist individuals and organizations within the Department of Defense to effect adequate and timely dissemination of technical information describing planned or ongoing RDT&E effort and the documented results of such efforts and to provide systems and services to assist eligible users to identify, access, acquire, and use DoD technical information.

(c) Primary distribution. The initial distribution of a technical document after completion of the original manuscript or its equivalent.

1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA. 19120. Attention: Code 301

(d) Critical technology. Technical data, whose acquisition by a potential adversary would prove detrimental to the national security of the United States. Control of critical technology requires the control of associated critical end products (defined as "keystone") that embody extractable critical technology or that consist of equipment which completes a process line, allowing the line to be fully utilized.

(e) Technology transfer. The process through which Government research and technology are transformed into processes, products, or services that can be applied to actual or potential public or private needs. It includes the application of technology that has been developed for a particular mission and, after modification and diversification, fills a different need in another environment.

(f) Eligible user. Any DoD office, contractor, subcontractor, DoD potential contractor, or other U.S. Government office or its contractor whose eligibility and need to receive DoD technical information has been certified.

(g) Contractor. An individual or organization outside the U.S. Government that has accepted any type of agreement or order for providing research, supplies, or services to a U.S. Government agency. The term specifically includes both prime contractors and subcontractors.

(h) DoD potential contractor. An individual or organization outside Department of Defense declared eligible for documentation services by a sponsoring DoD activity on the basis of registration and active participation in a program specifically designed to exchange information concerning Defense support capability.

(i) Industry information centers. Centers established by DoD Components to inform the Defense industrial community of DoD acquisition, research and development requirements, plans, and future needs. They serve as DoD access points to Defense planning and requirements documents for representatives of industry, small business, university and nonprofit institutions registered for access to DoD information services.