§ 117.10 - Determination of eligibility for access to classified information for contractor employees.

§ 117.10 Determination of eligibility for access to classified information for contractor employees.

(a) General.

(1) The CSA is responsible for determining an employee's eligibility for access to classified information.

(i) The contractor must determine that access to classified information is essential in the performance of tasks or services related to the fulfillment of a classified contract.

(ii) Access must be clearly consistent with U.S. national security interests as determined by the CSA.

(iii) A contractor may give an employee access to classified information at the same or lower level of classification as the level of the contractor's entity eligibility determination if the employee has:

(A) A valid need-to-know for the classified information.

(B) A USG favorable eligibility determination for access to classified information at the appropriate level; and

(C) Signed a non-disclosure agreement.

(2) The CSA will determine eligibility for access to classified information in accordance with SEAD 4 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-4-Adjudicative-Guidelines-U.pdf) and notify the contractor when eligibility has been granted.

(i) The CSA will notify the contractor when an employee's eligibility has been denied, suspended, or revoked.

(ii) The contractor will immediately deny access to classified information to any employee when notified of a denial, revocation, or suspension of eligibility regardless of the contractor employee's location.

(iii) If the employee's performance is at a USG facility, the contractor will provide notification to the appropriate GCA of any denial, revocation, or suspension of eligibility for access to classified information.

(3) Contractors will annotate and maintain the accuracy of their employees' records in the system of record for contractor eligibility and access to classified information, when one has been designated by the CSA.

(4) Within an MFO or within the same business organization, contractors may centrally manage eligibility for access to classified information and access to classified information records.

(5) The contractor will limit requests for determinations of eligibility for access to classified information to the minimum number of employees and consultants necessary for operational efficiency in accordance with contractual obligations and other requirements of this rule. Requests for determinations of eligibility for access to classified information will not be used to establish a cache of cleared employees.

(6) The contractor will not submit a request for an eligibility determination to one CSA if the employee applicant is known to be cleared or in process for eligibility for access to classified information by another CSA. In such cases, reciprocity of eligibility determination in accordance with SEAD 7 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-7_BI_ReciprocityU.pdf) shall be used. The contractor will provide the new CSA with the full name, date, and place of birth, social security number, clearing agency, and type of investigation for verification.

(7) Contractors will not submit requests for determination of eligibility for access to classified information for individuals who are not their employees or consultants; nor will they submit requests for employees of subcontractors.

(8) Access to SCI, SAP, FRD, and RD information is a determination made by the granting authority by the applicable USG granting authority for each category of information.

(b) Investigative requirements. E.O. 13467, as amended, “Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information,” designates the Security and Suitability Executive Agents responsible for establishing the standards for investigative requirements that apply to contractors.

(1) Investigative tiers. The standards established in accordance with E.O. 13467, as amended, designate specific investigative tiers that are acceptable for access to classified information. An investigative tier is for positions designated as moderate risk, non-critical sensitive, and allow access to information classified at the L, CONFIDENTIAL, and SECRET levels. Another investigative tier is for positions designated as high risk, critical sensitive, special sensitive, and allow access to information classified at the Q, TOP SECRET, and SCI levels.

(2) Investigative coverage.

(i) Automated sources. Investigative providers will use automation whenever possible to collect, verify, corroborate, or discover information about an individual, as documented on the request for investigation or developed from other sources, i.e., automated record checks and inquiries.

(ii) Interviews. Interviews, if required, will cover areas of adjudicative concern.

(iii) Information Covered in Previous Investigations. Information validated in a prior investigation, the results of which are not expected to change (e.g., verification of education degree), will not be repeated as part of subsequent investigations.

(3) Polygraph. Agencies with policies authorizing the use of the polygraph for purposes of determining eligibility for access to classified information may require polygraph examinations when necessary. If adjudicatively relevant information arises during the investigation or the polygraph examination, the investigation may be expanded to resolve the adjudicative concerns.

(4) Financial disclosure. When a GCA requires that a contractor employee complete a financial disclosure form, the contractor will ensure that the employee has the opportunity to complete and submit the form in accordance with the Privacy Act of 1974, as amended, and other applicable provisions of law.

(5) Reinvestigation and Continuous Evaluation. Contractor employees determined eligible for access to classified information will follow CSA guidance to complete reinvestigation and continuous evaluation or continuous vetting requirements. The contractor will validate that the employee requires continued eligibility for access to classified information before initiating the reinvestigation.

(c) Verification of U.S. citizenship. A contractor will require each applicant for determination of eligibility for access to classified information who claims U.S. citizenship to provide evidence of citizenship to the FSO or other authorized representative of the contractor. All documentation must be the original or certified copies of the original documents.

(1) Any document, or its successor, listed in this paragraph is an acceptable document to corroborate U.S. citizenship by birth, including by birth abroad to a U.S. citizen.

(i) A birth certificate certified with the registrar's signature, which bears the raised, embossed, impressed, or multicolored seal of the registrar's office.

(ii) A current or expired U.S. passport or passport card that is unaltered and undamaged and was originally issued to the individual.

(iii) A Department of State Form FS-240, “Consular Report of Birth Abroad of a Citizen of the United States of America.”

(iv) A Department of State Form FS-545 or DS-1350, “Certification of Report of Birth.”

(2) Any document, or its successor, listed in this paragraph is an acceptable document to corroborate U.S. citizenship by certification, naturalization, or birth abroad to a U.S. citizen.

(i) A U.S. Citizenship and Immigration Services Form N-560 or N-561, “Certification of U.S. Citizenship.”

(ii) A U.S. Citizenship and Immigration Services Form 550, 551, or 570, “Naturalization Certificate.”

(iii) A valid or expired U.S. passport or passport card that is unaltered and undamaged and was originally issued to the individual.

(d) Procedures for completing the electronic version of the SF 86, “Questionnaire for National Security Positions.” The electronic version of the SF 86 (available at: https://www.opm.gov/forms/pdf_fill/sf86.pdf) must be completed in e-QIP or its successor system by the contractor employee and reviewed by the FSO or other contractor employee(s) who has (have) been specifically designated by the contractor to review an employee's SF 86. The FSO or designee will:

(1) Provide the employee with written notification that review of the SF 86 by the FSO or other contractor employee is for adequacy and completeness and information will be used for no other purpose within the entity. The use and disclosure by the U.S. Government, and by U.S. Government contractors operating systems of records on behalf of a U.S. Government agency to accomplish an agency function, of the information provided by the employee on the SF-86 is governed by the Privacy Act of 1974, as amended, and by the routine uses published by the USG in the applicable System of Records Notice.

(2) Not share information from the employee's SF 86 within the entity and will not use the information for any purpose other than determining the adequacy and completeness of the SF 86.

(e) Fingerprint collection. The contractor will submit fingerprints in accordance with CSA guidance. Contractors will use digital fingerprints whenever possible.

(f) Pre-employment eligibility determination action.

(1) If a potential employee requires access to classified information immediately upon commencement of employment, the contractor may submit a request for investigation prior to the date of employment, provided:

(i) A written commitment for employment has been made by the contractor.

(ii) The candidate has accepted the offer in writing.

(2) The commitment for employment must indicate employment will commence within 45 days of the employee being granted eligibility for access to classified information at a level that allows them to perform the tasks or services associated with the contract or USG requirement for which they were hired.

(3) Contractors will comply with the requirements pursuant to paragraph (a) (5) of this section.

(g) Classified information NDA. The NDA designated by the CSA (e.g., SF 312), is an agreement between the USG and an individual who is determined eligible for access to classified information.

(1) An employee determined eligible for access to classified information must execute an NDA prior to being granted access to classified information.

(2) The employee must sign and date the NDA in the presence of a witness. The employee's and witness' signatures must bear the same date.

(3) The contractor will forward the executed NDA to the CSA for retention. The CSA may authorize the contractor to retain a copy of the form for administrative purposes, if appropriate.

(4) If the employee refuses to execute the NDA, the contractor will deny the employee access to classified information and submit a report to the CSA in accordance with § 117.8(c)(6).

(h) Reciprocity. The applicable CSA is responsible for determining whether contractor employees have been previously determined eligible for access to classified information or investigated by an authorized investigative activity in accordance with SEAD 7 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-7_BI_ReciprocityU.pdf).

(1) Any current eligibility determination for access to classified information that is based on an investigation of a scope that meets or exceeds that necessary for the required level of access will provide the basis for a new eligibility determination.

(2) The prior investigation will be used without further investigation or adjudication unless the CSA becomes aware of significant derogatory information that was not previously adjudicated.

(i) Break in access. There are circumstances when a contractor administratively terminates an employee's access to classified information solely because of no current requirement for such access. If the employee again requires access to classified information and has been in the contractor's continuous employment, and the employee again requires access to classified information, the contractor may provide access to classified information without further investigation, based on CSA guidance, so long as the employee remains eligible for access to classified information and has a current investigation of a scope that meets or exceeds that necessary for the access required and no new derogatory information is known. Any adverse information from or about the employee must continue to be reported while the employee maintains eligibility for access to classified information, even when access to classified information has been administratively terminated.

(j) Break in employment.

(1) When an employee had a break in employment and now requires access to classified information, the contractor may provide access to classified information based on CSA guidance provided the employee remains eligible for access to classified information and has a current investigation of a scope that meets or exceeds that necessary for the access required.

(2) The contractor may not provide access to classified information to an employee who previously was eligible for access to classified information, but has had a break in employment that resulted in a loss of eligibility without a new eligibility determination by the CSA.

(k) Non-U.S. citizens.

(1) Contractors must make every effort to ensure that non-U.S. citizens are not employed in duties that may require access to classified information. However, compelling reasons may exist to grant access to classified information to a non-U.S. citizen. The CSA may grant such individuals a LAA in those rare circumstances where a non-U.S. citizen possesses unique or unusual skills or expertise that is urgently needed to support a specific USG contract involving access to specified classified information, and a cleared or clearable U.S. citizen is not readily available. The CSA will provide specific procedures for requesting an LAA, to include the need for approval by a GCA senior official.

(2) An LAA granted under the provisions of this rule is not valid for access to:

(i) TOP SECRET information.

(ii) RD or FRD.

(iii) Information that has not been determined releasable by a USG designated disclosure authority to the country of which the individual is a citizen.

(iv) Communications security (COMSEC) information.

(v) Intelligence information.

(vi) NATO information. Foreign nationals of a NATO member nation may be authorized access to NATO information provided:

(A) The CSA obtains a NATO security clearance certificate from the individual's country of citizenship.

(B) NATO access is limited to performance on a specific NATO contract.

(vii) Information for which foreign disclosure has been prohibited in whole or in part.

(viii) Information provided to the USG in confidence by a third-party government.

(ix) Classified information furnished by a third-party government.

(l) Temporary eligibility for access to classified information. In accordance with SEAD 8 (available at: https://www.dni.gov/files/NCSC/documents/Regulations/SEAD-8_Temporary_Eligibility_U.pdf), the CSA may grant temporary (previously called interim) eligibility for access to classified information, as appropriate, to applicants for access to TOP SECRET, SECRET, and CONFIDENTIAL information. This eligibility may only be granted if there is no evidence of adverse information that calls into question an individual's eligibility for access to classified information. If results are favorable following completion of full investigative requirements, the CSA will update the temporary eligibility determination for access to classified information to be final. In any case, a temporary eligibility determination shall not exceed one year unless approved by the applicable CSA in the system of record. Non-U.S. citizens are not eligible for access to classified information on a temporary basis.

(1) A temporary SECRET or CONFIDENTIAL eligibility determination is valid for access to classified information at the level of the eligibility granted. Access to RD, COMSEC information, and NATO information requires a final SECRET eligibility determination.

(2) A temporary TOP SECRET eligibility determination is valid for access to TOP SECRET information. If an individual has a temporary TOP SECRET eligibility determination and has a final SECRET eligibility determination based on a previously completed investigation, the temporary TOP SECRET eligibility determination is valid for access to RD, NATO, and COMSEC information at the SECRET or CONFIDENTIAL level.

(3) Access to SCI and SAP information based on a temporary eligibility determination is a determination made by the granting authority.

(4) When a temporary eligibility determination has been made and derogatory information is subsequently developed, the CSA may withdraw the temporary eligibility pending completion of the processing that is a prerequisite to the final eligibility determination.

(5) When a temporary eligibility determination is withdrawn for an individual who is required to be eligible for access to classified information in connection with the entity eligibility determination for access to classified information, the contractor must remove the individual from access to classified information and any KMP position requiring PCL eligibility or the temporary entity eligibility determination will also be withdrawn.

(6) Withdrawal of a temporary eligibility determination is not a denial, termination, or revocation of eligibility under this rule and may not be appealed.

(m) Consultants.

(1) A consultant will not access classified information off the premises of the using (hiring) contractor except in connection with authorized classified visits.

(2) A contractor may only assign a consultant outside the United States with responsibilities requiring access to classified information when:

(i) The consultant agreement between the contractor and consultant includes:

(A) Identification of the contract, license, or agreement that requires access to classified information, the level of classified information that is required, and access to FGI by the consultant while assigned outside the United States.

(B) A formal agreement that prohibits the consultant from disclosing any classified information related to the contract, license, or agreement as required in paragraph (m)(i)(A) of this section to any party other than the USG or foreign government with which the consultant is meeting, and who possesses the requisite clearance and need to know.

(ii) The consultant and the using contractor will jointly execute the consultant agreement setting forth respective security responsibilities. The contractor will retain an original signed copy of the agreement and will ensure its availability if requested by the CSA.

(iii) The contractor, in consultation with the applicable CSA as appropriate, will determine what threat briefing(s) the consultant should receive before the assignment, and conduct those briefings as part of the consultant's pre-assignment and recurring security training.

(iv) The contractor provides notice of any changes to the consultant agreement to the applicable CSA during assessments or upon CSA request.

(3) The using contractor will be the consumer of the consultant services as set forth in the consultant agreement.

(4) For security administration purposes, a consultant will be considered an employee of the using contractor for compliance with this rule.

(5) Consultants to GCAs are not under the purview of the NISP and will be processed for determination of eligibility by the GCA in accordance with GCA procedures.