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Many people with the appropriate special access eligibility experience problems when moving from one employer to another and sometimes when moving from one contract to another while working at the same company. Office of the Director of National Intelligence (ODNI) and Office of Management and Budget (OMB) policy requires federal agencies to accept clearances issued by other federal agencies provided the clearance is based on a current investigation and the clearance meets the investigative and adjudicative standards required under Executive Order 12968.¹ ODNI policy further states that this “reciprocity does not include agency determinations of employment suitability [and] nothing precludes . . . [an agency] from exercising authority to grant or to deny [SCI] access for reasons of operational necessity regardless of another [agency’s] decision.”

 

There are rules concerning the reciprocal acceptance of access eligibility (commonly referred to as a “clearance”) for Special Access Programs (SAP) beyond those that apply to collateral security clearances. These rules are sometimes confusing, because they are not uniform in their definition of SAP, often referring to SAP as being a separate and distinct category of information from SCI (Sensitive Compartment Information) and Q (Secret and Top Secret Restricted Data). SCI and Q are SAP. Executive Order 12958 provides the following definition: “Special access program means a program established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” There are three types of SAP—Acquisition, Intelligence, and Operations/Support.

 

Executive Order 12968 states that, “Except where there is substantial information indicating that the employee may not satisfy the standards . . . of this order, an employee with existing access to a special access program shall not be denied eligibility for access to another special access program at the same sensitivity level . . . or have an existing access eligibility readjudicated, so long as the employee has a need for access to the information involved.” The investigative requirements for the SAP sensitivity levels are:

If an applicant’s investigation is current and the applicant is being considered by the gaining agency for a higher sensitivity level, the gaining agency is authorized to impose “additional but not duplicative” investigative requirements (i.e. pass a polygraph examination of the appropriate type). An exception to the “additional but not duplicative” policy authorizes agencies to require applicants for initial SAP access or SAP access at a higher sensitivity level to submit a current SF86 and require those already accessed to a SAP to submit an updated SF86 or SF86C on an annual basis in lieu of a polygraph.

 

If an applicant’s investigation is current and at the appropriate sensitivity level, there are only two situations where the clearance does not have to be reciprocally accepted by the gaining agency. If either situation exists, the gaining agency is authorized to decline reciprocal acceptance and sponsorship of the existing clearance and to reinvestigate and/or readjudicate the case prior to granting a clearance. These two situations (which are covered under OMB Memorandum, November 14, 2007, Subj: Reciprocal Recognition of Existing Personnel Security Clearances) are:

 

1.      As an “exception” the agency that granted or continued an existing clearance, did so despite a failure to meet adjudicative or investigative standards. Exceptions are defined as:

 

·         CONDITION. Access eligibility granted or continued with the proviso that one or more additional measures will be required. Such measures include additional security monitoring, restrictions on access, and restrictions on an individual's handling of classified information.

 

·         DEVIATION. Access eligibility granted or continued despite a significant gap in coverage or scope in the supporting background investigation. "Significant gap" for this purpose means either complete lack of coverage for a period of six months or more within the most recent five years investigated or the lack of an FBI name check or an FBI fingerprint check or the lack of one or more investigative scope requirements in its entirety. . . .

 

·         WAIVER. Access eligibility granted or continued despite the presence of substantial issue information that would normally preclude access. Agency heads or designees approve waivers only when the benefit of access clearly outweighs any security concern raised by the shortcoming. A waiver may require special limitations on access, additional security monitoring, and other restrictions on the person's handling of classified information beyond normal need-to-know.³

 

2.      The gaining agency is already in possession of substantial new issue information indicating the adjudicative standards may not be satisfied.

 

To be “already in possession of substantial new issue information” means the gaining agency received information from an incident report, a polygraph examination report, or an SF86/SF86C submitted anytime after the last adjudication. To be substantial, the issue information must lack sufficient mitigation and must raise serious doubts about granting access eligibility. Unmitigated “. . . substantial issue information constitutes the basis for granting access eligibility with a waiver or condition, or for denying or revoking access eligibility.”

 

¹ As used here “current investigation” means one that is not more than 5 years old and there has not been a break-in-service of more than 24 months.

² Applies only to “non-designated” Secret level SAP and therefore does not apply to SCI or Q.

³ The most common reason for a “waiver” is the existence of an immediate family member who is not a U.S. citizen.