§3343 — Title 50 War and National Defense | U.S. Code

Summary

After January 1, 2008, agency heads may not give or renew certain high-level security clearances to people who are unlawful users of illegal drugs or addicts. They also may not give or renew those clearances to someone who was convicted in a U.S. court and sentenced to more than 1 year in prison and actually jailed for at least 1 year, someone discharged from the military under dishonorable conditions, or someone found mentally incompetent after an approved mental health evaluation. These rules apply to federal employees, active-duty members of the Army, Navy, Air Force, or Marine Corps, and officers or employees of federal contractors. The rule covers clearances that allow access to special access programs, Restricted Data, or sensitive compartmented information. A written waiver can be given in a meritorious case with mitigating factors, but only under standards set by the President or the official guidelines. If an agency used such a waiver during the prior year, the agency head must report that by February 1 each year to the appropriate congressional committees. The report must not name the person, but must say which disqualifying factor applied and why the waiver was granted. The President must create the rules used to decide who gets access to classified information. Those rules must explain how to decide mental incompetence, allow an appeal, and say that seeking mental health care alone cannot be used as a negative reason against someone.

Title 50, §3343

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(a)In this section:

(1)The term “controlled substance” has the meaning given that term in section 802 of title 21.

(2)The term “covered person” means—

(A)an officer or employee of a Federal agency;

(B)a member of the Army, Navy, Air Force, or Marine Corps who is on active duty or is in an active status; and

(C)an officer or employee of a contractor of a Federal agency.

(3)The term “Restricted Data” has the meaning given that term in section 2014 of title 42.

(4)The term “special access program” has the meaning given that term in section 4.1 of Executive Order No. 12958 (60 Fed. Reg. 19825).

(b)After January 1, 2008, the head of a Federal agency may not grant or renew a security clearance for a covered person who is an unlawful user of a controlled substance or an addict (as defined in section 802(1) of title 21).

(c)(1)After January 1, 2008, absent an express written waiver granted in accordance with paragraph (2), the head of a Federal agency may not grant or renew a security clearance described in paragraph (3) for a covered person who—

(A)has been convicted in any court of the United States of a crime, was sentenced to imprisonment for a term exceeding 1 year, and was incarcerated as a result of that sentence for not less than 1 year;

(B)has been discharged or dismissed from the Armed Forces under dishonorable conditions; or

(C)is mentally incompetent, as determined by an adjudicating authority, based on an evaluation by a duly qualified mental health professional employed by, or acceptable to and approved by, the United States Government and in accordance with the adjudicative guidelines required by subsection (d).

(2)In a meritorious case, an exception to the disqualification in this subsection may be authorized if there are mitigating factors. Any such waiver may be authorized only in accordance with—

(A)standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President; or

(B)the adjudicative guidelines required by subsection (d).

(3)This subsection applies to security clearances that provide for access to—

(A)special access programs;

(B)Restricted Data; or

(C)any other information commonly referred to as “sensitive compartmented information”.

(4)(A)Not later than February 1 of each year, the head of a Federal agency shall submit a report to the appropriate committees of Congress if such agency employs or employed a person for whom a waiver was granted in accordance with paragraph (2) during the preceding year. Such annual report shall not reveal the identity of such person, but shall include for each waiver issued the disqualifying factor under paragraph (1) and the reasons for the waiver of the disqualifying factor.

(B)In this paragraph:

(i)The term “appropriate committees of Congress” means, with respect to a report submitted under subparagraph (A) by the head of a Federal agency—

(I)the congressional defense committees;

(II)the congressional intelligence committees;

(III)the Committee on Homeland Security and Governmental Affairs of the Senate;

(IV)the Committee on Oversight and Government Reform of the House of Representatives; and

(V)each Committee of the Senate or the House of Representatives with oversight authority over such Federal agency.

(ii)The term “congressional defense committees” has the meaning given that term in section 101(a)(16) of title 10.

(iii)The term “congressional intelligence committees” has the meaning given that term in section 3003 of this title.

(d)(1)The President shall establish adjudicative guidelines for determining eligibility for access to classified information.

(2)The guidelines required by paragraph (1) shall—

(A)include procedures and standards under which a covered person is determined to be mentally incompetent and provide a means to appeal such a determination; and

(B)require that no negative inference concerning the standards in the guidelines may be raised solely on the basis of seeking mental health counseling.

Notes & Related Subsidiaries

Editorial Notes

References in Text

Executive Order 12958, referred to in subsec. (a)(4), which was formerly set out as a note under section 435 (now section 3161) of this title, was revoked by Ex. Ord. No. 13526, § 6.2(g), Dec. 29, 2009, 75 F.R. 731. Codification Section was formerly classified to section 435c of this title prior to editorial reclassification and renumbering as this section.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

§3343 Security Clearances; Limitations