[Executive Orders]
       EX. ORD. NO. 10865. SAFEGUARDING CLASSIFIED INFORMATION WITHIN
                                  INDUSTRY
 
 
      Ex. Ord. No. 10865, Feb. 20, 1960, 25 F.R. 1583, as amended by
    Ex. Ord. No. 10909, Jan. 17, 1961, 26 F.R. 508; Ex. Ord. No. 11382,
    Nov. 28, 1967, 32 F.R. 16247; Ex. Ord. No. 12829, Sec. 203(g), Jan.
    6, 1993, 58 F.R. 3479, provided:

      WHEREAS it is mandatory that the United States protect itself
    against hostile or destructive activities by preventing
    unauthorized disclosures of classified information relating to the
    national defense; and

      WHEREAS it is a fundamental principle of our Government to
    protect the interests of individuals against unreasonable or
    unwarranted encroachment; and

      WHEREAS I find that the provisions and procedures prescribed by
    this order are necessary to assure the preservation of the
    integrity of classified defense information and to protect the
    national interest; and

      WHEREAS I find that those provisions and procedures recognize the
    interest of individuals affected thereby and provide maximum
    possible safeguards to protect such interests:

      NOW, THEREFORE, under and by virtue of the authority vested in me
    by the Constitution and statutes of the United States, and as
    President of the United States and as Commander in Chief of the
    armed forces of the United States, it is hereby ordered as follows:

      Section 1. When used in this order, the term ''head of a
    department'' means the Secretary of State, the Secretary of
    Defense, the Secretary of Transportation, the Secretary of Energy,
    the Nuclear Regulatory Commission, the Administrator of the
    National Aeronautics and Space Administration, and, in section 4,
    the Attorney General. The term ''head of a department'' also means
    the head of any department or agency, including but not limited to
    those referenced above with whom the Department of Defense makes an
    agreement to extend regulations prescribed by the Secretary of
    Defense concerning authorizations for access to classified
    information pursuant to Executive Order No. 12829 (set out below).

      Sec. 2. An authorization for access to classified information
    pursuant to Executive Order No. 12829 (set out below) may be
    granted by the head of a department or his designee, including but
    not limited to, those officials named in section 8 of this order,
    to an individual, hereinafter termed an ''applicant'', for a
    specific classification category only upon a finding that it is
    clearly consistent with the national interest to do so.

      Sec. 3. Except as provided in section 9 of this order, an
    authorization for access to a specific classification category may
    not be finally denied or revoked pursuant to Executive Order No.
    12829 (set out below) by the head of a department or his designee,
    including, but not limited to, those officials named in section 8
    of this order, unless the applicant has been given the following:

      (1) A written statement of the reasons why his access
    authorization may be denied or revoked, which shall be as
    comprehensive and detailed as the national security permits.

      (2) A reasonable opportunity to reply in writing under oath or
    affirmation to the statement of reasons.

      (3) After he has filed under oath or affirmation a written reply
    to the statement of reasons, the form and sufficiency of which may
    be prescribed by regulations issued by the head of the department
    concerned, an opportunity to appear personally before the head of
    the department concerned or his designee including, but not limited
    to, those officials named in section 8 of this order for the
    purpose of supporting his eligibility for access authorization and
    to present evidence on his behalf.

      (4) A reasonable time to prepare for that appearance.

      (5) An opportunity to be represented by counsel.

      (6) An opportunity to cross-examine persons either orally or
    through written interrogatories in accordance with section 4 on
    matters not relating to the characterization in the statement of
    reasons of any organization or individual other than the applicant.

      (7) A written notice of the final decision in his case which, if
    adverse, shall specify whether the head of the department or his
    designee, including, but not limited to, those officials named in
    section 8 of this order, found for or against him with respect to
    each allegation in the statement of reasons.

      Sec. 4. (a) An applicant shall be afforded an opportunity to
    cross-examine persons who have made oral or written statements
    adverse to the applicant relating to a controverted issue except
    that any such statement may be received and considered without
    affording such opportunity in the circumstances described in either
    of the following paragraphs:

      (1) The head of the department supplying the statement certifies
    that the person who furnished the information is a confidential
    informant who has been engaged in obtaining intelligence
    information for the Government and that disclosure of his identity
    would be substantially harmful to the national interest.

      (2) The head of the department concerned or his special designee
    for that particular purpose has preliminarily determined, after
    considering information furnished by the investigative agency
    involved as to the reliability of the person and the accuracy of
    the statement concerned, that the statement concerned appears to be
    reliable and material, and the head of the department or such
    special designee has determined that failure to receive and
    consider such statement would, in view of the level of access
    sought, be substantially harmful to the national security and that
    the person who furnished the information cannot appear to testify
    (A) due to death, severe illness, or similar cause, in which case
    the identity of the person and the information to be considered
    shall be made available to the applicant, or (B) due to some other
    cause determined by the head of the department to be good and
    sufficient.

      (b) Whenever procedures under paragraphs (1) or (2) of subsection
    (a) of this section are used (1) the applicant shall be given a
    summary of the information which shall be as comprehensive and
    detailed as the national security permits, (2) appropriate
    consideration shall be accorded to the fact that the applicant did
    not have an opportunity to cross-examine such person or persons,
    and (3) a final determination adverse to the applicant shall be
    made only by the head of the department based upon his personal
    review of the case.

      Sec. 5. (a) Records compiled in the regular course of business,
    or other physical evidence other than investigative reports, may be
    received and considered subject to rebuttal without authenticating
    witnesses, provided that such information has been furnished to the
    department concerned by an investigative agency pursuant to its
    responsibilities in connection with assisting the head of the
    department concerned to safeguard classified information within
    industry pursuant to this order.

      (b) Records compiled in the regular course of business, or other
    physical evidence other than investigative reports, relating to a
    controverted issue which, because they are classified, may not be
    inspected by the applicant, may be received and considered provided
    that: (1) the head of the department concerned or his special
    designee for that purpose has made a preliminary determination that
    such physical evidence appears to be material, (2) the head of the
    department concerned or such designee has made a determination that
    failure to receive and consider such physical evidence would, in
    view of the level of access sought, be substantially harmful to the
    national security, and (3) to the extent that the national security
    permits, a summary or description of such physical evidence is made
    available to the applicant.  In every such case, information as to
    the authenticity and accuracy of such physical evidence furnished
    by the investigative agency involved shall be considered.  In such
    instances a final determination adverse to the applicant shall be
    made only by the head of the department based upon his personal
    review of the case.

      Sec. 6. The head of a department of the United States or his
    representative, may issue, in appropriate cases, invitations and
    requests to appear and testify in order that the applicant may have
    the opportunity to cross-examine as provided by this order.

    Whenever a witness is so invited or requested to appear and testify
    at a proceeding and the witness is an officer or employee of the
    executive branch of the Government or a member of the armed forces
    of the United States, and the proceeding involves the activity in
    connection with which the witness is employed, travel expenses and
    per diem are authorized as provided by the Standardized Government
    Travel Regulations or the Joint Travel Regulations, as
    appropriate.  In all other cases (including non-Government
    employees as well as officers or employees of the executive branch
    of the Government or members of the armed forces of the United
    States not covered by the foregoing sentence), transportation in
    kind and reimbursement for actual expenses are authorized in an
    amount not to exceed the amount payable under Standardized
    Government Travel Regulations. An officer or employee of the
    executive branch of the Government or a member of the armed forces
    of the United States who is invited or requested to appear pursuant
    to this paragraph shall be deemed to be in the performance of his
    official duties.  So far as the national security permits, the head
    of the investigative agency involved shall cooperate with the
    Secretary, the Administrator, or the head of the other department
    or agency, as the case may be, in identifying persons who have made
    statements adverse to the applicant and in assisting him in making
    them available for cross-examination.  If a person so invited is an
    officer or employee of the executive branch of the government or a
    member of the armed forces of the United States, the head of the
    department or agency concerned shall cooperate in making that
    person available for cross-examination.

      Sec. 7. Any determination under this order adverse to an
    applicant shall be a determination in terms of the national
    interest and shall in no sense be a determination as to the loyalty
    of the applicant concerned.

      Sec. 8. Except as otherwise specified in the preceding provisions
    of this order, any authority vested in the head of a department by
    this order may be delegated to the the (sic) deputy of that
    department, or the principal assistant to the head of that
    department, as the case may be.

      Sec. 9. Nothing contained in this order shall be deemed to limit
    or affect the responsibility and powers of the head of a department
    to deny or revoke access to a specific classification category if
    the security of the nation so requires.  Such authority may not be
    delegated and may be exercised only when the head of a department
    determines that the procedures prescribed in sections 3, 4, and 5
    cannot be invoked consistently with the national security and such
    determination shall be conclusive.
 
 
                 MODIFICATION OF EXECUTIVE ORDER NO. 10865
 
 
      Ex. Ord. No. 10865, Feb. 20, 1960, 25 F.R. 1583, as amended, set
    out above, when referring to functions of the Atomic Energy
    Commission is modified to provide that all such functions shall be
    exercised by the Secretary of Energy and the Nuclear Regulatory
    Commission, see section 4(a)(1) of Ex. Ord. No. 12038, Feb. 3,
    1978, 43 F.R. 4957, set out under section 7151 of Title 42, The
    Public Health and Welfare.

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