[Congressional Record Volume 160, Number 120 (Tuesday, July 29, 2014)]
[Extensions of Remarks]
[Pages E1262-E1263]
INTRODUCTION OF THE ``CLEARANCE AND OVER-CLASSIFICATION REFORM AND
REDUCTION ACT'' OR ``CORRECT ACT''
______
HON. BENNIE G. THOMPSON
of mississippi
in the house of representatives
Tuesday, July 29, 2014
Mr. THOMPSON of Mississippi. Mr. Speaker, I am proud to introduce
legislation today titled the ``Clearance and Over-Classification Reform
and Reduction Act'' or ``CORRECT Act.''
The CORRECT Act recognizes that the massive proliferation of original
and derivative classified material and the exponential growth in the
number of individuals with security clearances present significant
homeland security and national security challenges that warrant timely
action. In addition to the high costs incurred by the Federal
government to investigate an unnecessarily large number of individuals
for positions requiring security clearances, over-designations have
undoubtedly resulted in the Federal government recruiting, hiring, and
paying individuals at rates that are higher than necessary and not
hiring individuals who otherwise have the required knowledge and
skills.
The CORRECT Act amends the existing Reducing Over-Classification Act
by (1) requiring the President to establish a goal for the reduction of
classified information by not less than 10 percent within five years
through improved declassification and improved original and derivative
classification decision-making; (2) creating standardized sampling
techniques for use by Federal departments and agencies conducting self-
inspections to assess their progress at improving classification
decision-making within their organizations; (3) creating annual
training to each employee with original classification authority; and
(4) requiring the Inspector General of each department or agency to
report on the progress of each respective department or agency with
respect to implementation of the Reducing Over-Classification Act as
well as the President's 10 percent classified information reduction
goal.
The CORRECT Act also includes a sense of Congress that a position
should only be designated as requiring a security clearance when it
requires access to classified information, presents a risk of a
material, adverse effect on the national security, or is a position of
public trust for any agency that has the authority to issue security
clearances.
Additionally, the CORRECT Act sets forth specific reforms at the
Department of Homeland Security (DHS) to make it a leader among Federal
agencies with respect to security clearance practices. The reforms at
DHS are targeted at the designation, investigation, adjudication,
denial, suspension, revocation, and appeals processes. In particular,
to increase transparency and improve performance among investigation
service providers, including Office of Personnel Management, it
requires the DHS Secretary to publish on the Department's website an
annual Department-wide satisfaction survey. If a pattern of performance
problems with a particular investigation service provider emerges, the
DHS Chief Security Officer is required to make a recommendation to the
Secretary regarding corrective action, including suspension or
cancelation of services.
[[Page E1263]]
I urge support of this commonsense legislation.
____________________
113th CONGRESS
2d Session
H. R. 5240
To reform classification and security clearance processes throughout
the Federal Government and, within the Department of Homeland Security,
to establish an effective and transparent process for the designation,
investigation, adjudication, denial, suspension, and revocation of
security clearances, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 29, 2014
Mr. Thompson of Mississippi introduced the following bill; which was
referred to the Committee on Oversight and Government Reform, and in
addition to the Committees on Homeland Security, Select Intelligence
(Permanent Select), and the Judiciary, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To reform classification and security clearance processes throughout
the Federal Government and, within the Department of Homeland Security,
to establish an effective and transparent process for the designation,
investigation, adjudication, denial, suspension, and revocation of
security clearances, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Clearance and
Over-Classification Reform and Reduction Act'' or the ``CORRECT Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--REFORMS TO CLASSIFICATION AND CLEARANCE PROCESSES
Subtitle A--Reducing Over-Classification
Sec. 101. Trend information on classified information and third
evaluations.
Sec. 102. Uniformity in sampling.
Sec. 103. Ten percent reduction in holdings of classified information.
Sec. 104. Status update on efforts at reducing holdings of classified
information.
Sec. 105. Report.
Sec. 106. Public Interest Declassification Board enhancements.
Sec. 107. Classification designation training.
Sec. 108. Reducing over-classification guidance.
Subtitle B--Governmentwide Reforms
Sec. 111. Sense of Congress.
Sec. 112. Report on certain designations.
Sec. 113. Transparency and accountability in personnel security
investigations.
Sec. 114. Continuous evaluation programs and insider threat programs.
Sec. 115. Mitigating factors in the context of a continuous evaluation
program or insider threat program.
Sec. 116. Appeal to the Merit Systems Protection Board.
Sec. 117. Automated or nongovernmental adjudication prohibited.
Sec. 118. Report on media contacts policy for intelligence personnel.
TITLE II--DEPARTMENT OF HOMELAND SECURITY CLEARANCE PROCESS REFORMS
Subtitle A--Designation
Sec. 201. Designation of national security sensitive and public trust
positions.
Sec. 202. Audits.
Sec. 203. Review of position designations.
Subtitle B--Investigation
Sec. 211. Investigation services provider performance.
Sec. 212. Metrics.
Subtitle C--Adjudication
Sec. 221. Uniform adjudication standards.
Subtitle D--Denial, Suspension, Revocation, and Appeal
Sec. 231. Uniform revocation criteria and procedures.
Sec. 232. Annual reporting.
Sec. 233. Final appeals panel.
Subtitle E--Miscellaneous Provisions
Sec. 241. Intelligence Reform and Terrorism Prevention Act of 2004
review and security clearance reciprocity.
Sec. 242. Office of Inspector General report.
Sec. 243. Penalties for falsification relating to an investigation
file.
SEC. 2. DEFINITIONS.
In this Act:
(1) Chief security officer.--The term ``Chief Security
Officer'' means the Classified Information Advisory Officer of
the Department of Homeland Security (identified and designated
pursuant to section 210F of the Homeland Security Act of 2002
(6 U.S.C. 124m)).
(2) Intelligence reform and terrorism prevention act
terms.--The terms ``agency'', ``authorized investigative
agency'', ``authorized adjudicative agency'', ``current
investigation file'', ``periodic reinvestigations'', and
``personnel security investigation'' have the meanings given
those terms in section 3001(a) of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 3341(a)).
(3) Investigation service provider.--The term
``investigation service provider'' means the Office of
Personnel Management and any other entity that undertakes
investigative services, including criminal record checks,
financial record checks, field interviews, employment review,
and education verifications, for an investigation file for a
national security position.
(4) National security position.--The term ``national
security position'' has the meaning given that term in section
732.102 of title 5, Code of Federal Regulations.
TITLE I--REFORMS TO CLASSIFICATION AND CLEARANCE PROCESSES
Subtitle A--Reducing Over-Classification
SEC. 101. TREND INFORMATION ON CLASSIFIED INFORMATION AND THIRD
EVALUATIONS.
Subsection (b) of section 6 of the Reducing Over-Classification Act
(50 U.S.C. 3161 note; Public Law 111-258) is amended--
(1) in paragraph (1)--
(A) in the matter preceding subparagraph (A)--
(i) by striking ``2016'' and inserting
``2019''; and
(ii) by striking ``no less than two'' and
inserting ``not fewer than three'';
(B) in subparagraph (A), by striking ``and'' at the
end;
(C) in subparagraph (B), by striking the period at
the end and inserting ``; and''; and
(D) by adding after subparagraph (B) the following
new subparagraph:
``(C) beginning with the second evaluation under
paragraph (2)(B), to assess, with respect to
subparagraph (A) of this paragraph, the degree to which
the incentives for accurate classification decisions
referred to in subsection (a) have been utilized, and
the extent to which the use of such incentives,
including cash incentives or other alternative, non-
cash awards, has improved the accuracy of original
classification decisions or derivative classification
decisions and a reduction in classified information.'';
(2) in paragraph (2), by adding at the end the following
new subparagraph:
``(C) Third evaluations.--Each third evaluation
required by paragraph (1) shall review progress made
since the second evaluation and the adequacy of the
records to support each self-inspection program
determination in accordance with subsection (c), and
assess such department or agency's procedures and
activities regarding classification challenges.
Specifically, each third evaluation shall--
``(i)(I) assess implementation of
procedures by such department or agency to
encourage authorized holders of classified
information, including authorized holders
outside the classifying agency, to challenge
the classification of information that they
believe is improperly classified or
unclassified, as required by section 1.8 of
Executive Order 13526 (50 U.S.C. 3161 note) or
successor order, and the degree to which such
department or agency makes each authorized
holder of classified information aware of the
procedures and encourages such holders to
challenge the classification of information
that they believe is improperly classified or
unclassified; and
``(II) to the extent practicable, review
data reflecting the disposition of challenges
received by such department or agency,
including how often such challenges resulted in
a change in classification;
``(ii) review the degree to which
information that was declassified was
determined by the agency to be of extraordinary
public interest that does not undermine the
national security of the United States,
including information on the number of national
security positions (pursuant to section 732 of
title 5, Code of Federal Regulations), by
classification level, that are designated
within the agency during that period; and
``(iii) shall be completed not later than
September 30, 2019.''; and
(3) in paragraph (3)(B)--
(A) in clause (i), by striking ``and'' at the end;
(B) in clause (ii), by striking the period at the
end and inserting ``; and''; and
(C) by adding after clause (ii) the following new
clause:
``(iii) information relating to the
assessment required under paragraph (1)(C).''.
SEC. 102. UNIFORMITY IN SAMPLING.
Section 6 of the Reducing Over-Classification Act (50 U.S.C. 3161
note; Public Law 111-258) is amended by adding at the end the following
new subsection:
``(c) Uniformity in Sampling.--The President, acting through the
Director of the Information Security Oversight Office, shall issue a
standardized sampling technique for department and agency self-
inspection programs as required pursuant to Executive Order 13526 (50
U.S.C. 3161 note) in order to address any vulnerabilities in such
programs.''.
SEC. 103. TEN PERCENT REDUCTION IN HOLDINGS OF CLASSIFIED INFORMATION.
Section 6 of the Reducing Over-Classification Act (50 U.S.C. 3161
note; Public Law 111-258), as amended by section 102 of this Act, is
further amended by adding at the end the following new subsection:
``(d) Ten Percent Reduction in Holding of Classified Information.--
The President shall establish goals for reducing, by the date that is
not later than five years after the date of the enactment of this
subsection, classified information, through declassification and
improved original and derivative classification decisionmaking, by not
less than ten percent as compared to the amount of such information as
of the day before such date. For purposes of this subsection,
classified information that would otherwise be declassified pursuant to
Executive Order 13526 (50 U.S.C. 3161 note) shall not count towards
such ten percent requirement.''.
SEC. 104. STATUS UPDATE ON EFFORTS AT REDUCING HOLDINGS OF CLASSIFIED
INFORMATION.
Section 704(d)(1) of the Public Interest Declassification Act of
2000 (50 U.S.C. 3161 note; Public Law 106-567) is amended by striking
the period and inserting ``and information on the status of efforts, to
the extent practicable on an agency-by-agency basis, at reducing the
holding of classified information pursuant to section 6(d) of the
Reducing Over-Classification Act (50 U.S.C. 3161 note; Public Law 111-
258).''.
SEC. 105. REPORT.
Section 6 of the Reducing Over-Classification Act (50 U.S.C. 3161
note; Public Law 111-258), as amended by sections 102 and 103 of this
Act, is further amended by adding at the end the following new
subsection:
``(e) Report.--The Inspector General of each department or agency
of the United States with an officer or employee who is authorized to
make original and derivative classification decisions shall submit to
the appropriate entities (as such term is defined in subsection (b)(4))
a report relating to progress accomplished under subsections (c) and
(d).''.
SEC. 106. PUBLIC INTEREST DECLASSIFICATION BOARD ENHANCEMENTS.
(a) Reviews of Classification Guidance.--Subsections (a) and (b) of
section 704 of the Public Interest Declassification Act of 2000 (50
U.S.C. 3161 note; Public Law 106-567) are amended to read as follows:
``(a) Agency Declassification Programs and Classification
Guidance.--
``(1) Declassification programs.--
``(A) Report.--The head of any agency with the
authority under an Executive order to classify
information shall annually provide to the Board, the
Select Committee on Intelligence of the Senate, and the
Permanent Select Committee on Intelligence of the House
of Representatives a summary briefing and report on the
progress and plans of such agency in the
declassification of national security information.
``(B) Contents.--Each briefing and report required
under subparagraph (A) shall--
``(i) cover the declassification goals set
by statute, regulation, or policy, the progress
of the agency towards completing such goals,
and the planned goals and priorities of the
agency for its declassification activities over
the 2 fiscal years following the report;
``(ii) give particular attention to
progress on the declassification of records and
materials that are of extraordinary public
interest to the people of the United States;
and
``(iii) include information on the
disposition of recommendations regarding
Special Searches for Records of Extraordinary
Public Interest submitted pursuant to section
704(c).
``(C) Consolidated report.--The annual briefing and
report under paragraph (1) for agencies within the
Department of Defense, including the military
departments and the elements of the intelligence
community (as defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 3003(4))), shall be
provided on a consolidated basis.
``(2) Review of classification guidance.--The Board shall,
on an ongoing basis, review classification guidance required
pursuant to Executive Order 13526 (50 U.S.C. 3161 note) or any
successor order utilized within each agency to assess--
``(A) the validity of the national security basis
for each instruction in the classification guidance;
``(B) the clarity of each instruction within the
classification guidance to ensure that only the minimum
necessary information is classified; and
``(C) the feasibility of narrowing or eliminating
any classification guidance that is unnecessary or
obsolete.
``(3) Plan for reviewing classification guidance.--Not
later than 90 days after the date of the enactment of the
Clearance and Over-Classification Reform and Reduction Act, the
Chairperson of the Board shall submit a multi-year plan for
reviewing classification guidance utilized within each agency,
with benchmarks for when and, to the extent practicable, which
classification guidance will be reviewed and how the findings
will be shared with the head of each agency and the inspector
general of each agency.
``(4) Recommendations for harmonizing and reducing
classification guidance.--Not later than one year after the
date of the enactment of the Clearance and Over-Classification
Reform and Reduction Act, the Chairperson of the Board shall
submit recommendations for harmonizing and reducing
classification guidance across the Federal Government to the
President.
``(b) Recommendations on Agency Declassification Programs and
Classification Guidance.--
``(1) In general.--Upon reviewing classification guidance
and discussing declassification plans and progress with an
agency, the Board shall provide to the head of that agency, the
Director of the Office of Management and Budget, and the
Assistant to the President for National Security Affairs the
written recommendations of the Board as to how the
classification guidance and declassification program of the
agency could be improved.
``(2) Public availability.--Not later than 60 days after
the Board provides written recommendations to the head of an
agency in accordance with paragraph (1), the Board shall make
such recommendations public in accordance with subsection
(k).''.
(b) Staff and Detailees.--Subsection (f) of section 703 of such Act
is amended to read as follows:
``(f) Director and Staff.--
``(1) Director.--The Chairperson of the Board, in
accordance with rules agreed upon by the Board, shall appoint
and fix the compensation of a Director, except that no rate of
pay fixed under this paragraph may exceed the equivalent of
that payable for a position at level V of the Executive
Schedule under section 5316 of title 5, United States Code.
``(2) Staff.--The Chairperson of the Board, in accordance
with rules agreed upon by the Board, may appoint and fix the
pay of personnel as may be necessary to enable the Board to
carry out its functions.
``(3) Applicability of certain civil service laws.--The
Director and staff may be appointed without regard to the
provisions of title 5, United States Code, governing
appointments in the competitive service, and may be paid
without regard to the provisions of chapter 51 and subchapter
III of chapter 53 of such title relating to classification and
General Schedule pay rates.
``(4) Detailees.--Any employee of the Federal Government
may be detailed to the Board with the agreement of, and without
reimbursement to, the detailing agency, and such detail shall
be without interruption or loss of civil, military, or foreign
service status or privilege.''.
(c) Compensation and Travel Expenses.--Subsection (h) of section
703 of such Act is amended to read as follows:
``(h) Compensation and Travel Expenses.--
``(1) Compensation.--
``(A) Chairperson.--The Chairperson of the Board
shall be compensated at the rate of pay payable for a
position at level III of the Executive Schedule under
section 5314 of title 5, United States Code.
``(B) Members.--Each member of the Board shall be
compensated at a rate of pay payable for a position at
level IV of the Executive Schedule under section 5315
of such title, for each day during which that member is
engaged in the actual performance of the duties of the
Board.
``(2) Travel expenses.--Members of the Board shall receive
travel expenses, including per diem in lieu of subsistence, in
accordance with applicable provisions under subchapter I of
chapter 57 of title 5, United States Code.''.
(d) Public Meetings.--Section 704(c) of such Act is amended by
adding at the end the following new paragraph:
``(3) In carrying out this subsection, the Board shall conduct
public meetings on at least a semiannual basis and publish in the
Federal Register notice of such meetings.''.
(e) Extension of Sunset.--Subsection (b) of section 710 of such Act
is amended by striking ``2018'' and inserting ``2024''.
SEC. 107. CLASSIFICATION DESIGNATION TRAINING.
Section 7 of the Reducing Over-Classification Act (50 U.S.C. 3344;
Public Law 111-258) is amended--
(1) in subsection (a), in the matter preceding paragraph
(1)--
(A) in the first sentence, by inserting ``,
including computer-based training,'' after ``annual
training''; and
(B) in the second sentence, by inserting ``such''
before ``training''; and
(2) by adding at the end the following new subsection:
``(c) Recordkeeping.--The head of each Executive agency shall
maintain records and make such records available to the inspector
general of each such agency of the extent to which training required
under this section is completed by each employee subject to such
training.''.
SEC. 108. REDUCING OVER-CLASSIFICATION GUIDANCE.
The Secretary of Homeland Security shall develop and disseminate to
components of the Department of Homeland Security and make available to
other agencies guidance on best practices and strategies to implement
the Reducing Over-Classification Act (Public Law 111-258), as amended
by this Act. Such guidance shall include information on the following:
(1) Administrative approaches, including the establishment
of internal quarterly meetings and working groups to carry out
the requirements of the Reducing Over-Classification Act
(Public Law 111-258).
(2) Consolidation of information security policies
throughout an agency.
(3) Provision of training, including in-person initial
training and computer-based recurrent training, in accordance
with section 7 of the Reducing Over-Classification Act, as
amended by section 105 of this Act.
(4) Adoption of uniform formats for the preparation,
production, or publication of classified information.
(5) Ways to encourage an authorized holder of classified
information to challenge the classification of information that
such holder believes is improperly classified or unclassified,
as required by section 1.8 of Executive Order 13526 (50 U.S.C.
3161 note) or successor order.
Subtitle B--Governmentwide Reforms
SEC. 111. SENSE OF CONGRESS.
It is the sense of Congress that a position shall only be
designated as a national security position if access to classified
information is required or if that position--
(1) presents a risk of a material adverse effect on the
national security (as described in section 732.201 of title 5,
Code of Federal Regulations); and
(2) is determined to be a public trust position (as
described in section 731.106 of title 5, Code of Federal
Regulations).
SEC. 112. REPORT ON CERTAIN DESIGNATIONS.
(a) Report.--Not later than 6 months after the date of enactment of
this Act and biannually thereafter, the head of each agency with the
authority to designate a national security position shall submit to
Congress a report that provides information regarding any national
security position for which access to classified materials is not
required and the position is not determined to be a public trust
position (as described in section 731.106 of title 5, Code of Federal
Regulations).
(b) Contents.--The report required under subsection (a) shall
include--
(1) a description for the position, including specific
information on duties and day-to-day operations;
(2) the history of the position's national security
position designation, including whether the position is newly
created or was transferred from another department, division,
or program;
(3) an explanation of the position's national security
position designation and whether responsibilities have been
added to the position to explain the designation;
(4) an explanation of the national security implications of
the position;
(5) the advertising and recruitment mechanisms used to fill
the position;
(6) information on the individual who holds the position,
including as appropriate, information on periods when the
individual had previously held a national security position;
and
(7) demographic information on the individual who holds the
position, including age, gender, race, ethnicity, employment
status, and geographic location.
(c) Public Report.--The report required under subsection (a) shall
be submitted in unclassified form and be made publicly available, but
may include a classified annex for any sensitive or classified
information if necessary.
SEC. 113. TRANSPARENCY AND ACCOUNTABILITY IN PERSONNEL SECURITY
INVESTIGATIONS.
(a) In General.--Not later than 120 days after the date of the
enactment of this Act, the Director of National Intelligence and the
Director of the Office of Personnel Management shall establish
requirements for a uniform markings process to identify the
investigation service provider that originated each piece of
information in a current investigation file.
(b) Utilization.--
(1) In general.--Not later than 90 days after the
establishment of the uniform markings process pursuant to
subsection (a), investigation service providers shall utilize
such uniform markings process and make available, upon request
by the authorized adjudicative agency, all documents in a
current investigation file.
(2) Exception.--This subsection shall not apply to a
personnel security investigation that an agency conducts using
its own personnel, under delegated or statutory authority.
SEC. 114. CONTINUOUS EVALUATION PROGRAMS AND INSIDER THREAT PROGRAMS.
(a) Findings.--Congress finds the following:
(1) The term ``continuous evaluation'' as defined in
Executive Order 13467, means reviewing the background of an
individual who has been determined to be eligible for access to
classified information at any time during the period of
eligibility.
(2) Since 1998, at least 10 continuous evaluation pilot
studies have been carried out by Federal agencies to monitor
the individuals with security clearances on an ongoing basis.
(3) The Department of Defense has conducted multiple
continuous evaluation pilots since early 2002 and has more than
one pilot that is ongoing as of July 1, 2014. By October 2014,
the Department anticipates 100,000 people to be subject to
continuous evaluation with the population steadily rising to 1
million by 2017.
(4) The Office of the Director of National Intelligence
plans for all individuals with Top Secret clearances or higher
to be subject to continuous evaluation by 2016.
(5) Since 2010, applicants submitting an application for a
security clearance, the Standard Form 86, are required to
consent to being monitored through continuous evaluation.
(6) In February 2014, the Office of Management and Budget
issued a 120-day review of Federal employee suitability and
contractor fitness determinations as well as security clearance
procedures and recommended an accelerated timetable for an
integrated solution or continuous evaluation program across all
Federal agencies and security levels.
(7) In addition to continuous evaluation, some Federal
agencies are establishing insider threat programs pursuant to
Executive Order 13587 (50 U.S.C. 3161 note), which authorized
the establishment of insider threat programs to, among other
things, identify any Government or contracted employee that may
have compromised national security through such employee's work
capacity.
(8) Continuous evaluation and insider threat programs are
proliferating throughout the Federal government without
requirements for protections to ensure that such programs be
designed and implemented in a manner that not only protects
national security but also promotes fairness, transparency, and
employee protections, including whistleblower protections.
(b) Requirements.--Not later than 180 days after the date of
enactment of this Act, the Privacy and Civil Liberties Oversight Board,
established under section 1061 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (42 U.S.C. 2000ee), shall publish in the Federal
Register standards for the protection of national security and
promotion of fairness, transparency, and employee protections,
including safeguards to preserve the rights and confidentiality of
whistleblowers with respect to the operation of a continuous evaluation
program and the operation of an insider threat program by a Federal
agency.
(c) Certification.--
(1) In general.--Not later than 90 days after the date of
publication of the standards under subsection (b), the head of
any agency that is operating a continuous evaluation program or
insider threat program as of the date of the enactment of this
Act shall--
(A) certify whether such program is in compliance
with the standards established under subsection (b);
and
(B) publish such certification in the Federal
Register.
(2) Suspension or program.--Any such head who certifies
that a continuous evaluation program or insider threat program
does not meet such standards or who fails to publish a
certification of compliance pursuant to paragraph (1) shall
suspend the program until such program is compliant and
certification of compliance is published in the Federal
Register.
(d) Report.--The head of any agency that is operating a continuous
evaluation program or insider threat program as of the date of
enactment of this Act shall annually submit to Congress a report that
includes the following information:
(1) The number of individuals in the agency subject to the
continuous evaluation program or insider threat program.
(2) The number of individuals in the agency whose
eligibility for access to classified information was suspended
or revoked as a result of information acquired through the
continuous evaluation program or insider threat program.
(3) The total number of individuals in the agency who are
eligible to access classified information.
(4) Demographic information on each individual whose
eligibility for access to classified information was changed as
a result of information collected through the continuous
evaluation program or insider threat program, including age,
race, gender, and ethnicity.
(5) A description of the mechanisms used to conduct the
evaluations, including how individuals were selected, whether
the evaluations were randomized, and if so, the nature of the
randomization, including the degree to which it was temporally
randomized and the degree to which the selection of individuals
subject to the program was randomized.
(6) A description of the types of information that were
captured through the continuous evaluation program or insider
threat program and were the basis for further investigation.
(7) The frequency that information captured through the
continuous evaluation program or insider threat program was the
basis for further investigation.
(8) Information on any individual whose eligibility for
access to classified information was changed as a result of
information collected through the continuous evaluation program
or insider threat program, including the clearance level of
each impacted individual and what position, if any, the
individual holds within the agency, number of years the
individual has been eligible to access classified information
at the level held at the time that the individual was subject
to the continuous evaluation program or insider threat program
and, if available, the frequency that classified information
was accessed by each such individual.
(9) Identification of each database that was accessed.
(10) Protocols for resolution of information captured
through the continuous evaluation program or insider threat
program that was the basis for further investigation, including
the provision of notification to the impacted individual's
supervisor and the impacted individual.
(11) Information on any specific instance in which the
continuous evaluation program or insider threat program
resulted in the protection of classified information and
national security.
(12) Information on the annual and life-cycle costs of the
continuous investigation or insider threat program and, in the
event that the head of the agency intends to expand the
program, information on the anticipated costs of expansion.
(e) Pilot Program.--The head of any agency that establishes a
continuous evaluation program after the date of the enactment of this
Act shall be subject to the following requirements:
(1) Before initiating a continuous evaluation program or
insider threat program, such head shall conduct a pilot
continuous evaluation program or pilot insider threat program
that is not shorter than 120 days in duration and uses a
representative sample of individuals eligible for access to
classified information, including individuals employed by
contractors. Participants in the program shall receive
notification and, in the event that derogatory information is
identified through the program that results in changes to such
participant's eligibility for access to classified information,
shall be provided access to the redress process described under
section 116.
(2) Before conducting a pilot continuous evaluation program
or pilot insider threat program under paragraph (1), such head
shall publish, in the Federal Register, a notice of the program
that provides information on the provisions of the program,
metrics for evaluating its efficacy, and a privacy impact
assessment.
(3) Not later than 90 days after the initiation of a pilot
continuous evaluation program or pilot insider threat program
pursuant to paragraph (1), such head shall submit to Congress a
preliminary report that includes--
(A) the number of individuals evaluated under the
program;
(B) the total number of individuals in the agency
who are eligible to access classified information;
(C) demographics of the individuals evaluated under
the program, including age, race, gender, ethnicity,
employer, clearance level, and the number of years the
individual has been eligible to access classified
information;
(D) a position description for each individual
evaluated under the program;
(E) a description of the mechanisms used to conduct
the evaluations, including how individuals were
selected, whether the evaluations were randomized, and
if so, the nature of the randomization, including the
degree to which it was temporally randomized and the
degree to which the selection of individuals subject to
the program was randomized;
(F) a description of the types of information that
were captured through the program and were the basis
for further investigation;
(G) the frequency that information captured through
the program was the basis for further investigation;
and
(H) information on the number of individuals whose
eligibility for access to classified information was
changed as a result of information collected through
the program.
(4) Not later than 180 days after the conclusion of a pilot
continuous evaluation program or pilot insider threat program
pursuant to paragraph (1) or expansion of a pilot continuous
evaluation program or pilot insider threat program, such head
shall submit to Congress a final report that updates the
information required in the preliminary report under paragraph
(3). The report shall include--
(A) an identification of each database that was
accessed;
(B) protocols for resolution of information
captured through the program that was the basis for
further investigation, including the provision of
notification to the impacted individual's supervisor
and the impacted individual;
(C) information on any specific instance in which
continuous evaluation resulted in the protection of
classified information and national security; and
(D) information regarding the annual and life-cycle
costs of the program and, in the event that such head
intends to expand the program or initiate a continuous
evaluation program or insider threat program,
information on the anticipated costs of an expansion or
initiation.
(5) Prior to expanding a pilot continuous evaluation
program or insider threat program or initiating a continuous
evaluation program or insider threat program, such head shall
secure a privacy impact assessment from the top privacy and
civil liberties officials at such agency.
(f) Unclassified Reports.--All reports required under this section
shall be submitted in unclassified form and be made publicly available,
but may include a classified annex if necessary.
(g) Limitation on Data Collection.--Not later than 180 days after
the date of enactment of this Act, the head of an agency that operates
a continuous evaluation program shall ensure that data collection under
the program is limited to databases and other sources of information
accessed for a periodic reinvestigation as of the date of enactment of
this Act.
(h) Definitions.--In this section:
(1) Continuous evaluation program.--The term ``continuous
evaluation program'' means any program continually reviewing
the background of an individual who has been determined to be
eligible for access to classified information pursuant to
Executive Order 12968 (50 U.S.C. 3161 note) or any other
similar authority.
(2) Insider threat program.--The term ``insider threat
program'' means any program monitoring the activity of an
individual who has been determined to be eligible for access to
classified information to improve insider threat detection and
prevention pursuant to Executive Order 13587 (50 U.S.C. 3161
note), or successor order.
SEC. 115. MITIGATING FACTORS IN THE CONTEXT OF A CONTINUOUS EVALUATION
PROGRAM OR INSIDER THREAT PROGRAM.
(a) Continuous Evaluation.--Not later than 120 days after the date
of enactment of this Act, for each adjudicative guideline for
individuals with access to classified information (as described in part
147 of title 32, Code of Federal Regulations or similar successor
regulation) the President shall update and tailor the conditions that
mitigate security concerns to address continuous evaluation of such
individuals performed pursuant to Executive Order 12968 (50 U.S.C. 3161
note) or any other authority, including the implications of recency on
the availability of mitigation.
(b) Insider Threat Program.--Not later than 240 days after the date
of enactment of this Act, the President shall establish adjudicative
guidelines, including conditions that mitigate security concerns that
consider the implications of recency on the availability of mitigation,
for an individual who is subject to an adverse decision based on an
insider threat program established pursuant to Executive Order 13587
(50 U.S.C. 3161 note) or successor order.
SEC. 116. APPEAL TO THE MERIT SYSTEMS PROTECTION BOARD.
An employee for whom a final determination of ineligibility for a
national security position has been made is entitled to appeal to the
Merit Systems Protection Board under section 7701 of title 5, United
States Code.
SEC. 117. AUTOMATED OR NONGOVERNMENTAL ADJUDICATION PROHIBITED.
(a) In General.--An adjudication by an agency that an individual
may not have access to classified information may only be made by a
Federal employee and may not be rendered by an automated, electronic,
or computer system.
(b) Federal Employee Defined.--In this section, the term ``Federal
employee'' has the meaning given the term ``employee'' in section 2105
of title 5, United States Code, and includes any member of the
uniformed services.
SEC. 118. REPORT ON MEDIA CONTACTS POLICY FOR INTELLIGENCE PERSONNEL.
Not later than 90 days after the date of the enactment of this Act,
the head of each element of the intelligence community (as such term is
defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
3003(4))) shall submit to Congress a report on each such element's
implementation of policy directives regarding contacts with news media
by intelligence community personnel. Such report shall describe how
each such element's implementation of such directives protects the free
speech rights of intelligence community personnel, including
intelligence community personnel who choose to discuss unclassified
public policy issues with friends or family members who may use new
media technologies.
TITLE II--DEPARTMENT OF HOMELAND SECURITY CLEARANCE PROCESS REFORMS
Subtitle A--Designation
SEC. 201. DESIGNATION OF NATIONAL SECURITY SENSITIVE AND PUBLIC TRUST
POSITIONS.
(a) In General.--The Secretary of Homeland Security shall require
the Department of Homeland Security, including all components of the
Department, to designate the sensitivity level of national security
positions (pursuant to part 732 of title 5, Code of Federal
Regulations, or similar successor regulation) in an accurate and
consistent manner within the Department, including all such components.
(b) Implementation.--In carrying out subsection (a), the Secretary
of Homeland Security shall require the utilization of uniform
designation tools throughout the Department of Homeland Security,
including all components of the Department, and provide training to
appropriate staff of the Department, including staff of all such
components, on such utilization. Such training shall include guidance
on factors for determining eligibility for access to classified
information and facilities with classified information.
SEC. 202. AUDITS.
Not later than 180 days after the Director of National Intelligence
and Director of the Office of Personnel Management issue a rule for
designation of national security positions (pursuant to part 732 of
title 5, Code of Federal Regulations, or similar successor regulation),
the Inspector General of the Department of Homeland Security shall
conduct regular audits of compliance of the Department with such rule.
SEC. 203. REVIEW OF POSITION DESIGNATIONS.
(a) In General.--The Secretary of Homeland Security, acting through
the Chief Security Officer of the Department of Homeland Security,
shall biennially conduct a review of all sensitivity level designations
of national security positions (pursuant to part 732 of title 5, Code
of Federal Regulations, or similar successor regulation) at the
Department.
(b) Determination.--If during the course of a review required under
subsection (a) the Secretary of Homeland Security determines that a
change in the sensitivity level of a position that affects the need for
an individual to obtain access to classified information is warranted,
such access shall be administratively adjusted or periodic
reinvestigation completed, as necessary.
(c) Report.--
(1) In general.--Upon completion of each review required
under subsection (a), the Secretary of Homeland Security shall
submit to the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate a report on the number of
positions by classification level and by component of the
Department of Homeland Security that are to be redesignated in
accordance with subsection (b) to--
(A) require access to classified information;
(B) no longer require access to classified
information; or
(C) otherwise require a different level of access
to classified information.
(2) Form.--The report required under paragraph (1) shall be
submitted in unclassified form and be made publicly available,
but may include a classified annex for any sensitive or
classified information if necessary.
Subtitle B--Investigation
SEC. 211. INVESTIGATION SERVICES PROVIDER PERFORMANCE.
(a) In General.--The Secretary of Homeland Security, acting through
the Chief Security Officer of the Department of Homeland Security,
shall annually survey the head of each component or office of the
Department with the authority to adjudicate a current investigation
file for a national security position to help determine whether--
(1) investigation service providers are adhering to Federal
requirements, including requirements under the Intelligence
Reform and Terrorism Prevention Act of 2004 (Public Law 108-
458) and requirements promulgated by the Office of Personnel
Management; and
(2) records provided are adequate to conduct adjudications.
(b) Contents.--Each survey under subsection (a) shall consider the
following:
(1) Punctuality of completed personnel security
investigations, including adherence to timelines required under
section 3001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (50 U.S.C. 3341).
(2) Frequency that the adjudicator must seek clarifying or
additional information from the investigation service provider.
(3) Frequency that the adjudicator orders a full or partial
reinvestigation.
(4) Frequency that the adjudicator finds adverse
information after the completed background investigation is
submitted by the investigation service provider.
(5) Frequency that the complete investigation file,
including investigative notes, is provided.
(6) Overall performance of the investigation service
provider.
(7) Satisfaction with the overall performance of the
investigation service provider.
(c) Corrective Action.--If information provided under subsection
(a) identifies a pattern of performance problems with a particular
investigation service provider, the Chief Security Officer of the
Department of Homeland Security shall make a recommendation to the
Secretary of Homeland Security and, where appropriate, to the head of
each component or office of the Department that uses the particular
investigation service provider regarding corrective action, including
suspension or cancellation of services.
(d) Availability.--The Secretary of Homeland Security shall publish
the results of each survey under subsection (a) and make each such
publication publicly available on the website of the Department of
Homeland Security.
SEC. 212. METRICS.
The Secretary of Homeland Security shall utilize metrics,
including, to the extent practicable, any metrics in use by the Office
of Personnel Management as of the date of the enactment of this Act, to
assess the timeliness, completeness, and overall quality of the
provision of investigative services by investigation service providers.
Subtitle C--Adjudication
SEC. 221. UNIFORM ADJUDICATION STANDARDS.
(a) In General.--The Secretary of Homeland Security, acting through
the Chief Security Officer of the Department of Homeland Security,
shall issue uniform adjudication standards, consistent with part 147 of
title 32, Code of Federal Regulations, or similar successor regulation,
to be utilized by Department adjudicators with respect to adjudicating
the eligibility of an individual for access to classified information.
(b) Certification.--Not later than one year after the issuance of
the uniform adjudication standards under subsection (a), the Secretary
of Homeland Security, acting through the Chief Security Officer of the
Department of Homeland Security, shall require the head of each
component and office of the Department with the authority to adjudicate
access to classified information of an individual to certify compliance
with the uniform adjudication standards under subsection (a).
(c) Audit.--Not later than two years after the last head of a
component of the Department of Homeland Security certifies compliance
under subsection (b) with the uniform adjudication standards under
subsection (a), the Inspector General of the Department shall audit all
such components to verify such compliance.
Subtitle D--Denial, Suspension, Revocation, and Appeal
SEC. 231. UNIFORM REVOCATION CRITERIA AND PROCEDURES.
(a) In General.--The Secretary of Homeland Security, acting through
the Chief Security Officer of the Department of Homeland Security,
shall issue a Departmentwide directive that sets forth uniform criteria
and procedures, consistent with any appropriate Federal Governmentwide
standards, including notice requirements, for the suspension, denial,
and revocation of eligibility for access to classified information of
an individual issued by the Department.
(b) Certification.--Not later than one year after issuance of the
uniform criteria and procedures under subsection (a), the Secretary of
Homeland Security, acting through the Chief Security Officer of the
Department of Homeland Security, shall require the head of each
component and office of the Department with the authority to adjudicate
eligibility for access to classified information of an individual to
certify compliance with such uniform criteria and procedures.
SEC. 232. ANNUAL REPORTING.
(a) In General.--The Secretary of Homeland Security, acting through
the Chief Security Officer of the Department of Homeland Security,
shall annually submit to the Committee on Homeland Security of the
House of Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate a report on the following:
(1) The number of denials, suspensions, revocations, and
appeals of the eligibility for access to classified information
of an individual throughout the Department.
(2) The date and status or disposition of each reported
action under paragraph (1).
(3) The identification of the originator, whether by a
component or headquarters, of each adverse action under
paragraph (1), and description of the grounds for each such
action.
(4) Demographic data, including data relating to race, sex,
national origin, and disability, of each individual for whom
eligibility for access to classified information was denied,
suspended, revoked, or appealed, and the number of years that
each such individual was eligible for access to such
information.
(5) In the case of a suspension in excess of 180 days, an
explanation for the such timeframe.
(b) Form.--The report required under subsection (a) shall be
submitted in unclassified form and be made publicly available, but may
include a classified annex for any sensitive or classified information
if necessary.
SEC. 233. FINAL APPEALS PANEL.
(a) In General.--The Secretary of Homeland Security shall establish
an internal appeals 5-person panel for final national security
clearance denial and revocation determinations that is comprised of
designees who are career, supervisory employees from departmental
components and headquarters.
(b) Chair.--The Chief Security Officer of the Department of
Homeland Security shall serve as the chair of the panel established
pursuant to subsection (a).
(c) Positions.--At least two of the positions on the panel shall be
held by non-security related supervisory employees for not more than
two consecutive years, and at least one position shall held by a
security related supervisory employee for not more than three
consecutive years.
(d) Subpanels.--
(1) In general.--For each matter before the panel, a 3-
person subpanel shall be convened by the chair, and may include
the chairman.
(2) Prohibition.--The chair may not select a panelist to
serve on a 3-person subpanel referred to in paragraph (1) from
the same component or office of the Department of Homeland
Security as from which the matter before such subpanel
originated or who has a prior relationship with any of the
individuals involved in such matter.
(e) Procedures.--
(1) In general.--Each individual issued access to
classified information by the Department of Homeland Security
whose access is denied or revoked after a decision from a
first-line deciding authority and a supervisor of such first-
line deciding authority may appeal, in writing, to the 5-person
appeals panel and appear, with a representative, before such
panel to make a statement.
(2) Rulings.--A simple majority of the appeals panel is
required to uphold or overturn a denial or revocation.
(3) Timing.--All determinations of the appeals panel shall
be rendered within 90 days of receipt of an appeal under this
section.
(4) Finality.--All determinations of the appeals panel
shall be final, and no further administrative review shall be
permitted.
Subtitle E--Miscellaneous Provisions
SEC. 241. INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004
REVIEW AND SECURITY CLEARANCE RECIPROCITY.
(a) In General.--Not later than two years after the date of the
enactment of this Act, the Comptroller General of the United States
shall submit to the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate a report on--
(1) the impact of the implementation of section 3001 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (50
U.S.C. 3341; Public Law 108-458) on security clearance
processes, including--
(A) with respect to the quality of personnel
security investigations and adjudications; and
(B) the extent to which the timelines specified in
such section have impacted security clearance backlogs,
and include recommendations for areas for reform; and
(2) the extent to which individuals with eligibility for
access to classified information, adjudicated by the Secretary
of Homeland Security or the head of a component or office of
the Department of Homeland Security, are granted reciprocity
within the Department and by other agencies, in accordance with
subsection (d) of section 3001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 3341; Public Law
108-458), including--
(A) the extent to which the lack of harmonization
of suitability standards is a barrier to such
reciprocity; and
(B) recommendations on whether such standards
should be included in interagency reciprocity
agreements.
(b) Form.--The report required under subsection (a) shall be
submitted in unclassified form and be made publicly available, but may
include a classified annex for any sensitive or classified information
if necessary.
SEC. 242. OFFICE OF INSPECTOR GENERAL REPORT.
Not later than two years after the date of the enactment of this
Act, the Inspector General of the Department of Homeland Security shall
submit to the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate a report on the implementation of
responsibilities and mandates of the Department under this Act, and the
amendments made by this Act. The report required under this section
shall be submitted in unclassified form and be made publicly available,
but may include a classified annex for any sensitive or classified
information if necessary.
SEC. 243. PENALTIES FOR FALSIFICATION RELATING TO AN INVESTIGATION
FILE.
Section 1001(a) of title 18, United States Code, is amended by
inserting at the end the following: ``If the offense involves an
investigation file for a national security position (as such term is
defined in section 732.102 of title 5, Code of Federal Regulations, or
similar successor regulation), then the maximum term of imprisonment
otherwise authorized under this section may be increased by one
year.''.
