LegiStorm: Transparency's Sidekick

PART 1 -- POLICY, APPLICABILITY, AND DEFINITIONS

Section 1.1. Policy. Executive branch policies and procedures relating tosuitability, contractor employee fitness, eligibility to hold a sensitiveposition, access to federally controlled facilities and informationsystems, and eligibility for access to classified information shall bealigned using consistent standards to the extent possible, provide forreciprocal recognition, and shall ensure cost-effective, timely, andefficient protection of the national interest, while providing fairtreatment to those upon whom the Federal Government relies to conduct ourNation's business and protect national security.

Sec. 1.2. Applicability. (a) This order applies to all coveredindividuals as defined in section 1.3(g), except that:

(i) the provisions regarding eligibility for physical access to federallycontrolled facilities and logical access to federally controlledinformation systems do not apply to individuals exempted in accordance with guidance pursuant to the Federal Information SecurityManagement Act (title III ofPublic Law 107-347) and Homeland Security Presidential Directive 12; and

(ii) the qualification standards for enlistment, appointment, andinduction into the Armed Forces pursuant to title 10, United States Code,are unaffected by this order.

(b) This order also applies to investigations and determinations ofeligibility for access to classified information for employees of agenciesworking in or for the legislative or judicial branches when thoseinvestigations or determinations are conducted by the executive branch.

Sec. 1.3. Definitions. For the purpose of this order:

(a) "Adjudication" means the evaluation of pertinent data in a backgroundinvestigation, as well as any other available information that is relevantand reliable, to determine whether a covered individual is:

(i) suitable for Government employment;

(ii) eligible for logical and physical access;

(iii) eligible for access to classified information;

(iv) eligible to hold a sensitive position; or

(v) fit to perform work for or on behalf of the Government as acontractor employee.

(b) "Agency" means any "Executive agency" as defined in section 105 oftitle 5, United States Code, including the "military departments," asdefined in section 102 of title 5, United States Code, and any other entitywithin the executive branch that comes into possession of classifiedinformation or has designated positions as sensitive, except such an entityheaded by an officer who is not a covered individual.

(c) "Classified information" means information that has been determinedpursuant to Executive Order 12958 of April 17, 1995, as amended, or asuccessor or predecessor order, or the Atomic Energy Act of 1954 (42 U.S.C.2011 et seq.) to require protection against unauthorized disclosure.

(d) "Continuous evaluation" means reviewing the background of anindividual who has been determined to be eligible for access to classifiedinformation (including additional or new checks of commercial databases,Government databases, and other information lawfully available to securityofficials) at any time during the period of eligibility to determinewhether that individual continues to meet the requirements for eligibilityfor access to classified information.

(e) "Contractor" means an expert or consultant (not appointed undersection 3109 of title 5, United States Code) to an agency; an industrial orcommercial contractor, licensee, certificate holder, or grantee of anyagency, including all subcontractors; a personal services contractor; orany other category of person who performs work for or on behalf of anagency (but not a Federal employee).

(f) "Contractor employee fitness" means fitness based on character andconduct for work for or on behalf of the Government as a contractoremployee.

(g) "Covered individual" means a person who performs work for or on behalfof the executive branch, or who seeks to perform work for or on behalf ofthe executive branch, but does not include:

(i) the President or (except to the extent otherwise directed by thePresident) employees of the President under section 105 or 107 of title 3,United States Code; or

(ii) the Vice President or (except to the extent otherwise directed by theVice President) employees of the Vice President under section 106 of title3 or annual legislative branch appropriations acts.

(h) "End-to-end automation" means an executive branch-wide federatedsystem that uses automation to manage and monitor cases and maintainrelevant documentation of the application (but not an employmentapplication), investigation, adjudication, and continuous evaluationprocesses.

(i) "Federally controlled facilities" and "federally controlledinformation systems" have the meanings prescribed in guidance pursuant tothe Federal Information Security Management Act (title III of Public Law107-347) and Homeland Security Presidential Directive 12.

(j) "Logical and physical access" means access other than occasional orintermittent access to federally controlled facilities or informationsystems.

(k) "Sensitive position" means any position so designated under ExecutiveOrder 10450 of April 27, 1953, as amended.

(l) "Suitability" has the meaning and coverage provided in 5 CFR Part 731.

PART 2 -- ALIGNMENT, RECIPROCITY, AND GOVERNANCE

Sec. 2.1. Aligned System. (a) Investigations and adjudications ofcovered individuals who require a determination of suitability, eligibilityfor logical and physical access, eligibility to hold a sensitive position,eligibility for access to classified information, and, as appropriate,contractor employee fitness, shall be aligned using consistent standards tothe extent possible. Each successively higher level of investigation andadjudication shall build upon, but not duplicate, the ones below it.

(b) The aligned system shall employ updated and consistent standards andmethods, enable innovations with enterprise information technologycapabilities and end-to-end automationto the extent practicable, and ensure that relevant information maintainedby agencies can be accessed and shared rapidly across the executive branch,while protecting national security, protecting privacy-related information,ensuring resulting decisions are in the national interest, and providingthe Federal Government with an effective workforce.

(c) Except as otherwise authorized by law, background investigations andadjudications shall be mutually and reciprocally accepted by all agencies. An agency may not establish additional investigative or adjudicativerequirements (other than requirements for the conduct of a polygraphexamination consistent with law, directive, or regulation) that exceed therequirements for suitability, contractor employee fitness, eligibility forlogical or physical access, eligibility to hold a sensitive position, oreligibility for access to classified information without the approval ofthe Suitability Executive Agent or Security Executive Agent, asappropriate, and provided that approval to establish additionalrequirements shall be limited to circumstances where additionalrequirements are necessary to address significant needs unique to theagency involved or to protect national security.

Sec. 2.2. Establishment and Functions of Performance AccountabilityCouncil. (a) There is hereby established a Suitability and SecurityClearance Performance Accountability Council (Council).

(b) The Deputy Director for Management, Office of Management and Budget,shall serve as Chair of the Council and shall have authority, direction,and control over the Council's functions. Membership on the Council shallinclude the Suitability Executive Agent and the Security ExecutiveAgent. The Chair shall select a Vice Chair to act in the Chair's absence. The Chair shall have authority to designate officials from additionalagencies who shall serve as members of the Council. Council membershipshall be limited to Federal Government employees and shall includesuitability and security professionals.

(c) The Council shall be accountable to the President to achieve,consistent with this order, the goals of reform, and is responsible fordriving implementation of the reform effort, ensuring accountability byagencies, ensuring the Suitability Executive Agent and the SecurityExecutive Agent align their respective processes, and sustaining reformmomentum.

(d) The Council shall:

(i) ensure alignment of suitability, security, and, as appropriate,contractor employee fitness investigative and adjudicative processes;

(ii) hold agencies accountable for the implementation of suitability,security, and, as appropriate, contractor employee fitness processes andprocedures;

(iii) establish requirements for enterprise information technology;

(iv) establish annual goals and progress metrics and prepare annualreports on results;

(v) ensure and oversee the development of tools and techniques forenhancing background investigations and the making of eligibilitydeterminations;

(vi) arbitrate disparities in procedures between the SuitabilityExecutive Agent and the Security Executive Agent;

(vii) ensure sharing of best practices; and

(viii) advise the Suitability Executive Agent and the Security ExecutiveAgent on policies affecting the alignment of investigations andadjudications.

(e) The Chair may, to ensure the effective implementation of the policyset forth in section 1.1 of this order and to the extent consistent withlaw, assign, in whole or in part, to the head of any agency (solely orjointly) any function within the Council's responsibility relating toalignment and improvement of investigations and determinations ofsuitability, contractor employee fitness, eligibility for logical andphysical access, eligibility for access to classified information, oreligibility to hold a sensitive position.

Sec. 2.3. Establishment, Designation, and Functions of Executive Agents. (a) There is hereby established a Suitability Executive Agent and aSecurity Executive Agent.

(b) The Director of the Office of Personnel Management shall serve as theSuitability Executive Agent. As the Suitability Executive Agent, theDirector of the Office of Personnel Management will continue to beresponsible for developing and implementing uniform and consistent policiesand procedures to ensure the effective, efficient, and timely completion ofinvestigations and adjudications relating to determinations of suitabilityand eligibility for logical and physical access.

(c) The Director of National Intelligence shall serve as the SecurityExecutive Agent. The Security Executive Agent:

(i) shall direct the oversight of investigations and determinations ofeligibility for access to classified information or eligibility to hold asensitive position made by any agency;

(ii) shall be responsible for developing uniform and consistent policiesand procedures to ensure the effective, efficient, and timely completion ofinvestigations and adjudications relating to determinations of eligibilityfor access to classified information or eligibility to hold a sensitiveposition;

(iii) may issue guidelines and instructions to the heads of agencies toensure appropriate uniformity, centralization, efficiency, effectiveness,and timeliness in processes relating to determinations by agencies ofeligibility for access to classified information or eligibility to hold asensitive position;

(iv) shall serve as the final authority to designate an agency oragencies to conduct investigations of persons who are proposed for accessto classified information to ascertain whether such persons satisfy thecriteria for obtaining and retaining access to classified information oreligibility to hold a sensitive position;

(v) shall serve as the final authority to designate an agency oragencies to determine eligibility for access to classified information inaccordance with Executive Order 12968 of August 2, 1995;

(vi) shall ensure reciprocal recognition of eligibility for access toclassified information among the agencies, including acting as the finalauthority to arbitrate and resolve disputes among the agencies involvingthe reciprocity of investigations and

determinations of eligibility for access to classified information oreligibility to hold a sensitive position; and

(vii) may assign, in whole or in part, to the head of any agency (solelyor jointly) any of the functions detailed in (i) through (vi), above, withthe agency's exercise of such assigned functions to be subject to theSecurity Executive Agent's oversight and with such terms and conditions(including approval by the Security Executive Agent) as the SecurityExecutive Agent determines appropriate.

(d) Nothing in this order shall be construed in a manner that would limitthe authorities of the Director of the Office of Personnel Management orthe Director of National Intelligence under law.

Sec. 2.4. Additional Functions. (a) The duties assigned to the SecurityPolicy Board by Executive Order 12968 of August 2, 1995, to consider,coordinate, and recommend policy directives for executive branch securitypolicies, procedures, and practices are reassigned to the SecurityExecutive Agent.

(b) Heads of agencies shall:

(i) carry out any function assigned to the agency head by the Chair, andshall assist the Chair, the Council, the Suitability Executive Agent, andthe Security Executive Agent in carrying out any function under sections2.2 and 2.3 of this order;

(ii) implement any policy or procedure developed pursuant to this order;

(iii) to the extent permitted by law, make available to the PerformanceAccountability Council, theSuitability Executive Agent, or the Security Executive Agent suchinformation as may be requested to implement this order;

(iv) ensure that all actions taken under this order take account of thecounterintelligence interests of the United States, as appropriate; and

(v) ensure that actions taken under this order are consistent with thePresident's constitutional authority to:

(A) conduct the foreign affairs of the United States;

(B) withhold information the disclosure of which could impair the foreignrelations, the national security, the deliberative processes of theExecutive, or the performance of the Executive's constitutional duties;

(C) recommend for congressional consideration such measures as thePresident may judge necessary or expedient; and

(D) supervise the unitary executive branch.

PART 3 -- MISCELLANEOUS

Sec. 3. General Provisions. (a) Executive Order 13381 of June 27, 2005,as amended, is revoked. Nothing in this order shall:

(i) supersede, impede, or otherwise affect:

(A) Executive Order 10450 of April 27, 1953, as amended;

(B) Executive Order 10577 of November 23, 1954, as amended;

(C) Executive Order 12333 of December 4, 1981, as amended;

(D) Executive Order 12829 of January 6, 1993, as amended; or

(E) Executive Order 12958 of April 17, 1995, as amended; nor

(ii) diminish or otherwise affect the denial and revocation proceduresprovided to individuals covered by Executive Order 10865 of February 20,1960, as amended.

(b) Executive Order 12968 of August 2, 1995 is amended:

(i) by inserting: "Sec. 3.5. Continuous Evaluation. An individual whohas been determined to be eligible for or who currently has access toclassified information shall be subject to continuous evaluation understandards (including, but not limited to, the frequency of such evaluation)as determined by the Director of National Intelligence."; and

(ii) by striking "the Security Policy Board shall make recommendations tothe President through the Assistant to the President for National SecurityAffairs" in section 6.3(a) and inserting in lieu thereof "the Director ofNational Intelligence shall serve as the final authority";

(iii) by striking "Security Policy Board" and inserting in lieu thereof"Security Executive Agent" in each instance;

(iv) by striking "the Board" in section 1.1(j) and inserting in lieuthereof "the Security Executive Agent"; and

(v) by inserting "or appropriate automated procedures" in section 3.1(b)after "by appropriately trained adjudicative personnel".

(c) Nothing in this order shall supersede, impede, or otherwise affect theremainder of Executive Order 12968 of August 2, 1995, as amended.

(d) Executive Order 12171 of November 19, 1979, as amended, is furtheramended by striking "The Center for Federal Investigative Services" insection 1-216 and inserting in lieu thereof "The Federal InvestigativeServices Division."

(e) Nothing in this order shall be construed to impair or otherwise affectthe:

(i) authority granted by law to a department or agency, or the headthereof; or

(ii) functions of the Director of the Office of Management and Budgetrelating to budget, administrative, or legislative proposals.

(f) This order shall be implemented consistent with applicable law andsubject to the availability of appropriations.

(g) Existing delegations of authority made pursuant to Executive Order13381 of June 27, 2005, as amended, to any agency relating to grantingeligibility for access to classified information and conductinginvestigations shall remain in effect, subject to the exercise of authorities pursuant to thisorder to revise or revoke such delegation.

(h) If any provision of this order or the application of such provision isheld to be invalid, the remainder of this order shall not be affected.

(i) This order is intended only to improve the internal management of theexecutive branch and is not intended to, and does not, create any right orbenefit, substantive or procedural, enforceable at law or in equity, by anyparty against the United States, its agencies, instrumentalities, orentities, its officers or employees, or any other person.

GEORGE W. BUSH