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Title II — Department of Homeland Security Clearance Process Reforms

H.R. 5240 · 113th Congress · Jul 29, 2014 · Lineage

II Department of Homeland Security Clearance Process Reforms

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.

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.

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.

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.

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.”.