§ 3161. Procedures

§ 3161. Procedures

(a) Not later than 180 days after October 14, 1994, the President shall, by Executive order or regulation, establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government. Such procedures shall, at a minimum—

(1) provide that, except as may be permitted by the President, no employee in the executive branch of Government may be given access to classified information by any department, agency, or office of the executive branch of Government unless, based upon an appropriate background investigation, such access is determined to be clearly consistent with the national security interests of the United States;

(2) establish uniform minimum requirements governing the scope and frequency of background investigations and reinvestigations for all employees in the executive branch of Government who require access to classified information as part of their official responsibilities;

(3) provide that all employees in the executive branch of Government who require access to classified information shall be required as a condition of such access to provide to the employing department or agency written consent which permits access by an authorized investigative agency to relevant financial records, other financial information, consumer reports, travel records, and computers used in the performance of Government duties, as determined by the President, in accordance with section 3162 of this title, during the period of access to classified information and for a period of three years thereafter;

(4) provide that all employees in the executive branch of Government who require access to particularly sensitive classified information, as determined by the President, shall be required, as a condition of maintaining access to such information, to submit to the employing department or agency, during the period of such access, relevant information concerning their financial condition and foreign travel, as determined by the President, as may be necessary to ensure appropriate security; and

(5) establish uniform minimum standards to ensure that employees in the executive branch of Government whose access to classified information is being denied or terminated under this subchapter are appropriately advised of the reasons for such denial or termination and are provided an adequate opportunity to respond to all adverse information which forms the basis for such denial or termination before final action by the department or agency concerned.

(b)

(1) Subsection (a) shall not be deemed to limit or affect the responsibility and power of an agency head pursuant to other law or Executive order to deny or terminate access to classified information if the national security so requires. Such responsibility and power may be exercised only when the agency head determines that the procedures prescribed by subsection (a) cannot be invoked in a manner that is consistent with the national security.

(2) Upon the exercise of such responsibility, the agency head shall submit a report to the congressional intelligence committees.

(July 26, 1947, ch. 343, title VIII, § 801, as added Pub. L. 103–359, title VIII, § 802(a), Oct. 14, 1994, 108 Stat. 3435; amended Pub. L. 106–120, title III, § 305(a), Dec. 3, 1999, 113 Stat. 1611; Pub. L. 107–306, title III, § 353(b)(2)(B), Nov. 27, 2002, 116 Stat. 2402.)

Editorial Notes

Codification

Section was formerly classified to section 435 of this title prior to editorial reclassification and renumbering as this section.

Amendments

2002—Subsec. (b)(2). Pub. L. 107–306 substituted “congressional intelligence committees” for “Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate”.

1999—Subsec. (a)(3). Pub. L. 106–120 substituted “travel records, and computers used in the performance of Government duties” for “and travel records”.

Statutory Notes and Related Subsidiaries

Effective Date of 1999 Amendment

Pub. L. 106–120, title III, § 305(c), Dec. 3, 1999, 113 Stat. 1612, provided that: “The President shall modify the procedures required by section 801(a)(3) of the National Security Act of 1947 [50 U.S.C. 3161(a)(3)] to take into account the amendment to that section made by subsection (a) of this section not later than 90 days after the date of the enactment of this Act [Dec. 3, 1999].”

Effective Date

Pub. L. 103–359, title VIII, § 802(c), Oct. 14, 1994, 108 Stat. 3438, provided that: “The amendments made by subsections (a) and (b) [enacting this subchapter] shall take effect 180 days after the date of enactment of this Act [Oct. 14, 1994].”

Intelligence Community-Wide Policy on Prepublication Review

Pub. L. 118–31, div. G, title III, § 7322, Dec. 22, 2023, 137 Stat. 1038, provided that: “Not later than 30 days after the date of the enactment of this Act [Dec. 22, 2023], the Director of National Intelligence shall issue, and submit to the congressional intelligence committees, the Committee on the Judiciary, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate, and the Committee on the Judiciary, the Committee on Oversight and Accountability, and the Committee on Appropriations of the House of Representatives, an intelligence community-wide policy regarding prepublication review.”

[For definitions of “intelligence community” and “congressional intelligence committees” as used in section 7322 of Pub. L. 118–31, set out above, see section 7002 of Pub. L. 118–31, set out as a note under section 3003 of this title.]

Declassification of Information Related to the Origin of COVID–19

Pub. L. 118–2, Mar. 20, 2023, 137 Stat. 4, provided that: “SECTION 1. SHORT TITLE.“This Act may be cited as the ‘COVID–19 Origin Act of 2023’. “SEC. 2. SENSE OF CONGRESS.“It is the sense of Congress that—“(1) identifying the origin of Coronavirus Disease 2019 (COVID–19) is critical for preventing a similar pandemic from occurring in the future; “(2) there is reason to believe the COVID–19 pandemic may have originated at the Wuhan Institute of Virology; and “(3) the Director of National Intelligence should declassify and make available to the public as much information as possible about the origin of COVID–19 so the United States and like-minded countries can—“(A) identify the origin of COVID–19 as expeditiously as possible, and “(B) use that information to take all appropriate measures to prevent a similar pandemic from occurring again. “SEC. 3. DECLASSIFICATION OF INFORMATION RELATED TO THE ORIGIN OF COVID–19.“Not later than 90 days after the date of the enactment of this Act [Mar. 20, 2023], the Director of National Intelligence shall—“(1) declassify any and all information relating to potential links between the Wuhan Institute of Virology and the origin of the Coronavirus Disease 2019 (COVID–19), including—“(A) activities performed by the Wuhan Institute of Virology with or on behalf of the People’s Liberation Army; “(B) coronavirus research or other related activities performed at the Wuhan Institute of Virology prior to the outbreak of COVID–19; and “(C) researchers at the Wuhan Institute of Virology who fell ill in autumn 2019, including for any such researcher—“(i) the researcher’s name; “(ii) the researcher’s symptoms; “(iii) the date of the onset of the researcher’s symptoms; “(iv) the researcher’s role at the Wuhan Institute of Virology; “(v) whether the researcher was involved with or exposed to coronavirus research at the Wuhan Institute of Virology; “(vi) whether the researcher visited a hospital while they were ill; and “(vii) a description of any other actions taken by the researcher that may suggest they were experiencing a serious illness at the time; and “(2) submit to Congress an unclassified report that contains—“(A) all of the information described under paragraph (1); and “(B) only such redactions as the Director determines necessary to protect sources and methods.”

Director of National Intelligence Declassification Review of Information Relating to Terrorist Attacks of September 11, 2001

Pub. L. 117–103, div. X, title III, § 310, Mar. 15, 2022, 136 Stat. 972, provided that: “(a) Declassification Review Required.—Not later than 30 days after the date of the enactment of this Act [Mar. 15, 2022], the Director of National Intelligence shall, in coordination with the Director of the Federal Bureau of Investigation, the Director of the Central Intelligence Agency, and the heads of such other elements of the intelligence community as the Director of National Intelligence considers appropriate, commence a declassification review (which the Director of National Intelligence shall complete by not later than 120 days after the date of the enactment of this Act) to determine what, if any, additional information relating to the terrorist attacks of September 11, 2001, can be appropriately declassified and shared with the public. “(b) Information Covered.—The information reviewed under subsection (a) shall include the following:“(1) Information relating to the direction, facilitation, and other support provided to the individuals who carried out the terrorist attacks of September 11, 2001. “(2) Information from Operation Encore and the PENTTBOM investigation of the Federal Bureau of Investigation. “(c) Report.—Not later than 120 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to the congressional intelligence committees a report on the findings of the Director with respect to the declassification review conducted under subsection (a).”

[For definitions of “congressional intelligence committees” and “intelligence community” as used in section 310 of div. X of Pub. L. 117–103, set out above, see section 2 of div. X of Pub. L. 117–103, set out as a note under section 3003 of this title.]

Efficient Use of Sensitive Compartmented Information Facilities

Pub. L. 116–283, div. A, title XVI, § 1623, Jan. 1, 2021, 134 Stat. 4056, provided that: “Not later than 180 days after the date of the enactment of this Act [Jan. 1, 2021], the Director of National Intelligence, in consultation with the Secretary of Defense, shall issue revised guidance authorizing and directing departments and agencies of the Federal Government and appropriately cleared contractors of such departments and agencies to process, store, use, and discuss sensitive compartmented information at facilities previously approved to handle such information, without need for further approval by the department or agency or by the site. Such guidance shall apply to controlled access programs of the intelligence community and to special access programs of the Department of Defense.”

Trusted Information Provider Program for National Security Positions and Positions of Trust

Pub. L. 115–232, div. A, title IX, § 941, Aug. 13, 2018, 132 Stat. 1941, formerly set out as a note under this section, was transferred and is set out as a note under section 3352f of this title.

Review of Position Designations for Determining Appropriate Background Investigations

Pub. L. 115–173, §§ 2, 7, May 22, 2018, 132 Stat. 1291, 1293, provided that: “SEC. 2. DEFINITIONS.“In this Act [see Short Title of 2018 Amendment note set out under section 3001 of this title]—“(1) the term ‘Bureau’ means the National Background Investigations Bureau of the Office; “(2) the term ‘Director’ means the Director of National Intelligence acting as the Security Executive Agent; and “(3) the term ‘Office’ means the Office of Personnel Management acting as the Suitability and Credentialing Executive Agent. “SEC. 7. REVIEW AND UPDATE OF POSITION DESIGNATION GUIDANCE.“(a) Definitions.—In this section—“(1) the term ‘agency’ has the meaning given the term in Executive Order 13467 (73 Fed. Reg. 38103) [set out below], or any successor thereto; “(2) the term ‘appropriate congressional committees’ means—“(A) the Committee on Homeland Security and Governmental Affairs and the Select Committee on Intelligence of the Senate; and “(B) the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] and the Permanent Select Committee on Intelligence of the House of Representatives; “(3) the term ‘background investigation’ means any investigation required for the purpose of determining the—“(A) eligibility of a covered individual for logical and physical access to Federally controlled facilities or information systems; “(B) suitability or fitness of a covered individual for Federal employment; “(C) eligibility of a covered individual for access to classified information or to hold a national security sensitive position; or “(D) fitness of a covered individual to perform work for or on behalf of the United States Government as a contractor employee; and “(4) the term ‘covered individual’—“(A) means a person who performs work for or on behalf of the executive branch or seeks to perform work for or on behalf of the executive branch; “(B) is not limited to Federal employees; “(C) includes all persons, not excluded under subparagraph (D), who require eligibility for access to classified information or eligibility to hold a sensitive position, including, but not limited to, contractors, subcontractors, licensees, certificate holders, grantees, experts, consultants, and government employees; and “(D) does not include—“(i) the President; “(ii) employees of the President under section 105 or 107 of title 3, United States Code (except to the extent otherwise directed by the President); “(iii) the Vice President; or “(iv) employees of the Vice President under section 106 of title 3, United States Code, or an annual legislative branch appropriations Act (except to the extent otherwise directed by the Vice President). “(b) Review and Updating.—“(1) Initial review and update of guidance.—Not later than 180 days after the date of enactment of this Act [May 22, 2018], the Director and the Director of the Office shall review and make recommendations to Congress and the President as appropriate to issue guidance to assist agencies in determining—“(A) position sensitivity designation; and “(B) the appropriate background investigation to initiate for each position designation. “(2) Reviews and revisions of position designations.—Not less frequently than every 4 years, the President, acting through relevant agencies (as determined by the President) and in accordance with the guidance described in paragraph (1), shall review and, if necessary, revise the position designation of positions within agencies. “(c) Reports to Congress.—Not later than 30 days after completing a review under subsection (b)(2), the President shall submit to the appropriate congressional committees a report on—“(1) any issues identified in the review; and “(2) the number of position designations revised as a result of the review. “(d) No Change in Authority.—Nothing in this section limits or expands the authority of any agency to designate a position as sensitive or as requiring its occupant to have access to classified information.”

Classification Review of Executive Branch Materials in the Possession of the Congressional Intelligence Committees

Pub. L. 111–259, title VII, § 702, Oct. 7, 2010, 124 Stat. 2745, provided that: “The Director of National Intelligence is authorized to conduct, at the request of one of the congressional intelligence committees and in accordance with procedures established by that committee, a classification review of materials in the possession of that committee that— “(1) are not less than 25 years old; and “(2) were created, or provided to that committee, by an entity in the executive branch.”

[For definition of “congressional intelligence committees” as used in section 702 of Pub. L. 111–259, set out above, see section 2 of Pub. L. 111–259, set out as a note under section 3003 of this title.]

Promotion of Accurate Classification of Information