§ 3161. Procedures

(4) particularly sensitive special access programs, the disclosure of which would substantially negate or impair the effectiveness of the information or activity involved; or

(5) especially sensitive nuclear weapons design information (but only for those positions that have been certified as being of a high degree of importance or sensitivity, as described in section 145(f) of the Atomic Energy Act of 1954, as amended [42 U.S.C. 2165(f)]).

(b) An employee may not be granted access, or hold a position designated as requiring access, to information described in subsection (a) unless, as a condition of access to such information, the employee:

(1) files with the head of the agency a financial disclosure report, including information with respect to the spouse and dependent children of the employee, as part of all background investigations or reinvestigations;

(2) is subject to annual financial disclosure requirements, if selected by the agency head; and

(3) files relevant information concerning foreign travel, as determined by the Security Executive Agent.

(c) Not later than 180 days after the effective date of this order, the Security Executive Agent shall develop procedures for the implementation of this section, including a standard financial disclosure form for use by employees under subsection (b) of this section, and agency heads shall identify certain employees, by position or category, who are subject to annual financial disclosure.

Sec. 1.4. Use of Automated Financial Record Data Bases. As part of all investigations and reinvestigations described in section 1.2(d) of this order, agencies may request the Department of the Treasury, under terms and conditions prescribed by the Secretary of the Treasury, to search automated data bases consisting of reports of currency transactions by financial institutions, international transportation of currency or monetary instruments, foreign bank and financial accounts, transactions under $10,000 that are reported as possible money laundering violations, and records of foreign travel.

Sec. 1.5. Employee Education and Assistance. The head of each agency that grants access to classified information shall establish a program for employees with access to classified information to: (a) educate employees about individual responsibilities under this order; and

(b) inform employees about guidance and assistance available concerning issues that may affect their eligibility for access to classified information, including sources of assistance for employees who have questions or concerns about financial matters, mental health, or substance abuse.

PART 2—ACCESS ELIGIBILITY POLICY AND PROCEDURE

Sec. 2.1. Eligibility Determinations. (a) Determinations of eligibility for access to classified information shall be based on criteria established under this order. Such determinations are separate from suitability determinations with respect to the hiring or retention of persons for employment by the government or any other personnel actions.

(b) The number of employees that each agency determines are eligible for access to classified information shall be kept to the minimum required for the conduct of agency functions.

(1) Eligibility for access to classified information shall not be requested or granted solely to permit entry to, or ease of movement within, controlled areas when the employee has no need for access and access to classified information may reasonably be prevented. Where circumstances indicate employees may be inadvertently exposed to classified information in the course of their duties, agencies are authorized to grant or deny, in their discretion, facility access approvals to such employees based on an appropriate level of investigation as determined by each agency.

(2) Except in agencies where eligibility for access is a mandatory condition of employment, eligibility for access to classified information shall only be requested or granted based on a demonstrated, foreseeable need for access. Requesting or approving eligibility in excess of actual requirements is prohibited.

(3) Eligibility for access to classified information may be granted where there is a temporary need for access, such as one-time participation in a classified project, provided the investigative standards established under this order have been satisfied. In such cases, a fixed date or event for expiration shall be identified and access to classified information shall be limited to information related to the particular project or assignment.

(4) Access to classified information shall be terminated when an employee no longer has a need for access.

Sec. 2.2. Level of Access Approval. (a) The level at which an access approval is granted for an employee shall be limited, and relate directly, to the level of classified information for which there is a need for access. Eligibility for access to a higher level of classified information includes eligibility for access to information classified at a lower level.

(b) Access to classified information relating to a special access program shall be granted in accordance with procedures established by the head of the agency that created the program or, for programs pertaining to intelligence activities (including special activities but not including military operational, strategic, and tactical programs) or intelligence sources and methods, by the Director of Central Intelligence. To the extent possible and consistent with the national security interests of the United States, such procedures shall be consistent with the standards and procedures established by and under this order.

Sec. 2.3. Temporary Access to Higher Levels. (a) An employee who has been determined to be eligible for access to classified information based on favorable adjudication of a completed investigation may be granted temporary access to a higher level where security personnel authorized by the agency head to make access eligibility determinations find that such access:

(1) is necessary to meet operational or contractual exigencies not expected to be of a recurring nature;

(2) will not exceed 180 days; and

(3) is limited to specific, identifiable information that is made the subject of a written access record.

(b) Where the access granted under subsection (a) of this section involves another agency’s classified information, that agency must concur before access to its information is granted.

Sec. 2.4. Reciprocal Acceptance of Access Eligibility Determinations. (a) Except when an agency has substantial information indicating that an employee may not satisfy the standards in section 3.1 of this order, background investigations and eligibility determinations conducted under this order shall be mutually and reciprocally accepted by all agencies.

(b) Except where there is substantial information indicating that the employee may not satisfy the standards in section 3.1 of this order, an employee with existing access to a special access program shall not be denied eligibility for access to another special access program at the same sensitivity level as determined personally by the agency head or deputy agency head, or have an existing access eligibility readjudicated, so long as the employee has a need for access to the information involved.

(c) This section shall not preclude agency heads from establishing additional, but not duplicative, investigative or adjudicative procedures for a special access program or for candidates for detail or assignment to their agencies, where such procedures are required in exceptional circumstances to protect the national security.

(d) Where temporary eligibility for access is granted under sections 2.3 or 3.3 of this order or where the determination of eligibility for access is conditional, the fact of such temporary or conditional access shall be conveyed to any other agency that considers affording the employee access to its information.

Sec. 2.5. Specific Access Requirement. (a) Employees who have been determined to be eligible for access to classified information shall be given access to classified information only where there is a need-to-know that information.

(b) It is the responsibility of employees who are authorized holders of classified information to verify that a prospective recipient’s eligibility for access has been granted by an authorized agency official and to ensure that a need-to-know exists prior to allowing such access, and to challenge requests for access that do not appear well-founded.

Sec. 2.6. Access by Non-United States Citizens. (a) Where there are compelling reasons in furtherance of an agency mission, immigrant alien and foreign national employees who possess a special expertise may, in the discretion of the agency, be granted limited access to classified information only for specific programs, projects, contracts, licenses, certificates, or grants for which there is a need for access. Such individuals shall not be eligible for access to any greater level of classified information than the United States Government has determined may be releasable to the country of which the subject is currently a citizen, and such limited access may be approved only if the prior 10 years of the subject’s life can be appropriately investigated. If there are any doubts concerning granting access, additional lawful investigative procedures shall be fully pursued.

(b) Exceptions to these requirements may be permitted only by the agency head or the senior agency official designated under section 6.1 of this order to further substantial national security interests.

PART 3—ACCESS ELIGIBILITY STANDARDS

Sec. 3.1. Standards. (a) No employee shall be deemed to be eligible for access to classified information merely by reason of Federal service or contracting, licensee, certificate holder, or grantee status, or as a matter of right or privilege, or as a result of any particular title, rank, position, or affiliation.

(b) Except as provided in sections 2.6 and 3.3 of this order, eligibility for access to classified information shall be granted only to employees who are United States citizens for whom an appropriate investigation has been completed and whose personal and professional history affirmatively indicates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information. A determination of eligibility for access to such information is a discretionary security decision based on judgments by appropriately trained adjudicative personnel or appropriate automated procedures. Eligibility shall be granted only where facts and circumstances indicate access to classified information is clearly consistent with the national security interests of the United States, and any doubt shall be resolved in favor of the national security.

(c) The United States Government does not discriminate on the basis of race, color, religion, sex, national origin, disability, or sexual orientation in granting access to classified information.

(d) In determining eligibility for access under this order, agencies may investigate and consider any matter that relates to the determination of whether access is clearly consistent with the interests of national security. No inference concerning the standards in this section may be raised solely on the basis of the sexual orientation of the employee.

(e) No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling. Such counseling can be a positive factor in eligibility determinations. However, mental health counseling, where relevant to the adjudication of access to classified information, may justify further inquiry to determine whether the standards of subsection (b) of this section are satisfied, and mental health may be considered where it directly relates to those standards.

(f) Not later than 180 days after the effective date of this order, the Security Executive Agent shall develop a common set of adjudicative guidelines for determining eligibility for access to classified information, including access to special access programs.

Sec. 3.2. Basis for Eligibility Approval. (a) Eligibility determinations for access to classified information shall be based on information concerning the applicant or employee that is acquired through the investigation conducted pursuant to this order or otherwise available to security officials and shall be made part of the applicant’s or employee’s security record. Applicants or employees shall be required to provide relevant information pertaining to their background and character for use in investigating and adjudicating their eligibility for access.

(b) Not later than 180 days after the effective date of this order, the Security Executive Agent shall develop a common set of investigative standards for background investigations for access to classified information. These standards may vary for the various levels of access.

(c) Nothing in this order shall prohibit an agency from utilizing any lawful investigative procedure in addition to the investigative requirements set forth in this order and its implementing regulations to resolve issues that may arise during the course of a background investigation or reinvestigation.

Sec. 3.3. Special Circumstances. (a) In exceptional circumstances where official functions must be performed prior to the completion of the investigative and adjudication process, temporary eligibility for access to classified information may be granted to an employee while the initial investigation is underway. When such eligibility is granted, the initial investigation shall be expedited.

(1) Temporary eligibility for access under this section shall include a justification, and the employee must be notified in writing that further access is expressly conditioned on the favorable completion of the investigation and issuance of an access eligibility approval. Access will be immediately terminated, along with any assignment requiring an access eligibility approval, if such approval is not granted.

(2) Temporary eligibility for access may be granted only by security personnel authorized by the agency head to make access eligibility determinations and shall be based on minimum investigative standards developed by the Security Executive Agent not later than 180 days after the effective date of this order.

(3) Temporary eligibility for access may be granted only to particular, identified categories of classified information necessary to perform the lawful and authorized functions that are the basis for the granting of temporary access.

(b) Nothing in subsection (a) shall be construed as altering the authority of an agency head to waive requirements for granting access to classified information pursuant to statutory authority.

(c) Where access has been terminated under section 2.1(b)(4) of this order and a new need for access arises, access eligibility up to the same level shall be reapproved without further investigation as to employees who were determined to be eligible based on a favorable adjudication of an investigation completed within the prior 5 years, provided they have remained employed by the same employer during the period in question, the employee certifies in writing that there has been no change in the relevant information provided by the employee for the last background investigation, and there is no information that would tend to indicate the employee may no longer satisfy the standards established by this order for access to classified information.

(d) Access eligibility shall be reapproved for individuals who were determined to be eligible based on a favorable adjudication of an investigation completed within the prior 5 years and who have been retired or otherwise separated from United States Government employment for not more than 2 years; provided there is no indication the individual may no longer satisfy the standards of this order, the individual certifies in writing that there has been no change in the relevant information provided by the individual for the last background investigation, and an appropriate record check reveals no unfavorable information.

Sec. 3.4. Reinvestigation Requirements. (a) Because circumstances and characteristics may change dramatically over time and thereby alter the eligibility of employees for continued access to classified information, reinvestigations shall be conducted with the same priority and care as initial investigations.

(b) Employees who are eligible for access to classified information shall be the subject of periodic reinvestigations and may also be reinvestigated if, at any time, there is reason to believe that they may no longer meet the standards for access established in this order.

(c) Not later than 180 days after the effective date of this order, the Security Executive Agent shall develop a common set of reinvestigative standards, including the frequency of reinvestigations.

Sec. 3.5. Continuous Evaluation. An individual who has been determined to be eligible for or who currently has access to classified information shall be subject to continuous evaluation as further defined by and under standards (including, but not limited to, the frequency of such evaluation) as determined by the Director of National Intelligence.

PART 4—INVESTIGATIONS FOR FOREIGN GOVERNMENTS

Sec. 4. Authority. Agencies that conduct background investigations, including the Federal Bureau of Investigation and the Department of State, are authorized to conduct personnel security investigations in the United States when requested by a foreign government as part of its own personnel security program and with the consent of the individual.

PART 5—REVIEW OF ACCESS DETERMINATIONS

Sec. 5.1. Determinations of Need for Access. A determination under section 2.1(b)(4) of this order that an employee does not have, or no longer has, a need for access is a discretionary determination and shall be conclusive.

Sec. 5.2. Review Proceedings for Denials or Revocations of Eligibility for Access. (a) Applicants and employees who are determined to not meet the standards for access to classified information established in section 3.1 of this order shall be:

(1) provided as comprehensive and detailed a written explanation of the basis for that conclusion as the national security interests of the United States and other applicable law permit;

(2) provided within 30 days, upon request and to the extent the documents would be provided if requested under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a), as applicable, any documents, records, and reports upon which a denial or revocation is based;

(3) informed of their right to be represented by counsel or other representative at their own expense; to request any documents, records, and reports as described in section 5.2(a)(2) upon which a denial or revocation is based; and to request the entire investigative file, as permitted by the national security and other applicable law, which, if requested, shall be promptly provided prior to the time set for a written reply;

(4) provided a reasonable opportunity to reply in writing to, and to request a review of, the determination;

(5) provided written notice of and reasons for the results of the review, the identity of the deciding authority, and written notice of the right to appeal;

(6) provided an opportunity to appeal in writing to a high level panel, appointed by the agency head, which shall be comprised of at least three members, two of whom shall be selected from outside the security field. Decisions of the panel shall be in writing, and final except as provided in subsection (b) of this section; and

(7) provided an opportunity to appear personally and to present relevant documents, materials, and information at some point in the process before an adjudicative or other authority, other than the investigating entity, as determined by the agency head. A written summary or recording of such appearance shall be made part of the applicant’s or employee’s security record, unless such appearance occurs in the presence of the appeals panel described in subsection (a)(6) of this section.

(b) Nothing in this section shall prohibit an agency head from personally exercising the appeal authority in subsection (a)(6) of this section based upon recommendations from an appeals panel. In such case, the decision of the agency head shall be final.

(c) Agency heads shall promulgate regulations to implement this section and, at their sole discretion and as resources and national security considerations permit, may provide additional review proceedings beyond those required by subsection (a) of this section. This section does not require additional proceedings, however, and creates no procedural or substantive rights.

(d) When the head of an agency or principal deputy personally certifies that a procedure set forth in this section cannot be made available in a particular case without damaging the national security interests of the United States by revealing classified information, the particular procedure shall not be made available. This certification shall be conclusive.

(e) This section shall not be deemed to limit or affect the responsibility and power of an agency head pursuant to any law or other Executive order to deny or terminate access to classified information in the interests of national security. The power and responsibility to deny or terminate access to classified information pursuant to any law or other Executive order may be exercised only where the agency head determines that the procedures prescribed in subsection (a) of this section cannot be invoked in a manner that is consistent with national security. This determination shall be conclusive.

(f)(1) This section shall not be deemed to limit or affect the responsibility and power of an agency head to make determinations of suitability for employment.

(2) Nothing in this section shall require that an agency provide the procedures prescribed in subsection (a) of this section to an applicant where a conditional offer of employment is withdrawn for reasons of suitability or any other reason other than denial of eligibility for access to classified information.

(3) A suitability determination shall not be used for the purpose of denying an applicant or employee the review proceedings of this section where there has been a denial or revocation of eligibility for access to classified information.

PART 6—IMPLEMENTATION

Sec. 6.1. Agency Implementing Responsibilities. Heads of agencies that grant employees access to classified information shall: (a) designate a senior agency official to direct and administer the agency’s personnel security program established by this order. All such programs shall include active oversight and continuing security education and awareness programs to ensure effective implementation of this order;

(b) cooperate, under the guidance of the Security Executive Agent, with other agencies to achieve practical, consistent, and effective adjudicative training and guidelines; and

(c) conduct periodic evaluations of the agency’s implementation and administration of this order, including the implementation of section 1.3(a) of this order. Copies of each report shall be provided to the Security Executive Agent.

Sec. 6.2. Employee Responsibilities. (a) Employees who are granted eligibility for access to classified information shall:

(1) protect classified information in their custody from unauthorized disclosure;

(2) report all contacts with persons, including foreign nationals, who seek in any way to obtain unauthorized access to classified information;

(3) report all violations of security regulations to the appropriate security officials; and

(4) comply with all other security requirements set forth in this order and its implementing regulations.

(b) Employees are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security.

Sec. 6.3. Security Executive Agent Responsibilities and Implementation. (a) With respect to actions taken by the Security Executive Agent pursuant to sections 1.3(c), 3.1(f), 3.2(b), 3.3(a)(2), and 3.4(c) of this order, the Director of National Intelligence shall serve as the final authority for implementation.

(b) Any guidelines, standards, or procedures developed by the Security Executive Agent pursuant to this order shall be consistent with those guidelines issued by the Federal Bureau of Investigation in March 1994 on Background Investigations Policy/Guidelines Regarding Sexual Orientation.

(c) In carrying out its responsibilities under this order, the Security Executive Agent shall consult where appropriate with the Overseas Security Executive Agent. In carrying out its responsibilities under section 1.3(c) of this order, the Security Executive Agent shall obtain the concurrence of the Director of the Office of Management and Budget.

Sec. 6.4. Sanctions. Employees shall be subject to appropriate sanctions if they knowingly and willfully grant eligibility for, or allow access to, classified information in violation of this order or its implementing regulations. Sanctions may include reprimand, suspension without pay, removal, and other actions in accordance with applicable law and agency regulations.

PART 7—GENERAL PROVISIONS

Sec. 7.1. Classified Information Procedures Act. Nothing in this order is intended to alter the procedures established under the Classified Information Procedures Act (18 U.S.C. App.).

Sec. 7.2. General. (a) Information obtained by an agency under sections 1.2(e) or 1.3 of this order may not be disseminated outside the agency, except to:

(1) the agency employing the employee who is the subject of the records or information;

(2) the Department of Justice for law enforcement or counterintelligence purposes; or

(3) any agency if such information is clearly relevant to the authorized responsibilities of such agency.

(b) The Attorney General, at the request of the head of an agency, shall render an interpretation of this order with respect to any question arising in the course of its administration.

(c) No prior Executive orders are repealed by this order. To the extent that this order is inconsistent with any provision of any prior Executive order, this order shall control, except that this order shall not diminish or otherwise affect the requirements of Executive Order No. 10450 [5 U.S.C. 7311 note], the denial and revocation procedures provided to individuals covered by Executive Order No. 10865, as amended [set out above], or access by historical researchers and former presidential appointees under Executive Order No. 12958 [formerly set out above] or any successor order.

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

(e) This Executive order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

(f) This order is effective immediately.

Ex. Ord. No. 13467. Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information

Ex. Ord. No. 13467, June 30, 2008, 73 F.R. 38103, as amended by Ex. Ord. No. 13741, § 1, Sept. 29, 2016, 81 F.R. 68289; Ex. Ord. No. 13764, § 3, Jan. 17, 2017, 82 F.R. 8117; Ex. Ord. No. 13869, § 2, Apr. 24, 2019, 84 F.R. 18125, provided:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301, 7103(b), and 7301 of title 5, United States Code, and in order to strengthen and ensure a secure, efficient, timely, reciprocal, and aligned system for investigating and determining suitability or fitness for Government employment, fitness to work as a contractor or a nonappropriated fund employee, eligibility for access to classified information or to hold a sensitive position, and authorization to be issued a Federal credential, while providing fair, impartial, and equitable treatment, and protecting individual rights under the Constitution and laws of the United States, and taking appropriate account of title III of Public Law 108–458, it is hereby ordered as follows:

PART 1—POLICY, APPLICABILITY, AND DEFINITIONS

Section 1.1. Policy. (a) Executive branch vetting policies and procedures relating to suitability, contractor or Federal employee fitness, eligibility to hold a sensitive position, authorization to be issued a Federal credential for access to federally controlled facilities and information systems, and eligibility for access to classified information shall be aligned using consistent standards to the extent possible, shall provide for reciprocal recognition, and shall ensure cost-effective, timely, and efficient protection of the national interest, while providing fair treatment to those upon whom the Federal Government relies to conduct our Nation’s business and protect national security.

(b) The Government’s tools, systems, and processes for conducting these background investigations and managing sensitive investigative information should keep pace with technological advancements, regularly integrating current best practices to better anticipate, detect, and counter malicious activities, and threats posed by external or internal actors who may seek to do harm to the Government’s personnel, property, and information. To help fulfill these responsibilities, there shall be a primary executive branch investigative service provider whose mission is to provide effective, efficient, and secure background investigations for the Federal Government.

(c) Executive branch vetting policies and procedures shall be sustained by an enhanced risk-management approach that facilitates early detection of issues by an informed, aware, and responsible Federal workforce; results in quality decisions enabled by improved vetting capabilities; and advances Government-wide capabilities through enterprise approaches.

(d) The appointment or retention of each covered individual shall be subject to an investigation. Federal investigative standards established pursuant to this order shall be designed to develop information as to whether the employment or retention in employment in the Federal service of the person being investigated is clearly consistent with the interests of the national security, and the scope of the investigation shall be determined in the first instance according to the degree of material adverse effect the occupant of the position sought to be filled could bring about, by virtue of the nature of the position, on the national security.” [sic]

(e) Investigative agencies shall control the reports, information, and other investigative materials that are developed during the vetting process. Recipient departments and agencies may retain and use the received reports, information, and other investigative material within that recipient for authorized purposes (including, but not limited to, adjudications, hearings and appeals, continuous evaluation, inspector general functions, counterintelligence, research, and insider threat programs), in compliance with the Privacy Act of 1974, as amended (section 552a of title 5, United States Code). Investigative agencies shall ensure that their applicable System of Records Notices include, at a minimum, the authorized uses of the recipient departments and agencies such as those set forth above. Recipient departments and agencies shall not make any external releases of received information, other than to an investigative subject for the purpose of providing procedural rights or administrative due process; and shall direct any other requests for external releases of copies of the reports, information, and other investigative materials to the investigative agency. In the event redisclosure by the recipient agency is required by compulsory legal process, the recipient agency shall consult with the investigating agency. The investigative agency shall maintain the reports, information, and other investigative material in a system of records subject to the Privacy Act and ensure that any re-disclosure does not violate statutory restrictions or result in the unauthorized disclosure of: classified information, information subject to a claim of privilege, or information that is otherwise lawfully exempt from disclosure. Subject to Security Executive Agent authorizations consistent with section 3341(e)(5) of title 50, United States Code, the investigative agencies shall make reports, information, and other investigative material available, as necessary, to carry out the responsibilities set forth in this order, including but not limited to, authorized executive branch-sponsored research and initiatives for enterprise-wide continuous performance improvement of vetting policy and procedures, as permitted by law.

Sec. 1.2. Applicability. (a) This order applies to vetting of all covered individuals as defined in section 1.3(h), except that:

(i) the provisions regarding eligibility for physical access to federally controlled facilities and logical access to federally controlled information systems do not apply to individuals exempted in accordance with guidance pursuant to the Federal Information Security Management Act (title III of Public Law 107–347) and Homeland Security Presidential Directive 12 of August 27, 2004; and

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

(b) This order also applies to vetting for employees of agencies working in or for the legislative or judicial branches when the vetting is 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 background investigation, as well as any other available information that is relevant and 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 a Federal employee, contractor, or nonappropriated fund employee.

(b) “Agency” means any “Executive agency” as defined in section 105 of title 5, United States Code, including the “military departments,” as defined in section 102 of title 5, United States Code, and any other entity within the executive branch that comes into possession of classified information or has designated positions as sensitive, except such an entity headed by an officer who is not a covered individual.

(c) “Classified information” means information that has been determined pursuant to Executive Order 13526 of December 29, 2009, or a successor 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 (CE)” means a vetting process to review the background of an individual who has been determined to be eligible for access to classified information or to hold a sensitive position at any time during the period of eligibility. CE leverages a set of automated record checks and business rules to assist in the on-going assessment of an individual’s continued eligibility. CE is intended to complement continuous vetting efforts.

(e) “Continuous performance improvement” means assessing national policy and operations, adverse events, and emerging trends and technology throughout the Government’s end-to-end vetting program. It relies on research to generate data-driven decisions and uses outcome-based measurements to adjust policy and operations.

(f) “Continuous vetting” means reviewing the background of a covered individual at any time to determine whether that individual continues to meet applicable requirements.

(g) “Contractor” means an expert or consultant (not appointed under section 3109 of title 5, United States Code) to an agency; an industrial or commercial contractor, licensee, certificate holder, or grantee of any agency, including all subcontractors; a personal services contractor; or any other category of person who performs work for or on behalf of an agency (but not a Federal employee).

(h) “Covered individual” means a person who performs, or who seeks to perform, work for or on behalf of the executive branch (e.g., Federal employee, military member, or contractor), or otherwise interacts with the executive branch such that the individual must undergo vetting, but does not include:

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

(ii) the Vice President or (except to the extent otherwise directed by the Vice President) employees of the Vice President under section 106 of title 3, United States Code, or annual legislative branch appropriations acts; or

(iii) with respect to background investigations only, [the] duly elected or appointed governor of a State or territory, or an official who has succeeded to that office under applicable law in accordance with Executive Order 13549 of August 18, 2010, and its implementing directive.

(i) “End-to-end automation” means an executive branch-wide federated system that uses automation to manage and monitor cases and maintain relevant documentation of the application (but not an employment application), investigation, adjudication, and continuous evaluation processes.

(j) “Federally controlled facilities” and “federally controlled information systems” have the meanings prescribed in guidance pursuant to the Federal Information Security Management Act (title III of Public Law 107–347) and Homeland Security Presidential Directive 12.

(k) “Fitness” means the level of character and conduct determined necessary for an individual to perform work for or on behalf of a Federal agency as an employee in the excepted service (other than a position subject to suitability), or as a “contractor employee” or a “nonappropriated fund employee” as those terms are defined in Executive Order 13488 of January 16, 2009, as amended.

(l) “Investigation” means the collection and analysis of pertinent facts and data to support a determination of whether a covered individual is, and continues to be:

(i) eligible for access to classified information;

(ii) eligible to hold a sensitive position;

(iii) suitable or fit for Federal employment;

(iv) fit to perform work for or on behalf of the Federal Government as a contractor or nonappropriated fund employee; or

(v) authorized to be issued a Federal credential.

(m) “Logical and physical access” means access other than occasional or intermittent access to federally controlled facilities or information systems.

(n) “National Background Investigations Bureau” (NBIB) means the National Background Investigations Bureau, established within the Office of Personnel Management under section 1103(a)(3) of title 5, United States Code, or a successor entity, with responsibility for conducting effective, efficient, and secure personnel background investigations pursuant to law, rule, regulation, or Executive Order.

(o) “Sensitive Position” means any position within or in support of a department or agency, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security, regardless of whether the occupant has access to classified information, and regardless of whether the occupant is an employee, a military service member, or a contractor.

(p) “Suitability” has the meaning and coverage provided in 5 CFR Part 731.

(q) “Vetting” is the process by which covered individuals undergo investigation, evaluation, and adjudication of whether they are, and remain over time, suitable or fit for Federal employment, eligible to occupy a sensitive position, eligible for access to classified information, eligible to serve as a nonappropriated fund employee or a contractor, eligible to serve in the military, or authorized to be issued a Federal credential. Vetting includes all steps in the end-to-end process, including determining need (appropriate position designation), validating need (existence of a current investigation or adjudication), collecting background information via standard forms, investigative activity, adjudication, providing administrative due process or other procedural rights, and ongoing assessments to ensure that individuals continue to meet the applicable standards for the position for which they were favorably adjudicated.

PART 2—VETTING ENTERPRISE, RECIPROCITY, CONTINUOUS PERFORMANCE IMPROVEMENT, AND GOVERNANCE

Sec. 2.1. Vetting Enterprise. (a) The executive branch-wide vetting enterprise shall use, to the greatest extent practicable, aligned and consistent vetting policies, procedures, and standards, as determined by the Council and the Executive Agents. The Executive Agents shall issue guidance to implement this provision.

(b) The aligned executive branch-wide vetting enterprise shall employ modern and consistent standards and methods, enable innovations with enterprise information technology capabilities and end-to-end automation to the extent practicable, and ensure that relevant information maintained by agencies can be accessed and shared rapidly across the executive branch, while protecting national security, protecting privacy-related information, protecting civil rights and civil liberties, ensuring resulting decisions are in the national interest and in accordance with due process requirements, and providing the Federal Government with an effective trusted workforce.

(c) The investigative and adjudicative standards for fitness shall, to the extent practicable, be consistent with the standards for suitability. The Executive Agents shall establish in Federal investigative standards the elements of the level of investigation necessary for vetting for fitness.

(d) All covered individuals shall be subject to continuous vetting under standards (including, but not limited to, the frequency of such vetting) as determined by the Security Executive Agent or the Suitability and Credentialing Executive Agent exercising its Suitability Executive Agent functions, as applicable.

(e) Vetting shall include a search of records of the Federal Bureau of Investigation, including a fingerprint-based search, and any other appropriate biometric or database searches not precluded by law.

Sec. 2.2. Reciprocity. Except as otherwise authorized by law or policy issued by the applicable Executive Agent, agencies shall accept background investigations and adjudications conducted by other authorized agencies unless an agency determines that a particular background investigation or adjudication does not sufficiently address the standards used by that agency in determining the fitness of its excepted service employees who cannot be noncompetitively converted to the competitive service. Except as described above and except to the extent authority to apply additional requirements is vested by statute in an agency, an agency may not establish additional investigative or adjudicative requirements (other than requirements for the conduct of a polygraph examination consistent with law, directive, or regulation) that exceed existing requirements without the approval of the Suitability and Credentialing Executive Agent exercising its Suitability Executive Agent functions or Security Executive Agent, as appropriate. Any additional requirements approved by the appropriate Executive Agent shall be limited to those that are necessary to address significant needs unique to the agency involved, to protect national security, or to satisfy a requirement imposed by law.

Sec. 2.3. Continuous Performance Improvement. Executive branch vetting policies, processes, and procedures shall be supported by institutionalized enterprise-wide continuous performance improvement, which shall align with and support process improvements.

Sec. 2.4. Establishment and Functions of Performance Accountability Council. (a) There is hereby established a Security, Suitability, and Credentialing 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 shall include the Suitability and Credentialing Executive Agent, the Security Executive Agent, and the Under Secretary of Defense for Intelligence [now Under Secretary of Defense for Intelligence and Security]. These four officials collectively shall constitute “the Security, Suitability, and Credentialing Performance Accountability Council Principals.” The Director of the Defense Counterintelligence and Security Agency shall also serve as a member of the Council. The Chair shall select a Vice Chair to act in the Chair’s absence. The Chair shall have authority to designate officials from additional agencies who shall serve as members of the Council. Council membership shall be limited to Federal Government employees in leadership positions.

(c) The Council shall be accountable to the President to achieve, consistent with this order, the goals of the executive branch vetting enterprise, and is responsible for driving implementation of reform efforts and enterprise development, ensuring accountability by agencies, ensuring the Executive Agents align their respective processes, and sustaining continuous performance improvement and reform momentum.

(d) The Council shall:

(i) ensure enterprise-wide alignment of suitability, security, credentialing, and as appropriate, fitness processes;

(ii) hold agencies accountable for the implementation of suitability, security, fitness, and credentialing processes and procedures;

(iii) define requirements for enterprise-wide reciprocity management information technology, and develop standards for enterprise-wide information technology;

(iv) work with agencies to implement continuous performance improvement programs, policies, and procedures; establish annual goals and progress metrics; and prepare annual reports on results;

(v) ensure and oversee the development of tools and techniques for enhancing background investigations and adjudications;

(vi) enable discussion and consensus resolution of differences in processes, policies, and procedures among the Council Principals, and other agencies as appropriate;

(vii) share best practices;

(viii) advise the Executive Agents on policies affecting the alignment of investigations and adjudications;

(ix) work with agencies to develop agency policies and procedures to enable sharing of vetting information consistent with the law and the protection of privacy and civil liberties and to the extent necessary for enterprise-wide efficiency, effectiveness, and security;

(x) monitor performance to identify and drive enterprise-level process enhancements, and make recommendations for changes to executive branch-wide guidance and authorities to resolve overlaps or close policy gaps where they may exist;

(xi) promote data-driven, transparent, and expeditious policy-making processes; and

(xii) develop and continuously reevaluate and revise outcome-based metrics that measure the quality, efficiency and effectiveness of the vetting enterprise.

(e) The Chair shall, to further the goals of the vetting enterprise and to the extent consistent with law, establish subordinate entities, mechanisms, and policies to support and assist in exercising the Council’s authorities and responsibilities, and facilitate, consistent with the executive branch’s enterprise strategy, adoption of enterprise-wide standards and solutions to ensure security, quality, reciprocity, efficiency, effectiveness, and timeliness. The Chair may assign, in whole or in part, to the head of any agency (solely or jointly) any function within the Council’s authority or responsibilities pursuant to this order.

Sec. 2.5. Establishment, Designation, and Functions of Executive Agents. (a) There are hereby established a Suitability and Credentialing Executive Agent and a Security Executive Agent.

(b) The Director of the Office of Personnel Management shall serve as the Suitability and Credentialing Executive Agent. With respect to the Suitability Executive Agent functions, the Director:

(i) shall, pursuant to sections 1103 and 1104 of title 5, United States Code, and the Civil Service Rules, be responsible for suitability and fitness by prescribing suitability standards and minimum standards of fitness for employment; prescribing position designation requirements with regard to the risk to the efficiency and integrity of the service; prescribing applicable investigative standards, policies, and procedures for suitability and fitness; prescribing suitability and fitness reciprocity standards; making suitability determinations; and taking suitability actions;

(ii) shall issue regulations, guidance, and standards to fulfill the Director’s responsibilities related to suitability and fitness under Executive Order 13488 of January 16, 2009, as amended;

(iii) shall promote reciprocal recognition of suitability or fitness determinations among the agencies, including acting as the final authority to arbitrate and resolve disputes among the agencies involving the reciprocity of investigations and adjudications of suitability and fitness;

(iv) shall continue to initially approve, and periodically review for renewal, agencies’ requests to administer polygraphs in connection with appointment in the competitive service, in consultation with the Security Executive Agent as appropriate;

(v) shall make a continuing review of agency programs for suitability and fitness vetting to determine whether they are being implemented according to this order;

(vi) may issue guidelines and instructions to the heads of agencies to promote appropriate uniformity, centralization, efficiency, effectiveness, reciprocity, timeliness, and security in processes relating to determining suitability or fitness; and

(vii) shall, pursuant to section 1104 of title 5, United States Code, prescribe performance standards and a system of oversight for any suitability or fitness function delegated by the Director to the head of another agency, including uniform and consistent policies and procedures to ensure the effective, efficient, timely, and secure completion of delegated functions.

(c) With respect to the Credentialing Executive Agent functions, the Director of the Office of Personnel Management:

(i) shall develop standards for investigations, reinvestigations, and continuous vetting for a covered individual’s eligibility for a personal identity verification credential permitting logical and physical access to federally controlled facilities and federally controlled information systems (PIV credential);

(ii) shall develop adjudicative guidelines for a covered individual’s eligibility for a PIV credential;

(iii) shall develop guidelines on reporting and recording determinations of eligibility for a PIV credential;

(iv) shall develop standards for unfavorable determinations of eligibility for a PIV credential, including procedures for denying and revoking the eligibility for a PIV credential, for reconsideration of unfavorable determinations, and for rendering the PIV credential inoperable;

(v) shall develop standards and procedures for suspending eligibility for a PIV credential when there is a reasonable basis to believe there may be an unacceptable risk pending an inquiry or investigation, including special standards and procedures for imminent risk;

(vi) shall be responsible for developing uniform and consistent policies and procedures to ensure the effective, efficient, timely, and secure completion of investigations and adjudications relating to eligibility for a PIV credential;

(vii) may develop guidelines and instructions to the heads of agencies as necessary to ensure appropriate uniformity, centralization, efficiency, effectiveness, and timeliness in processes relating to eligibility for a PIV credential;

(viii) shall monitor and make a continuing review of agency programs for determining eligibility for a PIV credential to determine whether they are being implemented according to this order; and

(ix) shall consult to the extent practicable with other agencies with responsibilities related to PIV credentials to ensure that policies and procedures are consistent with law including:

(A) the Office of Management and Budget, in exercising its responsibilities under section 11331 of title 40, United States Code, section 3553(a) of title 44, United States Code, division A, sections 1086(b)(2) and (b)(3) of Public Law 114–92, and Homeland Security Presidential Directive 12 of August 27, 2004;

(B) the Department of Homeland Security, in exercising its responsibilities under sections 3553(b), (f), and (g) of title 44, United States Code;

(C) the Department of Defense, in exercising its responsibilities under section 3553(e) of title 44, United States Code, and division A, sections 1086(a)(1)(E), (b)(1), and (b)(2) of Public Law 114–92;

(D) the Office of the Director of National Intelligence, in exercising its responsibilities under section 3553(e) of title 44, United States Code, and division A, section 1086(b)(2) of Public Law 114–92;

(E) the Department of Commerce and the National Institute of Standards and Technology, in exercising their responsibilities under section 278g–3 of title 15, United States Code, and Homeland Security Presidential Directive 12 of August 27, 2004;

(F) the General Services Administration, in exercising its responsibilities under division A, section 1086(b)(2) of Public Law 114–92; and

(G) the Federal Acquisition Regulation agencies, in exercising their responsibilities under [former] chapter 137 of title 10, section 121(c) of title 40, and section 20113 of title 51, United States Code.

(d) In fulfilling the Credentialing Executive Agent function of developing policies and procedures for determining eligibility for a PIV credential and to protect the national security, the Director of the Office of Personnel Management shall coordinate with and obtain the concurrence of the other Council Principals. Agencies with authority to establish standards or guidelines or issue instructions related to PIV credentials shall retain the discretion as to whether to establish policies, guidelines, or instructions developed by the Credentialing Executive Agent.

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

(i) shall direct the oversight of investigations, reinvestigations, adjudications, and, as applicable, polygraphs for eligibility for access to classified information or eligibility to hold a sensitive position made by any agency;

(ii) shall make a continuing review of agencies’ national security background investigation and adjudication programs to determine whether they are being implemented according to this order;

(iii) shall be responsible for developing and issuing uniform and consistent policies and procedures to ensure the effective, efficient, timely, and secure completion of investigations, polygraphs, and adjudications relating to determinations of eligibility for access to classified information or eligibility to hold a sensitive position;

(iv) may issue guidelines and instructions to the heads of agencies to ensure appropriate uniformity, centralization, efficiency, effectiveness, timeliness, and security in processes relating to determinations by agencies of eligibility for access to classified information or eligibility to hold a sensitive position, to include such matters as investigations, polygraphs, adjudications, and reciprocity;

(v) may, if consistent with the national security, authorize exceptions to or waivers of national security investigative requirements, and may issue implementing or clarifying guidance as necessary;

(vi) shall serve as the final authority to designate an agency or agencies, to the extent that it is not practicable to use the Defense Counterintelligence and Security Agency, to conduct investigations of persons who are proposed for access to classified information or for eligibility to hold a sensitive position to ascertain whether such persons satisfy the criteria for obtaining and retaining access to classified information or eligibility to hold a sensitive position;

(vii) shall serve as the final authority to designate an agency or agencies to determine eligibility for access to classified information or eligibility to hold a sensitive position in accordance with Executive Order 12968 of August 2, 1995, as amended;

(viii) shall ensure reciprocal recognition of eligibility for access to classified information or eligibility to hold a sensitive position among the agencies, including acting as the final authority to arbitrate and resolve disputes among the agencies involving the reciprocity of investigations and adjudications of eligibility; and

(ix) may assign, in whole or in part, to the head of any agency (solely or jointly) any of the functions detailed in (i) through (viii) of this subsection, with the agency’s exercise of such assigned functions to be subject to the Security Executive Agent’s oversight and with such terms and conditions (including approval by the Security Executive Agent) as the Security Executive Agent determines appropriate.

(f) Nothing in this section shall be construed in a manner that would limit the authorities of the Director of the Office of Personnel Management, the Director of National Intelligence, or the Secretary of Defense under law.

Sec. 2.6. Roles and Responsibilities of the Department of Defense, the Office of Personnel Management, and the Office of Management and Budget.

(a) The National Background Investigations Bureau shall, until such functions are transferred or delegated, as applicable, to the Defense Counterintelligence and Security Agency:

(i) serve as the primary executive branch service provider for background investigations for eligibility for access to classified information; eligibility to hold a sensitive position; suitability or, for employees in positions not subject to suitability, fitness for Government employment; fitness to perform work for or on behalf of the Government as a contractor; fitness to work as a nonappropriated fund employee, as defined in Executive Order 13488 of January 16, 2009, as amended; and authorization to be issued a Federal credential for logical and physical access to federally controlled facilities or information systems;

(ii) provide effective, efficient, and secure personnel background investigations for the Federal Government;

(iii) provide the Council information, to the extent permitted by law, on matters of performance, timeliness, capacity, information technology modernization, continuous performance improvement, and other relevant aspects of NBIB operations;

(iv) be headquartered in or near Washington, District of Columbia;

(v) have dedicated resources, including but not limited to a senior privacy and civil liberties official;

(vi) institutionalize interagency collaboration and leverage expertise across the executive branch;

(vii) continuously improve investigative operations, emphasizing information accuracy and protection, and regularly integrate best practices, including those identified by subject matter experts from industry, academia, or other relevant sources;

(viii) conduct personnel background investigations in accordance with uniform and consistent policies, procedures, standards, and requirements established by the Security Executive Agent and the Suitability and Credentialing Executive Agent exercising its Suitability Executive Agent functions; and

(ix) conduct other personnel background investigations as authorized by law, rule, regulation, or Executive Order;” [sic]

except that throughout the transition period ending on or before September 30, 2019, as described in sections 2.6(d)(vi) and 2.6(e)(viii) of this order, the National Background Investigations Bureau and its personnel may continue to perform background investigations for the Defense Counterintelligence and Security Agency.

(b) The Secretary of Defense shall design, develop, deploy, operate, secure, defend, and continuously update and modernize, as necessary, vetting information technology systems that support all background investigation processes conducted by the National Background Investigations Bureau. Design and operation of the information technology systems for the National Background Investigations Bureau shall comply with applicable information technology standards and, to the extent practicable, ensure security and interoperability with other background investigation information technology systems. The Secretary of Defense shall operate the database in the information technology systems containing appropriate data relevant to the granting, denial, or revocation of eligibility for access to classified information or eligibility for a sensitive position pertaining to military, civilian, or Government contractor personnel, see section 3341(e) of title 50, United States Code, consistent with and following an explicit delegation from the Director of the Office of Personnel Management pursuant to section 1104 of title 5, United States Code.

(i) Pursuant to sections 113 and 191 of title 10, United States Code, the Secretary of Defense shall rename the Defense Security Service (DSS) as the Defense Counterintelligence and Security Agency (DCSA). Subject to the authority, direction, and control of the Secretary of Defense and as further described in subsections (b)(ii) through (b)(iv) of this section, the DCSA shall serve as the primary Federal entity for conducting background investigations for the Federal Government. The DCSA shall, as a continuation of the former DSS, serve as the primary Department of Defense component for the National Industrial Security Program and shall execute responsibilities relating to continuous vetting, insider threat programs, and any other responsibilities assigned to it by the Secretary of Defense consistent with law. The Secretary of Defense may rename the DCSA and reassign any of its responsibilities to another Department of Defense component or components, provided, however, that the Secretary of Defense shall consult with the Directors of National Intelligence, the Office of Personnel Management, and the Office of Management and Budget before renaming the DCSA or reassigning the responsibilities specified in section 2.6(b)(ii) and (iv) of this order to another Department of Defense component.

(ii) Pursuant to and consistent with section 3001(c) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(c)), sections [sic] 925(a)(1) and (d)(2) of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note), and in accordance with subsection (d) of this section, no later than June 24, 2019, the DCSA shall serve as the primary entity for conducting effective, efficient, and secure background investigations for the Federal Government for determining whether covered individuals are or continue to be eligible for access to classified information or eligible to hold a sensitive position.

(iii) Pursuant to and consistent with sections [sic] 925(a)(1) and (d)(2) of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note) and in accordance with subsection (d) of this section, no later than June 24, 2019, the DCSA shall serve as the primary entity for conducting effective, efficient, and secure background investigations for determining the suitability or, for employees in positions not subject to suitability, fitness for Department of Defense employment; fitness to perform work for or on behalf of the Department of Defense as a contractor; fitness to work as a nonappropriated fund employee, as defined in Executive Order 13488 of January 16, 2009, [5 U.S.C. 7301 note] as amended; and authorization to be issued a Federal credential for logical and physical access to facilities or information systems controlled by the Department of Defense.

(iv) Consistent with and following an explicit delegation from the Director of the Office of Personnel Management pursuant to section 1104 of title 5, United States Code, and consistent with subsection (e) of this section, no later than June 24, 2019, the DCSA shall serve as the primary entity for conducting effective, efficient, and secure background investigations for the Federal Government not described in subsections (b)(ii) and (b)(iii) of this section, for determining suitability or, for employees in positions not subject to suitability, fitness for Government employment; fitness to perform work for or on behalf of the Government as a contractor; fitness to work as a nonappropriated fund employee, as defined in Executive Order 13488 of January 16, 2009, as amended; and authorization to be issued a Federal credential for logical and physical access to federally controlled facilities or information systems.

(v) The DCSA shall conduct other background investigations as authorized by law, designation, rule, regulation, or Executive Order.

(vi) The DCSA shall provide information to the Council established by section 2.4 of this order regarding matters of performance, including timeliness and continuous improvement, capacity, information technology modernization, and other relevant aspects of its operations. The DCSA shall be subject to the oversight of the Security Executive Agent, including implementation of Security Executive Agent policies, procedures, guidance, and instructions, in conducting investigations for eligibility to access classified information or to hold a sensitive position. The DCSA, through the Secretary of Defense, also shall be subject to the oversight of the Suitability and Credentialing Executive Agent, including implementation of Suitability and Credentialing Executive Agent policies, procedures, guidance, and instructions, and applicable Office of Personnel Management regulations, in conducting investigations of suitability or fitness and eligibility for logical and physical access.

(vii) The Secretary of Defense shall design, develop, deploy, operate, secure, defend, and continuously update and modernize, as necessary, information technology systems that support all personnel vetting processes conducted by the Department of Defense. Design and operation of these information technology systems shall comply with applicable information technology standards and, to the extent practicable, ensure security and interoperability with other personnel vetting or related information technology systems. The Secretary of Defense shall maintain and safeguard the information relevant to the granting, denial, or revocation of eligibility for access to classified information, or eligibility for a sensitive position, or relevant to suitability, fitness, or credentialing determinations pertaining to military, civilian, or Government contractor personnel. The Secretary of Defense shall operate the database in the information technology systems containing appropriate data relevant to the granting, denial, or revocation of eligibility for access to classified information or eligibility for a sensitive position pertaining to military, civilian, or Government contractor personnel, see section 3341(e) of title 50, United States Code, consistent with, as applicable, an explicit delegation from the Director of the Office of Personnel Management pursuant to section 1104 of title 5, United States Code.

(viii) The Secretary of Defense shall, by June 24, 2019, execute a written agreement with the Director of the Office of Personnel Management designating the appropriate support functions to be transferred as part of the investigative mission, consistent with section 925(d)(2)(B) of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note), and setting forth expectations for the transition period, including for detailing personnel, funding background investigations, using and safeguarding information technology, managing facilities and property, contracting, administrative support, records access, and addressing any claims.

(ix) The Secretary of Defense shall, upon finalization of the agreement described in paragraph (viii) of this subsection and in accordance with its terms:

(A) establish the Personnel Vetting Transformation Office within the Department of Defense, which will include personnel from the Department of Defense and other stakeholder agencies, as appropriate; and

(B) commence efforts to receive transferred or delegated functions and, as appropriate, associated Office of Personnel Management operations, resources, and personnel, to the DCSA.

(x) The Secretary of Defense shall:

(A) no later than June 24, 2019, and every 180 days thereafter until the transfer is complete, provide a report to the President, in coordination with the Director of the Office of Personnel Management and through the Director of the Office of Management and Budget, regarding the status of the transfer, including any resource or funding shortfall and gaps in authority;

(B) take necessary actions to enable the Department of Defense to receive any resources, including personnel, made available as a result of subsection (d) of this section; and

(C) notify the President upon completion of the transition period.

(xi) In the event the agreement described in paragraph (viii) of this subsection and section 2.6(e)(v) of this order is not executed by June 24, 2019, beginning on such date, the Secretary of Defense shall begin to take necessary actions to begin execution of paragraph (ix) until the agreement described in paragraph (viii) of this subsection is executed, at which time the Secretary of Defense shall ensure actions subject to such agreement under paragraph (ix) of this subsection are executed in accordance with its terms.” [sic]

(c) Existing delegations of authority to conduct background investigations made by the Director of the Office of Personnel Management, as the Suitability and Credentialing Executive Agent or as otherwise authorized by statute or Executive Order, to any agency relating to suitability, fitness, or credentialing determinations, existing designations made by the Director of National Intelligence, as the Security Executive Agent or as otherwise authorized by statute or Executive Order, relating to investigating persons who are proposed for access to classified information or for eligibility to hold a sensitive position, or existing delegations of authority to conduct background investigations made by the President to any other agency through any Executive Order shall remain in effect. Nothing in this order shall be construed to limit the authority of any agency to conduct its own background investigations when specifically authorized or directed to do so by statute or any preexisting delegation from the President.

(d) Consistent with section 3503 of title 5, United States Code, subchapter I of chapter 83 of title 10, United States Code, and section 925(d)(1) of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note), the Secretary of Defense and the Director of the Office of Personnel Management, in consultation with the Director of the Office of Management and Budget and the Security Executive Agent, shall, consistent with applicable law, provide for the transfer of the functions described in sections 2.6(b)(ii) and (iii) of this order from the Office of Personnel Management’s NBIB to DCSA, and any appropriate Office of Personnel Management-associated personnel and resources, including infrastructure and the investigation-related support functions. The transfer shall commence no later than June 24, 2019, and shall:

(i) be executed with the assistance of the Personnel Vetting Transformation Office established pursuant to paragraph (b)(ix) of this section, which shall, in providing such assistance, consider input from other stakeholder agencies, as appropriate;

(ii) be conducted in accordance with a risk management approach that is consistent with Office of Management and Budget Circular A–123;

(iii) include any appropriate funds that the Secretary of Defense and the Director of the Office of Personnel Management, with the concurrence of the Director of the Office of Management and Budget, determine to be available and necessary to finance and discharge the functions transferred;

(iv) be consistent with the transition from legacy information technology as required by subsection (b)(vii) of this section;

(v) build upon the implementation plan developed pursuant to section 951(a)(1) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328) [10 U.S.C. 1564 note], which is being implemented pursuant to section 925 of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note); and

(vi) permit NBIB to conduct background investigations for DCSA, as necessary, until September 30, 2019.

(e) The Director of the Office of Personnel Management shall:

(i) no later than June 24, 2019, take any steps necessary to make effective the delegation, pursuant to section 1104(a)(2) of title 5, United States Code, of the functions described in subsection (b)(iv) of this section;

(ii) promptly establish appropriate performance standards and oversight as required by section 1104(b) of title 5, United States Code;

(iii) work in coordination with the Secretary of Defense to reassign appropriate resources, including personnel, to the DCSA and provide all necessary and appropriate support to the DCSA in a timely manner to enable it to fulfill its responsibilities under this order;

(iv) no later than June 24, 2019, provide the Secretary of Defense with a complete inventory of NBIB personnel, resources, and assets, and other Office of Personnel Management personnel and resources that primarily support NBIB;

(v) no later than June 24, 2019, execute a written agreement with the Secretary of Defense designating the appropriate support functions to be transferred as part of the investigative mission, consistent with section 925(d)(2)(B) of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note), as described in section 2.6(b)(viii) of this order;

(vi) immediately upon the finalization of the agreement described in paragraph (v) of this subsection and section 2.6(b)(viii) of this order, commence efforts to transition transferred or delegated functions and, as appropriate, associated Office of Personnel Management authorities, operations, resources, and personnel, to the DCSA;

(vii) during the transition period, coordinate with the Department of Defense regarding any decisions concerning NBIB’s personnel structure, finances, contracts, or organization to the extent provided in the written agreement described by paragraph (b)(viii) of this section;

(viii) no later than September 30, 2019, complete the transfer of all designated administrative and operational functions to the Department of Defense and revoke any applicable delegation or designation to NBIB of investigative or other authority; and

(ix) in the event the agreement described in paragraph (v) of this subsection and section 2.6(b)(viii) of this order is not executed by June 24, 2019, beginning on such date, the Director of the Office of Personnel Management shall begin to take necessary actions to begin execution of paragraphs (iii) through (viii) of this subsection until the agreement described in paragraph (v) of this subsection and section 2.6(b)(viii) of this order is executed, at which time the Director of the Office of Personnel Management shall ensure actions subject to such agreement under paragraphs (iii) through (viii) of this subsection are executed in accordance with its terms.

(f) The Director of the Office of Management and Budget shall:

(i) facilitate an effective transfer of functions, including personnel and resources;

(ii) support the Department of Defense’s efforts to establish a single, centralized funding capability for its background investigations, as required by section 925(e)(1) of the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564 note);

(iii) mediate any disagreements between the Secretary of Defense and the Director of the Office of Personnel Management that may arise during or outside of the transition period and facilitate resolution of the conflicting positions; and

(iv) develop, in consultation with the Secretary of Defense and the Director of the Office of Personnel Management, an appropriate funding plan for the activities undertaken pursuant to this order.

Sec. 2.7. Additional Functions. (a) The duties assigned to the Security Policy Board by Executive Order 12968 of August 2, 1995, to consider, coordinate, and recommend policy directives for executive branch security policies, procedures, and practices are reassigned to the Security Executive Agent.

(b) Heads of agencies shall:

(i) designate, or cause to be designated, as a “sensitive position,” any position occupied by a covered individual in which the occupant could bring about by virtue of the nature of the position, a material adverse effect on the national security;

(ii) establish and maintain within their respective agencies, an effective program to ensure that employment and retention of any covered individual within the agency is clearly consistent with the interests of national security and, as applicable, meets standards for eligibility for access to classified information or to hold a sensitive position, suitability, fitness, or credentialing, established by the respective Executive Agent;

(iii) carry out any function assigned to the agency head by the Chair, and shall assist the Chair, the Council, the Executive Agents, the National Background Investigations Bureau, and the Department of Defense in carrying out any function under sections 2.4, 2.5, and 2.6 of this order;

(iv) implement any policy or procedure established pursuant to this order;

(v) to the extent permitted by law, make available to the Council, the Executive Agents, the National Background Investigations Bureau, and the Department of Defense such information as may be requested to implement this order, including information necessary to implement enterprise-wide vetting policies and procedures;

(vi) except as authorized by section 3341(e)(5) of title 50, United States Code, promptly furnish, or cause to be promptly furnished, to the Office of Personnel Management the information deemed by the Executive Agents to be necessary for purposes of record keeping and reciprocity including, but not limited to, the date on which a background investigation is initiated, the date on which the background investigation is closed, and the specific adjudicative or access decision made. The Executive Agents shall determine the appropriate timeline pursuant to which this information must be reported to the Office of Personnel Management. The Executive Agents shall maintain discretion to determine the scope of information needed for record keeping and reciprocity purposes. The Office of Personnel Management shall regularly provide this information to the Director of National Intelligence for national security purposes.

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

(viii) ensure that actions taken under this order are consistent with the President’s constitutional authority to:

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

(B) withhold information the disclosure of which could impair the foreign relations, the national security, the deliberative processes of the Executive, or the performance of the Executive’s constitutional duties;

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

(D) supervise the unitary executive branch.

(c) All investigations being conducted by agencies that develop information indicating that an individual may have been subjected to coercion, influence, or pressure to act contrary to the interests of the national security, or information that the individual may pose a counterintelligence or terrorist threat, or as otherwise provided by law, shall be referred to the Federal Bureau of Investigation for potential investigation, and may also be referred to other agencies where appropriate.

PART 3—MISCELLANEOUS

Sec. 3. General Provisions. (a) Executive Order 13381 of June 27, 2005 [amending Ex. Ord. No. 12171, set out as a note under section 7103 of Title 5, Government Organization and Employees], as amended, and Executive Order 10450 of April 27, 1953 [formerly set out as a note under section 7311 of Title 5], as amended, are revoked. By revoking Executive Order 10450 of April 27, 1953, as amended, there is no intent to alter the requirement for an investigation for national security purposes or the “clearly consistent with the interest of national security” standard prescribed by that Executive Order for making the determinations referenced in section 2.7(b)(ii). Further, suitability, fitness, credentialing, and national security eligibility regulations, standards and guidance issued by, or interagency agreements entered into by, the Council, the Executive Agents, or any agency pursuant to Executive Order 10450 of April 27, 1953, as amended, shall remain valid until superseded. Nothing in this order shall:

(i) supersede, impede, or otherwise affect:

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

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

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

(D) Executive Order 13526 of December 29, 2009; or

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

(iii) be applied in such a way as to affect any administrative proceeding pending on the date of this order.

(b) [Amended Ex. Ord. No. 12968, set out as a note above.]

(c) Provisions of Executive Order 12968 of August 2, 1995, as amended, that apply to eligibility for access to classified information shall apply to eligibility to hold any sensitive position regardless of whether that sensitive position requires access to classified information, subject to the Security Executive Agent issuing implementing or clarifying guidance regarding requirements for sensitive positions. Nothing in this order shall supersede, impede, or otherwise affect the remainder of Executive Order 12968 of August 2, 1995, as amended.

(d) Nothing in this order shall be construed to impair or otherwise affect the:

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

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(e) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(f) Existing delegations of authority made pursuant to Executive Order 13381 of June 27, 2005, as amended, to any agency relating to granting eligibility for access to classified information shall remain in effect, subject to the exercise of authorities pursuant to this order to revise or revoke such delegation.

(g) Existing delegations of authority made by the Office of Personnel Management to any agency relating to suitability or fitness shall remain in effect, subject to the exercise of authorities to revise or revoke such delegations.

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

(i) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Ex. Ord. No. 13526. Classified National Security Information

Ex. Ord. No. 13526, Dec. 29, 2009, 75 F.R. 707, 1013, provided:

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.

NOW, THEREFORE, I, BARACK OBAMA, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

PART 1—Original Classification

Section 1.1. Classification Standards. (a) Information may be originally classified under the terms of this order only if all of the following conditions are met:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(c) Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.

(d) The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.

Sec. 1.2. Classification Levels. (a) Information may be classified at one of the following three levels:

(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.

(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.

(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.

(b) Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.

(c) If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.

Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

(2) agency heads and officials designated by the President; and

(3) United States Government officials delegated this authority pursuant to paragraph (c) of this section.

(b) Officials authorized to classify information at a specified level are also authorized to classify information at a lower level.

(c) Delegation of original classification authority.

(1) Delegations of original classification authority shall be limited to the minimum required to administer this order. Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority.

(2) “Top Secret” original classification authority may be delegated only by the President, the Vice President, or an agency head or official designated pursuant to paragraph (a)(2) of this section.

(3) “Secret” or “Confidential” original classification authority may be delegated only by the President, the Vice President, an agency head or official designated pursuant to paragraph (a)(2) of this section, or the senior agency official designated under section 5.4(d) of this order, provided that official has been delegated “Top Secret” original classification authority by the agency head.

(4) Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided in this order. Each delegation shall identify the official by name or position.

(5) Delegations of original classification authority shall be reported or made available by name or position to the Director of the Information Security Oversight Office.

(d) All original classification authorities must receive training in proper classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least once a calendar year. Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.5 of this order that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure. Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place. A waiver may be granted by the agency head, the deputy agency head, or the senior agency official if an individual is unable to receive such training due to unavoidable circumstances. Whenever a waiver is granted, the individual shall receive such training as soon as practicable.

(e) Exceptional cases. When an employee, government contractor, licensee, certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that person to require classification, the information shall be protected in a manner consistent with this order and its implementing directives. The information shall be transmitted promptly as provided under this order or its implementing directives to the agency that has appropriate subject matter interest and classification authority with respect to this information. That agency shall decide within 30 days whether to classify this information.

Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities;