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[House Report 115-913]
[From the U.S. Government Publishing Office]

115th Congress     }                                 {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                 {        115-913

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              FITNESS INFORMATION TRANSPARENCY ACT OF 2018

                                _______
                                

 September 4, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. McCaul, from the Committee on Homeland Security, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 6374]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 6374) to require the Department of Homeland 
Security to streamline Federal contractor fitness 
determinations, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     4
Hearings.........................................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     6
Committee Oversight Findings.....................................     6
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
Congressional Budget Office Estimate.............................     7
Statement of General Performance Goals and Objectives............     7
Duplicative Federal Programs.....................................     7
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     7
Federal Mandates Statement.......................................     7
Preemption Clarification.........................................     7
Disclosure of Directed Rule Makings..............................     8
Advisory Committee Statement.....................................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis of the Legislation...................     8
Changes in Existing Law Made by the Bill, as Reported............     9

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Fitness Information Transparency Act 
of 2018'' or the ``FIT Act''.

SEC. 2. REQUIREMENT TO STREAMLINE FITNESS DETERMINATIONS.

  (a) Consolidation of Fitness Standards.--Not later than 180 days 
after the date of the enactment of this Act, the Secretary of Homeland 
Security, acting through the Chief Security Officer of the Department 
of Homeland Security, shall--
          (1) coordinate with the heads of components of the Department 
        to review and consolidate all Federal contractor fitness 
        standards used by the Department and its components in order to 
        issue a uniform set of fitness standards that reflect public 
        trust concerns which correspond to each position risk level;
          (2) require the Department and the heads of its components to 
        use such uniform fitness standards that correspond to the 
        relevant position risk level as the basis for fitness 
        determinations for a contractor employee; and
          (3) publish such uniform fitness standards that correspond to 
        each such position risk level on the public website of the 
        Department and cause the same to be printed in the Federal 
        Register.
  (b) Deviation From Uniform Fitness Standards.--The Secretary of 
Homeland Security, acting through the Chief Security Officer of the 
Department of Homeland Security, may authorize the Department or a 
component of the Department to deviate from the uniform fitness 
standards issued pursuant to subsection (a) on a position-by-position 
basis if--
          (1) the Secretary publishes in writing on the public website 
        of the Department and causes the same to be printed in the 
        Federal Register a certification that contains--
                  (A) a determination that such uniform fitness 
                standards are not sufficient to protect information, 
                systems, or facilities of the Department the 
                unauthorized disclosure of which or unauthorized access 
                to which could reasonably be expected to cause 
                substantial damage to the integrity and efficiency of 
                the Department; and
                  (B) a description of approved additional fitness 
                standards and a list to which positions such deviation 
                applies; or
          (2) exigent circumstances created by a presidential 
        declaration of a major disaster issued pursuant to section 401 
        of the Robert T. Stafford Disaster Relief and Emergency 
        Assistance Act (42 U.S.C. 5170) require such deviation to 
        mitigate staffing shortages for the duration of such 
        declaration.
  (c) Reciprocity.--
          (1) In general.--The Chief Security Officer of the Department 
        of Homeland Security shall implement a process to ensure 
        fitness determinations made by the Department are uniformly 
        accepted throughout the Department and its components.
          (2) Sufficiency.--The Secretary of Homeland Security, acting 
        through the Chief Security Officer of the Department of 
        Homeland Security, may, as appropriate, deem a favorably 
        adjudicated personnel security investigation sufficient to 
        satisfy a requirement to complete a contractor fitness 
        determination under this section.
  (d) Fitness Adjudication Status Updates.--Not later than one year 
after the date of the enactment of this Act, the Secretary of Homeland 
Security, acting through the Chief Security Officer of the Department 
of Homeland Security and in coordination with heads of the components 
of the Department, shall implement a uniform process to--
          (1) provide, not less frequently than monthly, contractor 
        representatives certified pursuant to subsection (e)(1) access 
        to information regarding the status of fitness determinations 
        for Department contractor employees relevant to such contractor 
        representatives; and
          (2) collect each fiscal quarter data to allow the Department 
        and its components and contractor representatives to assess 
        average fitness investigation, adjudication, and determination 
        processing times for each component of the Department, 
        including information regarding the parameters used to 
        calculate each such average.
  (e) Certification.--Before the implementation of the uniform process 
described in subsection (d), the Secretary of Homeland Security, acting 
through the Chief Security Officer of the Department of Homeland 
Security, shall--
          (1) certify that each contractor representative receiving 
        information from such process has received information 
        regarding practices relating to the adequate protection of 
        personally identifiable information and has acknowledged in 
        writing to adhere to such practices; and
          (2) consult with the Director of the Office of Personnel 
        Management to ensure that such process is consistent with 
        current best practices across the Federal Government.
  (f) Applicability of Section 44936 of Title 49, United States Code.--
No authority or policy created by or issued pursuant to this section 
shall apply to employees or contractors of an air carrier, foreign air 
carrier, or airport operator subject to employment investigations 
pursuant to section 44936 of title 49, United States Code.
  (g) Reports to Congress.--Not later than 180 days after the 
publication of uniform fitness standards described in subsection (a) 
and annually thereafter for four years, the Secretary of Homeland 
Security shall submit to the Committee on Homeland Security and the 
Committee on Oversight and Government Reform of the House of 
Representatives and the Committee on Homeland Security and Governmental 
Affairs of the Senate a report containing--
          (1) the number of deviation requests under subsection (b) 
        made to the Chief Security Officer of the Department of 
        Homeland Security, including--
                  (A) the number of deviation requests approved and the 
                corresponding justification for each such deviation 
                from such fitness standards; and
                  (B) the number of deviation requests denied and the 
                corresponding justification for each such denial;
          (2) information regarding the number and average duration of 
        Federal contractor fitness determinations for each component of 
        the Department;
          (3) information regarding the use of programs or policies 
        that allow contractors to begin work prior to the completion of 
        a fitness determination;
          (4) to the extent practicable, the number of individuals who, 
        during the preceding calendar year, received an unfavorable 
        fitness determination from the Department by reason of an 
        affiliation with or membership in an organization dedicated to 
        terrorism;
          (5) to the extent practicable, the number of individuals who, 
        during the preceding calendar year, received a favorable 
        fitness determination from the Department despite an 
        affiliation with or membership in an organization dedicated to 
        terrorism;
          (6) information regarding the degree to which fitness 
        determinations made by the Department and its components or 
        other Federal agencies are recognized on a reciprocal basis by 
        the Department and its components pursuant to subsection 
        (c)(1);
          (7) information regarding the degree to which suitability and 
        fitness determinations for Federal applicants and appointees 
        made by the Department and its components or other Federal 
        agencies are recognized on a reciprocal basis by the Department 
        and its components; and
          (8) information regarding the degree to which the Secretary, 
        acting through the Chief Security Officer of the Department, 
        uses the authority under subsection (c)(2).
  (h) Suitability Status Updates.--Not later than one year after the 
date of the enactment of this Act, the Chief Security Officer of the 
Department of Homeland Security, in consultation with the Chief Human 
Capital Officer of the Department, shall develop a plan to provide 
Federal applicants and appointees with suitability and fitness 
determination status updates similar to updates provided to contractor 
representatives under subsection (d).
  (i) Exigent Circumstances Fitness Determination Review.--The Chief 
Security Officer of the Department of Homeland Security may conduct an 
immediate review of a contractor employee's fitness determination when 
a contractor employee has engaged in violent acts against individuals, 
property, or public spaces based on the contractor employee's 
association with persons or organizations that advocate, threaten, or 
use force or violence, or any other illegal or unconstitutional means, 
in an effort to prevent others from exercising their rights under the 
Constitution or laws of the United States or of any State, based on 
factors including, at a minimum, race, religion, national origin, or 
disability.
  (j) No Additional Funds Authorized.--No additional funds are 
authorized to be appropriated to carry out this Act. This Act shall be 
carried out using amounts otherwise appropriated.
  (k) Definitions.--In this section:
          (1) Contractor.--The term ``contractor'' has the meaning 
        given such term in section 7101 of title 41, United States 
        Code.
          (2) Contractor employee.--The term ``contractor employee'' 
        means an individual who performs work for or on behalf of any 
        Federal agency under a contract and who, in order to perform 
        the work specified under such contract, will require access to 
        facilities, information, information technology systems, staff, 
        or other assets of the Department of Homeland Security, and who 
        could, by the nature of the access or duties of such 
        individual, adversely affect the integrity or efficiency of the 
        Department. Such contracts include the following:
                  (A) Personal services contracts.
                  (B) Contracts between any non-Federal entity and the 
                Department.
                  (C) Sub-contracts between any non-Federal entity and 
                another non-Federal entity to perform work related to 
                the primary contract with the Department.
          (3) Contractor representative.--The term ``contractor 
        representative'' means a person employed by a contractor who is 
        designated in writing by an authorized official of a contractor 
        as responsible for managing and communicating with the 
        Department of Homeland Security or its components on behalf of 
        such contractor on matters relating to fitness determinations, 
        and is certified pursuant to subsection (e)(1) regarding the 
        adequate protection of personally identifiable information.
          (4) Excepted service.--The term ``excepted service'' has the 
        meaning given such term in section 2103 of title 5, United 
        States Code.
          (5) Fitness.--The term ``fitness'' means the level of 
        character and conduct necessary for an individual to perform 
        work for or on behalf of a Federal agency in the excepted 
        service, other than a position subject to a suitability 
        determination or as a nonappropriated fund instrumentality 
        employee.
          (6) Fitness determination.--The term ``fitness 
        determination'' means a decision by a Federal agency that an 
        individual does or does not have the required level of 
        character and conduct necessary to perform work for or on 
        behalf of a Federal agency in the excepted service, other than 
        a position subject to a suitability determination, as a 
        contractor employee, or as a nonappropriated fund 
        instrumentality employee.
          (7) Information technology.--The term ``information 
        technology'' has the meaning given such term in section 11101 
        of title 40, United States Code.
          (8) Nonappropriated fund instrumentality employee.--The term 
        ``nonappropriated fund instrumentality employee'' has the 
        meaning given such term in section 1587(a)(1) of title 10, 
        United States Code.
          (9) Personnel security investigation.--The term ``personnel 
        security investigation'' has the meaning given such term in 
        subsection (a) of section 3001 of the Intelligence Reform and 
        Terrorism Prevention Act of 2004 (50 U.S.C. 3341).
          (10) Suitability determination.--The term ``suitability 
        determination'' has the meaning given such term in section 
        731.101 of title 5, Code of Federal Regulations.
          (11) Terrorism.--The term ``terrorism'' means any criminal 
        acts that involve violence or are dangerous to human life and 
        appear to be intended to intimidate or coerce a civilian 
        population to influence the policy of a government by 
        intimidation or coercion, or to affect the conduct of a 
        government by mass destruction, assassination, or kidnapping.

                          PURPOSE AND SUMMARY

    The purpose of H.R. 6374 is to require the Department of 
Homeland Security to consolidate, streamline, and publish the 
standards by which a contractor employee may be deemed fit to 
work for the Department and provide status updates regarding 
fitness determinations. H.R. 6374 enables DHS to provide 
greater transparency to the contractor workforce, which will, 
in turn, increase efficiency.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Department of Homeland Security (DHS) relies on 
thousands of contractor employees every day to achieve its 
mission. From IT services to construction and janitorial 
services, DHS and contractor employees work hand-in-hand to 
secure our nation. Prior to employment, DHS vets each 
contractor employee by assessing the character and conduct of 
contractor employees in order to make a fitness determination--
a decision that a person either does or does not have the level 
of character and conduct necessary to uphold the integrity and 
efficiency of the Department.
    Currently, the Office of Personnel Management (OPM) sets 
minimum fitness standards for Federal contractors. However, DHS 
components vary in how they apply those standards. Inconsistent 
fitness standards across DHS hinder the ability of components 
to reciprocally accept another component's fitness 
determination. Additionally, the current process for a 
contractor employee to receive a status update regarding their 
fitness determination is convoluted and inefficient.
    H.R. 6374 requires DHS to consolidate its varying fitness 
standards by creating uniform fitness requirements for each 
position risk level. By doing so, DHS will achieve Department-
wide uniformity and reciprocity of fitness standards, thereby 
eliminating the need for one contractor to undergo multiple 
fitness investigations. The FIT Act also reduces bureaucratic 
redundancies by allowing, when appropriate, the Secretary of 
DHS to deem someone who possesses a security clearance to also 
be considered fit to work for DHS. Moreover, H.R. 6374 
increases transparency into the fitness determination process 
by requiring DHS to provide monthly status updates to 
contractor representatives. The FIT Act provides DHS the 
flexibility it needs to vet contract workers for its diverse 
missions, while also making the process to do so more efficient 
and transparent.
    Since the same problems contractors experience exist within 
the Federal applicant pool, H.R. 6374 also requires DHS to take 
steps to improve the suitability determination process for 
Federal applicants and appointees. In this effort, the 
Department is required to report to Congress on the degree to 
which reciprocity is occurring for Federal applicants and 
appointees, and to develop a plan to communicate investigation 
updates to applicants and appointees.

                                HEARINGS

    No hearings were specifically held on H.R. 6374. However, 
on February 27, 2018, the Subcommittee on Oversight and 
Management Efficiency held a hearing entitled ``Doing Business 
with DHS: Industry Recommendations to Improve Contractor 
Employee Vetting.'' The Subcommittee received testimony from 
The Honorable Charles L. Allen, Senior Intelligence Advisor, 
Intelligence and National Security Alliance; Mr. Marc Pearl, 
President and CEO, Homeland Security and Defense Business 
Council; The Honorable David J. Berteau, President and CEO, 
Professional Services Council; and Mr. Brandon LaBonte, 
President and CEO, Ardent Management Consulting Inc.

                        COMMITTEE CONSIDERATION

    The Committee met on July 24, 2018, to consider H.R. 6374, 
and ordered the measure to be reported to the House with a 
favorable recommendation, as amended, by unanimous consent. The 
Committee took the following actions:
    The Committee adopted H.R. 6374, as amended, by unanimous 
consent.
    The following amendments were offered:

    An amendment offered by Ms. Jackson Lee (#1); Page 7, 
beginning line 4, insert a new subsection entitled ``(h) 
Exigent Circumstances Fitness Determination Review.''; was 
AGREED TO, by unanimous consent.

    An amendment offered by Mrs. Watson Coleman (#2); Page 6, 
line 23, strike ``and''.
    Page 7, line 3, strike the period and insert a semicolon.
    Page 7, beginning line 4, insert the following:
          (4) to the extent practicable, the number of 
        individuals who, during the preceding calendar year, 
        received an unfavorable fitness determination from the 
        Department by reason of an affiliation with or 
        membership in an organization dedicated to terrorism; 
        and
          (5) to the extent practicable, the number of 
        individuals who, during the preceding calendar year, 
        received a favorable fitness determination from the 
        Department despite an affiliation with or membership in 
        an organization dedicated to terrorism.
    Page 10, after line 2, add a new paragraph entitled ``(11) 
Terrorism.'' AGREED TO, by unanimous consent.

    An amendment offered by Mr. Correa (#1); Page 6, line 23, 
strike ``and''.
    Page 7, line 3, strike the period and insert a semicolon.
    Page 7, beginning line 4, insert the following:
          (4) information regarding the degree to which fitness 
        determinations made by the Department and its 
        components or other Federal agencies are recognized on 
        a reciprocal basis by the Department and its components 
        pursuant to subsection (c)(1);
          (5) information regarding the degree to which 
        suitability and fitness determinations for Federal 
        applicants and appointees made by the Department and 
        its components or other Federal agencies are recognized 
        on a reciprocal basis by the Department and its 
        components; and
          (6) information regarding the degree to which the 
        Secretary, acting through the Chief Security Officer of 
        the Department, uses the authority under subsection 
        (c)(2).
    ``(h) Suitability Status Updates.--''; was AGREED TO, by 
unanimous consent.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto. No recorded votes were requested during consideration 
of H.R. 6374.

                      COMMITTEE OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
6374, the Fitness Information Transparency Act of 2018, would 
result in no new or increased budget authority, entitlement 
authority, or tax expenditures or revenues.

                  CONGRESSIONAL BUDGET OFFICE ESTIMATE

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, a cost estimate provided by the 
Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974 was not made available to the 
Committee in time for the filing of this report. The Chairman 
of the Committee shall cause such estimate to be printed in the 
Congressional Record upon its receipt by the Committee.

         STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, H.R. 6374 contains the following 
general performance goals and objectives, including outcome 
related goals and objectives authorized.
    The goal of H.R. 6374 is for the Department of Homeland 
Security to review and consolidate all Federal contractor 
fitness standards used and publish such standards to provide 
greater transparency; to implement a uniform process to provide 
fitness determination status updates to contractor 
representatives and to develop a plan to provide the same 
information to Federal applicants and appointees.

                      DUPLICATIVE FEDERAL PROGRAMS

    Pursuant to clause 3(c) of rule XIII, the Committee finds 
that H.R. 6374 does not contain any provision that establishes 
or reauthorizes a program known to be duplicative of another 
Federal program.

   CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF 
                                BENEFITS

    In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule 
XXI.

                       FEDERAL MANDATES STATEMENT

    An estimate of Federal mandates prepared by the Director of 
the Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act was not made available to the 
Committee in time for the filing of this report. The Chairman 
of the Committee shall cause such estimate to be printed in the 
Congressional Record upon its receipt by the Committee.

                        PREEMPTION CLARIFICATION

    In compliance with section 423 of the Congressional Budget 
Act of 1974, requiring the report of any Committee on a bill or 
joint resolution to include a statement on the extent to which 
the bill or joint resolution is intended to preempt State, 
local, or Tribal law, the Committee finds that H.R. 6374 does 
not preempt any State, local, or Tribal law.

                  DISCLOSURE OF DIRECTED RULE MAKINGS

    The Committee estimates that H.R. 6374 would require no 
directed rule makings.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title

    This section provides that this bill may be cited as the 
``Fitness Information Transparency Act of 2018'' or the ``FIT 
Act''.

Sec. 2. Requirement to streamline fitness determinations

    Section 2(a) requires the Secretary of Homeland Security, 
acting through the Chief Security Officer of the Department, 
to: coordinate with components of the Department to issue a 
uniform set of fitness standards that correspond to each 
position risk; use such uniform fitness standards coordinating 
with the relevant risk level in order make a fitness 
determination; and, publish the uniform fitness standards on 
the Department's website and in the Federal Register.
    Section 2(b) allows the Secretary, acting through the Chief 
Security Officer, to authorize a component to deviate from the 
uniform fitness standards on a position-by-position basis if 
the Secretary publishes a certificate that the uniform fitness 
standards are not sufficient to protect the integrity and 
efficiency of the Department and provides a description of the 
positions to which the deviation applies.
    Section 2(c) requires the Chief Security Officer to 
implement a process to ensure fitness determinations are 
uniformly accepted throughout the Department and allows, when 
appropriate, the Secretary to deem someone who has a security 
clearance to also be deemed fit to work for DHS.
    Section 2(d) requires the Secretary to implement a process 
to provide contractor representatives monthly status updates 
regarding fitness determinations. Additionally, Section 2(e) 
requires the contractor representatives to certify in writing 
they adhere to certain practices regarding protection of 
personally identifiable information.
    Section 2(f) clarifies that the provisions in this 
legislation do not apply to employees or contract employees of 
an air carrier, foreign air carrier, or airport operator.
    Section 2(g) requires the Secretary to report to Congress 
information regarding: the number of deviation requests from 
the uniform fitness standards; the number and average duration 
of fitness determinations for each component; the use of 
programs that allow a contractor employee to begin work prior 
to the completion of a fitness determination; the degree to 
which fitness determinations are reciprocally recognized; the 
degree to which suitability determinations are reciprocally 
recognized; the degree to which the Secretary uses the 
authority granted in subsection (c)(2); the number of 
individuals who received an unfavorable fitness determination 
due to associations with terrorism organizations; and, the 
number of individuals who received a favorable fitness 
determination despite associations with terrorism 
organizations.
    Section (2)(h) requires the Chief Security Officer of the 
Department of Homeland Security to develop a plan to provide 
similar status updates to certain Federal employees.
    Section (2)(i) also authorizes the Secretary to conduct an 
immediate review of a contractor employee's fitness 
determination if the contractor employee has engaged in certain 
violent acts.
    Section 2(j) specifies that no additional funds are 
authorized to carry out this Act.
    Finally, section 2(k) provides definitions for terms in the 
legislation.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    As reported, H.R. 6374 makes no changes to existing law.

                                  [all]
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