10 U.S.C. § 1564 (ARMED FORCES)
§ 1564. Security clearance investigations
(a) Expedited Process.—
The Secretary of Defense may prescribe a process for expediting the completion of the background investigations necessary for granting security clearances for—
(1) Department of Defense personnel and Department of Defense contractor personnel who are engaged in sensitive duties that are critical to the national security; and
(2) any individual who—
(A) submits an application for a position as an employee of the Department of Defense for which—
(i) the individual is qualified; and
(ii) a security clearance is required; and
(B) is—
(i) a member of the armed forces who was retired or separated, or is expected to be retired or separated, for physical disability pursuant to chapter 61 of this title;
(ii) the spouse of a member of the armed forces who retires or is separated, after January 7, 2011, for a physical disability as a result of a wound, injuries or illness incurred or aggravated in the line of duty (as determined by the Secretary concerned); or
(iii) the spouse of a member of the armed forces who dies, after January 7, 2011, as a result of a wound, injury, or illness incurred or aggravated in the line of duty (as determined by the Secretary concerned).
(b) Required Features.—
The process developed under subsection (a) shall provide for the following:
(1) Quantification of the requirements for background investigations necessary for grants of security clearances for Department of Defense personnel and Department of Defense contractor personnel.
(2) Categorization of personnel on the basis of the degree of sensitivity of their duties and the extent to which those duties are critical to the national security.
(3) Prioritization of the processing of background investigations on the basis of the categories of personnel determined under paragraph (2).
(c) Annual Review.—
The Secretary shall conduct an annual review of the process prescribed under subsection (a) and shall revise that process as determined necessary in relation to ongoing Department of Defense missions.
(d) Consultation Requirement.—
The Secretary shall consult with the Secretaries of the military departments and the heads of Defense Agencies in carrying out this section.
(e) Sensitive Duties.—
For the purposes of this section, it is not necessary for the performance of duties to involve classified activities or classified matters in order for the duties to be considered sensitive and critical to the national security.
(f) Use of Appropriated Funds.—
The Secretary of Defense may use funds authorized to be appropriated to the Department of Defense for operation and maintenance to conduct background investigations under this section for individuals described in subsection (a)(2).
(Added Pub. L. 106–398, § 1 [[div. A], title X, § 1072(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–276; amended Pub. L. 111–383, div. A, title III, § 351(a), Jan. 7, 2011, 124 Stat. 4192; Pub. L. 112–239, div. A, title X, § 1076(e)(1), Jan. 2, 2013, 126 Stat. 1951.)
heading: Amendments
text: 2013—Subsec. (a)(2)(B)(ii), (iii). Pub. L. 112–239 substituted “January 7, 2011” for “the date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011”.
2011—Subsec. (a). Pub. L. 111–383, § 351(a)(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: “The Secretary of Defense shall prescribe a process for expediting the completion of the background investigations necessary for granting security clearances for Department of Defense personnel and Department of Defense contractor personnel who are engaged in sensitive duties that are critical to the national security.”
Subsec. (f). Pub. L. 111–383, § 351(a)(2), added subsec. (f).
heading: Effective Date of 2011 Amendment
text: Pub. L. 111–383, div. A, title III, § 351(b), Jan. 7, 2011, 124 Stat. 4193, provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to a background investigation conducted after the date of the enactment of this Act [Jan. 7, 2011].”
heading: Reform and Improvement of Personnel Security, Insider Threat Detection and Prevention, and Physical Security
text: Pub. L. 114–92, div. A, title X, § 1086, Nov. 25, 2015, 129 Stat. 1006, provided that:
“(a) Personnel Security and Insider Threat Protection in Department of Defense.—
“(1) Plans and schedules.—
Consistent with the Memorandum of the Secretary of Defense dated March 18, 2014, regarding the recommendations of the reviews of the Washington Navy Yard shooting, the Secretary of Defense shall develop plans and schedules—
“(A) to implement a continuous evaluation capability for the national security population for which clearance adjudications are conducted by the Department of Defense Central Adjudication Facility, in coordination with the heads of other relevant agencies;
“(B) to produce a Department-wide insider threat strategy and implementation plan, which includes—
“(i) resourcing for the Defense Insider Threat Management and Analysis Center and component insider threat programs, and
“(ii) alignment of insider threat protection programs with continuous evaluation capabilities and processes for personnel security;
“(C) to centralize the authority, accountability, and programmatic integration responsibilities, including fiscal control, for personnel security and insider threat protection under the Under Secretary of Defense for Intelligence;
“(D) to develop a defense security enterprise reform investment strategy to ensure a consistent, long-term focus on funding to strengthen all of the Department’s security and insider threat programs, policies, functions, and information technology capabilities, including detecting threat behaviors conveyed in the cyber domain, in a manner that keeps pace with evolving threats and risks;
“(E) to resource and expedite deployment of the Identity Management Enterprise Services Architecture; and
“(F) to implement the recommendations contained in the study conducted by the Director of Cost Analysis and Program Evaluation required by section 907 of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113–66; 10 U.S.C. 1564 note), including, specifically, the recommendations to centrally manage and regulate Department of Defense requests for personnel security background investigations.
“(2) Reporting requirement.—
Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Secretary of Defense shall submit to the appropriate committees of Congress a report describing the plans and schedules required under paragraph (1).
“(b) Physical and Logical Access.—
Not later than 270 days after the date of the enactment of this Act—
“(1) the Secretary of Defense shall define physical and logical access standards, capabilities, and processes applicable to all personnel with access to Department of Defense installations and information technology systems, including—
“(A) periodic or regularized background or records checks appropriate to the type of physical or logical access involved, the security level, the category of individuals authorized, and the level of access to be granted;
“(B) standards and methods for verifying the identity of individuals seeking access; and
“(C) electronic attribute-based access controls that are appropriate for the type of access and facility or information technology system involved;
“(2) the Director of the Office of Management and Budget and the Chair of the Performance Accountability Council, in coordination with the Secretary of Defense, the Administrator of General Services, and, when appropriate, the Director of National Intelligence, and in consultation with representatives from stakeholder organizations, shall design a capability to share and apply electronic identity information across the Government to enable real-time, risk-managed physical and logical access decisions; and
“(3) the Director of the Office of Management and Budget, in conjunction with the Director of the Office of Personnel Management and in consultation with representatives from stakeholder organizations, shall establish investigative and adjudicative standards for the periodic or regularized reevaluation of the eligibility of an individual to retain credentials issued pursuant to Homeland Security Presidential Directive 12 (dated August 27, 2004), as appropriate, but not less frequently than the authorization period of the issued credentials.
“(c) Security Enterprise Management.—
Not later than 180 days after the date of enactment of this Act [Nov. 25, 2015], the Director of the Office of Management and Budget shall—
“(1) formalize the Security, Suitability, and Credentialing Line of Business; and
“(2) submit to the appropriate congressional committee a report that describes plans—
“(A) for oversight by the Office of Management and Budget of activities of the executive branch of the Government for personnel security, suitability, and credentialing;
“(B) to designate enterprise shared services to optimize investments;
“(C) to define and implement data standards to support common electronic access to critical Government records; and
“(D) to reduce the burden placed on Government data providers by centralizing requests for records access and ensuring proper sharing of the data with appropriate investigative and adjudicative elements.
“(d) Reciprocity Management.—
Not later than two years after the date of the enactment of this Act, the Chair of the Performance Accountability Council shall ensure that—
“(1) a centralized system is available to serve as the reciprocity management system for the Federal Government; and
“(2) the centralized system described in paragraph (1) is aligned with, and incorporates results from, continuous evaluation and other enterprise reform initiatives.
“(e) Reporting Requirements Implementation.—
Not later than 180 days after the date of enactment of this Act, the Chair of the Performance Accountability Council, in coordination with the Security Executive Agent, the Suitability Executive Agent, and the Secretary of Defense, shall jointly develop a plan to—
“(1) implement the Security Executive Agent Directive on common, standardized employee and contractor security reporting requirements;
“(2) establish and implement uniform reporting requirements for employees and Federal contractors, according to risk, relative to the safety of the workforce and protection of the most sensitive information of the Government; and
“(3) ensure that reported information is shared appropriately.
“(f) Access to Criminal History Records for National Security and Other Purposes.—
“(1) Definition.—
[Amended section 9101 of Title 5, Government Organization and Employees.]
“(2) Covered agencies.—
[Amended section 9101 of Title 5.]
“(3) Applicable purposes of investigations.—
[Amended section 9101 of Title 5.]
“(4) Biometric and biographic searches.—
[Amended section 9101 of Title 5.]
“(5) Use of most cost-effective system.—
[Amended section 9101 of Title 5.]
“(6) Sealed or expunged records; juvenile records.—
“(A) In general.—
[Amended section 9101 of Title 5.]
“(B) Regulations.—
“(i) Definition.—
In this subparagraph, the terms ‘Security Executive Agent’ and ‘Suitability Executive Agent’ mean the Security Executive Agent and the Suitability Executive Agent, respectively, established under Executive Order 13467 (73 Fed. Reg. 38103) [50 U.S.C. 3161 note], or any successor thereto.
“(ii) Development; promulgation.—
The Security Executive Agent shall—
“(I) not later than 45 days after the date of enactment of this Act [Nov. 25, 2015], and in conjunction with the Suitability Executive Agent and the Attorney General, begin developing regulations to implement the amendments made by subparagraph (A); and
“(II) not later than 120 days after the date of enactment of this Act, promulgate regulations to implement the amendments made by subparagraph (A).
“(C) Sense of congress.—
It is the sense of Congress that the Federal Government should not uniformly reject applicants for employment with the Federal Government or Federal contractors based on—
“(i) sealed or expunged criminal records; or
“(ii) juvenile records.
“(7) Interaction with law enforcement and intelligence agencies abroad.—
[Amended section 9101 of Title 5.]
“(8) Clarification of security requirements for contractors conducting background investigations.—
[Amended section 9101 of Title 5.]
“(9) Clarification regarding adverse actions.—
[Amended section 7512 of Title 5.]
“(10) Annual report by suitability and security clearance performance accountability council.—
[Amended section 9101 of Title 5.]
“(11) GAO report on enhancing interoperability and reducing redundancy in federal critical infrastructure protection access control, background check, and credentialing standards.—
“(A) In general.—
Not later than\ [sic] one year after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Homeland Security of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the background check, access control, and credentialing requirements of Federal programs for the protection of critical infrastructure and key resources.
“(B) Contents.—
The Comptroller General shall include in the report required under subparagraph (A)—
“(i) a summary of the major characteristics of each such Federal program, including the types of infrastructure and resources covered;
“(ii) a comparison of the requirements, whether mandatory or voluntary in nature, for regulated entities under each such program to—
“(I) conduct background checks on employees, contractors, and other individuals;
“(II) adjudicate the results of a background check, including the utilization of a standardized set of disqualifying offenses or the consideration of minor, non-violent, or juvenile offenses; and
“(III) establish access control systems to deter unauthorized access, or provide a security credential for any level of access to a covered facility or resource;
“(iii) a review of any efforts that the Screening Coordination Office of the Department of Homeland Security has undertaken or plans to undertake to harmonize or standardize background check, access control, or credentialing requirements for critical infrastructure and key resource protection programs overseen by the Department; and
“(iv) recommendations, developed in consultation with appropriate stakeholders, regarding—
“(I) enhancing the interoperability of security credentials across critical infrastructure and key resource protection programs;
“(II) eliminating the need for redundant background checks or credentials across existing critical infrastructure and key resource protection programs;
“(III) harmonizing, where appropriate, the standards for identifying potentially disqualifying criminal offenses and the weight assigned to minor, nonviolent, or juvenile offenses in adjudicating the results of a completed background check; and
“(IV) the development of common, risk-based standards with respect to the background check, access control, and security credentialing requirements for critical infrastructure and key resource protection programs.
“(g) Definitions.—
In this section—
“(1) the term ‘appropriate committees of Congress’ means—
“(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives];
“(B) the Select Committee on Intelligence and the Committee on Homeland Security and Governmental Affairs of the Senate; and
“(C) the Permanent Select Committee on Intelligence, the Committee on Oversight and Government Reform, and the Committee on Homeland Security of the House of Representatives; and
“(2) the term ‘Performance Accountability Council’ means the Suitability and Security Clearance Performance Accountability Council established under Executive Order 13467 (73 Fed. Reg. 38103) [50 U.S.C. 3161 note], or any successor thereto.”
heading: Personnel Security
text: Pub. L. 113–66, div. A, title IX, § 907, Dec. 26, 2013, 127 Stat. 818, provided that:
“(a) Comparative Analysis.—
“(1) In general.—
Not later than 90 days after the date of the enactment of this Act [Dec. 26, 2013], the Secretary of Defense shall, acting through the Director of Cost Assessment and Program Evaluation and in consultation with the Director of the Office of Management and Budget, submit to the appropriate committees of Congress a report setting forth a comprehensive analysis comparing the quality, cost, and timeliness of personnel security clearance investigations and reinvestigations for employees and contractor personnel of the Department of Defense that are conducted by the Office of Personnel Management with the quality, cost, and timeliness of personnel security clearance investigations and reinvestigations for such personnel that are conducted by components of the Department of Defense.
“(2) Elements of analysis.—
The analysis under paragraph (1) shall do the following:
“(A) Determine and compare, for each of the Office of Personnel Management and the components of the Department that conduct personnel security investigations as of the date of the analysis, the quality, cost, and timeliness associated with personnel security investigations and reinvestigations of each type and level of clearance, and identify the elements that contribute to such cost, schedule, and performance.
“(B) Identify mechanisms for permanently improving the transparency of the cost structure of personnel security investigations and reinvestigations.
“(b) Personnel Security for Department of Defense Employees and Contractors.—
If the Secretary of Defense determines that the current approach for obtaining personnel security investigations and reinvestigations for employees and contractor personnel of the Department of Defense is not the most efficient and effective approach for the Department, the Secretary shall develop a plan, by not later than October 1, 2014, for the transition of personnel security investigations and reinvestigations to the approach preferred by the Secretary.
“(c) Strategy for Modernizing Personnel Security.—
“(1) Strategy required.—
Not later than 180 days after the date of the enactment of this Act [Dec. 26, 2013], the Secretary of Defense, the Director of National Intelligence, and the Director of the Office of Management and Budget shall jointly develop, implement, and provide to the appropriate committees of Congress a strategy to modernize all aspects of personnel security for the Department of Defense with the objectives of improving quality, providing for continuous monitoring, decreasing unauthorized disclosures of classified information, lowering costs, increasing efficiencies, and enabling and encouraging reciprocity.
“(2) Consideration of analysis.—
In developing the strategy under paragraph (1), the Secretary and the Directors shall consider the results of the analysis required by subsection (a) and the results of any ongoing reviews of recent unauthorized disclosures of national security information.
“(3) Metrics.—
“(A) Metrics required.—
In developing the strategy required by paragraph (1), the Secretary and the Directors shall jointly establish metrics to measure the effectiveness of the strategy in meeting the objectives specified in that paragraph.
“(B) Report.—
At the same time the budget of the President for each of fiscal years 2016 through 2019 is submitted to Congress pursuant to section 1105 of title 31, United States Code, the Secretary and the Directors shall jointly submit to the appropriate committees of Congress a report on the metrics established under paragraph (1), including an assessment using the metrics of the effectiveness of the strategy in meeting the objectives specified in paragraph (1).
“(4) Elements.—
In developing the strategy required by paragraph (1), the Secretary and the Directors shall address issues including but not limited to the following:
“(A) Elimination of manual or inefficient processes in investigations and reinvestigations for personnel security, wherever practicable, and automating and integrating the elements of the investigation and adjudication processes, including in the following:
“(i) The clearance application process.
“(ii) Investigation case management.
“(iii) Adjudication case management.
“(iv) Investigation methods for the collection, analysis, storage, retrieval, and transfer of data and records from investigative sources and between any case management systems.
“(v) Records management for hiring and clearance decisions.
“(B) Elimination or reduction, where possible, of the use of databases and information sources that cannot be accessed and processed automatically electronically, or modification of such databases and information sources, if appropriate and cost-effective, to enable electronic access and processing.
“(C) Access and analysis of government, publically available, and commercial data sources, including social media, that provide independent information pertinent to adjudication guidelines and termination standards to improve quality and timeliness, and reduce costs, of investigations and reinvestigations.
“(D) Use of government-developed and commercial technology for continuous monitoring and evaluation of government and commercial data sources that can identify and flag information pertinent to hiring and clearance determinations.
“(E) Standardization of forms used for routine reporting required of cleared personnel (such as travel, foreign contacts, and financial disclosures) and use of continuous monitoring technology to access databases containing such reportable information to independently obtain and analyze reportable data and events.
“(F) Establishment of an authoritative central repository of personnel security information that is accessible electronically at multiple levels of classification and eliminates technical barriers to rapid access to information necessary for eligibility determinations and reciprocal recognition thereof, including the ability to monitor the status of an individual and any events related to the continued eligibility of such individual for employment or clearance during intervals between investigations.
“(G) Elimination or reduction of the scope of, or alteration of the schedule for, periodic reinvestigations of cleared personnel, when such action is appropriate in light of the information provided by continuous monitoring or evaluation technology.
“(H) Electronic integration of personnel security processes and information systems with insider threat detection and monitoring systems, and pertinent law enforcement, counterintelligence and intelligence information, for threat detection and correlation, including those processes and systems operated by components of the Department of Defense for purposes of local security, workforce management, or other related purposes.
“(5) Risk-based monitoring.—
The strategy required by paragraph (1) shall—
“(A) include the development of a risk-based approach to monitoring and reinvestigation that prioritizes which cleared individuals shall be subject to frequent reinvestigations and random checks, such as the personnel with the broadest access to classified information or with access to the most sensitive classified information, including information technology specialists or other individuals with such broad access commonly known as ‘super users’;
“(B) ensure that if the system of continuous monitoring for all cleared individuals described in paragraph (4)(D) is implemented in phases, such system shall be implemented on a priority basis for the individuals prioritized under subparagraph (A); and
“(C) ensure that the activities of individuals prioritized under subparagraph (A) shall be monitored especially closely.
“(d) Reciprocity of Clearances.—
The Secretary of Defense and the Director of National Intelligence shall jointly ensure the reciprocity of personnel security clearances among positions requiring personnel holding secret, top secret, or sensitive compartmented information clearances, to the maximum extent feasible consistent with national security requirements.
“(e) Comptroller General Review.—
“(1) Review required.—
Not later than 150 days after the date of the enactment of this Act [Dec. 26, 2013], the Comptroller General of the United States shall carry out a review of the personnel security process.
“(2) Objective of review.—
The objective of the review required by paragraph (1) shall be to identify the following:
“(A) Differences between the metrics used by the Department of Defense and other departments and agencies that grant security clearances in granting reciprocity for security clearances, and the manner in which such differences can be harmonized.
“(B) The extent to which existing Federal Investigative Standards are relevant, complete, and sufficient for guiding agencies and individual investigators as they conduct their security clearance background investigations.
“(C) The processes agencies have implemented to ensure quality in the security clearance background investigation process.
“(D) The extent to which agencies have developed and implemented outcome-focused performance measures to track the quality of security clearance investigations and any insights from these measures.
“(E) The processes agencies have implemented for resolving incomplete or subpar investigations, and the actions taken against government employees and contractor personnel who have demonstrated a consistent failure to abide by quality assurance measures.
“(3) Report.—
Not later than 180 days after the date of the enactment of this Act, the Comptroller General shall submit to the appropriate committees of Congress a report on the results of the review required by paragraph (1).
“(f) Task Force on Records Access for Security Clearance Background Investigations.—
“(1) Establishment.—
The Suitability and Security Clearance Performance Accountability Council, as established by Executive Order No. 13467 [50 U.S.C. 3161 note], shall convene a task force to examine the different policies and procedures that determine the level of access to public records provided by State and local authorities in response to investigative requests by Federal Government employees or contracted employees carrying out background investigations to determine an individual’s suitability for access to classified information or secure government facilities.
“(2) Membership.—
The members of the task force shall include, but need not be limited to, the following:
“(A) The Chair of the Suitability and Security Clearance Performance and Accountability Council, who shall serve as chair of the task force.
“(B) A representative from the Office of Personnel Management.
“(C) A representative from the Office of the Director of National Intelligence.
“(D) A representative from the Department of Defense responsible for administering security clearance background investigations.
“(E) Representatives from Federal law enforcement agencies within the Department of Justice and the Department of Homeland Security involved in security clearance background investigations.
“(F) Representatives from State and local law enforcement agencies, including—
“(i) agencies in rural areas that have limited resources and less than 500 officers; and
“(ii) agencies that have more than 1,000 officers and significant technological resources.
“(G) A representative from Federal, State, and local law enforcement associations involved with security clearance background administrative actions and appeals.
“(H) Representatives from Federal, State, and local judicial systems involved in the sharing of records to support security clearance background investigations.
“(3) Initial meeting.—
The task force shall convene its initial meeting not later than 45 days after the date of the enactment of this Act [Dec. 26, 2013].
“(4) Duties.—
The task force shall do the following:
“(A) Analyze the degree to which State and local authorities comply with investigative requests made by Federal Government employees or contractor employees carrying out background investigations to determine an individual’s suitability for access to classified information or secure government facilities, including the degree to which investigative requests are required but never formally requested.
“(B) Analyze limitations on the access to public records provided by State and local authorities in response to investigative requests by Federal Government employees and contractor employees described in subparagraph (A), including, but not be limited to, limitations relating to budget and staffing constraints on State and local authorities, any procedural and legal obstacles impairing Federal access to State and local law enforcement records, or inadequate investigative procedural standards for background investigators.
“(C) Provide recommendations for improving the degree of cooperation and records-sharing between State and local authorities and Federal Government employees and contractor employees described in subparagraph (A).
“(5) Report.—
Not later than 120 days after the date of the enactment of this Act, the task force shall submit to the appropriate committees of Congress a report setting forth a detailed statement of the findings and conclusions of the task force pursuant to this subsection, together with the recommendations of the task force for such legislative or administrative action as the task force considers appropriate.
“(g) Appropriate Committees of Congress Defined.—
In this section, the term ‘appropriate committees of Congress’ means—
“(1) the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and
“(2) the Committee on Armed Services, the Committee on Oversight and Government Reform, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.”
heading: Required Notification Whenever Members of the Armed Forces Are Completing Standard Form 86 of the Questionnaire for National Security Positions
text: Pub. L. 113–66, div. A, title XVII, § 1747, Dec. 26, 2013, 127 Stat. 983, provided that:
“(a) Notification of Policy.—
Whenever a member of the Armed Forces is required to complete Standard Form 86 of the Questionnaire for National Security Positions in connection with an application, investigation, or reinvestigation for a security clearance, the member shall be notified of the policy described in subsection (b) regarding question 21 of such form.
“(b) Policy Described.—
The policy referred to in subsection (a) is the policy of instructing an individual to answer ‘no’ to question 21 of Standard Form 86 of the Questionnaire for National Security Positions with respect to consultation with a health care professional if—
“(1) the individual is a victim of a sexual assault; and
“(2) the consultation occurred with respect to an emotional or mental health condition strictly in relation to the sexual assault.”
heading: Deadline for Prescribing Process for Prioritizing Background Investigations for Security Clearances
text: Pub. L. 106–398, § 1 [[div. A], title X, § 1072(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–277, provided that: “The process required by section 1564(a) of title 10, United States Code, as added by subsection (a), for expediting the completion of the background investigations necessary for granting security clearances for certain persons shall be prescribed not later than January 1, 2001.”