II 111th CONGRESS 1st Session S. 2834 IN THE SENATE OF THE UNITED STATES December 3, 2009 Mr. Akaka (for himself and Mr. Voinovich) introduced the following bill; which was read twice and referred to the Select Committee on Intelligence A BILL To amend the Intelligence Reform and Terrorism Prevention Act of 2004 to establish a Security Clearance and Suitability Performance Accountability Council and for other purposes.

1.

Short title

This Act may be cited as the Security Clearance Modernization and Reporting Act of 2009.

2.

Definitions

Subsection (a) of section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b) is amended— (1)in the matter preceding paragraph (1) by striking In this section: and inserting Except as otherwise specifically provided, in this title:; (2)by redesignating paragraph (1) as paragraph (2); (3)by redesignating paragraph (2) as paragraph (5); (4)by redesignating paragraph (3) as paragraph (4); (5)by redesignating paragraph (4) as paragraph (12); (6)by redesignating paragraph (5) as paragraph (10); (7)by redesignating paragraph (6) as paragraph (15); (8)by redesignating paragraph (7) as paragraph (14); (9)by redesignating paragraph (8) as paragraph (3); (10)by inserting before paragraph (2), as redesignated by paragraph (2), the following: (1)

Adjudication

The term adjudication means the evaluation of pertinent data in a background investigation and any other available information that is relevant and reliable to determine whether an individual is— (A)suitable for Federal Government employment; (B)eligible for logical and physical access to federally controlled information systems; (C)eligible for physical access to federally controlled facilities; (D)eligible for access to classified information; (E)eligible to hold a sensitive position; or (F)fit to perform work for or on behalf of the Federal Government as a contractor employee. ; (11)by inserting after paragraph (5), as redesignated by paragraph (3), the following: (6)

Classified information

The term classified information means information that has been determined, pursuant to Executive Order 12958 (60 Fed. Reg. 19825) 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. (7)

Continuous evaluation

The term continuous evaluation means a review of the background of an individual who has been determined to be eligible for access to classified information (including additional or new checks of commercial databases, Government databases, and other information lawfully available to security officials) at any time during the period of eligibility to determine whether that individual continues to meet the requirements for eligibility for access to classified information. (8)

Contractor

The term contractor means an expert or consultant, who is not subject to 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 and who is not an employee of an agency. (9)

Contractor employee fitness

The term contractor employee fitness means fitness based on character and conduct for work for or on behalf of an agency as a contractor employee. ; (12)by inserting after paragraph (10), as redesignated by paragraph (6), the following: (11)

Federally controlled facilities; federally controlled information systems

The term federally controlled facilities and federally controlled information systems have the meanings prescribed in guidance pursuant to the Federal Information Security Management Act of 2002 (title III of Public Law 107–347; 116 Stat. 2946), the amendments made by that Act, and Homeland Security Presidential Directive 12, or any successor Directive. ; (13)by inserting after paragraph (12), as redesignated by paragraph (5), the following: (13)

Logical access

The term logical access means, with respect to federally controlled information systems, access other than occasional or intermittent access to federally controlled information systems. ; and (14)by inserting after paragraph (15), as redesignated by paragraph (7), the following: (16)

Physical access

The term physical access means, with respect to federally controlled facilities, access other than occasional or intermittent access to federally controlled facilities. (17)

Sensitive position

The term sensitive position means any position designated as a sensitive position under Executive Order 10450 or any successor Executive Order. (18)

Suitability

The term suitability has the meaning of that term in part 731, of title 5, Code of Federal Regulations or any successor similar regulation. .

3.

Security clearance and suitability determination reporting

(a)

Extension of reporting requirements

Paragraph (1) of section 3001(h) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b(h)) is amended by striking through 2011, and inserting until the earlier of the date that is 2 years after the date that the Comptroller General of the United States has removed all items related to security clearances from the list maintained by the Comptroller General known as the High-Risk List or 2017,. (b)

Reports on security clearance review processes

Paragraph (2) of such section 3001(h) is amended— (1)by redesignating subparagraphs (B) and (C) as subparagraphs (E) and (F), respectively; and (2)by striking subparagraph (A) and inserting the following: (A)a description of the full range of time required to complete initial clearance applications, including time required by each authorized investigative agency and each authorized adjudicative agency— (i)to respond to requests for security clearances for individuals, including the periods required to initiate security clearance investigations, conduct security clearance investigations, deliver completed investigations to the requesting agency, adjudicate such requests, make final determinations on such requests, and notify individuals and individuals' employers of such determinations, from date of submission of the requests to the date of the ultimate disposition of the requests and notifications, disaggregated by the type of security clearance, including Secret, Top Secret, and Top Secret with Special Program Access, including sensitive compartmented information clearances— (I)for civilian employees of the United States; (II)for members of the Armed Forces of the United States; and (III)for contractor employees; and (ii)to conduct investigations for suitability determinations for individuals from successful submission of applications to ultimate disposition of applications and notifications to the individuals— (I)for civilian employees of the United States; (II)for members of the Armed Forces of the United States; and (III)for contractor employees; (B)a listing of the agencies and departments of the United States that have established and utilize policies to accept all security clearance background investigations and determinations completed by an authorized investigative agency or authorized adjudicative agency; (C)a description of the progress in implementing the strategic plan referred to in section 3004; and (D)a description of the progress made in implementing the information technology strategy referred to in section 3005; .

4.

Security Clearance and Suitability Performance Accountability Council

Title III of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b et seq.) is amended by adding at the end the following new section:

3003.

Security Clearance and Suitability Performance Accountability Council

(a)

Establishment

There is established a Security Clearance and Suitability Performance Accountability Council (hereinafter referred to as the Council). (b)

Chair

(1)

Designation

The Deputy Director for Management, Office of Management and Budget, shall serve as Chair of the Council. (2)

Authority

The Chair of the Council shall have authority, direction, and control over the functions of the Council. (c)

Vice Chair

The Chair of the Council shall select a Vice Chair to act in the Chair's absence. (d)

Membership

(1)

In general

The members of the Council shall include— (A)the Chair of the Council; and (B)an appropriate senior officer from each of the following: (i)The Office of the Director of National Intelligence. (ii)The Department of Defense. (iii)The Office of Personnel Management. (2)

Other members

The Chair of the Council may designate appropriate employees of other agencies or departments of the United States as members of the Council. (e)

Duties

The Council shall— (1)ensure alignment of suitability, security, and, as appropriate, contractor employee fitness, investigative, and adjudicative processes; (2)ensure alignment of investigative requirements for suitability determinations and security clearances to reduce duplication in investigations; (3)oversee the establishment of requirements for enterprise information technology; (4)oversee the development of techniques and tools, including information technology, for enhancing background investigations and eligibility determinations and ensure that such techniques and tools are utilized; (5)ensure that each agency and department of the United States establishes and utilizes policies for ensuring reciprocal recognition of clearances that allow access to classified information granted by all other agencies and departments; (6)ensure sharing of best practices among agencies and departments of the United States; (7)hold each agency and department of the United States accountable for the implementation of suitability, security, and, as appropriate, contractor employee fitness processes and procedures; and (8)hold each agency and department of the United States accountable for recognizing clearances that allow access to classified information granted by all other agencies and departments of the United States. (f)

Assignment of duties

The Chair may assign, in whole or in part, to the head of any agency or department of the United States, solely or jointly, any duty of the Council relating to— (1)alignment and improvement of investigations and determinations of suitability; (2)determinations of contractor employee fitness; and (3)determinations of eligibility— (A)for logical access to federally controlled information systems; (B)for physical access to federally controlled facilities; (C)for access to classified information; or (D)to hold a sensitive position.

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5.

Strategic plan for reform

Title III of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b et seq.), as amended by section 4, is further amended by adding at the end the following new section:

3004.

Security clearance and suitability reform strategic plan

(a)

Requirement for plan

Not later than 90 days after the date of the enactment of the Security Clearance Modernization and Reporting Act of 2009, the Security Clearance and Suitability Performance Accountability Council established in section 3003 shall develop a strategic plan that identifies the causes of problems with the issuance of security clearances and a description of actions to be taken to correct such problems. (b)

Contents

The plan required by subsection (a) shall include a description of— (1)the clear mission and strategic goals of the plan; (2)performance measures to be used to determine the effectiveness of security clearance procedures, including measures for the quality of security clearance investigations and adjudications; (3)a formal communications strategy related to the issuance of security clearances; (4)the roles and responsibilities for agencies participating in security clearance reform efforts; and (5)the long-term funding requirements for security clearance reform efforts. (c)

Submission to Congress

The plan required by subsection (a) shall be submitted to the appropriate committees of Congress. (d)

Government accountability office review

The plan required by subsection (a) shall be reviewed by the Comptroller General of the United States following its submission to the appropriate committees of Congress under subsection (c).

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6.

Information technology strategy

Title III of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 435b et seq.), as amended by sections 4 and 5, is further amended by adding at the end the following new section:

3005.

Information technology strategy

(a)

Requirement for strategy

Not later than 120 days after the date of the enactment of the Security Clearance Modernization and Reporting Act of 2009, the Director of the Office of Management and Budget shall submit to the appropriate committees of Congress an information technology strategy that describes the plans to expedite investigative and adjudicative processes, verify standard information submitted as part of an application for a security clearance, and provide security clearance and suitability determination reform consistent with the strategy required by section 3004(a), by carrying out the Enterprise Information Technology Strategy referred to in the Report of the Joint Security and Suitability Reform Team, dated December 30, 2008. (b)

Content

The strategy required by subsection (a) shall include— (1)a description of information technology required to request a security clearance or suitability investigation; (2)a description of information technology required to apply for a security clearance or suitability investigation; (3)a description of information technology systems needed to support such investigations; (4)a description of information technology required to transmit common machine readable investigation files to agencies for adjudication; (5)a description of information technology required to support agency adjudications of security clearance and suitability determinations; (6)a description of information technology required to support continuous evaluations; (7)a description of information technology required to implement a single repository containing all security clearance and suitability determinations of each agency and department of the United States that is accessible by each such agency and department in support of ensuring reciprocal recognition of access to classified information among such agencies and departments; (8)a description of the efforts of the Security Clearance and Suitability Performance Council established in section 3003, and each of the Department of Defense, the Office of Personnel Management, and the Office of the Director of National Intelligence to carry out the strategy submitted under subsection (a); (9)the plans of the agencies and departments of the United States to develop, implement, fund, and provide personnel to carry out the strategy submitted under subsection (a); (10)cost estimates to carry out the strategy submitted under subsection (a); and (11)a description of the schedule for carrying out the strategy submitted under subsection (a).

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7.

Technical and clerical amendments

(1)

Technical correction

The table of contents in section 1(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3638) is amended by adding after the item relating to section 3001 the following: Sec. 3002. Security clearances; limitations. . (2)

Clerical amendment

The table of contents in section 1(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended by paragraph (1), is further amended by adding after the item relating to section 3002, as added by such paragraph, the following: Sec. 3003. Security Clearance and Suitability Performance Accountability Council. Sec. 3004. Security clearance and suitability reform strategic plan. Sec. 3005. Information technology strategy. .