[Congressional Record Volume 164, Number 146 (Tuesday, September 4, 2018)]
[House]
[Pages H7799-H7801]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              FITNESS INFORMATION TRANSPARENCY ACT OF 2018

  Mr. KATKO. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 6374) to require the Department of Homeland Security to 
streamline Federal contractor fitness determinations, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 6374

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     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

[[Page H7800]]

     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.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
York (Mr. Katko) and the gentlewoman from New Jersey (Mrs. Watson 
Coleman) each will control 20 minutes.
  The Chair recognizes the gentleman from New York.


                             General Leave

  Mr. KATKO. Mr. Speaker, I ask unanimous consent that all Members have 
5 legislative days in which to revise and extend their remarks and 
include any extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New York?
  There was no objection.
  Mr. KATKO. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in strong support of H.R. 6374, the Fitness 
Information Transparency Act of 2018, otherwise known as the FIT Act. 
This legislation seeks to improve how the Department of Homeland 
Security vets the character and conduct of contractor employees, known 
as a fitness determination.
  Homeland Security relies on thousands of contractor employees every 
day to achieve its missions. From IT work to construction and 
janitorial services, Homeland Security and contractor employees work 
hand in hand to secure our Nation. With the department's unique mission 
of protecting the homeland, it is vital that everyone working for 
Homeland Security, be it a Federal employee or a contractor employee, 
is appropriately vetted to ensure that he or she will uphold the 
integrity of the department. However, Homeland Security's fitness 
determination process is bureaucratic in the worst ways: inefficient, 
inconsistent, and lacking transparency.
  Currently, the Office of Personnel Management sets minimum fitness 
standards for all Federal contractors. However, each Homeland Security 
component can apply the criteria differently, creating disparate 
standards across the department. For example, a contractor employee who 
has been deemed fit to work for the Federal Emergency Management 
Agency, or FEMA, may not automatically be deemed fit to work for 
Customs and Border Protection.
  Many contract personnel support a variety of Homeland Security 
components and may be required to receive separate fitness 
determinations from each component, creating duplicity and 
inefficiency. Such inefficiency not only delays the time a contractor 
employee can start providing necessary services to Homeland Security, 
but because the contracting company builds the lag time into the bid 
price, this process also increases the cost to Homeland Security and, 
ultimately, to the United States taxpayers.
  This legislation will require Homeland Security to consolidate its 
varying fitness standards by creating uniform fitness requirements for 
each position risk level. By doing so, Homeland Security will achieve 
department-wide uniformity and reciprocity of fitness standards, 
therefore 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 Homeland Security to deem someone who 
possesses a security clearance to also be considered fit to work for 
Homeland Security.
  Moreover, this legislation increases transparency into the fitness 
determination process by requiring Homeland Security to publish the 
uniform fitness standards, provide monthly status updates to contractor 
representatives, and report certain information to Congress.
  It is important that Homeland Security vet each and every contractor 
employee prior to working for the department. The FIT Act provides 
Homeland Security the flexibility it needs to vet contract workers for 
its diverse missions, while also making the process to do so more 
efficient and more transparent.
  Mr. Speaker, I urge all Members to join me in supporting H.R. 6374, 
and I reserve the balance of my time.
  Mrs. WATSON COLEMAN. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of H.R. 6374, the Fitness Information 
Transparency Act of 2018. H.R. 6374 would require the Department of 
Homeland Security to issue uniform standards to vet Federal contractors 
seeking to work for the department.
  Currently, there is no standard for vetting contractors to determine 
their fitness to access DHS facilities, IT systems, and sensitive 
information. Each

[[Page H7801]]

component has different standards, different procedures, and different 
adjudicators for contractor fitness. Lack of a department-wide uniform 
standard hinders reciprocity across the department. As a result, the 
committee has received testimony that contractors who work for multiple 
DHS components are investigated over and over and over again. What a 
waste of time and resources.
  Today, DHS contractors routinely wait 3 to 4 months, if not longer, 
to be investigated, regardless of whether they have already been 
determined to be fit by another DHS component. This wait time is costly 
for not only the contractor, but it also hinders the ability of the 
Department of Homeland Security to execute its mission.

  Today, neither the contractor nor their employer is regularly 
informed of the status of their investigation. Enactment of H.R. 6374 
would help ensure that Federal contractor firms can access timely 
information regarding the status of their employees' fitness 
investigations.
  Thanks to language that was authored by Representative Correa and 
accepted in committee, H.R. 6374 also recognizes that weaknesses in DHS 
fitness processes not only undermine the onboarding of Federal 
contractors in a timely way but also the onboarding of new DHS 
employees.
  Representative Correa's amendment would require the department to 
take steps to improve the suitability determination process for Federal 
applicants and appointees and to report on the degree to which 
components and offices are granting reciprocity to individuals who are 
employed by other components or offices within the DHS.
  Mr. Speaker, I encourage my colleagues to support this measure. H.R. 
6374 improves the Department of Homeland Security's contractor 
investigation process by requiring a uniform set of standards, 
encouraging reciprocity among components, and enhancing communication 
between the department and the private sector.
  It is our duty as Members of Congress to ensure processes are 
followed and that such processes are effective and efficient. H.R. 6374 
seeks to do just that.
  Mr. Speaker, I encourage my colleagues to support H.R. 6374, and I 
yield back the balance of my time.
  Mr. KATKO. Mr. Speaker, I echo the sentiments of my good friend and 
colleague from New Jersey. I once again urge my colleagues to support 
H.R. 6374, and I yield back the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I rise in support of H.R. 6374, the 
``Fitness Information Transparency Act of 2018,'' or the ``FIT Act,'' 
which will streamline federal contractor fitness determinations for 
receiving and maintaining contract awards for the Department of 
Homeland Security.
  This bill will standardize the fitness standards for contractors for 
the Department of Homeland Security that reflect employability 
standards to ensure contractors meet public trust obligations relating 
to the work they will do on behalf of the American people.
  During the Homeland Security Committee markup of H.R. 6374, an 
amendment I offered was adopted.
  The Jackson Lee Amendment improves the FIT Act by establishing an 
``Exigent Circumstances Fitness Determination Review'' process.
  The Jackson Lee Amendment provides that ``The Chief Security Officer 
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.''
  In July 2018, news reports surfaced that Northrup Grumman had 
business with a government contractor who employed Michael Miselis, an 
active member of the California-based Rise Above Movement (RAM), a 
well-known violent white supremacist group.
  RAM's membership has deep roots in California's racist skinhead 
movement and the violence of RAM members has been a hallmark of the 
group and its members.
  The Anti-Defamation League describes RAM as a white supremacist group 
whose members believe they are fighting against a ``modern world'' 
corrupted by the ``destructive cultural influences'' of liberals, Jews, 
Muslims and non-white immigrants.
  RAM members consider themselves to be part of the ``Alt Right'' and 
operates like a street-fighting club.
  RAM members actively train to do physical battle with their 
ideological foes, and have been involved in violent clashes during 
political rallies and demonstrations.
  Mr. Miselis had a security clearance and worked for Northrup Grumman, 
a major defense contractor, at the time he engaged in physical violence 
against persons protesting racism and white supremacy in 
Charlottesville, Virginia.
  In May 2018, Northrup Grumman was informed of Mr. Miselis' membership 
in RAM and the violent assaults he initiated while he was in 
Charlottesville participating in activities in support of white 
supremacy, which were captured on video and in photos.
  Mr. Miselis worked for a government contractor and held a security 
clearance authorizing him to work on projects that were of vital 
interest to our nation and its defense.
  Northrup Grumman did not dismiss him until the story broke earlier 
this month with media reports on the violence Mr. Miselis engaged in at 
the white supremacists' rally held in Charlottesville, Virginia.
  Mr. Speaker, the United States is a nation of laws, which gives us 
the freedom to agree, and most importantly disagree, with not only each 
other, but with our government.
  But the limitations on the right to express political views was best 
described by Justice Oliver Wendell Holmes, Jr., who said: ``The right 
to swing my fist ends where the other man's nose begins.''
  There is a limit to the expression of free speech and the freedom to 
assemble and that limit is violence.
  The awarding of security clearances to contractors must be better 
managed and the consequences for involvement in activities that would 
be cause for dismissal from the armed services or any federal agency 
should not go unnoticed.
  The Jackson Lee Amendment makes the clear statement to DHS 
contractors that the awarding of contracts that involve the security of 
our nation should not be taken lightly and that the allocation of 
federal funds to contractors who employ persons who advocate or 
participate in acts against persons on account of their race, creed, 
religious beliefs, or gender who engage in constitutionally protected 
activities will not be tolerated.
  For these reasons, I support H.R. 6374 and urge my colleagues to 
support this bill.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New York (Mr. Katko) that the House suspend the rules 
and pass the bill, H.R. 6374, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________