[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.
____________________