[House Report 115-913]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-913
======================================================================
FITNESS INFORMATION TRANSPARENCY ACT OF 2018
_______
September 4, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. McCaul, from the Committee on Homeland Security, submitted the
following
R E P O R T
[To accompany H.R. 6374]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 6374) to require the Department of Homeland
Security to streamline Federal contractor fitness
determinations, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 4
Hearings......................................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 6
New Budget Authority, Entitlement Authority, and Tax Expenditures 6
Congressional Budget Office Estimate............................. 7
Statement of General Performance Goals and Objectives............ 7
Duplicative Federal Programs..................................... 7
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 7
Federal Mandates Statement....................................... 7
Preemption Clarification......................................... 7
Disclosure of Directed Rule Makings.............................. 8
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fitness Information Transparency Act
of 2018'' or the ``FIT Act''.
SEC. 2. REQUIREMENT TO STREAMLINE FITNESS DETERMINATIONS.
(a) Consolidation of Fitness Standards.--Not later than 180 days
after the date of the enactment of this Act, the Secretary of Homeland
Security, acting through the Chief Security Officer of the Department
of Homeland Security, shall--
(1) coordinate with the heads of components of the Department
to review and consolidate all Federal contractor fitness
standards used by the Department and its components in order to
issue a uniform set of fitness standards that reflect public
trust concerns which correspond to each position risk level;
(2) require the Department and the heads of its components to
use such uniform fitness standards that correspond to the
relevant position risk level as the basis for fitness
determinations for a contractor employee; and
(3) publish such uniform fitness standards that correspond to
each such position risk level on the public website of the
Department and cause the same to be printed in the Federal
Register.
(b) Deviation From Uniform Fitness Standards.--The Secretary of
Homeland Security, acting through the Chief Security Officer of the
Department of Homeland Security, may authorize the Department or a
component of the Department to deviate from the uniform fitness
standards issued pursuant to subsection (a) on a position-by-position
basis if--
(1) the Secretary publishes in writing on the public website
of the Department and causes the same to be printed in the
Federal Register a certification that contains--
(A) a determination that such uniform fitness
standards are not sufficient to protect information,
systems, or facilities of the Department the
unauthorized disclosure of which or unauthorized access
to which could reasonably be expected to cause
substantial damage to the integrity and efficiency of
the Department; and
(B) a description of approved additional fitness
standards and a list to which positions such deviation
applies; or
(2) exigent circumstances created by a presidential
declaration of a major disaster issued pursuant to section 401
of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5170) require such deviation to
mitigate staffing shortages for the duration of such
declaration.
(c) Reciprocity.--
(1) In general.--The Chief Security Officer of the Department
of Homeland Security shall implement a process to ensure
fitness determinations made by the Department are uniformly
accepted throughout the Department and its components.
(2) Sufficiency.--The Secretary of Homeland Security, acting
through the Chief Security Officer of the Department of
Homeland Security, may, as appropriate, deem a favorably
adjudicated personnel security investigation sufficient to
satisfy a requirement to complete a contractor fitness
determination under this section.
(d) Fitness Adjudication Status Updates.--Not later than one year
after the date of the enactment of this Act, the Secretary of Homeland
Security, acting through the Chief Security Officer of the Department
of Homeland Security and in coordination with heads of the components
of the Department, shall implement a uniform process to--
(1) provide, not less frequently than monthly, contractor
representatives certified pursuant to subsection (e)(1) access
to information regarding the status of fitness determinations
for Department contractor employees relevant to such contractor
representatives; and
(2) collect each fiscal quarter data to allow the Department
and its components and contractor representatives to assess
average fitness investigation, adjudication, and determination
processing times for each component of the Department,
including information regarding the parameters used to
calculate each such average.
(e) Certification.--Before the implementation of the uniform process
described in subsection (d), the Secretary of Homeland Security, acting
through the Chief Security Officer of the Department of Homeland
Security, shall--
(1) certify that each contractor representative receiving
information from such process has received information
regarding practices relating to the adequate protection of
personally identifiable information and has acknowledged in
writing to adhere to such practices; and
(2) consult with the Director of the Office of Personnel
Management to ensure that such process is consistent with
current best practices across the Federal Government.
(f) Applicability of Section 44936 of Title 49, United States Code.--
No authority or policy created by or issued pursuant to this section
shall apply to employees or contractors of an air carrier, foreign air
carrier, or airport operator subject to employment investigations
pursuant to section 44936 of title 49, United States Code.
(g) Reports to Congress.--Not later than 180 days after the
publication of uniform fitness standards described in subsection (a)
and annually thereafter for four years, the Secretary of Homeland
Security shall submit to the Committee on Homeland Security and the
Committee on Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate a report containing--
(1) the number of deviation requests under subsection (b)
made to the Chief Security Officer of the Department of
Homeland Security, including--
(A) the number of deviation requests approved and the
corresponding justification for each such deviation
from such fitness standards; and
(B) the number of deviation requests denied and the
corresponding justification for each such denial;
(2) information regarding the number and average duration of
Federal contractor fitness determinations for each component of
the Department;
(3) information regarding the use of programs or policies
that allow contractors to begin work prior to the completion of
a fitness determination;
(4) to the extent practicable, the number of individuals who,
during the preceding calendar year, received an unfavorable
fitness determination from the Department by reason of an
affiliation with or membership in an organization dedicated to
terrorism;
(5) to the extent practicable, the number of individuals who,
during the preceding calendar year, received a favorable
fitness determination from the Department despite an
affiliation with or membership in an organization dedicated to
terrorism;
(6) information regarding the degree to which fitness
determinations made by the Department and its components or
other Federal agencies are recognized on a reciprocal basis by
the Department and its components pursuant to subsection
(c)(1);
(7) information regarding the degree to which suitability and
fitness determinations for Federal applicants and appointees
made by the Department and its components or other Federal
agencies are recognized on a reciprocal basis by the Department
and its components; and
(8) information regarding the degree to which the Secretary,
acting through the Chief Security Officer of the Department,
uses the authority under subsection (c)(2).
(h) Suitability Status Updates.--Not later than one year after the
date of the enactment of this Act, the Chief Security Officer of the
Department of Homeland Security, in consultation with the Chief Human
Capital Officer of the Department, shall develop a plan to provide
Federal applicants and appointees with suitability and fitness
determination status updates similar to updates provided to contractor
representatives under subsection (d).
(i) Exigent Circumstances Fitness Determination Review.--The Chief
Security Officer of the Department of Homeland Security may conduct an
immediate review of a contractor employee's fitness determination when
a contractor employee has engaged in violent acts against individuals,
property, or public spaces based on the contractor employee's
association with persons or organizations that advocate, threaten, or
use force or violence, or any other illegal or unconstitutional means,
in an effort to prevent others from exercising their rights under the
Constitution or laws of the United States or of any State, based on
factors including, at a minimum, race, religion, national origin, or
disability.
(j) No Additional Funds Authorized.--No additional funds are
authorized to be appropriated to carry out this Act. This Act shall be
carried out using amounts otherwise appropriated.
(k) Definitions.--In this section:
(1) Contractor.--The term ``contractor'' has the meaning
given such term in section 7101 of title 41, United States
Code.
(2) Contractor employee.--The term ``contractor employee''
means an individual who performs work for or on behalf of any
Federal agency under a contract and who, in order to perform
the work specified under such contract, will require access to
facilities, information, information technology systems, staff,
or other assets of the Department of Homeland Security, and who
could, by the nature of the access or duties of such
individual, adversely affect the integrity or efficiency of the
Department. Such contracts include the following:
(A) Personal services contracts.
(B) Contracts between any non-Federal entity and the
Department.
(C) Sub-contracts between any non-Federal entity and
another non-Federal entity to perform work related to
the primary contract with the Department.
(3) Contractor representative.--The term ``contractor
representative'' means a person employed by a contractor who is
designated in writing by an authorized official of a contractor
as responsible for managing and communicating with the
Department of Homeland Security or its components on behalf of
such contractor on matters relating to fitness determinations,
and is certified pursuant to subsection (e)(1) regarding the
adequate protection of personally identifiable information.
(4) Excepted service.--The term ``excepted service'' has the
meaning given such term in section 2103 of title 5, United
States Code.
(5) Fitness.--The term ``fitness'' means the level of
character and conduct necessary for an individual to perform
work for or on behalf of a Federal agency in the excepted
service, other than a position subject to a suitability
determination or as a nonappropriated fund instrumentality
employee.
(6) Fitness determination.--The term ``fitness
determination'' means a decision by a Federal agency that an
individual does or does not have the required level of
character and conduct necessary to perform work for or on
behalf of a Federal agency in the excepted service, other than
a position subject to a suitability determination, as a
contractor employee, or as a nonappropriated fund
instrumentality employee.
(7) Information technology.--The term ``information
technology'' has the meaning given such term in section 11101
of title 40, United States Code.
(8) Nonappropriated fund instrumentality employee.--The term
``nonappropriated fund instrumentality employee'' has the
meaning given such term in section 1587(a)(1) of title 10,
United States Code.
(9) Personnel security investigation.--The term ``personnel
security investigation'' has the meaning given such term in
subsection (a) of section 3001 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (50 U.S.C. 3341).
(10) Suitability determination.--The term ``suitability
determination'' has the meaning given such term in section
731.101 of title 5, Code of Federal Regulations.
(11) Terrorism.--The term ``terrorism'' means any criminal
acts that involve violence or are dangerous to human life and
appear to be intended to intimidate or coerce a civilian
population to influence the policy of a government by
intimidation or coercion, or to affect the conduct of a
government by mass destruction, assassination, or kidnapping.
PURPOSE AND SUMMARY
The purpose of H.R. 6374 is to require the Department of
Homeland Security to consolidate, streamline, and publish the
standards by which a contractor employee may be deemed fit to
work for the Department and provide status updates regarding
fitness determinations. H.R. 6374 enables DHS to provide
greater transparency to the contractor workforce, which will,
in turn, increase efficiency.
BACKGROUND AND NEED FOR LEGISLATION
The Department of Homeland Security (DHS) relies on
thousands of contractor employees every day to achieve its
mission. From IT services to construction and janitorial
services, DHS and contractor employees work hand-in-hand to
secure our nation. Prior to employment, DHS vets each
contractor employee by assessing the character and conduct of
contractor employees in order to make a fitness determination--
a decision that a person either does or does not have the level
of character and conduct necessary to uphold the integrity and
efficiency of the Department.
Currently, the Office of Personnel Management (OPM) sets
minimum fitness standards for Federal contractors. However, DHS
components vary in how they apply those standards. Inconsistent
fitness standards across DHS hinder the ability of components
to reciprocally accept another component's fitness
determination. Additionally, the current process for a
contractor employee to receive a status update regarding their
fitness determination is convoluted and inefficient.
H.R. 6374 requires DHS to consolidate its varying fitness
standards by creating uniform fitness requirements for each
position risk level. By doing so, DHS will achieve Department-
wide uniformity and reciprocity of fitness standards, thereby
eliminating the need for one contractor to undergo multiple
fitness investigations. The FIT Act also reduces bureaucratic
redundancies by allowing, when appropriate, the Secretary of
DHS to deem someone who possesses a security clearance to also
be considered fit to work for DHS. Moreover, H.R. 6374
increases transparency into the fitness determination process
by requiring DHS to provide monthly status updates to
contractor representatives. The FIT Act provides DHS the
flexibility it needs to vet contract workers for its diverse
missions, while also making the process to do so more efficient
and transparent.
Since the same problems contractors experience exist within
the Federal applicant pool, H.R. 6374 also requires DHS to take
steps to improve the suitability determination process for
Federal applicants and appointees. In this effort, the
Department is required to report to Congress on the degree to
which reciprocity is occurring for Federal applicants and
appointees, and to develop a plan to communicate investigation
updates to applicants and appointees.
HEARINGS
No hearings were specifically held on H.R. 6374. However,
on February 27, 2018, the Subcommittee on Oversight and
Management Efficiency held a hearing entitled ``Doing Business
with DHS: Industry Recommendations to Improve Contractor
Employee Vetting.'' The Subcommittee received testimony from
The Honorable Charles L. Allen, Senior Intelligence Advisor,
Intelligence and National Security Alliance; Mr. Marc Pearl,
President and CEO, Homeland Security and Defense Business
Council; The Honorable David J. Berteau, President and CEO,
Professional Services Council; and Mr. Brandon LaBonte,
President and CEO, Ardent Management Consulting Inc.
COMMITTEE CONSIDERATION
The Committee met on July 24, 2018, to consider H.R. 6374,
and ordered the measure to be reported to the House with a
favorable recommendation, as amended, by unanimous consent. The
Committee took the following actions:
The Committee adopted H.R. 6374, as amended, by unanimous
consent.
The following amendments were offered:
An amendment offered by Ms. Jackson Lee (#1); Page 7,
beginning line 4, insert a new subsection entitled ``(h)
Exigent Circumstances Fitness Determination Review.''; was
AGREED TO, by unanimous consent.
An amendment offered by Mrs. Watson Coleman (#2); Page 6,
line 23, strike ``and''.
Page 7, line 3, strike the period and insert a semicolon.
Page 7, beginning line 4, insert the following:
(4) to the extent practicable, the number of
individuals who, during the preceding calendar year,
received an unfavorable fitness determination from the
Department by reason of an affiliation with or
membership in an organization dedicated to terrorism;
and
(5) to the extent practicable, the number of
individuals who, during the preceding calendar year,
received a favorable fitness determination from the
Department despite an affiliation with or membership in
an organization dedicated to terrorism.
Page 10, after line 2, add a new paragraph entitled ``(11)
Terrorism.'' AGREED TO, by unanimous consent.
An amendment offered by Mr. Correa (#1); Page 6, line 23,
strike ``and''.
Page 7, line 3, strike the period and insert a semicolon.
Page 7, beginning line 4, insert the following:
(4) information regarding the degree to which fitness
determinations made by the Department and its
components or other Federal agencies are recognized on
a reciprocal basis by the Department and its components
pursuant to subsection (c)(1);
(5) information regarding the degree to which
suitability and fitness determinations for Federal
applicants and appointees made by the Department and
its components or other Federal agencies are recognized
on a reciprocal basis by the Department and its
components; and
(6) information regarding the degree to which the
Secretary, acting through the Chief Security Officer of
the Department, uses the authority under subsection
(c)(2).
``(h) Suitability Status Updates.--''; was AGREED TO, by
unanimous consent.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto. No recorded votes were requested during consideration
of H.R. 6374.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
6374, the Fitness Information Transparency Act of 2018, would
result in no new or increased budget authority, entitlement
authority, or tax expenditures or revenues.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, a cost estimate provided by the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 6374 contains the following
general performance goals and objectives, including outcome
related goals and objectives authorized.
The goal of H.R. 6374 is for the Department of Homeland
Security to review and consolidate all Federal contractor
fitness standards used and publish such standards to provide
greater transparency; to implement a uniform process to provide
fitness determination status updates to contractor
representatives and to develop a plan to provide the same
information to Federal applicants and appointees.
DUPLICATIVE FEDERAL PROGRAMS
Pursuant to clause 3(c) of rule XIII, the Committee finds
that H.R. 6374 does not contain any provision that establishes
or reauthorizes a program known to be duplicative of another
Federal program.
CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF
BENEFITS
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
FEDERAL MANDATES STATEMENT
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
PREEMPTION CLARIFICATION
In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution is intended to preempt State,
local, or Tribal law, the Committee finds that H.R. 6374 does
not preempt any State, local, or Tribal law.
DISCLOSURE OF DIRECTED RULE MAKINGS
The Committee estimates that H.R. 6374 would require no
directed rule makings.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
This section provides that this bill may be cited as the
``Fitness Information Transparency Act of 2018'' or the ``FIT
Act''.
Sec. 2. Requirement to streamline fitness determinations
Section 2(a) requires the Secretary of Homeland Security,
acting through the Chief Security Officer of the Department,
to: coordinate with components of the Department to issue a
uniform set of fitness standards that correspond to each
position risk; use such uniform fitness standards coordinating
with the relevant risk level in order make a fitness
determination; and, publish the uniform fitness standards on
the Department's website and in the Federal Register.
Section 2(b) allows the Secretary, acting through the Chief
Security Officer, to authorize a component to deviate from the
uniform fitness standards on a position-by-position basis if
the Secretary publishes a certificate that the uniform fitness
standards are not sufficient to protect the integrity and
efficiency of the Department and provides a description of the
positions to which the deviation applies.
Section 2(c) requires the Chief Security Officer to
implement a process to ensure fitness determinations are
uniformly accepted throughout the Department and allows, when
appropriate, the Secretary to deem someone who has a security
clearance to also be deemed fit to work for DHS.
Section 2(d) requires the Secretary to implement a process
to provide contractor representatives monthly status updates
regarding fitness determinations. Additionally, Section 2(e)
requires the contractor representatives to certify in writing
they adhere to certain practices regarding protection of
personally identifiable information.
Section 2(f) clarifies that the provisions in this
legislation do not apply to employees or contract employees of
an air carrier, foreign air carrier, or airport operator.
Section 2(g) requires the Secretary to report to Congress
information regarding: the number of deviation requests from
the uniform fitness standards; the number and average duration
of fitness determinations for each component; the use of
programs that allow a contractor employee to begin work prior
to the completion of a fitness determination; the degree to
which fitness determinations are reciprocally recognized; the
degree to which suitability determinations are reciprocally
recognized; the degree to which the Secretary uses the
authority granted in subsection (c)(2); the number of
individuals who received an unfavorable fitness determination
due to associations with terrorism organizations; and, the
number of individuals who received a favorable fitness
determination despite associations with terrorism
organizations.
Section (2)(h) requires the Chief Security Officer of the
Department of Homeland Security to develop a plan to provide
similar status updates to certain Federal employees.
Section (2)(i) also authorizes the Secretary to conduct an
immediate review of a contractor employee's fitness
determination if the contractor employee has engaged in certain
violent acts.
Section 2(j) specifies that no additional funds are
authorized to carry out this Act.
Finally, section 2(k) provides definitions for terms in the
legislation.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
As reported, H.R. 6374 makes no changes to existing law.
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