82 FR 8115 - Amending the Civil Service Rules, Executive Order 13488, and Executive Order 13467 To Modernize the Executive Branch-Wide Governance Structure and Processes for Security Clearances, Suitability and Fitness for Employment, and Credentialing, and Related Matters
Executive Office of the President
Federal Register Volume 82, Issue 13 (January 23, 2017)
Page Range
8115-8129
FR Document
2017-01623
Federal Register, Volume 82 Issue 13 (Monday, January 23, 2017)
[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Presidential Documents]
[Pages 8115-8129]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-01623]
[[Page 8113]]
Vol. 82
Monday,
No. 13
January 23, 2017
Part VII
The President
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Executive Order 13764--Amending the Civil Service Rules, Executive
Order 13488, and Executive Order 13467 To Modernize the Executive
Branch-Wide Governance Structure and Processes for Security Clearances,
Suitability and Fitness for Employment, and Credentialing, and Related
Matters
Presidential Documents
Federal Register / Vol. 82 , No. 13 / Monday, January 23, 2017 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 8115]]
Executive Order 13764 of January 17, 2017
Amending the Civil Service Rules, Executive Order
13488, and Executive Order 13467 To Modernize the
Executive Branch-Wide Governance Structure and
Processes for Security Clearances, Suitability and
Fitness for Employment, and Credentialing, and Related
Matters
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and as part of continuing efforts to modernize
the overarching executive branch enterprise to ensure
that all persons performing work for or on behalf of
the Government are and continue to be loyal to the
United States, reliable, trustworthy, and of good
conduct and character, and by using mutually consistent
standards and procedures, it is hereby ordered as
follows:
Section 1. Amendments to the Civil Service Rules. (a)
Civil Service Rule II is amended as follows:
(i) The title to 5 CFR Part 2 is revised to read as follows:
``PART 2--APPOINTMENT THROUGH THE COMPETITIVE SERVICE; RELATED MATTERS
(RULE II)''
(ii) The title to 5 CFR 2.1 is revised to read as follows:
``Sec. 2.1 Competitive examinations and eligible registers; suitability
and fitness for civil service employment.''
(iii) 5 CFR 2.1(a) is revised to read as follows:
``(a) OPM shall be responsible for:
``(i) Open competitive examinations for admission to the competitive
service that will fairly test the relative capacity and fitness of the
persons examined for the position to be filled.
``(ii) Standards with respect to citizenship, age, education, training and
experience, physical and mental fitness, and for residence or other
requirements that applicants must meet to be admitted to or rated in
examinations.
``(iii) Standards of suitability based on character and conduct for
appointment to a position in the competitive service, for appointment to a
position in the excepted service where the incumbent can be
noncompetitively converted to the competitive service, and for career
appointment to a position in the Senior Executive Service.
``(iv) Minimum standards of fitness based on character and conduct for
appointment in any other position in the excepted service of the executive
branch, except for (A) positions in any element of the intelligence
community as defined in the National Security Act of 1947, as amended, to
the extent they are not otherwise subject to OPM appointing authorities,
and (B) positions where OPM is statutorily precluded from prescribing such
standards.''
(b) Civil Service Rule V is amended as follows:
(i) 5 CFR 5.2(a) is revised to read as follows:
``(a) Investigating the qualifications, suitability, and fitness of
applicants for positions in the competitive service, positions in the
excepted service where the incumbent can be noncompetitively converted to
the competitive service, career appointments to positions in the Senior
Executive Service,
[[Page 8116]]
and any other positions in the excepted service of the executive branch for
which the Director has standard-setting responsibility under Civil Service
Rule II.
``(i) The Director may require appointments to be made subject to
investigation to enable the Director to determine, after appointment, that
the requirements of law or the Civil Service Rules and Regulations have
been met.
``(ii) The Director may cause positions to be designated based on risk to
determine the appropriate level of investigation, and may prescribe
investigative standards, policies, and procedures.
``(iii) The Director may prescribe standards for reciprocal acceptance by
agencies of investigations and adjudications of suitability and fitness,
except to the extent authority to apply additional fitness standards is
vested by statute in an agency.''
(ii) 5 CFR 5.3(a)(1) is revised by striking ``disqualified for Federal
employment'' and inserting in lieu thereof ``disqualified or unsuitable for
Federal employment.''
(c) Civil Service Rule VI is amended as follows:
(i) 5 CFR 6.3(b) is revised to read as follows:
``(b) To the extent permitted by law and the provisions of this part, and
subject to the suitability and fitness requirements of the applicable Civil
Service Rules and Regulations, appointments and position changes in the
excepted service shall be made in accordance with such regulations and
practices as the head of the agency concerned finds necessary.''
Sec. 2. Amendment to Executive Order 13488 of January
16, 2009. (a) Section 1(a) of Executive Order 13488 is
revised to read as follows:
``Section 1. Policy. (a) When agencies conduct
fitness determinations, prior favorable fitness or
suitability determinations shall be granted reciprocal
recognition, to the extent practicable.''
(b) Section 2 of Executive Order 13488 is revised
to read as follows:
``(a) `Agency' means an executive agency as defined in section 105 of title
5, United States Code, but does not include the Government Accountability
Office.
``(b) `Contractor employee' means an individual who performs work for or on
behalf of any agency under a contract and who, in order to perform the work
specified under the contract, will require access to space, information,
information technology systems, staff, or other assets of the Federal
Government, and who could, by the nature of his or her access or duties,
adversely affect the integrity or efficiency of the Government. Such
contracts, include, but are not limited to:
``(i) personal services contracts;
``(ii) contracts between any non-Federal entity and any agency; and
``(iii) sub-contracts between any non-Federal entity and another non-
Federal entity to perform work related to the primary contract with the
agency.
``(c) `Excepted service' has the meaning provided in section 2103 of title
5, United States Code, but does not include those positions in any element
of the intelligence community as defined in the National Security Act of
1947, as amended, to the extent they are not otherwise subject to Office of
Personnel Management appointing authorities.
``(d) `Fitness' is the level of character and conduct determined necessary
for an individual to perform work for or on behalf of a Federal agency as
an employee in the excepted service (other than a position subject to
suitability), as a contractor employee, or as a nonappropriated fund
employee.
``(e) `Fitness determination' means a decision by an agency that an
individual has or does not have the required level of character and conduct
[[Page 8117]]
necessary to perform work for or on behalf of a Federal agency as an
employee in the excepted service (other than a position subject to
suitability), as a contractor employee, or as a nonappropriated fund
employee. A favorable fitness determination is not a decision to appoint or
contract with an individual.
``(f) `Nonappropriated fund employee' means an employee paid from
nonappropriated funds of an instrumentality of the United States under the
jurisdiction of the Armed Forces conducted for the comfort, pleasure,
contentment, and mental and physical improvement of personnel of the Armed
Forces as described in section 2105 of title 5, United States Code.
``(g) `Position of Public Trust' has the meaning provided in 5 CFR Part
731.
``(h) `Suitability' has the meaning and coverage provided in 5 CFR Part
731.
(c) Section 3 of Executive Order 13488 is revised to
read as follows:
``OPM and Agency Authority.
``(a) Adjudications for determining fitness for contractual or
nonappropriated fund employment. While the Office of Personnel Management
establishes the minimum adjudicative criteria for suitability and fitness
determinations for employment in the civil service pursuant to the Civil
Service Rules, the heads of agencies retain the discretion to establish
adjudicative criteria for determining fitness to perform work as a
contractor employee or as a nonappropriated fund employee. Such discretion
shall be exercised with due regard to the regulations and guidance
prescribed by the Office of Personnel Management for the civil service and,
for contractual work, subject to applicable regulations and directives of
the Office of Management and Budget.
``(b) Investigations for determining fitness for contractual or
nonappropriated fund employment. Contractor employee fitness or
nonappropriated fund employee fitness is subject to the same position
designation requirements and investigative standards, policies, and
procedures as fitness determinations for civil service employees, as
prescribed by the Office of Personnel Management under the Civil Service
Rules.
``(c) Reciprocity. Fitness determinations and investigations for fitness
determinations for contractor employees and for nonappropriated fund
employees are subject to the same reciprocity requirements as those for
employment in the civil service, as prescribed by the Office of Personnel
Management under the Civil Service Rules.''
(d) Executive Order 13488 is revised by striking
section 4 in its entirety, and redesignating sections 5
through 8 as sections 4 through 7, respectively.
Sec. 3. Amendments to Executive Order 13467 of June 30,
2008, as amended. (a) The preamble to Executive Order
13467 is revised to read as follows:
``By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including sections 3301, 7103(b), and 7301 of
title 5, United States Code, and in order to strengthen
and ensure a secure, efficient, timely, reciprocal, and
aligned system for investigating and determining
suitability or fitness for Government employment,
fitness to work as a contractor or a nonappropriated
fund employee, eligibility for access to classified
information or to hold a sensitive position, and
authorization to be issued a Federal credential, while
providing fair, impartial, and equitable treatment, and
protecting individual rights under the Constitution and
laws of the United States, and taking appropriate
account of title III of Public Law 108-458, it is
hereby ordered as follows:''
(b) Section 1.1 of Executive Order 13467 is revised
to read as follows:
``Section 1.1. Policy. (a) Executive branch vetting
policies and procedures relating to suitability,
contractor or Federal employee fitness, eligibility to
hold a sensitive position, authorization to be issued a
Federal credential for access to federally controlled
facilities and information systems, and
[[Page 8118]]
eligibility for access to classified information shall
be aligned using consistent standards to the extent
possible, shall provide for reciprocal recognition, and
shall ensure cost-effective, timely, and efficient
protection of the national interest, while providing
fair treatment to those upon whom the Federal
Government relies to conduct our Nation's business and
protect national security.
``(b) The Government's tools, systems, and processes for conducting these
background investigations and managing sensitive investigative information
should keep pace with technological advancements, regularly integrating
current best practices to better anticipate, detect, and counter malicious
activities, and threats posed by external or internal actors who may seek
to do harm to the Government's personnel, property, and information. To
help fulfill these responsibilities, there shall be a primary executive
branch investigative service provider whose mission is to provide
effective, efficient, and secure background investigations for the Federal
Government.
``(c) Executive branch vetting policies and procedures shall be sustained
by an enhanced risk-management approach that facilitates early detection of
issues by an informed, aware, and responsible Federal workforce; results in
quality decisions enabled by improved vetting capabilities; and advances
Government-wide capabilities through enterprise approaches.
``(d) The appointment or retention of each covered individual shall be
subject to an investigation. Federal investigative standards established
pursuant to this order shall be designed to develop information as to
whether the employment or retention in employment in the Federal service of
the person being investigated is clearly consistent with the interests of
the national security, and the scope of the investigation shall be
determined in the first instance according to the degree of material
adverse effect the occupant of the position sought to be filled could bring
about, by virtue of the nature of the position, on the national security.''
``(e) Investigative agencies shall control the reports, information, and
other investigative materials that are developed during the vetting
process. Recipient departments and agencies may retain and use the received
reports, information, and other investigative material within that
recipient for authorized purposes (including, but not limited to,
adjudications, hearings and appeals, continuous evaluation, inspector
general functions, counterintelligence, research, and insider threat
programs), in compliance with the Privacy Act of 1974, as amended (section
552a of title 5, United States Code). Investigative agencies shall ensure
that their applicable System of Records Notices include, at a minimum, the
authorized uses of the recipient departments and agencies such as those set
forth above. Recipient departments and agencies shall not make any external
releases of received information, other than to an investigative subject
for the purpose of providing procedural rights or administrative due
process; and shall direct any other requests for external releases of
copies of the reports, information, and other investigative materials to
the investigative agency. In the event redisclosure by the recipient agency
is required by compulsory legal process, the recipient agency shall consult
with the investigating agency. The investigative agency shall maintain the
reports, information, and other investigative material in a system of
records subject to the Privacy Act and ensure that any re-disclosure does
not violate statutory restrictions or result in the unauthorized disclosure
of: classified information, information subject to a claim of privilege, or
information that is otherwise lawfully exempt from disclosure. Subject to
Security Executive Agent authorizations consistent with section 3341(e)(5)
of title 50, United States Code, the investigative agencies shall make
reports, information, and other investigative material available, as
necessary, to carry out the responsibilities set forth in this order,
including but not limited to, authorized executive branch-sponsored
research and initiatives for enterprise-wide continuous performance
improvement of vetting policy and procedures, as permitted by law.''
(c) Section 1.2 of Executive Order 13467 is revised
to read as follows:
[[Page 8119]]
``Sec. 1.2. Applicability. (a) This order applies
to vetting of all covered individuals as defined in
section 1.3(h), except that:
``(i) the provisions regarding eligibility for physical access to
federally controlled facilities and logical access to federally controlled
information systems do not apply to individuals exempted in accordance with
guidance pursuant to the Federal Information Security Management Act (title
III of Public Law 107-347) and Homeland Security Presidential Directive 12
of August 27, 2004; and
``(ii) the qualification standards for enlistment, appointment, and
induction into the Armed Forces pursuant to title 10, United States Code,
are unaffected by this order.
``(b) This order also applies to vetting for employees of agencies working
in or for the legislative or judicial branches when the vetting is
conducted by the executive branch.''
(d) Section 1.3(a) of Executive Order 13467 is
revised to read as follows:
``(a) `Adjudication' means the evaluation of pertinent data in a background
investigation, as well as any other available information that is relevant
and reliable, to determine whether a covered individual is:
``(i) suitable for Government employment;
``(ii) eligible for logical and physical access;
``(iii) eligible for access to classified information;
``(iv) eligible to hold a sensitive position; or
``(v) fit to perform work for or on behalf of the Government as a Federal
employee, contractor, or nonappropriated fund employee.''
(e) Sections 1.3(c) and 1.3(d) of Executive Order
13467 are revised to read as follows:
``(c) `Classified information' means information that has been determined
pursuant to Executive Order 13526 of December 29, 2009, 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.
``(d) `Continuous evaluation (CE)' means a vetting process to review the
background of an individual who has been determined to be eligible for
access to classified information or to hold a sensitive position at any
time during the period of eligibility. CE leverages a set of automated
record checks and business rules to assist in the on-going assessment of an
individual's continued eligibility. CE is intended to complement continuous
vetting efforts.''
(f) Section 1.3(f) of Executive Order 13467 is
deleted.
(g) Sections 1.3(j), (k), (l), and (m) are
redesignated as sections 1.3(m), (n), (o), and (p);
sections 1.3(g), (h), and (i) are redesignated as
sections 1.3(h), (i), and (j); and section 1.3(e) is
redesignated as section 1.3(g).
(h) New sections 1.3(e) and 1.3(f) are added to
Executive Order 13467 to read as follows:
``(e) `Continuous performance improvement' means assessing national policy
and operations, adverse events, and emerging trends and technology
throughout the Government's end-to-end vetting program. It relies on
research to generate data-driven decisions and uses outcome-based
measurements to adjust policy and operations.
``(f) `Continuous vetting' means reviewing the background of a covered
individual at any time to determine whether that individual continues to
meet applicable requirements.''
(i) Redesignated section 1.3(h) of Executive Order
13467 is revised to read as follows:
``(h) `Covered individual' means a person who performs, or who seeks to
perform, work for or on behalf of the executive branch (e.g., Federal
employee, military member, or contractor), or otherwise interacts with
[[Page 8120]]
the executive branch such that the individual must undergo vetting, but
does not include:
``(i) the President or (except to the extent otherwise directed by the
President) employees of the President under section 105 or 107 of title 3,
United States Code;
``(ii) the Vice President or (except to the extent otherwise directed by
the Vice President) employees of the Vice President under section 106 of
title 3, United States Code, or annual legislative branch appropriations
acts; or
``(iii) with respect to background investigations only, duly elected or
appointed governor of a State or territory, or an official who has
succeeded to that office under applicable law in accordance with Executive
Order 13549 of August 18, 2010, and its implementing directive.''
(j) New sections 1.3(k) and 1.3(l) are added to
Executive Order 13467 to read as follows:
``(k) `Fitness' means the level of character and conduct determined
necessary for an individual to perform work for or on behalf of a Federal
agency as an employee in the excepted service (other than a position
subject to suitability), or as a `contractor employee' or a
`nonappropriated fund employee' as those terms are defined in Executive
Order 13488 of January 16, 2009, as amended.
``(l) `Investigation' means the collection and analysis of pertinent facts
and data to support a determination of whether a covered individual is, and
continues to be:
``(i) eligible for access to classified information;
``(ii) eligible to hold a sensitive position;
``(iii) suitable or fit for Federal employment;
``(iv) fit to perform work for or on behalf of the Federal Government as
a contractor or nonappropriated fund employee; or
``(v) authorized to be issued a Federal credential.''
(k) Redesignated section 1.3(n) of Executive Order
13467 is revised to read as follows:
``(n) `National Background Investigations Bureau' (NBIB) means the National
Background Investigations Bureau, established within the Office of
Personnel Management under section 1103(a)(3) of title 5, United States
Code, or a successor entity, with responsibility for conducting effective,
efficient, and secure personnel background investigations pursuant to law,
rule, regulation, or Executive Order.''
(l) Redesignated section 1.3(o) of Executive Order
13467 is revised to read as follows:
``(o) `Sensitive Position' means any position within or in support of a
department or agency, the occupant of which could bring about, by virtue of
the nature of the position, a material adverse effect on the national
security, regardless of whether the occupant has access to classified
information, and regardless of whether the occupant is an employee, a
military service member, or a contractor.
(m) New section 1.3(q) is added to Executive Order
13467 to read as follows:
``(q) `Vetting' is the process by which covered individuals undergo
investigation, evaluation, and adjudication of whether they are, and remain
over time, suitable or fit for Federal employment, eligible to occupy a
sensitive position, eligible for access to classified information, eligible
to serve as a nonappropriated fund employee or a contractor, eligible to
serve in the military, or authorized to be issued a Federal credential.
Vetting includes all steps in the end-to-end process, including determining
need (appropriate position designation), validating need (existence of a
current investigation or adjudication), collecting background information
[[Page 8121]]
via standard forms, investigative activity, adjudication, providing
administrative due process or other procedural rights, and ongoing
assessments to ensure that individuals continue to meet the applicable
standards for the position for which they were favorably adjudicated.''
(n) The title to Part 2 of Executive Order 13467 is
revised to read as follows:
``PART 2--VETTING ENTERPRISE, RECIPROCITY,
CONTINUOUS PERFORMANCE IMPROVEMENT, AND GOVERNANCE''
(o) Section 2.1 of Executive Order 13467 is revised
to read as follows:
``Sec. 2.1. Vetting Enterprise. (a) The executive
branch-wide vetting enterprise shall use, to the
greatest extent practicable, aligned and consistent
vetting policies, procedures, and standards, as
determined by the Council and the Executive Agents. The
Executive Agents shall issue guidance to implement this
provision.
``(b) The aligned executive branch-wide vetting enterprise shall employ
modern and consistent standards and methods, enable innovations with
enterprise information technology capabilities and end-to-end automation to
the extent practicable, and ensure that relevant information maintained by
agencies can be accessed and shared rapidly across the executive branch,
while protecting national security, protecting privacy-related information,
protecting civil rights and civil liberties, ensuring resulting decisions
are in the national interest and in accordance with due process
requirements, and providing the Federal Government with an effective
trusted workforce.
``(c) The investigative and adjudicative standards for fitness shall, to
the extent practicable, be consistent with the standards for suitability.
The Executive Agents shall establish in Federal investigative standards the
elements of the level of investigation necessary for vetting for fitness.
``(d) All covered individuals shall be subject to continuous vetting under
standards (including, but not limited to, the frequency of such vetting) as
determined by the Security Executive Agent or the Suitability and
Credentialing Executive Agent exercising its Suitability Executive Agent
functions, as applicable.
``(e) Vetting shall include a search of records of the Federal Bureau of
Investigation, including a fingerprint-based search, and any other
appropriate biometric or database searches not precluded by law.''
(p) Sections 2.2, 2.3, 2.4, and 2.5 of Executive
Order 13467 are redesignated as sections 2.4, 2.5, 2.6,
and 2.7.
(q) New sections 2.2 and 2.3 are added to Executive
Order 13467 to read as follows:
``Sec. 2.2. Reciprocity. Except as otherwise
authorized by law or policy issued by the applicable
Executive Agent, agencies shall accept background
investigations and adjudications conducted by other
authorized agencies unless an agency determines that a
particular background investigation or adjudication
does not sufficiently address the standards used by
that agency in determining the fitness of its excepted
service employees who cannot be noncompetitively
converted to the competitive service. Except as
described above and except to the extent authority to
apply additional requirements is vested by statute in
an agency, an agency may not establish additional
investigative or adjudicative requirements (other than
requirements for the conduct of a polygraph examination
consistent with law, directive, or regulation) that
exceed existing requirements without the approval of
the Suitability and Credentialing Executive Agent
exercising its Suitability Executive Agent functions or
Security Executive Agent, as appropriate. Any
additional requirements approved by the appropriate
Executive Agent shall be limited to those that are
necessary to address significant needs unique to the
agency involved, to protect national security, or to
satisfy a requirement imposed by law.''
[[Page 8122]]
``Sec. 2.3. Continuous Performance Improvement.
Executive branch vetting policies, processes, and
procedures shall be supported by institutionalized
enterprise-wide continuous performance improvement,
which shall align with and support process
improvements.''
(r) Redesignated section 2.4 of Executive Order
13467 is revised to read as follows:
``Sec. 2.4. Establishment and Functions of
Performance Accountability Council. (a) There is hereby
established a Security, Suitability, and Credentialing
Performance Accountability Council (Council).
``(b) The Deputy Director for Management, Office of Management and Budget,
shall serve as Chair of the Council and shall have authority, direction,
and control over the Council's functions. Membership on the Council shall
include the Suitability and Credentialing Executive Agent, the Security
Executive Agent, and the Under Secretary of Defense for Intelligence. These
four officials collectively shall constitute `the Security, Suitability,
and Credentialing Performance Accountability Council Principals.' The
Director of the National Background Investigations Bureau shall also serve
as a member of the Council. The Chair shall select a Vice Chair to act in
the Chair's absence. The Chair shall have authority to designate officials
from additional agencies who shall serve as members of the Council. Council
membership shall be limited to Federal Government employees in leadership
positions.
``(c) The Council shall be accountable to the President to achieve,
consistent with this order, the goals of the executive branch vetting
enterprise, and is responsible for driving implementation of reform efforts
and enterprise development, ensuring accountability by agencies, ensuring
the Executive Agents align their respective processes, and sustaining
continuous performance improvement and reform momentum.
``(d) The Council shall:
``(i) ensure enterprise-wide alignment of suitability, security,
credentialing, and as appropriate, fitness processes;
``(ii) hold agencies accountable for the implementation of suitability,
security, fitness, and credentialing processes and procedures;
``(iii) define requirements for enterprise-wide reciprocity management
information technology, and develop standards for enterprise-wide
information technology;
``(iv) work with agencies to implement continuous performance improvement
programs, policies, and procedures; establish annual goals and progress
metrics; and prepare annual reports on results;
``(v) ensure and oversee the development of tools and techniques for
enhancing background investigations and adjudications;
``(vi) enable discussion and consensus resolution of differences in
processes, policies, and procedures among the Council Principals, and other
agencies as appropriate;
``(vii) share best practices;
``(viii) advise the Executive Agents on policies affecting the alignment
of investigations and adjudications;
``(ix) work with agencies to develop agency policies and procedures to
enable sharing of vetting information consistent with the law and the
protection of privacy and civil liberties and to the extent necessary for
enterprise-wide efficiency, effectiveness, and security;
``(x) monitor performance to identify and drive enterprise-level process
enhancements, and make recommendations for changes to executive branch-wide
guidance and authorities to resolve overlaps or close policy gaps where
they may exist;
[[Page 8123]]
``(xi) promote data-driven, transparent, and expeditious policy-making
processes; and
``(xii) develop and continuously reevaluate and revise outcome-based
metrics that measure the quality, efficiency and effectiveness of the
vetting enterprise.
``(e) The Chair shall, to further the goals of the vetting enterprise and
to the extent consistent with law, establish subordinate entities,
mechanisms, and policies to support and assist in exercising the Council's
authorities and responsibilities, and facilitate, consistent with the
executive branch's enterprise strategy, adoption of enterprise-wide
standards and solutions to ensure security, quality, reciprocity,
efficiency, effectiveness, and timeliness. The Chair may assign, in whole
or in part, to the head of any agency (solely or jointly) any function
within the Council's authority or responsibilities pursuant to this
order.''
(s) Redesignated section 2.5 of Executive Order
13467 is revised to read as follows:
``Sec. 2.5. Establishment, Designation, and
Functions of Executive Agents. (a) There are hereby
established a Suitability and Credentialing Executive
Agent and a Security Executive Agent.
``(b) The Director of the Office of Personnel Management shall serve as the
Suitability and Credentialing Executive Agent. With respect to the
Suitability Executive Agent functions, the Director:
``(i) shall, pursuant to sections 1103 and 1104 of title 5, United States
Code, and the Civil Service Rules, be responsible for suitability and
fitness by prescribing suitability standards and minimum standards of
fitness for employment; prescribing position designation requirements with
regard to the risk to the efficiency and integrity of the service;
prescribing applicable investigative standards, policies, and procedures
for suitability and fitness; prescribing suitability and fitness
reciprocity standards; making suitability determinations; and taking
suitability actions;
``(ii) shall issue regulations, guidance, and standards to fulfill the
Director's responsibilities related to suitability and fitness under
Executive Order 13488 of January 16, 2009, as amended;
``(iii) shall promote reciprocal recognition of suitability or fitness
determinations among the agencies, including acting as the final authority
to arbitrate and resolve disputes among the agencies involving the
reciprocity of investigations and adjudications of suitability and fitness;
``(iv) shall continue to initially approve, and periodically review for
renewal, agencies' requests to administer polygraphs in connection with
appointment in the competitive service, in consultation with the Security
Executive Agent as appropriate;
``(v) shall make a continuing review of agency programs for suitability
and fitness vetting to determine whether they are being implemented
according to this order;
``(vi) may issue guidelines and instructions to the heads of agencies to
promote appropriate uniformity, centralization, efficiency, effectiveness,
reciprocity, timeliness, and security in processes relating to determining
suitability or fitness; and
``(vii) shall, pursuant to section 1104 of title 5, United States Code,
prescribe performance standards and a system of oversight for any
suitability or fitness function delegated by the Director to the head of
another agency, including uniform and consistent policies and procedures to
ensure the effective, efficient, timely, and secure completion of delegated
functions.
``(c) With respect to the Credentialing Executive Agent functions, the
Director of the Office of Personnel Management:
[[Page 8124]]
``(i) shall develop standards for investigations, reinvestigations, and
continuous vetting for a covered individual's eligibility for a personal
identity verification credential permitting logical and physical access to
federally controlled facilities and federally controlled information
systems (PIV credential);
``(ii) shall develop adjudicative guidelines for a covered individual's
eligibility for a PIV credential;
``(iii) shall develop guidelines on reporting and recording
determinations of eligibility for a PIV credential;
``(iv) shall develop standards for unfavorable determinations of
eligibility for a PIV credential, including procedures for denying and
revoking the eligibility for a PIV credential, for reconsideration of
unfavorable determinations, and for rendering the PIV credential
inoperable;
``(v) shall develop standards and procedures for suspending eligibility
for a PIV credential when there is a reasonable basis to believe there may
be an unacceptable risk pending an inquiry or investigation, including
special standards and procedures for imminent risk;
``(vi) shall be responsible for developing uniform and consistent
policies and procedures to ensure the effective, efficient, timely, and
secure completion of investigations and adjudications relating to
eligibility for a PIV credential;
``(vii) may develop guidelines and instructions to the heads of agencies
as necessary to ensure appropriate uniformity, centralization, efficiency,
effectiveness, and timeliness in processes relating to eligibility for a
PIV credential;
``(viii) shall monitor and make a continuing review of agency programs
for determining eligibility for a PIV credential to determine whether they
are being implemented according to this order; and
``(ix) shall consult to the extent practicable with other agencies with
responsibilities related to PIV credentials to ensure that policies and
procedures are consistent with law including:
``(A) the Office of Management and Budget, in exercising its
responsibilities under section 11331 of title 40, United States Code,
section 3553(a) of title 44, United States Code, division A, sections
1086(b)(2) and (b)(3) of Public Law 114-92, and Homeland Security
Presidential Directive 12 of August 27, 2004;
``(B) the Department of Homeland Security, in exercising its
responsibilities under sections 3553(b), (f), and (g) of title 44, United
States Code;
``(C) the Department of Defense, in exercising its responsibilities under
section 3553(e) of title 44, United States Code, and division A, sections
1086(a)(1)(E), (b)(1), and (b)(2) of Public Law 114-92;
``(D) the Office of the Director of National Intelligence, in exercising
its responsibilities under section 3553(e) of title 44, United States Code,
and division A, section 1086(b)(2) of Public Law 114-92;
``(E) the Department of Commerce and the National Institute of Standards
and Technology, in exercising their responsibilities under section 278g-3
of title 15, United States Code, and Homeland Security Presidential
Directive 12 of August 27, 2004;
``(F) the General Services Administration, in exercising its
responsibilities under division A, section 1086(b)(2) of Public Law 114-92;
and
``(G) the Federal Acquisition Regulation agencies, in exercising their
responsibilities under chapter 137 of title 10, section 121(c) of title 40,
and section 20113 of title 51, United States Code.
``(d) In fulfilling the Credentialing Executive Agent function of
developing policies and procedures for determining eligibility for a PIV
credential and to protect the national security, the Director of the Office
of Personnel Management shall coordinate with and obtain the concurrence of
the
[[Page 8125]]
other Council Principals. Agencies with authority to establish standards or
guidelines or issue instructions related to PIV credentials shall retain
the discretion as to whether to establish policies, guidelines, or
instructions developed by the Credentialing Executive Agent.
``(e) The Director of National Intelligence shall serve as the Security
Executive Agent. The Security Executive Agent:
``(i) shall direct the oversight of investigations, reinvestigations,
adjudications, and, as applicable, polygraphs for eligibility for access to
classified information or eligibility to hold a sensitive position made by
any agency;
``(ii) shall make a continuing review of agencies' national security
background investigation and adjudication programs to determine whether
they are being implemented according to this order;
``(iii) shall be responsible for developing and issuing uniform and
consistent policies and procedures to ensure the effective, efficient,
timely, and secure completion of investigations, polygraphs, and
adjudications relating to determinations of eligibility for access to
classified information or eligibility to hold a sensitive position;
``(iv) may issue guidelines and instructions to the heads of agencies to
ensure appropriate uniformity, centralization, efficiency, effectiveness,
timeliness, and security in processes relating to determinations by
agencies of eligibility for access to classified information or eligibility
to hold a sensitive position, to include such matters as investigations,
polygraphs, adjudications, and reciprocity;
``(v) may, if consistent with the national security, authorize exceptions
to or waivers of national security investigative requirements, and may
issue implementing or clarifying guidance as necessary;
``(vi) shall serve as the final authority to designate an agency or
agencies, to the extent that it is not practicable to use the National
Background Investigations Bureau, to conduct investigations of persons who
are proposed for access to classified information or for eligibility to
hold a sensitive position to ascertain whether such persons satisfy the
criteria for obtaining and retaining access to classified information or
eligibility to hold a sensitive position;
``(vii) shall serve as the final authority to designate an agency or
agencies to determine eligibility for access to classified information or
eligibility to hold a sensitive position in accordance with Executive Order
12968 of August 2, 1995, as amended;
``(viii) shall ensure reciprocal recognition of eligibility for access to
classified information or eligibility to hold a sensitive position among
the agencies, including acting as the final authority to arbitrate and
resolve disputes among the agencies involving the reciprocity of
investigations and adjudications of eligibility; and
``(ix) may assign, in whole or in part, to the head of any agency (solely
or jointly) any of the functions detailed in (i) through (viii) of this
subsection, with the agency's exercise of such assigned functions to be
subject to the Security Executive Agent's oversight and with such terms and
conditions (including approval by the Security Executive Agent) as the
Security Executive Agent determines appropriate.
``(f) Nothing in this section shall be construed in a manner that would
limit the authorities of the Director of the Office of Personnel
Management, the Director of National Intelligence, or the Secretary of
Defense under law.''
(t) Redesignated section 2.6 of Executive Order
13467 is revised to read as follows:
``Sec. 2.6. Roles and Responsibilities of the
National Background Investigations Bureau and the
Department of Defense.
``(a) The National Background Investigations Bureau shall:
[[Page 8126]]
``(1) serve as the primary executive branch service provider for
background investigations for eligibility for access to classified
information; eligibility to hold a sensitive position; suitability or, for
employees in positions not subject to suitability, fitness for Government
employment; fitness to perform work for or on behalf of the Government as a
contractor; fitness to work as a nonappropriated fund employee, as defined
in Executive Order 13488 of January 16, 2009, as amended; and authorization
to be issued a Federal credential for logical and physical access to
federally controlled facilities or information systems;
``(2) provide effective, efficient, and secure personnel background
investigations for the Federal Government;
``(3) provide the Council information, to the extent permitted by law, on
matters of performance, timeliness, capacity, information technology
modernization, continuous performance improvement, and other relevant
aspects of NBIB operations;
``(4) be headquartered in or near Washington, District of Columbia;
``(5) have dedicated resources, including but not limited to a senior
privacy and civil liberties official;
``(6) institutionalize interagency collaboration and leverage expertise
across the executive branch;
``(7) continuously improve investigative operations, emphasizing
information accuracy and protection, and regularly integrate best
practices, including those identified by subject matter experts from
industry, academia, or other relevant sources;
``(8) conduct personnel background investigations in accordance with
uniform and consistent policies, procedures, standards, and requirements
established by the Security Executive Agent and the Suitability and
Credentialing Executive Agent exercising its Suitability Executive Agent
functions; and
``(9) conduct other personnel background investigations as authorized by
law, rule, regulation, or Executive Order.''
``(b) The Secretary of Defense shall design, develop, deploy, operate,
secure, defend, and continuously update and modernize, as necessary,
vetting information technology systems that support all background
investigation processes conducted by the National Background Investigations
Bureau. Design and operation of the information technology systems for the
National Background Investigations Bureau shall comply with applicable
information technology standards and, to the extent practicable, ensure
security and interoperability with other background investigation
information technology systems. The Secretary of Defense shall operate the
database in the information technology systems containing appropriate data
relevant to the granting, denial, or revocation of eligibility for access
to classified information or eligibility for a sensitive position
pertaining to military, civilian, or Government contractor personnel, see
section 3341(e) of title 50, United States Code, consistent with and
following an explicit delegation from the Director of the Office of
Personnel Management pursuant to section 1104 of title 5, United States
Code.''
``(c) Delegations and designations of investigative authority in place on
the date of establishment of the National Background Investigations Bureau
shall remain in effect until amended or revoked. The National Background
Investigations Bureau, through the Director of the Office of Personnel
Management, shall be subject to the oversight of the Security Executive
Agent in the conduct of investigations for eligibility for access to
classified information or to hold a sensitive position; and to the
oversight of the Suitability and Credentialing Executive Agent in the
conduct of investigations of suitability or fitness and logical and
physical access, as provided in section 2.5 of this order. The Council
shall hold the National Background
[[Page 8127]]
Investigations Bureau accountable for the fulfillment of the
responsibilities set forth in section 2.6(a) of this order.''
(u) Subsections (b) and (c) of redesignated section
2.7 of Executive Order 13467 are revised to read as
follows:
``(b) Heads of agencies shall:
``(i) designate, or cause to be designated, as a `sensitive position,'
any position occupied by a covered individual in which the occupant could
bring about by virtue of the nature of the position, a material adverse
effect on the national security;
``(ii) establish and maintain within their respective agencies, an
effective program to ensure that employment and retention of any covered
individual within the agency is clearly consistent with the interests of
national security and, as applicable, meets standards for eligibility for
access to classified information or to hold a sensitive position,
suitability, fitness, or credentialing, established by the respective
Executive Agent;
``(iii) carry out any function assigned to the agency head by the Chair,
and shall assist the Chair, the Council, the Executive Agents, the National
Background Investigations Bureau, and the Department of Defense in carrying
out any function under sections 2.4, 2.5, and 2.6 of this order;
``(iv) implement any policy or procedure established pursuant to this
order;
``(v) to the extent permitted by law, make available to the Council, the
Executive Agents, the National Background Investigations Bureau, and the
Department of Defense such information as may be requested to implement
this order, including information necessary to implement enterprise-wide
vetting policies and procedures;
``(vi) except as authorized by section 3341(e)(5) of title 50, United
States Code, promptly furnish, or cause to be promptly furnished, to the
Office of Personnel Management the information deemed by the Executive
Agents to be necessary for purposes of record keeping and reciprocity
including, but not limited to, the date on which a background investigation
is initiated, the date on which the background investigation is closed, and
the specific adjudicative or access decision made. The Executive Agents
shall determine the appropriate timeline pursuant to which this information
must be reported to the Office of Personnel Management. The Executive
Agents shall maintain discretion to determine the scope of information
needed for record keeping and reciprocity purposes. The Office of Personnel
Management shall regularly provide this information to the Director of
National Intelligence for national security purposes.
``(vii) ensure that all actions taken under this order take account of
the counterintelligence interests of the United States, as appropriate; and
``(viii) ensure that actions taken under this order are consistent with
the President's constitutional authority to:
``(A) conduct the foreign affairs of the United States;
``(B) withhold information the disclosure of which could impair the foreign
relations, the national security, the deliberative processes of the
Executive, or the performance of the Executive's constitutional duties;
``(C) recommend for congressional consideration such measures as the
President may judge necessary or expedient; and
``(D) supervise the unitary executive branch.
``(c) All investigations being conducted by agencies that develop
information indicating that an individual may have been subjected to
coercion, influence, or pressure to act contrary to the interests of the
national security, or information that the individual may pose a
counterintelligence or terrorist threat, or as otherwise provided by law,
shall be referred to the Federal Bureau of Investigation for potential
investigation, and may also be referred to other agencies where
appropriate.''
[[Page 8128]]
(v) Section 3 of Executive Order 13467 is revised
to read as follows:
``Sec. 3. General Provisions. (a) Executive Order
13381 of June 27, 2005, as amended, and Executive Order
10450 of April 27, 1953, as amended, are revoked. By
revoking Executive Order 10450 of April 27, 1953, as
amended, there is no intent to alter the requirement
for an investigation for national security purposes or
the ``clearly consistent with the interest of national
security'' standard prescribed by that Executive Order
for making the determinations referenced in section
2.7(b)(ii). Further, suitability, fitness,
credentialing, and national security eligibility
regulations, standards and guidance issued by, or
interagency agreements entered into by, the Council,
the Executive Agents, or any agency pursuant to
Executive Order 10450 of April 27, 1953, as amended,
shall remain valid until superseded. Nothing in this
order shall:
``(i) supersede, impede, or otherwise affect:
``(A) Executive Order 10577 of November 23, 1954, as amended;
``(B) Executive Order 12333 of December 4, 1981, as amended;
``(C) Executive Order 12829 of January 6, 1993, as amended; or
``(D) Executive Order 13526 of December 29, 2009; or
``(ii) diminish or otherwise affect the denial and revocation procedures
provided to individuals covered by Executive Order 10865 of February 20,
1960, as amended; or
``(iii) be applied in such a way as to affect any administrative
proceeding pending on the date of this order.
``(b) Executive Order 12968 of August 2, 1995, is amended:
``(i) by inserting: `Sec. 3.5. Continuous Evaluation. An individual who
has been determined to be eligible for or who currently has access to
classified information shall be subject to continuous evaluation as further
defined by and under standards (including, but not limited to, the
frequency of such evaluation) as determined by the Director of National
Intelligence.'; and
``(ii) by striking `the Security Policy Board shall make recommendations
to the President through the Assistant to the President for National
Security Affairs' in section 6.3(a) and inserting in lieu thereof `the
Director of National Intelligence shall serve as the final authority';
``(iii) by striking `Security Policy Board' and inserting in lieu thereof
`Security Executive Agent' in each instance;
``(iv) by striking `the Board' in section 1.1(j) and inserting in lieu
thereof `the Security Executive Agent'; and
``(v) by inserting `or appropriate automated procedures' in section
3.1(b) after `by appropriately trained adjudicative personnel'.
``(c) Provisions of Executive Order 12968 of August 2, 1995, as amended,
that apply to eligibility for access to classified information shall apply
to eligibility to hold any sensitive position regardless of whether that
sensitive position requires access to classified information, subject to
the Security Executive Agent issuing implementing or clarifying guidance
regarding requirements for sensitive positions. Nothing in this order shall
supersede, impede, or otherwise affect the remainder of Executive Order
12968 of August 2, 1995, as amended.
``(d) Nothing in this order shall be construed to impair or otherwise
affect the:
``(i) authority granted by law to a department or agency, or the head
thereof; or
``(ii) functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
``(e) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
[[Page 8129]]
``(f) Existing delegations of authority made pursuant to Executive Order
13381 of June 27, 2005, as amended, to any agency relating to granting
eligibility for access to classified information shall remain in effect,
subject to the exercise of authorities pursuant to this order to revise or
revoke such delegation.
``(g) Existing delegations of authority made by the Office of Personnel
Management to any agency relating to suitability or fitness shall remain in
effect, subject to the exercise of authorities to revise or revoke such
delegations.
``(h) If any provision of this order or the application of such provision
is held to be invalid, the remainder of this order shall not be affected.
``(i) This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by any
party against the United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other person.''
Sec. 4. General Provisions. (a) This order shall be
implemented consistent with applicable law and subject
to the availability of appropriations.
(b) If any provision of this order or the
application of such provision is held to be invalid,
the remainder of this order shall not be affected.
(c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
(Presidential Sig.)
THE WHITE HOUSE,
January 17, 2017.
[FR Doc. 2017-01623
Filed 1-19-17; 11:15 am]
Billing code 3295-F7-P