S. 1744 — Reported in Senate

II Calendar No. 606 113th CONGRESS 2d Session S. 1744 IN THE SENATE OF THE UNITED STATES November 20, 2013Mr. Tester (for himself, Mr. Portman, Mrs. McCaskill, Mr. Begich, Mr. Baucus, Mr. Nelson, Mr. Johnson of Wisconsin, and Ms. Ayotte) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs November 20, 2014Reported by Mr. Carper, with an amendment and an amendment to the titleStrike out all after the enacting clause and insert the part printed in italic A BILL To strengthen the accountability of individuals involved in misconduct affecting the integrity of background investigations, to update guidelines for security clearances, and for other purposes. 1. Short title This Act may be cited as the Security Clearance Accountability, Reform, and Enhancement Act. 2. Definitions In this Act— (1) the term administrative leave— (A) means a period of administratively authorized absence from official duties by an employee of an agency without loss of pay or charge to the leave account of the employee; and (B) does not include the absence of an employee of an agency who is performing officially sanctioned duties away from the usual work site or that are different from the regular duties of the employee; (2) the term agency has the meaning given that term in section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341); (3) the term appropriate congressional committees means— (A) the Committee on Homeland Security and Governmental Affairs and the Select Committee on Intelligence of the Senate; and (B) the Committee on Oversight and Government Reform and the Permanent Select Committee on Intelligence of the House of Representatives; (4) the term background investigation means any investigation required for the purpose of determining whether an individual may be appointed to, or continue to occupy, a position, as an employee or contractor of an agency, that requires its occupant to have access to classified information or secure government facilities; (5) the term covered contract means a contract— (A) between an agency and a prime contractor; (B) between a prime contractor and a subcontractor; and (C) between subcontractors; (6) the term debar— (A) means to prohibit an individual from being appointed to, or continuing to occupy, a position, as a contractor of an agency, that requires its occupant to supervise, conduct, or otherwise administer background investigations; and (B) shall be construed within the parameters and scope of debarment under subpart 9.4 of part 9 of title 48, Code of Federal Regulations, or any successor thereto; (7) the term Director means the Director of the Office of Personnel Management; (8) the term prime contractor means a person who enters into a contract with an agency; (9) the term subcontractor means a person who has contracted with a prime contractor or with another subcontractor to perform a contract with an agency; and (10) the term terminate means to prohibit an individual from being appointed to, or continuing to occupy, a position, as an employee of an agency, that requires its occupant to supervise, conduct, or otherwise administer background investigations. 3. Termination and debarment of individuals involved in misconduct affecting the integrity of the background investigations program of the Office of Personnel Management (a) Termination The Director shall terminate an individual employed by the Office of Personnel Management if the Director determines, based upon a preponderance of the evidence, that the individual was intentionally involved in misconduct affecting the integrity of the background investigations program of the Office of Personnel Management, including— (1) falsification of a background investigation report; (2) fraud relating to a background investigation report; or (3) other serious misconduct that compromises the integrity of a background investigation report. (b) Debarment The Director shall debar an individual employed or contracted by a person under contract with the Office of Personnel Management if the Director determines, based upon a preponderance of the evidence, that the individual was intentionally involved in misconduct that has the potential to affect the integrity of the background investigations program of the Office of Personnel Management, including— (1) falsification of a background investigation report; (2) fraud relating to a background investigation report; or (3) other serious misconduct that compromises the integrity of a background investigation report. (c) Suspension (1) In general The Director shall suspend an individual employed or contracted by a person under contract with the Office of Personnel Management if the Director determines, based upon a preponderance of the evidence, that an investigation is required to determine whether the individual was intentionally involved in misconduct affecting the integrity of the background investigations program of the Office of Personnel Management, including— (A) falsification of a background investigation report; (B) fraud relating to a background investigation report; or (C) other serious misconduct that compromises the integrity of a background investigation report. (2) Duration of suspension An individual suspended under paragraph (1) shall remain suspended until such time that the Director determines that the individual was not intentionally involved in misconduct affecting the integrity of the background investigations program of the Office of Personnel Management. (d) Administrative leave (1) In general The Director shall place on administrative leave an individual employed by the Office of Personnel Management if the Director determines, based upon a preponderance of the evidence, that an investigation is required to determine whether the individual was intentionally involved in misconduct affecting the integrity of the background investigations program of the Office of Personnel Management, including— (A) falsification of a background investigation report; (B) fraud relating to a background investigation report; or (C) other serious misconduct that compromises the integrity of a background investigation report. (2) Period of administrative leave An individual placed on administrative leave under paragraph (1) shall remain on administrative leave until such time that the Director determines that the individual was not intentionally involved in misconduct affecting the integrity of the background investigations program of the Office of Personnel Management. (e) Procedures The Director shall establish procedures under which subsections (a) through (d) shall be carried out, which shall— (1) with respect to employees— (A) ensure that— (i) the employee is provided with notice and opportunity to be heard; and (ii) the determination whether to terminate or reinstate the employee is made expeditiously; and (B) be in accordance with chapters 5 and 75 of title 5, United States Code; and (2) with respect to individuals employed or contracted by persons under contract with the Office of Personnel Management, shall be carried out in accordance with section 9.406–3 of title 48, Code of Federal Regulations, or any successor thereto. (f) Mandatory disclosure Any covered contract shall include a provision requiring the prime contractor or subcontractor to disclose any misconduct of the type described under subsections (a) through (d) and any violation of Federal law to the agency in a timely manner, and in no event later than 90 days after the date that the misconduct is discovered by the prime contractor or subcontractor. (g) Reporting Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Director shall submit to the appropriate congressional committees a report providing— (1) the number of individuals terminated under subsection (a); (2) the number of individuals debarred under subsection (b); (3) the number of individuals suspended under subsection (c); (4) the number of individuals placed on administrative leave under subsection (d); and (5) details of the misconduct that resulted in each termination under subsection (a), debarment under subsection (b), suspension under subsection (c), and placement on administrative leave under subsection (d). 4. Review and update of classified information guidance (a) Guidelines Not later than 180 days after the date of enactment of this Act, the President shall review and update guidance for agencies that shall be used to— (1) determine whether a position requires its occupant to have a security clearance; (2) implement the guidance provided in paragraph (1), including quality controls; and (3) not less frequent than every 5 years, review and, if necessary, revise the designation of a position as requiring its occupant to have access to classified information or secure government facilities. (b) Reports to Congress Not later than 30 days after a review under subsection (a)(2), the President shall submit to the appropriate congressional committees a report on any issues identified in the review, and any updates made, under subsection (a)(2). (c) No change in authority Nothing in this section limits or expands the authority of any agency to designate a position as requiring its occupant to have access to classified information or secure government facilities. 1. Short title This Act may be cited as the Security Clearance Accountability, Reform, and Enhancement Act. 2. Definitions In this Act— (1) the term agency has the meaning given the term in Executive Order 13467 (73 Fed. Reg. 38103); (2) the term appropriate agency means— (A) in the case of a prime contractor for a covered contract, the agency with which the prime contractor entered the covered contract; or (B) in the case of a subcontractor for a covered contract, any agency on whose behalf the subcontractor is performing work under the covered contract; (3) the term appropriate congressional committees means— (A) the Committee on Homeland Security and Governmental Affairs and the Select Committee on Intelligence of the Senate; and (B) the Committee on Oversight and Government Reform and the Permanent Select Committee on Intelligence of the House of Representatives; (4) the term background investigation means any investigation required for the purpose of determining the— (A) eligibility of a covered individual for logical and physical access to federally controlled facilities or information systems; (B) suitability or fitness of a covered individual for Federal employment; (C) eligibility of a covered individual for access to classified information or to hold a national security sensitive position; or (D) fitness of a covered individual to perform work for or on behalf of the United States Government as a contractor employee; (5) the term covered contract means a contract to conduct background investigations— (A) between an agency and a prime contractor; (B) between a prime contractor and a subcontractor, if the prime contractor has a contract with an agency; or (C) between subcontractors, if one of the subcontractors has a contract with a prime contractor that has a contract with an agency; (6) the term covered individual means an individual who— (A) performs work for or on behalf of an agency; or (B) seeks to perform work for or on behalf of an agency; (7) the term covered misconduct means misconduct affecting the integrity of a background investigation conducted by or for an agency with investigative authority to conduct background investigations, including— (A) falsification of any information relating to a background investigation; or (B) other serious misconduct that compromises the integrity of a background investigation; (8) the term prime contractor means an individual who enters into a contract with an agency; and (9) the term subcontractor means an individual who has contracted with a prime contractor or with another subcontractor to perform a contract on behalf of an agency. 3. Accountability of individuals involved in misconduct affecting the integrity of agency background investigations (a) Misconduct by Federal employees (1) Unfit for Federal employment If an agency determines that an employee of the agency has engaged in covered misconduct, the employee shall be found unfit for Federal employment. (2) Fitness determinations An agency shall make a determination under paragraph (1) in accordance with any statutory, regulatory, or internal agency procedures applicable to investigating alleged misconduct by employees of the agency. (3) Prohibition on reemployment to conduct background investigations If an agency determines under paragraph (1) that an individual is unfit for Federal employment, the individual shall not be appointed to or continue to occupy a position, as an employee of any agency, that requires its occupant to perform background investigations. (b) Misconduct by employees under contract (1) Ineligibility for performance of work under a covered contract If an appropriate agency, prime contractor, or subcontractor determines that an individual performing work under a covered contract has engaged in covered misconduct, the individual shall be ineligible to perform background investigations under a covered contract. (2) Mandatory disclosure A covered contract shall include a provision requiring a prime contractor or subcontractor to disclose to each appropriate agency any allegation of covered misconduct by an employee of the prime contractor or subcontractor not later than 24 hours after the prime contractor or subcontractor discovers the alleged covered misconduct. (3) Investigation of covered misconduct (A) Contractor investigation A covered contract shall include a provision requiring that, not later than 5 business days after the date on which a prime contractor or subcontractor discloses an allegation under paragraph (2), the prime contractor or subcontractor shall refer the allegation of covered misconduct to the agency for investigation. (B) Agency investigation Nothing in subparagraph (A) shall be construed to prohibit an appropriate agency from conducting its own investigation into an allegation of covered misconduct. (4) Prohibition on reemployment to conduct background investigations If an appropriate agency determines, based on an investigation conducted under paragraph (3), that an individual is ineligible to perform work under a covered contract under paragraph (1), the individual shall be prohibited from performing background investigations under any covered contract. (5) Modification of existing contracts Not later than 30 days after the date of enactment of this Act, any covered contract that is in effect and was entered into before the date of enactment of this Act shall be modified to include the provisions required under paragraphs (2) and (3). (c) Reporting Not later than 1 year after the date of enactment of this Act, and annually thereafter, the President shall submit to the appropriate congressional committees a report providing— (1) the number of individuals determined to be— (A) unfit for Federal employment under subsection (a); or (B) ineligible to perform work under a covered contract under subsection (b); and (2) details of the covered misconduct that resulted in each determination described in paragraph (1). 4. Review and update of position designation guidance (a) Guidelines (1) Initial review and update of guidance Not later than 180 days after the date of enactment of this Act, the President shall review and, if appropriate, update the guidance the President issues to assist agencies in determining— (A) position sensitivity designation; and (B) the appropriate background investigation to initiate for each position designation. (2) Reviews and revisions of position designations Not less frequently than every 5 years, the President, acting through relevant agencies (as determined by the President) and in accordance with the guidance described in paragraph (1), shall review and, if necessary, revise the position designation of positions within agencies. (b) Reports to Congress Not later than 30 days after completing a review under subsection (a)(2), the President shall submit to the appropriate congressional committees a report on— (1) any issues identified in the review; and (2) the number of position designations revised as a result of the review. (c) No change in authority Nothing in this section limits or expands the authority of any agency to designate a position as sensitive or as requiring its occupant to have access to classified information. Amend the title so as to read: A bill to strengthen the accountability of individuals involved in misconduct affecting the integrity of background investigations, to update guidelines for position designation, and for other purposes.. November 20, 2014Reported with an amendment and an amendment to the title