[Senate Report 115-185]
[From the U.S. Government Publishing Office]
Calendar No. 264
115th Congress } { Report
SENATE
1st Session } { 115-185
_______________________________________________________________________
SECURELY EXPEDITING CLEARANCES
THROUGH REPORTING TRANSPARENCY ACT OF 2017
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 3210
TO REQUIRE THE DIRECTOR OF THE NATIONAL BACKGROUND
INVESTIGATIONS BUREAU TO SUBMIT A REPORT ON THE
BACKLOG OF PERSONNEL SECURITY CLEARANCE
INVESTIGATIONS, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
November 27, 2017.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2017
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Courtney J. Allen, Counsel
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Charles A. Moskowitz, Minority Senior Legislative Counsel
Thomas J.R. Richards, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 264
115th Congress } { Report
SENATE
1st Session } { 115-185
======================================================================
SECURELY EXPEDITING CLEARANCES THROUGH REPORTING TRANSPARENCY ACT OF
2017
_______
November 27, 2017.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 3210]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 3210) to require
the Director of the National Background Investigations Bureau
to submit a report on the backlog of personnel security
clearance investigations, and for other purposes, having
considered the same, reports favorably thereon with an
amendment in the nature of a substitute and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................6
IV. Section-by-Section Analysis......................................6
V. Evaluation of Regulatory Impact..................................7
VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Act, as Reported.............9
I. PURPOSE AND SUMMARY
The purpose of H.R. 3210, the Securely Expediting
Clearances Through Reporting Transparency Act, or SECRET Act of
2017, is to require the Office of Personnel Management to
report on the backlog of security clearance investigations, and
for other purposes.
II. BACKGROUND AND THE NEED FOR LEGISLATION
In order to protect the American people, certain
information considered important to national security, also
known as classified information, requires protection against
unauthorized disclosure.\1\ Access to this information is only
granted to Federal employees, members of the Armed Forces, or
individuals who act for or on behalf of a Federal agency,
including contractors, subcontractors, and grantees.\2\
Additionally, access to classified information is limited to
individuals in job positions who have a need to access specific
classified information in order to perform or assist in a
lawful and authorized government function.\3\ This ``need-to-
know'' requirement is determined by the employing or sponsoring
Federal agency.\4\ The Federal agency also determines the level
of access required for the job position--top secret, secret,
and confidential--depending on ``the degree of protection
required for information and the amount of damage that
unauthorized disclosure could reasonably be expected to cause
to national defense.''\5\
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\1\Exec. Order No. 12968, 60 Fed. Reg. 151, 40245 (Aug. 7, 1995).
\2\Id.
\3\Id at 40246.
\4\Id.
\5\U.S. Gov't Accountability Office, Personnel Security Clearances:
Actions Needed to Ensure Quality of Background Investigations and
Resulting Decisions, GAO-14-138T, 8 (Feb. 11, 2014), available at
https://www.gao.gov/assets/670/660832.pdf.
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To be granted access to classified information, an
individual must undergo a background investigation and have a
``personal and professional history [which] affirmatively
indicates loyalty to the United States, strength of character,
trustworthiness, honesty, reliability, discretion, and sound
judgment, as well as freedom from conflicting allegiances and
potential for coercion, and willingness and ability to abide by
regulations governing the use, handling, and protection of
classified information.''\6\ This investigation and subsequent
approval or disapproval by a Federal agency to grant the
individual access to classified information at the required
level must be completed prior to accessing classified
information and can also occur at any time afterward to
determine whether the individual continues to meet the
requirements for access to classified information.\7\ A
determination that an individual is eligible for access to
classified information is commonly known as a ``security
clearance.''\8\
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\6\Exec. Order No. 12968, supra note 1 at 40250.
\7\Id at 40246.
\8\50 U.S.C. Sec. 3341. See also U.S. Dep't of Defense, Personnel
Security Program, 10-11 (Jan. 1987), available at http://ogc.osd.mil/
doha/ 5200.2-R.pdf.
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During the background investigation for a security
clearance, Federal investigators will search for records about
the individual and conduct interviews in order to develop a
report of investigation.\9\ Interviews can be conducted with
the individual, as well as the individual's family, friends,
co-workers, neighbors, and others to verify residency,
education, employment, and other information.\10\ Investigators
may search records from law enforcement entities, courts,
creditors, and other entities.\11\ Once the investigation is
complete, the sponsoring agency will receive the completed
background investigation and determine whether the individual
will be granted a security clearance.\12\
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\9\National Background Investigations Bureau, Investigations
Process Details, available at https://nbib.opm.gov/about-us/about-
investigations/investigation-process.
\10\Id.
\11\Id.
\12\Id.
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Executive Order 12968 mandated that individuals with
security clearances undergo periodic reinvestigations ``because
circumstances and characteristics may change dramatically over
time and thereby alter the eligibility of employees for
continued access to classified information.''\13\ Federal law
requires a periodic reinvestigation every five years for a top
secret clearance, every 10 years for a secret clearance, and
every 15 years for a confidential clearance.\14\ In 2008,
Executive Order 13467 further subjected individuals with
security clearances to continuous evaluation.\15\ Continuous
evaluation (CE) allows for monitoring to occur beyond re-
investigation periods and is:
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\13\ Exec. Order No. 12968, supra note 1 at 40251.
\14\ Intelligence Reform and Terrorism Prevention Act of 2004, Pub.
L. No. 108-458, Sec. 3001, 118 Stat. 3638, 3706. See also 50 U.S.C.
Sec. 3341(a)(7).
\15\ Exec. Order. No. 13467, 73 Fed. Reg. 128, 38107 (July 2,
2008).
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 records 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.\16\
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\16\Exec. Order No. 13764, 82 Fed. Reg. 13, 8119 (Jan. 23, 2017).
CE is being introduced government-wide in a phased approach,
``due to the anticipated workload demands, technical
complexities, and the unknown impact to agency workforce
requirements.''\17\
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\17\Security Clearance Investigation Challenges and Reforms:
Hearing Before the H. Subcomm. on Gov't Operations of the H. Comm. on
Oversight and Gov't Reform, 115th Cong. (2017) [hereinafter House
Hearing] (statement of William Evanina, Director, National
Counterintelligence and Security Center), available at https://
oversight.house.gov/wp-content/uploads/2017/10/
ODNI_Evanina_Testimony_Security-Clearance-Investigations.pdf.
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The Intelligence Reform and Terrorism Prevention Act of
2004 requires all agencies to accept ``all security clearance
background investigations and determinations completed by an
authorized investigative agency or authorized adjudicative
agency.''\18\ Executive Order 13467 echoed this requirement by
mandating that ``[e]xcept as otherwise authorized by law,
background investigations and adjudications shall be mutually
and reciprocally accepted by all agencies.''\19\ The National
Counterintelligence and Security Center (NCSC) tracks and
reports on security clearance reciprocity.\20\ In fiscal year
2016, five intelligence community agencies reviewed and closed
35,130 reciprocity requests of security clearances, with an
87.2% acceptance rate.\21\ These reciprocity requests took only
four days to review and accept the security clearance of
another intelligence community agency.\22\
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\18\Intelligence Reform and Terrorism Prevention Act of 2004, supra
note 14 at 3707. See also 50 U.S.C. Sec. 3341.
\19\Exec. Order No. 13467, supra note 15 at 38105.
\20\House Hearing, supra note 17.
\21\Id.
\22\Id.
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In 2016, President Barack Obama established the National
Background Investigations Bureau (NBIB), which is housed in the
Office of Personnel Management (OPM).\23\ NBIB serves ``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 non-appropriated fund employee
. . . and authorization to be issued a Federal credential for
logical and physical access to federally controlled facilities
or information systems.''\24\ NBIB began operations on October
1, 2016, and currently conducts background investigations for
nearly 95 percent of background investigations government-wide
and across 100 Federal agencies.\25\
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\23\The White House, The Way Forward for Federal Background
Investigations (Jan. 22, 2016), available at https://
obamawhitehouse.archives.gov/blog/2016/01/22/way-forward-federal-
background-investigations.
\24\Exec. Order No. 13764, supra note 16 at 8125-26.
\25\National Background Investigations Bureau, About Us, available
at https://nbib.opm.gov/about-us/.
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The current backlog of investigative products by NBIB, as
of September 2017, is 707,000, which includes ``simple records
checks, suitability and credentialing investigations, and more
labor-intensive national security investigations.''\26\
Security clearance background investigations comprise 540,000
of this backlog, with 330,000 for initial investigations and
210,000 for periodic reinvestigations.\27\ Roughly 134,000 of
these are for simple records checks that flow through NBIB on a
daily basis.\28\ According to NBIB, the backlog recently ``has
begun to stabilize and has even been reduced modestly . . .
.''\29\ In fiscal year 2016, background investigations for all
initial investigations for security clearances took an average
of 123 days for the fastest 90 percent of investigations.\30\
This average was 108 days for initial investigations for secret
clearances and 220 days for initial investigations for top
secret clearances.\31\ These processing times are far in excess
of a statutory mandate of 40 days or less for 90 percent of all
investigations\32\ and of OPM's strategic goal of 80 days or
less for top secret security clearances and 40 days or less for
secret security clearances.\33\
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\26\House Hearing (statement of Charles S. Phalen, Jr., Director,
National Background Investigations Bureau), available at https://
oversight.house.gov/wp-content/uploads/2017/10/
OPM_Phalen_Testimony_Security-Clearance-Investigations.pdf.
\27\Id.
\28\Id.
\29\Id.
\30\U.S. Off. of Personnel Mgmt., Annual Performance Report Fiscal
Year 2016, 46, available at https://www.opm.gov/about-us/budget-
performance/performance/2016-annual-performance-report.pdf
\31\Id.
\32\Intelligence Reform and Terrorism Prevention Act of 2004, supra
note 14 at 3709. See also 50 U.S.C. Sec. 3341(g)(2)(i).
\33\U.S. Off. of Personnel Mgmt., supra note 30 at 37.
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This substantial backlog arose from several events that
occurred in recent years.\34\ First, OPM cancelled its contract
with its largest investigation services provider, USIS, in 2014
after the Department of Justice filed fraud charges against
USIS for allegedly filing 650,000 background investigation
reports without performing proper vetting procedures, as
required by the contract.\35\ This termination of USIS's
contract resulted in the loss of thousands of field
investigators to conduct background investigations.\36\ In
2015, OPM learned of cybersecurity breaches by foreign
operatives that resulted in the theft of information about 21.5
million current and retired federal employees, their family
members, and others.\37\ This data breach caused OPM to cease
some functions, like electronic processing, in order to respond
to the breach and enhance security.\38\ Fiscal Year 2016
yielded ``a higher than expected volume of fieldwork-intensive
investigations'' which further exacerbated the backlog.\39\
Last, revisions to the Federal Investigative Standards\40\
established in 2012 were phased-in beginning in 2014 and
``required new investigation types and different coverage
requirements'' leading to a significant increase in the
frequency of periodic reinvestigations.\41\
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\34\House Hearing, supra note 26.
\35\Id. See also Charles S. Clark, OPM Terminates Controversial
Background Check Contractor, Government Executive (Sept. 10, 2014),
available at http://www.govexec.com/contracting/2014/09/opm-terminates-
controversial-background-check-contractor/93680/. See also Dion
Nissenbaum, U.S. Accuses Security Background Check Firm of Fraud, Wall
Street Journal (Jan. 22, 2014), available at https://www.wsj.com/
articles/us-accuses-security-background-check-firm-of-fraud-
1390447893?mg=prod/accounts-wsj.
\36\Id.
\37\Id. See also U.S. Off. of Personnel Mgmt., Cybersecurity
Incidents, available at https://www.opm.gov/cybersecurity/
cybersecurity-incidents/.
\38\Id.
\39\Id.
\40\The Federal Investigative Standards establish the requirements
for conducting background investigations. The standards are divided
into five tiers, based on the level of risk and sensitivity of the job
position, with an Expandable Focused Investigation. An Expandable
Focused Investigation focuses investigative fieldwork on potential
issues detected but not resolved by information previously collected
from the individual or records checks. See U.S. Off. of Personnel
Mgmt., Implementation of Federal Investigative Standards for Tier 1 and
Tier 2 Investigations (Nov. 4, 2014), available at https://
nbib.opm.gov/hr-security-personnel/federal-investigations-notices/2015/
fin-15-03.pdf. See also U.S. Off. of Mgmt. & Budget, Security and
Suitability Process Reform, 11 (Dec. 17, 2008), available at https://
obamawhitehouse.archives.gov/sites/default/files/omb/assets/omb/
reports/joint_security_dec2008.pdf.
\41\House Hearing, supra note 26. See also U.S. Gov't
Accountability Office, Personnel Security Clearances: Actions Needed to
Ensure Quality of Background Investigations and Resulting Decisions,
GAO-14-138T, 12 (Feb. 11, 2014), available at https://www.gao.gov/
assets/670/660832.pdf.
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In 2016, Congress passed a provision that required the
Department of Defense (DOD) to develop an implementation plan
by August 1, 2017, to transfer background investigations for
DOD personnel from OPM to DOD.\42\ DOD issued this
implementation plan on August 22, 2017, which described a
phased transfer over the course of three years.\43\ Industry
stakeholders expressed opposition to this transfer, noting it
``will create a parallel process and duplicative regime in the
[DOD] that will increase costs and drain resources, cause
further delays, hinder process improvements, and undermine
efforts to move the government toward true reciprocity across
all departments and agencies.''\44\
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\42\National Defense Authorization Act of 2017, Pub. L. No. 114-
328, Sec. 951, 130 Stat. 2000, 2371 (2016).
\43\U.S. Dep't of Defense, The Department of Defense Response to
the National Defense Authorization Act for Fiscal Year 2017 Section
951: Implementation Plan for Potential Transfer of Background
Investigation Responsibility to the Department of Defense.
\44\House Hearing (statement of A.R. Hodgkins, III, Senior Vice
President, IT Alliance for Public Sector), available at https://
oversight.house.gov/wp-content/uploads/2017/10/
ITAPS_Hodgkins_Testimony_Security-Clearance-Investigations.pdf.
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OPM ceased publicly reporting on the backlog of security
clearance background investigations pursuant to instruction
from the Office of Management and Budget for reporting priority
goals quarterly to Performance.gov.\45\ While this is a
temporary pause in quarterly reporting, the Committee believes
it is essential for NBIB to continue detailed quarterly
reporting in order to provide transparency in its efforts to
address this substantial backlog. Additionally, the Committee
recognizes that the backlog cannot be reduced without
government-wide implementation of reciprocity and continuous
evaluations. Therefore, it is important that those Federal
agencies involved in these operations provide reports to
Congress on the progress in implementing these vital practices.
It is also critical for Congress to have a comprehensive
understanding of the potential costs and effects that could
result from bifurcating background investigations between NBIB
and DOD before such a transfer is realized.
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\45\Memorandum from Mick Mulvaney, Director, Off. of Mgmt. and
Budget, Reducing Burden for Federal Agencies by Rescinding and
Modifying OMB Memoranda (June 15, 2017), available at https://
www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-
26.pdf.
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H.R. 3210 would require NBIB to issue quarterly reports
with detailed information about the background investigation
backlog, as well as require reports on the implementation of
continuous evaluation and on Federal agencies' use of security
clearance reciprocity. H.R. 3210 would also require a report to
Congress on the Federal government's reviews of sensitive
position designations in order to ensure that the
responsibilities for job positions are being appropriately
assessed for sensitivity, national security, and a need to
access classified information.
III. LEGISLATIVE HISTORY
H.R. 3210 was introduced on July 12, 2017, by Reps. Stephen
Knight (R-CA-5) and Gerald Connolly (D-VA-11). The Act as
amended was passed by the House of Representatives on July 26,
2017, by voice vote. The Act was received in the Senate and
referred to the Committee on Homeland Security and Governmental
Affairs on July 26, 2017.
The Committee considered H.R. 3210 at a business meeting on
October 4, 2017. During the business meeting, a substitute
amendment offered by Ranking Member McCaskill on behalf of
herself, Chairman Johnson, and Senator Tester was adopted. Both
the amendment and the legislation as modified by the amendment
were passed by voice vote en bloc with Senators Johnson,
Lankford, Daines, McCaskill, Tester, Heitkamp, Hassan, and
Harris present.
IV. SECTION-BY-SECTION ANALYSIS OF THE ACT, AS REPORTED
Section 1. Short title
This section establishes the short title of the Act as the
``Securely Expediting Clearances Through Reporting Transparency
Act of 2017'' or the ``SECRET Act of 2017''.
Section 2. Report on backlog of personnel security clearance
investigations
This section requires NBIB to submit a quarterly report to
Congress on the backlog of security clearance background
investigations. This report must include information on the
size of the backlog for each sensitivity level, and the number
of initial investigations and periodic reinvestigations in the
backlog for Federal employees, employees of Federal
contractors, and Department of Defense employees and employees
of Department of Defense contractors. The report is also
required to include information on the average length of time
required to carry out an initial investigation and a periodic
reinvestigation at each sensitivity level and the contributing
factors to this processing time. The quarterly report is also
required to include a backlog mitigation plan and a description
on improvements to information and data security.
Section 3. Report on security clearance investigations of personnel of
the Executive Office of the President
This section requires the Office of Administration of the
Executive Office of the President to submit a report to
Congress that describes the process for conducting and
adjudicating security clearance background investigations for
staff of the Executive Office of the President and of the White
House. This report is required to be submitted within 90 days
of enactment of this Act.
Section 4. Report of duplicative costs
This section requires OMB to submit a report to Congress on
the potential cost of duplicating NBIB resources to implement
the plan issued under the FY 2017 NDAA to transfer background
investigations for DOD personnel from NBIB to DOD. This report
shall be issued within 120 days of enactment of this Act.
Section 5. Report on continuous evaluation and reciprocity
This section requires ODNI and OPM to submit to Congress a
report on the implementation of continuous evaluations
government-wide, including the number of agencies with such
programs, a risk assessment of replacing periodic
reinvestigations with continuous evaluation programs by 2020,
barriers to implementation of these programs, and plans to
replace periodic reinvestigations with continuous evaluation
programs government-wide by 2020. This section also requires
ODNI and OPM to report on Federal agencies' efforts to grant
reciprocal recognition of access to classified information,
recommendations to improve the background investigation
process, and a review of the schedule for processing security
clearances under section 3001 of the Intelligence Reform and
Terrorism Prevention Act of 2004.
Section 6. Review and update of position designation guidance
This section requires the president to review and update
guidance to agencies in determining position sensitivity
designations and the type of background investigation needed
for each position designation. This review is required within
180 days of enactment of this Act and will be required every
four years thereafter. Within 30 days of completing such
reviews, the president will submit a report to Congress on
issues identified with position sensitivity designations and
the number of position designations revised as a result of the
review.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this Act and determined
that the Act will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the Act contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 18, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3210, the SECRET
Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3210--SECRET Act of 2017
H.R. 3210 would amend current law to require the National
Background Investigations Bureau (NBIB), within the Office of
Personnel Management (OPM), to provide various reports to the
Congress. Those reports would cover information about the
backlog in federal investigations for security clearances, the
process for conducting security clearances for the Executive
Office of the President, and the costs to NBIB and the
Department of Defense for such investigations. In addition, OPM
and the Director of National Intelligence would be directed to
report on the status of modernizing security clearance
procedures. Finally, H.R. 3210 would require OPM to review,
update, and report on security clearance designations for
federal employee and contractor employment positions.
Information from OPM indicates that the information
required for H.R. 3210 is already compiled for other efforts.
Thus, CBO estimates it would cost less than $500,000 over the
2018-2022 period to prepare the reports; such spending would be
subject to the availability of appropriated funds.
Enacting H.R. 3210 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 3210 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 3210 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On July 25, 2017, CBO transmitted a cost estimate for H.R.
3210, as ordered reported by the House Committee on Oversight
and Government Reform on July 19, 2017. The two pieces of
legislation are similar, although the Senate version would
require more reports; CBO's estimates of the budgetary effects
of the two bills are the same.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE ACT, AS REPORTED
Because this legislation would not repeal or amend any
provision of current law, it would not make changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.
[all]