[House Report 114-323]
[From the U.S. Government Publishing Office]
114th Congress } {Report
HOUSE OF REPRESENTATIVES
1st Session } {114-323
======================================================================
DEPARTMENT OF HOMELAND SECURITY CLEARANCE
MANAGEMENT AND ADMINISTRATION ACT
_______
November 2, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. McCaul, from the Committee on Homeland Security, submitted the
following
R E P O R T
[To accompany H.R. 3505]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 3505) to amend the Homeland Security Act of 2002
to improve the management and administration of the security
clearance processes throughout the Department of Homeland
Security, and for other purposes, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 2
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 3
New Budget Authority, Entitlement Authority, and Tax Expenditures 3
Congressional Budget Office Estimate............................. 3
Statement of General Performance Goals and Objectives............ 3
Duplicative Federal Programs..................................... 4
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 4
Federal Mandates Statement....................................... 4
Preemption Clarification......................................... 4
Disclosure of Directed Rule Makings.............................. 4
Advisory Committee Statement..................................... 4
Applicability to Legislative Branch.............................. 4
Section-by-Section Analysis of the Legislation................... 5
Changes in Existing Law Made by the Bill, as Reported............ 6
Purpose and Summary
The purpose of H.R. 3505, the ``Department of Homeland
Security Clearance Management and Administration Act'' is to
amend the Homeland Security Act of 2002 to require the
Secretary of the Department of Homeland Security (DHS) to
conduct a review of all sensitivity level designations of
national security positions within the Department. The bill
seeks to take targeted steps at improving critical aspects of
how DHS administers its security clearance program. The bill
ensures that DHS conduct a thorough accounting of workforce
needs to better manage the costs of unnecessary background
investigations and limit the number of positions that maybe
vulnerable to insider threats and targeting by foreign
intelligence services.
Background and Need for Legislation
In 2013, Director of National Intelligence James Clapper
called the number of individuals with clearances `too high.' In
a memo to government agencies, Clapper reportedly expressed his
concern with the growing number of individuals with access to
classified information, particularly Top Secret clearances.\1\
This bill directs DHS to conduct an inventory of the
Department's positions that require security clearances, and
assess what positions may no longer necessary require access to
classified material.
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\1\Josh Gerstein, ``W.H. Looks to Scrub Clearance List'', Politico,
11/12/2013, available at: http://www.politico.com/story/2013/11/
government-security-clearance-list-100195.
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The bill recognizes that the massive proliferation of
original and derivative classified material and the exponential
growth in the number of individuals with security clearances
present significant costs and homeland security and national
security challenges that warrant timely action. In addition to
the high costs incurred by the Federal government to
investigate the large number of individuals for positions
requiring security clearances, over-designations have
undoubtedly resulted in the Federal government recruiting,
hiring, and paying individuals at rates that are higher than
necessary and not hiring individuals who otherwise have the
required knowledge and skills.
This bill seeks to make specific reforms at the Department
with respect to security clearance and position designations
practices. The reforms at DHS are targeted at the designations
of positions and the investigations, adjudications, denials,
suspensions, revocations, and appeals processes for security
clearances.
Hearings
The Committee did not hold any hearing specifically on
H.R.3505. However, the Committee did hold the following
oversight hearing in the 113th Congress:
On November 13, 2013, the Subcommittee on Counterterrorism
and Intelligence held a hearing entitled, ``The Insider Threat
to Homeland Security: Examining Our Nation's Security
Clearances Processes.'' The Subcommittee received testimony
from Mr. Merton W. Miller, Associate Director of
Investigations, Federal Investigative Services, U.S. Office of
Personnel Management; Mr. Gregory Marshall, Chief Security
Officer, U.S. Department of Homeland Security; Mr. Brian
Prioletti, Assistant Director, Special Security Directorate,
National Counterintelligence Executive, Office of the Director
of National Intelligence; Ms. Brenda Farrell, Director,
Military and DOD Civilian Personnel Issues, U.S. Government
Accountability Office.
Committee Consideration
The Committee met on September 30, 2015, to consider
H.R.3505, and ordered the measure to be reported to the House
with a favorable recommendation, without amendment, by voice
vote.
The Subcommittee on Counterterrorism and Intelligence met
on September 17, 2015, to consider H.R. 3505 and reported the
measure to the Full Committee with a favorable recommendation,
without amendment, by voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
No recorded votes were requested during consideration of
H.R.3505.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
3505, the Department of Homeland Security Clearance Management
and Administration Act, would result in no new or increased
budget authority, entitlement authority, or tax expenditures or
revenues.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, a cost estimate provided by the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974 was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 3505 contains the following
general performance goals and objectives, including outcome
related goals and objectives authorized.
The goal of H.R. 3505 is to require the Secretary of
Homeland Security to conduct a review of all sensitivity level
designations of national security positions within the
Department. The bill seeks to improve critical aspects of how
DHS administers its security clearance program and make it a
leader among Federal agencies with respect to security
clearance and position designations practices. By conducting
the sensitivity designation review, the bill seeks to limit the
number of positions that may be vulnerable to insider threats
and targeting by foreign intelligence services.
H.R. 3505 also requires the Department Chief Security
Officer to audit national security positions periodically to
ensure that such security designations are still necessary.
Duplicative Federal Programs
Pursuant to clause 3(c) of rule XIII, the Committee finds
that H.R. 3505 does not contain any provision that establishes
or reauthorizes a program known to be duplicative of another
Federal program.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
Federal Mandates Statement
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Preemption Clarification
In compliance with section 423 of the Congressional Budget
Act of 1974, requiring the report of any Committee on a bill or
joint resolution to include a statement on the extent to which
the bill or joint resolution is intended to preempt State,
local, or Tribal law, the Committee finds that H.R. 3505 does
not preempt any State, local, or Tribal law.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 3505 would require no
directed rule makings.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section provides that the bill may be cited as the
``Department of Homeland Security Clearance Management and
Administration Act''.
Section 2. Security clearance management and administration
This section amends the Homeland Security Act to create a
new Subtitle B in the Homeland Security Act to include the
following new sections:
Subtitle B-Security Clearances.
Sec. 711. Designation of National Security Sensitive and Public Trust
Positions.
This section requires the Secretary in accordance with part
1400 of title 5, Code of Federal Regulations,\2\ to conduct a
designation of the sensitivity level of national security
positions consistently throughout the Department and component
agencies. Additionally, it requires the Secretary to utilize
uniform designation tools throughout the Department and to
provide training to the appropriate staff for the use of these
tools. The training will include guidance on factors for
determining eligibility for access to classified information
and eligibility to hold a national security position.
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\2\This section of the Code of Federal Regulations relates to
regulations issued by the Office of Personnel Management (OPM) and the
Office of the Director of National Intelligence (ODNI) regarding the
designation of national security positions. The Final Rule was released
on June 5, 2015.
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Sec. 712. Review of Position Designations.
Not later than July 6, 2017, and then every five years
thereafter, the Secretary is required to review all sensitivity
level designations of national security positions within the
Department. If the Secretary determines that a change in the
sensitivity level of a position is warranted, the access to the
classified information will be adjusted to an appropriate level
and a periodic reinvestigation will be completed as necessary.
The Secretary is required to report to the House Committee
on Homeland Security and the Senate Committee on Homeland
Security and Government Affairs after completion of each review
to include the number of positions, by classification and
component and office, as well as the determination of whether
the position requires access to classified information, no
longer requires access to classified information, or requires a
different level of access.
Security clearances are costly to investigate, adjudicate
and maintain. The Committee believes that it is now prudent for
DHS, and the U.S. Government to conduct a thorough audit of its
workforce and security clearance holders and match that to its
current needs and requirements.
Sec. 713. Audits.
This section requires the Inspector General of the
Department of Homeland Security, not later than 180 days after
the enactment of this section, to conduct regular audits of DHS
compliance with part 1400 of title 5, Code of Federal
Regulations.
Sec. 714. Reporting.
This section requires the Secretary to submit annual
reports through fiscal year 2021 to the House Committee on
Homeland Security and the Senate Committee on Homeland Security
and Government Affairs regarding (1) the number of denials,
suspensions, revocations, and appeals of the eligibility for
access to classified information; (2) the date, and status of
each reported denial, suspension, revocation, and appeal, as
well as the identification of the security clearance sponsoring
entity and the grounds for each action; (3) demographic data
including race, sex, national origin and disability of each
individual whose access was adversely affected as well as the
number of years the individual accessed classified information;
and (4) an explanation of suspensions of more than 180 days.
This report is required to be submitted in an unclassified
format and, if necessary, with a classified annex.
Sec. 715. Uniform Adjudication, Suspension, Denial, and Revocation.
This section requires, within one year of the enactment,
the Secretary, in consultation with the Homeland Advisory
Committee, to develop a plan to create greater uniformity
across the Department in the security adjudication process. The
plan shall consider: (1) mechanisms to foster greater
compliance with uniform adjudication standards; (2)
establishment of an internal appeals panel responsible for
final security clearance denial and revocation determinations
comprised of designees with the authority to adjudicate access
to classified information.
Sec. 716. Data Protection.
This section requires the Secretary to ensure that all
information received for the adjudication of eligibility or an
individual for access to classified information is protected
against misuse.
Sec. 717. Reference.
This section clarifies that, except as otherwise noted, all
references to the Department throughout the section, includes
all components and offices of the Department.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Homeland
Security Act of 2002''.
(b) Table of Contents.--The table of contents for this Act is
as follows:
* * * * * * *
TITLE VII--MANAGEMENT
Subtitle A--Headquarters Activities
* * * * * * *
Subtitle B--Security Clearances
Sec. 711. Designation of national security sensitive and public trust
positions.
Sec. 712. Review of position designations.
Sec. 713. Audits.
Sec. 714. Reporting.
Sec. 715. Uniform adjudication, suspension, denial, and revocation.
Sec. 716. Data protection.
Sec. 717. Reference.
* * * * * * *
TITLE VII--MANAGEMENT
Subtitle A--Headquarters Activities
* * * * * * *
Subtitle B--Security Clearances
SEC. 711. DESIGNATION OF NATIONAL SECURITY SENSITIVE AND PUBLIC TRUST
POSITIONS.
(a) In General.--The Secretary shall require the designation
of the sensitivity level of national security positions
(pursuant to part 1400 of title 5, Code of Federal Regulations,
or similar successor regulation) be conducted in a consistent
manner with respect to all components and offices of the
Department, and consistent with Federal guidelines.
(b) Implementation.--In carrying out subsection (a), the
Secretary shall require the utilization of uniform designation
tools throughout the Department and provide training to
appropriate staff of the Department on such utilization. Such
training shall include guidance on factors for determining
eligibility for access to classified information and
eligibility to hold a national security position.
SEC. 712. REVIEW OF POSITION DESIGNATIONS.
(a) In General.--Not later than July 6, 2017, and every five
years thereafter, the Secretary shall review all sensitivity
level designations of national security positions (pursuant to
part 1400 of title 5, Code of Federal Regulations, or similar
successor regulation) at the Department.
(b) Determination.--If during the course of a review required
under subsection (a), the Secretary determines that a change in
the sensitivity level of a position that affects the need for
an individual to obtain access to classified information is
warranted, such access shall be administratively adjusted and
an appropriate level periodic reinvestigation completed, as
necessary.
(c) Congressional Reporting.--Upon completion of each review
required under subsection (a), the Secretary shall report to
the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate on the findings of each such
review, including the number of positions by classification
level and by component and office of the Department in which
the Secretary made a determination in accordance with
subsection (b) to--
(1) require access to classified information;
(2) no longer require access to classified
information; or
(3) otherwise require a different level of access to
classified information.
SEC. 713. AUDITS.
Beginning not later than 180 days after the date of the
enactment of this section, the Inspector General of the
Department shall conduct regular audits of compliance of the
Department with part 1400 of title 5, Code of Federal
Regulations, or similar successor regulation.
SEC. 714. REPORTING.
(a) In General.--The Secretary shall annually through fiscal
year 2021 submit to the Committee on Homeland Security of the
House of Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate a report on the
following:
(1) The number of denials, suspensions, revocations,
and appeals of the eligibility for access to classified
information of an individual throughout the Department.
(2) The date and status or disposition of each
reported action under paragraph (1).
(3) The identification of the sponsoring entity,
whether by a component, office, or headquarters of the
Department, of each action under paragraph (1), and
description of the grounds for each such action.
(4) Demographic data, including data relating to
race, sex, national origin, and disability, of each
individual for whom eligibility for access to
classified information was denied, suspended, revoked,
or appealed, and the number of years that each such
individual was eligible for access to such information.
(5) In the case of a suspension in excess of 180
days, an explanation for such duration.
(b) Form.--The report required under subsection (a) shall be
submitted in unclassified form and be made publicly available,
but may include a classified annex for any sensitive or
classified information if necessary.
SEC. 715. UNIFORM ADJUDICATION, SUSPENSION, DENIAL, AND REVOCATION.
Not later than one year after the date of the enactment of
this section, the Secretary, in consultation with the Homeland
Security Advisory Committee, shall develop a plan to achieve
greater uniformity within the Department with respect to the
adjudication of eligibility of an individual for access to
classified information that are consistent with the
Adjudicative Guidelines for Determining Access to Classified
Information published on December 29, 2005, or similar
successor regulation. The Secretary shall submit to the
Committee on Homeland Security of the House of Representatives
and the Committee on Homeland Security and Governmental Affairs
of the Senate the plan. The plan shall consider the following:
(1) Mechanisms to foster greater compliance with the
uniform Department adjudication, suspension, denial,
and revocation standards by the head of each component
and office of the Department with the authority to
adjudicate access to classified information.
(2) The establishment of an internal appeals panel
responsible for final national security clearance
denial and revocation determinations that is comprised
of designees who are career, supervisory employees from
components and offices of the Department with the
authority to adjudicate access to classified
information and headquarters, as appropriate.
SEC. 716. DATA PROTECTION.
The Secretary shall ensure that all information received for
the adjudication of eligibility of an individual for access to
classified information that is consistent with the Adjudicative
Guidelines for Determining Access to Classified Information
published on December 29, 2005, or similar successor
regulation, and is protected against misappropriation.
SEC. 717. REFERENCE.
Except as otherwise provided, for purposes of this subtitle,
any reference to the ``Department'' includes all components and
offices of the Department.
* * * * * * *
[all]