Transferring Responsibility for Background Investigations to the Department of Defense

[Federal Register Volume 84, Number 82 (Monday, April 29, 2019)]

[Presidential Documents]

[Pages 18125-18131]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2019-08797]

[[Page 18123]]

Vol. 84

Monday,

No. 82

April 29, 2019

Part II

The President

-----------------------------------------------------------------------

Executive Order 13869--Transferring Responsibility for Background

Investigations to the Department of Defense

Presidential Documents

Federal Register / Vol. 84 , No. 82 / Monday, April 29, 2019 /

Presidential Documents

___________________________________________________________________

Title 3--

The President

[[Page 18125]]

Executive Order 13869 of April 24, 2019

Transferring Responsibility for Background

Investigations to the Department of Defense

By the power vested in me as President by the

Constitution and the laws of the United States of

America, it is hereby ordered as follows:

Section 1. Findings and Purpose. Section 925 of the

National Defense Authorization Act for Fiscal Year 2018

(10 U.S.C. 1564 note) provides that the Secretary of

Defense has the authority to conduct security,

suitability, and credentialing background

investigations for Department of Defense personnel and

requires the Secretary, in consultation with the

Director of the Office of Personnel Management, to

provide for a phased transition to the Department of

Defense of the conduct of such investigations conducted

by the National Background Investigations Bureau

(NBIB)

partment of Defense personnel and

requires the Secretary, in consultation with the

Director of the Office of Personnel Management, to

provide for a phased transition to the Department of

Defense of the conduct of such investigations conducted

by the National Background Investigations Bureau

(NBIB). Implementing that legislative mandate while

retaining the benefit of economies of scale in

addressing the Federal Government's background

investigations workload, avoiding unnecessary risk,

promoting the ongoing alignment of efforts with respect

to vetting Federal employees and contractors, and

facilitating needed reforms in this critical area

requires that the primary responsibility for conducting

background investigations Government-wide be

transferred from the Office of Personnel Management to

the Department of Defense.

Sec. 2. Transfer or Delegation of Background

Investigation Functions; Further Amendments to

Executive Order 13467 of June 30, 2008, as amended. (a)

The heading of section 2.6 of Executive Order 13467 of

June 30, 2008, as amended, (Executive Order 13467) is

revised to read as follows: ``Roles and

Responsibilities of the Department of Defense, the

Office of Personnel Management, and the Office of

Management and Budget.''

, 2008, as amended. (a)

The heading of section 2.6 of Executive Order 13467 of

June 30, 2008, as amended, (Executive Order 13467) is

revised to read as follows: ``Roles and

Responsibilities of the Department of Defense, the

Office of Personnel Management, and the Office of

Management and Budget.''

(b) Section 2.6(a) of Executive Order 13467 is

further amended by inserting ``, until such functions

are transferred or delegated, as applicable, to the

Defense Counterintelligence and Security Agency''

before the colon, by redesignating paragraphs (1)

through (9) as paragraphs (i) through (ix), by striking

the period at the end of newly designated paragraph

(ix) and inserting in lieu thereof a semicolon, and by

inserting, after newly designated paragraph (ix), an

undesignated paragraph to read as follows: ``except

that throughout the transition period ending on or

before September 30, 2019, as described in sections

2.6(d)(vi) and 2.6(e)(viii) of this order, the National

Background Investigations Bureau and its personnel may

continue to perform background investigations for the

Defense Counterintelligence and Security Agency.''

t throughout the transition period ending on or

before September 30, 2019, as described in sections

2.6(d)(vi) and 2.6(e)(viii) of this order, the National

Background Investigations Bureau and its personnel may

continue to perform background investigations for the

Defense Counterintelligence and Security Agency.''

(c) Section 2.6(b) of Executive Order 13467 is

revised by adding paragraphs (i) through (xi) to read

as follows:

``(i) Pursuant to sections 113 and 191 of title 10, United States Code, the

Secretary of Defense shall rename the Defense Security Service (DSS) as the

Defense Counterintelligence and Security Agency (DCSA). Subject to the

authority, direction, and control of the Secretary of Defense and as

further described in subsections (b)(ii) through (b)(iv) of this section,

the DCSA shall serve as the primary Federal entity for conducting

background investigations for the Federal Government. The DCSA shall, as a

continuation of the former DSS, serve as the primary Department of Defense

component for the National Industrial Security Program and shall execute

responsibilities relating to continuous vetting, insider threat programs,

and any other responsibilities assigned to it by the Secretary of

[[Page 18126]]

Defense consistent with law. The Secretary of Defense may rename the DCSA

and reassign any of its responsibilities to another Department of Defense

component or components, provided, however, that the Secretary of Defense

shall consult with the Directors of National Intelligence, the Office of

Personnel Management, and the Office of Management and Budget before

renaming the DCSA or reassigning the responsibilities specified in section

2.6(b)(ii) and (iv) of this order to another Department of Defense

component.''

r Department of Defense

component or components, provided, however, that the Secretary of Defense

shall consult with the Directors of National Intelligence, the Office of

Personnel Management, and the Office of Management and Budget before

renaming the DCSA or reassigning the responsibilities specified in section

2.6(b)(ii) and (iv) of this order to another Department of Defense

component.''

``(ii) Pursuant to and consistent with section 3001(c) of the Intelligence

Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(c)), sections

925(a)(1) and (d)(2) of the National Defense Authorization Act for Fiscal

Year 2018 (10 U.S.C. 1564 note), and in accordance with subsection (d) of

this section, no later than June 24, 2019, the DCSA shall serve as the

primary entity for conducting effective, efficient, and secure background

investigations for the Federal Government for determining whether covered

individuals are or continue to be eligible for access to classified

information or eligible to hold a sensitive position.''

``(iii) Pursuant to and consistent with sections 925(a)(1) and (d)(2) of

the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564

note) and in accordance with subsection (d) of this section, no later than

June 24, 2019, the DCSA shall serve as the primary entity for conducting

effective, efficient, and secure background investigations for determining

the suitability or, for employees in positions not subject to suitability,

fitness for Department of Defense employment; fitness to perform work for

or on behalf of the Department of Defense 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 facilities or information

systems controlled by the Department of Defense.''

of Defense employment; fitness to perform work for

or on behalf of the Department of Defense 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 facilities or information

systems controlled by the Department of Defense.''

``(iv) 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, and consistent with subsection (e) of this

section, no later than June 24, 2019, the DCSA shall serve as the primary

entity for conducting effective, efficient, and secure background

investigations for the Federal Government not described in subsections

(b)(ii) and (b)(iii) of this section, for determining 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.''

``(v) The DCSA shall conduct other background investigations as authorized

by law, designation, rule, regulation, or Executive Order.''

s 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.''

``(v) The DCSA shall conduct other background investigations as authorized

by law, designation, rule, regulation, or Executive Order.''

``(vi) The DCSA shall provide information to the Council established by

section 2.4 of this order regarding matters of performance, including

timeliness and continuous improvement, capacity, information technology

modernization, and other relevant aspects of its operations. The DCSA shall

be subject to the oversight of the Security Executive Agent, including

implementation of Security Executive Agent policies, procedures, guidance,

and instructions, in conducting investigations for eligibility to access

classified information or to hold a sensitive position. The DCSA, through

the Secretary of Defense, also shall be subject to the oversight of the

Suitability and Credentialing Executive Agent, including implementation of

Suitability and Credentialing Executive Agent policies, procedures,

guidance, and instructions, and applicable Office of Personnel Management

regulations, in conducting investigations of suitability or fitness and

eligibility for logical and physical access.''

``(vii) The Secretary of Defense shall design, develop, deploy, operate,

secure, defend, and continuously update and modernize, as necessary,

[[Page 18127]]

ialing Executive Agent policies, procedures,

guidance, and instructions, and applicable Office of Personnel Management

regulations, in conducting investigations of suitability or fitness and

eligibility for logical and physical access.''

``(vii) The Secretary of Defense shall design, develop, deploy, operate,

secure, defend, and continuously update and modernize, as necessary,

[[Page 18127]]

information technology systems that support all personnel vetting processes

conducted by the Department of Defense. Design and operation of these

information technology systems shall comply with applicable information

technology standards and, to the extent practicable, ensure security and

interoperability with other personnel vetting or related information

technology systems. The Secretary of Defense shall maintain and safeguard

the information relevant to the granting, denial, or revocation of

eligibility for access to classified information, or eligibility for a

sensitive position, or relevant to suitability, fitness, or credentialing

determinations pertaining to military, civilian, or Government contractor

personnel. 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, as applicable, an explicit

delegation from the Director of the Office of Personnel Management pursuant

to section 1104 of title 5, United States Code.''

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, as applicable, an explicit

delegation from the Director of the Office of Personnel Management pursuant

to section 1104 of title 5, United States Code.''

``(viii) The Secretary of Defense shall, by June 24, 2019, execute a

written agreement with the Director of the Office of Personnel Management

designating the appropriate support functions to be transferred as part of

the investigative mission, consistent with section 925(d)(2)(B) of the

National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564

note), and setting forth expectations for the transition period, including

for detailing personnel, funding background investigations, using and

safeguarding information technology, managing facilities and property,

contracting, administrative support, records access, and addressing any

claims.''

``(ix) The Secretary of Defense shall, upon finalization of the agreement

described in paragraph (viii) of this subsection and in accordance with its

terms:

(A) establish the Personnel Vetting Transformation Office within the

Department of Defense, which will include personnel from the Department of

Defense and other stakeholder agencies, as appropriate; and

(B) commence efforts to receive transferred or delegated functions and,

as appropriate, associated Office of Personnel Management operations,

resources, and personnel, to the DCSA.''

``(x) The Secretary of Defense shall:

(A) no later than June 24, 2019, and every 180 days thereafter until the

transfer is complete, provide a report to the President, in coordination

with the Director of the Office of Personnel Management and through the

Director of the Office of Management and Budget, regarding the status of

the transfer, including any resource or funding shortfall and gaps in

authority;

ry of Defense shall:

(A) no later than June 24, 2019, and every 180 days thereafter until the

transfer is complete, provide a report to the President, in coordination

with the Director of the Office of Personnel Management and through the

Director of the Office of Management and Budget, regarding the status of

the transfer, including any resource or funding shortfall and gaps in

authority;

(B) take necessary actions to enable the Department of Defense to receive

any resources, including personnel, made available as a result of

subsection (d) of this section; and

(C) notify the President upon completion of the transition period.''

``(xi) In the event the agreement described in paragraph (viii) of this

subsection and section 2.6(e)(v) of this order is not executed by June 24,

2019, beginning on such date, the Secretary of Defense shall begin to take

necessary actions to begin execution of paragraph (ix) until the agreement

described in paragraph (viii) of this subsection is executed, at which time

the Secretary of Defense shall ensure actions subject to such agreement

under paragraph (ix) of this subsection are executed in accordance with its

terms.''

(d) Section 2.6(c) of Executive Order 13467 is

revised to read as follows:

``(c) Existing delegations of authority to conduct background

investigations made by the Director of the Office of Personnel Management,

as the

[[Page 18128]]

ure actions subject to such agreement

under paragraph (ix) of this subsection are executed in accordance with its

terms.''

(d) Section 2.6(c) of Executive Order 13467 is

revised to read as follows:

``(c) Existing delegations of authority to conduct background

investigations made by the Director of the Office of Personnel Management,

as the

[[Page 18128]]

Suitability and Credentialing Executive Agent or as otherwise authorized by

statute or Executive Order, to any agency relating to suitability, fitness,

or credentialing determinations, existing designations made by the Director

of National Intelligence, as the Security Executive Agent or as otherwise

authorized by statute or Executive Order, relating to investigating persons

who are proposed for access to classified information or for eligibility to

hold a sensitive position, or existing delegations of authority to conduct

background investigations made by the President to any other agency through

any Executive Order shall remain in effect. Nothing in this order shall be

construed to limit the authority of any agency to conduct its own

background investigations when specifically authorized or directed to do so

by statute or any preexisting delegation from the President.''

(e) New sections 2.6(d), 2.6(e), and 2.6(f) are

added to Executive Order 13467 to read as follows:

shall remain in effect. Nothing in this order shall be

construed to limit the authority of any agency to conduct its own

background investigations when specifically authorized or directed to do so

by statute or any preexisting delegation from the President.''

(e) New sections 2.6(d), 2.6(e), and 2.6(f) are

added to Executive Order 13467 to read as follows:

``(d) Consistent with section 3503 of title 5, United States Code,

subchapter I of chapter 83 of title 10, United States Code, and section

925(d)(1) of the National Defense Authorization Act for Fiscal Year 2018

(10 U.S.C. 1564 note), the Secretary of Defense and the Director of the

Office of Personnel Management, in consultation with the Director of the

Office of Management and Budget and the Security Executive Agent, shall,

consistent with applicable law, provide for the transfer of the functions

described in sections 2.6(b)(ii) and (iii) of this order from the Office of

Personnel Management's NBIB to DCSA, and any appropriate Office of

Personnel Management-associated personnel and resources, including

infrastructure and the investigation-related support functions. The

transfer shall commence no later than June 24, 2019, and shall:

(i) be executed with the assistance of the Personnel Vetting

Transformation Office established pursuant to paragraph (b)(ix) of this

section, which shall, in providing such assistance, consider input from

other stakeholder agencies, as appropriate;

(ii) be conducted in accordance with a risk management approach that is

consistent with Office of Management and Budget Circular A-123;

(iii) include any appropriate funds that the Secretary of Defense and the

Director of the Office of Personnel Management, with the concurrence of the

Director of the Office of Management and Budget, determine to be available

and necessary to finance and discharge the functions transferred;

ith a risk management approach that is

consistent with Office of Management and Budget Circular A-123;

(iii) include any appropriate funds that the Secretary of Defense and the

Director of the Office of Personnel Management, with the concurrence of the

Director of the Office of Management and Budget, determine to be available

and necessary to finance and discharge the functions transferred;

(iv) be consistent with the transition from legacy information technology

as required by subsection (b)(vii) of this section;

(v) build upon the implementation plan developed pursuant to section

951(a)(1) of the National Defense Authorization Act for Fiscal Year 2017

(Public Law 114-328), which is being implemented pursuant to section 925 of

the National Defense Authorization Act for Fiscal Year 2018 (10 U.S.C. 1564

note); and

(vi) permit NBIB to conduct background investigations for DCSA, as

necessary, until September 30, 2019.''

``(e) The Director of the Office of Personnel Management shall:

(i) no later than June 24, 2019, take any steps necessary to make

effective the delegation, pursuant to section 1104(a)(2) of title 5, United

States Code, of the functions described in subsection (b)(iv) of this

section;

(ii) promptly establish appropriate performance standards and oversight

as required by section 1104(b) of title 5, United States Code;

(iii) work in coordination with the Secretary of Defense to reassign

appropriate resources, including personnel, to the DCSA and provide all

necessary and appropriate support to the DCSA in a timely manner to enable

it to fulfill its responsibilities under this order;

[[Page 18129]]

(iv) no later than June 24, 2019, provide the Secretary of Defense with a

complete inventory of NBIB personnel, resources, and assets, and other

Office of Personnel Management personnel and resources that primarily

support NBIB;

CSA and provide all

necessary and appropriate support to the DCSA in a timely manner to enable

it to fulfill its responsibilities under this order;

[[Page 18129]]

(iv) no later than June 24, 2019, provide the Secretary of Defense with a

complete inventory of NBIB personnel, resources, and assets, and other

Office of Personnel Management personnel and resources that primarily

support NBIB;

(v) no later than June 24, 2019, execute a written agreement with the

Secretary of Defense designating the appropriate support functions to be

transferred as part of the investigative mission, consistent with section

925(d)(2)(B) of the National Defense Authorization Act for Fiscal Year 2018

(10 U.S.C. 1564 note), as described in section 2.6(b)(viii) of this order;

(vi) immediately upon the finalization of the agreement described in

paragraph (v) of this subsection and section 2.6(b)(viii) of this order,

commence efforts to transition transferred or delegated functions and, as

appropriate, associated Office of Personnel Management authorities,

operations, resources, and personnel, to the DCSA;

(vii) during the transition period, coordinate with the Department of

Defense regarding any decisions concerning NBIB's personnel structure,

finances, contracts, or organization to the extent provided in the written

agreement described by paragraph (b)(viii) of this section;

(viii) no later than September 30, 2019, complete the transfer of all

designated administrative and operational functions to the Department of

Defense and revoke any applicable delegation or designation to NBIB of

investigative or other authority; and

ture,

finances, contracts, or organization to the extent provided in the written

agreement described by paragraph (b)(viii) of this section;

(viii) no later than September 30, 2019, complete the transfer of all

designated administrative and operational functions to the Department of

Defense and revoke any applicable delegation or designation to NBIB of

investigative or other authority; and

(ix) in the event the agreement described in paragraph (v) of this

subsection and section 2.6(b)(viii) of this order is not executed by June

24, 2019, beginning on such date, the Director of the Office of Personnel

Management shall begin to take necessary actions to begin execution of

paragraphs (iii) through (viii) of this subsection until the agreement

described in paragraph (v) of this subsection and section 2.6(b)(viii) of

this order is executed, at which time the Director of the Office of

Personnel Management shall ensure actions subject to such agreement under

paragraphs (iii) through (viii) of this subsection are executed in

accordance with its terms.''

``(f) The Director of the Office of Management and Budget shall:

(i) facilitate an effective transfer of functions, including personnel

and resources;

(ii) support the Department of Defense's efforts to establish a single,

centralized funding capability for its background investigations, as

required by section 925(e)(1) of the National Defense Authorization Act for

Fiscal Year 2018 (10 U.S.C. 1564 note);

(iii) mediate any disagreements between the Secretary of Defense and the

Director of the Office of Personnel Management that may arise during or

outside of the transition period and facilitate resolution of the

conflicting positions; and

(iv) develop, in consultation with the Secretary of Defense and the

Director of the Office of Personnel Management, an appropriate funding plan

for the activities undertaken pursuant to this order.''

ecretary of Defense and the

Director of the Office of Personnel Management that may arise during or

outside of the transition period and facilitate resolution of the

conflicting positions; and

(iv) develop, in consultation with the Secretary of Defense and the

Director of the Office of Personnel Management, an appropriate funding plan

for the activities undertaken pursuant to this order.''

(f) Sections 2.4(b) and 2.5(e)(vi) of Executive

Order 13467 are further amended by striking ``National

Background Investigations Bureau'' each place it

appears and inserting in lieu thereof ``Defense

Counterintelligence and Security Agency.''

Sec. 3. Amendment to Executive Order 12171 of November

18, 1979, as amended.

(a) Determinations. Pursuant to section 7103(b)(1)

of title 5, United States Code, the DCSA, previously

known as the DSS, is hereby determined to have as a

primary function intelligence, counterintelligence,

investigative, or national security work. It is further

determined that chapter 71 of title

[[Page 18130]]

5, United States Code, cannot be applied to the DCSA in

a manner consistent with national security requirements

and considerations.

e as a

primary function intelligence, counterintelligence,

investigative, or national security work. It is further

determined that chapter 71 of title

[[Page 18130]]

5, United States Code, cannot be applied to the DCSA in

a manner consistent with national security requirements

and considerations.

(b) Exclusion. Executive Order 12171 of November

18, 1979, as amended, is further amended by revising

section 1-208 to read as follows: ``1-208. The Defense

Counterintelligence and Security Agency, Department of

Defense.''

Sec. 4. Conforming References to the Defense Security

Service and the Defense Counterintelligence and

Security Agency. Any reference to the Defense Security

Service or NBIB in any Executive Order or other

Presidential document that is in effect on the day

before the date of this order shall be deemed or

construed to be a reference to the Defense

Counterintelligence and Security Agency or any other

entity that the Secretary of Defense names, consistent

with section 2(b)(i) of Executive Order 13467, and

agencies whose regulations, rules, or other documents

reference the Defense Security Service or NBIB shall

revise any such respective regulations, rules, or other

documents as soon as practicable to update them for

consistency with this order.

ent

with section 2(b)(i) of Executive Order 13467, and

agencies whose regulations, rules, or other documents

reference the Defense Security Service or NBIB shall

revise any such respective regulations, rules, or other

documents as soon as practicable to update them for

consistency with this order.

Sec. 5. Review of Vetting Policies. No later than July

24, 2019, the Council Principals identified in section

2.4(b) of Executive Order 13467 shall review the laws,

regulations, Executive Orders, and guidance relating to

the Federal Government's vetting of Federal employees

and contractors and shall submit to the President,

through the Chair of the Council, a report recommending

any appropriate legislative, regulatory, or policy

changes, including any such changes to civil service

regulations or policies, Executive Order 13467 or

Executive Order 13488.

Sec. 6. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of

appropriations.

[[Page 18131]]

by law to an executive department or agency, or

the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of

appropriations.

[[Page 18131]]

(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,

April 24, 2019.

[FR Doc. 2019-08797

Filed 4-26-19; 11:15 am]

Billing code 3295-F9-P