Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information, 38103-38108 [08-1409]

Agencies

• Executive Office of the President
• Presidential Documents

[Federal Register Volume 73, Number 128 (Wednesday, July 2, 2008)]
[Presidential Documents]
[Pages 38103-38108]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1409]



[[Page 38101]]

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Part V





The President





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Executive Order 13467--Reforming Processes Related to Suitability for 
Government Employment, Fitness for Contractor Employees, and 
Eligibility for Access to Classified National Security Information


                        Presidential Documents 



Federal Register / Vol. 73, No. 128 / Wednesday, July 2, 2008 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 38103]]

                Executive Order 13467 of June 30, 2008

                
Reforming Processes Related to Suitability for 
                Government Employment, Fitness for Contractor 
                Employees, and Eligibility for Access to Classified 
                National Security Information

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, and in order to ensure an efficient, 
                practical, reciprocal, and aligned system for 
                investigating and determining suitability for 
                Government employment, contractor employee fitness, and 
                eligibility for access to classified information, while 
                taking appropriate account of title III of Public Law 
                108-458, it is hereby ordered as follows:

                PART 1--POLICY, APPLICABILITY, AND DEFINITIONS

                Section 1.1. Policy. Executive branch policies and 
                procedures relating to suitability, contractor employee 
                fitness, eligibility to hold a sensitive position, 
                access to federally controlled facilities and 
                information systems, and eligibility for access to 
                classified information shall be aligned using 
                consistent standards to the extent possible, provide 
                for reciprocal recognition, and shall ensure cost-
                effective, timely,and efficient protection of the 
                national interest, while providing fair treatment to 
                those upon whom the Federal Government relies to 
                conduct our Nation's business and protect national 
                security.

                Sec. 1.2. Applicability. (a) This order applies to all 
                covered individuals as defined in section 1.3(g), 
                except that:

(i) the provisions regarding eligibility for physical access to federally 
controlled facilities and logical access to federally controlled 
information systems do not apply to individuals exempted in accordance with 
guidance pursuant to the Federal Information Security Management Act (title 
III of Public Law 107-347) and Homeland Security Presidential Directive 12; 
and

(ii) the qualification standards for enlistment, appointment, and induction 
into the Armed Forces pursuant to title 10, United States Code, are 
unaffected by this order.

                (b) This order also applies to investigations and 
                determinations of eligibility for access to classified 
                information for employees of agencies working in or for 
                the legislative or judicial branches when those 
                investigations or determinations are conducted by the 
                executive branch.Sec. 1.3. Definitions. For the purpose 
                of this order: (a) ``Adjudication'' means the 
                evaluation of pertinent data in a background 
                investigation, as well as any other available 
                information that is relevant and reliable, to determine 
                whether a covered individual is:

(i) suitable for Government employment;

(ii) eligible for logical and physical access;

(iii) eligible for access to classified information;

(iv) eligible to hold a sensitive position; or

(v) fit to perform work for or on behalf of the Government as a contractor 
employee.

                (b) ``Agency'' means any ``Executive agency'' as 
                defined in section 105 of title 5, United States Code, 
                including the ``military departments,'' as defined in 
                section 102 of title 5, United States Code, and any 
                other entity

[[Page 38104]]

                within the executive branch that comes into possession 
                of classified information or has designated positions 
                as sensitive, except such an entity headed by an 
                officer who is not a covered individual.

                (c) ``Classified information'' means information that 
                has been determined pursuant to Executive Order 12958 
                of April 17, 1995, as amended, or a successor or 
                predecessor order, or the Atomic Energy Act of 1954 (42 
                U.S.C. 2011 et seq.) to require protection against 
                unauthorized disclosure.

                (d) ``Continuous evaluation'' means reviewing the 
                background of an individual who has been determined to 
                be eligible for access to classified information 
                (including additional or new checks of commercial 
                databases, Government databases, and other information 
                lawfully available to security officials) at any time 
                during the period of eligibility to determine whether 
                that individual continues to meet the requirements for 
                eligibility for access to classified information.

                (e) ``Contractor'' means an expert or consultant (not 
                appointed under section 3109 of title 5, United States 
                Code) to an agency; an industrial or commercial 
                contractor, licensee, certificate holder, or grantee of 
                any agency, including all subcontractors; a personal 
                services contractor; or any other category of person 
                who performs work for or on behalf of an agency (but 
                not a Federal employee).

                (f) ``Contractor employee fitness'' means fitness based 
                on character and conduct for work for or on behalf of 
                the Government as a contractor employee.

                (g) ``Covered individual'' means a person who performs 
                work for or on behalf of the executive branch, or who 
                seeks to perform work for or on behalf of the executive 
                branch, but does not include:

(i) the President or (except to the extent otherwise directed by the 
President) employees of the President under section 105 or 107 of title 3, 
United States Code; or

(ii) the Vice President or (except to the extent otherwise directed by the 
Vice President) employees of the Vice President under section 106 of title 
3 or annual legislative branch appropriations acts.

                (h) ``End-to-end automation'' means an executive 
                branch-wide federated system that uses automation to 
                manage and monitor cases and maintain relevant 
                documentation of the application (but not an employment 
                application), investigation, adjudication, and 
                continuous evaluation processes.

(i) ``Federally controlled facilities'' and ``federally controlled 
information systems'' have the meanings prescribed in guidance pursuant to 
the Federal Information Security Management Act (title III of Public Law 
107-347) and Homeland Security Presidential Directive 12.

                (j) ``Logical and physical access'' means access other 
                than occasional or intermittent access to federally 
                controlled facilities or information systems.

                (k) ``Sensitive position'' means any position so 
                designated under Executive Order 10450 of April 27, 
                1953, as amended.

                (l) ``Suitability'' has the meaning and coverage 
                provided in 5 CFR Part 731.

                PART 2--ALIGNMENT, RECIPROCITY, AND GOVERNANCE

                Sec. 2.1. Aligned System. (a) Investigations and 
                adjudications of covered individuals who require a 
                determination of suitability, eligibility for logical 
                and physical access, eligibility to hold a sensitive 
                position, eligibility for access to classified 
                information, and, as appropriate, contractor employee 
                fitness, shall be aligned using consistent standards to 
                the extent possible. Each successively higher level of 
                investigation and adjudication shall build upon, but 
                not duplicate, the ones below it.

                (b) The aligned system shall employ updated and 
                consistent standards and methods, enable innovations 
                with enterprise information technology capabilities and 
                end-to-end automation to the extent practicable, and 
                ensure that relevant information maintained by agencies 
                can be accessed and shared

[[Page 38105]]

                rapidly across the executive branch, while protecting 
                national security, protecting privacy-related 
                information, ensuring resulting decisions are in the 
                national interest, and providing the Federal Government 
                with an effective workforce.

                (c) Except as otherwise authorized by law, background 
                investigations and adjudications shall be mutually and 
                reciprocally accepted by all agencies. An agency may 
                not establish additional investigative or adjudicative 
                requirements (other than requirements for the conduct 
                of a polygraph examination consistent with law, 
                directive, or regulation) that exceed the requirements 
                for suitability, contractor employee fitness, 
                eligibility for logical or physical access, eligibility 
                to hold a sensitive position, or eligibility for access 
                to classified information without the approval of the 
                Suitability Executive Agent or Security Executive 
                Agent, as appropriate, and provided that approval to 
                establish additional requirements shall be limited to 
                circumstances where additional requirements are 
                necessary to address significant needs unique to the 
                agency involved or to protect national security.

                Sec. 2.2. Establishment and Functions of Performance 
                Accountability Council. (a) There is hereby established 
                a Suitability and Security Clearance Performance 
                Accountability Council (Council).

                (b) The Deputy Director for Management, Office of 
                Management and Budget, shall serve as Chair of the 
                Council and shall have authority, direction, and 
                control over the Council's functions. Membership on the 
                Council shall include the Suitability Executive Agent 
                and the Security Executive Agent. The Chair shall 
                select a Vice Chair to act in the Chair's absence. The 
                Chair shall have authority to designate officials from 
                additional agencies who shall serve as members of the 
                Council. Council membership shall be limited to Federal 
                Government employees and shall include suitability and 
                security professionals.

                (c) The Council shall be accountable to the President 
                to achieve, consistent with this order, the goals of 
                reform, and is responsible for driving implementation 
                of the reform effort, ensuring accountability by 
                agencies, ensuring the Suitability Executive Agent and 
                the Security Executive Agent align their respective 
                processes, and sustaining reform momentum.

                (d) The Council shall:

(i) ensure alignment of suitability, security, and, as appropriate, 
contractor employee fitness investigative and adjudicative processes;

(ii) hold agencies accountable for the implementation of suitability, 
security, and, as appropriate, contractor employee fitness processes and 
procedures;

(iii) establish requirements for enterprise information technology;

(iv) establish annual goals and progress metrics and prepare annual reports 
on results;

(v) ensure and oversee the development of tools and techniques for 
enhancing background investigations and the making of eligibility 
determinations;

(vi) arbitrate disparities in procedures between the Suitability Executive 
Agent and the Security Executive Agent;

(vii) ensure sharing of best practices; and

(viii) advise the Suitability Executive Agent and the Security Executive 
Agent on policies affecting the alignment of investigations and 
adjudications.

                (e) The Chair may, to ensure the effective 
                implementation of the policy set forth in section 1.1 
                of this order and to the extent consistent with law, 
                assign, in whole or in part, to the head of any agency 
                (solely or jointly) any function within the Council's 
                responsibility relating to alignment and improvement of 
                investigations and determinations of suitability, 
                contractor employee fitness, eligibility for logical 
                and physical access, eligibility for access to 
                classified information, or eligibility to hold a 
                sensitive position.

[[Page 38106]]

                Sec. 2.3. Establishment, Designation, and Functions of 
                Executive Agents. (a) There is hereby established a 
                Suitability Executive Agent and a Security Executive 
                Agent.

                (b) The Director of the Office of Personnel Management 
                shall serve as the Suitability Executive Agent. As the 
                Suitability Executive Agent, the Director of the Office 
                of Personnel Management will continue to be responsible 
                for developing and implementing uniform and consistent 
                policies and procedures to ensure the effective, 
                efficient, and timely completion of investigations and 
                adjudications relating to determinations of suitability 
                and eligibility for logical and physical access.

                (c) The Director of National Intelligence shall serve 
                as the Security Executive Agent. The Security Executive 
                Agent:

(i) shall direct the oversight of investigations and determinations of 
eligibility for access to classified information or eligibility to hold a 
sensitive position made by any agency;

(ii) shall be responsible for developing uniform and consistent policies 
and procedures to ensure the effective, efficient, and timely completion of 
investigations and adjudications relating to determinations of eligibility 
for access to classified information or eligibility to hold a sensitive 
position;

(iii) may issue guidelines and instructions to the heads of agencies to 
ensure appropriate uniformity, centralization, efficiency, effectiveness, 
and timeliness in processes relating to determinations by agencies of 
eligibility for access to classified information or eligibility to hold a 
sensitive position;

(iv) shall serve as the final authority to designate an agency or agencies 
to conduct investigations of persons who are proposed for access to 
classified information to ascertain whether such persons satisfy the 
criteria for obtaining and retaining access to classified information or 
eligibility to hold a sensitive position;

(v) shall serve as the final authority to designate an agency or agencies 
to determine eligibility for access to classified information in accordance 
with Executive Order 12968 of August 2, 1995;

(vi) shall ensure reciprocal recognition of eligibility for access to 
classified information among the agencies, including acting as the final 
authority to arbitrate and resolve disputes among the agencies involving 
the reciprocity of investigations and determinations of eligibility for 
access to classified information or eligibility to hold a sensitive 
position; and

(vii) may assign, in whole or in part, to the head of any agency (solely or 
jointly) any of the functions detailed in (i) through (vi), above, with the 
agency's exercise of such assigned functions to be subject to the Security 
Executive Agent's oversight and with such terms and conditions (including 
approval by the Security Executive Agent) as the Security Executive Agent 
determines appropriate.

                (d) Nothing in this order shall be construed in a 
                manner that would limit the authorities of the Director 
                of the Office of Personnel Management or the Director 
                of National Intelligence under law.

                Sec. 2.4. Additional Functions. (a) The duties assigned 
                to the Security Policy Board by Executive Order 12968 
                of August 2, 1995, to consider, coordinate, and 
                recommend policy directives for executive branch 
                security policies, procedures, and practices are 
                reassigned to the Security Executive Agent.

                (b) Heads of agencies shall:

(i) carry out any function assigned to the agency head by the Chair, and 
shall assist the Chair, the Council, the Suitability Executive Agent, and 
the Security Executive Agent in carrying out any function under sections 
2.2 and 2.3 of this order;

(ii) implement any policy or procedure developed pursuant to this order;

(iii) to the extent permitted by law, make available to the Performance 
Accountability Council, the Suitability Executive Agent, or the Security

[[Page 38107]]

Executive Agent such information as may be requested to implement this 
order;

(iv) ensure that all actions taken under this order take account of the 
counterintelligence interests of the United States, as appropriate; and

(v) ensure that actions taken under this order are consistent with the 
President's constitutional authority to:

(A) conduct the foreign affairs of the United States;

(B) withhold information the disclosure of which could impair the foreign 
relations, the national security, the deliberative processes of the 
Executive, or the performance of the Executive's constitutional duties;

(C) recommend for congressional consideration such measures as the 
President may judge necessary or expedient; and

(D) supervise the unitary executive branch.

                PART 3--MISCELLANEOUS

                Sec. 3. General Provisions. (a) Executive Order 13381 
                of June 27, 2005, as amended, is revoked. Nothing in 
                this order shall:

(i) supersede, impede, or otherwise affect:

(A) Executive Order 10450 of April 27, 1953, as amended;

(B) Executive Order 10577 of November 23, 1954, as amended;

(C) Executive Order 12333 of December 4, 1981, as amended;

(D) Executive Order 12829 of January 6, 1993, as amended; or

(E) Executive Order 12958 of April 17, 1995, as amended; nor

(ii) diminish or otherwise affect the denial and revocation procedures 
provided to individuals covered by Executive Order 10865 of February 20, 
1960, as amended.

                (b) Executive Order 12968 of August 2, 1995 is amended:

(i) by inserting: ``Sec. 3.5. Continuous Evaluation.  An individual who has 
been determined to be eligible for or who currently has access to 
classified information shall be subject to continuous evaluation under 
standards (including, but not limited to, the frequency of such evaluation) 
as determined by the Director of National Intelligence.''; and

(ii) by striking ``the Security Policy Board shall make recommendations to 
the President through the Assistant to the President for National Security 
Affairs'' in section 6.3(a) and inserting in lieu thereof ``the Director of 
National Intelligence shall serve as the final authority'';

(iii) by striking ``Security Policy Board'' and inserting in lieu thereof 
``Security Executive Agent'' in each instance;

(iv) by striking ``the Board'' in section 1.1(j) and inserting in lieu 
thereof ``the Security Executive Agent''; and

(v) by inserting ``or appropriate automated procedures'' in section 3.1(b) 
after ``by appropriately trained adjudicative personnel''.

                (c) Nothing in this order shall supersede, impede, or 
                otherwise affect the remainder of Executive Order 12968 
                of August 2, 1995, as amended.

                (d) Executive Order 12171 of November 19, 1979, as 
                amended, is further amended by striking ``The Center 
                for Federal Investigative Services'' in section 1-216 
                and inserting in lieu thereof ``The Federal 
                Investigative Services Division.''

                (e) Nothing in this order shall be construed to impair 
                or otherwise affect the:

(i) authority granted by law to a department or agency, or the head 
thereof; or

(ii) functions of the Director of the Office of Management and Budget 
relating to budget, administrative, or legislative proposals.

                (f) This order shall be implemented consistent with 
                applicable law and subject to the availability of 
                appropriations.

[[Page 38108]]

                (g) Existing delegations of authority made pursuant to 
                Executive Order 13381 of June 27, 2005, as amended, to 
                any agency relating to granting eligibility for access 
                to classified information and conducting investigations 
                shall 13 remain in effect, subject to the exercise of 
                authorities pursuant to this order to revise or revoke 
                such delegation.

                (h) If any provision of this order or the application 
                of such provision is held to be invalid, the remainder 
                of this order shall not be affected.

                (i) This order is intended only to improve the internal 
                management of the executive branch and 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 
                agencies, instrumentalities, or entities, its officers 
                or employees, or any other person.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    June 30, 2008.

[FR Doc. 08-1409
Filed 7-1-08; 11:00 am]
Billing code 3195-W8-P