Transferring Responsibility for Background Investigations to the Department of Defense, 18125-18131 [2019-08797]

Agencies

• Executive Office of the President

[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]



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Vol. 84

Monday,

No. 82

April 29, 2019

Part II





The President





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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

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                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). 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.''

                    (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.''
                    (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.''

``(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.''

``(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.''

``(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,

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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.''

``(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;

  (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

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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:

``(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;

  (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;

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  (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

  (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.''

                    (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

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                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.

                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.

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                    (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