50 USC 3342 - Security clearances for transition team members

Collapse to view only § 3342. Security clearances for transition team members

§ 3341. Security clearances
§ 3342. Security clearances for transition team members
§ 3343. Security clearances; limitations
§ 3344. Classification training program
§ 3344a. Training to promote sensible classification
§ 3345. Limitation on handling, retention, and storage of certain classified materials by the Department of State
§ 3346. Compilation and organization of previously declassified records
§ 3347. Secrecy agreements used in intelligence activities
§ 3348. Reports relating to certain special access programs and similar programs
§ 3348a. Congressional oversight of sensitive programs not covered by other provisions of law
§ 3349. Notification regarding the authorized public disclosure of national intelligence
§ 3350. Maximum amount charged for declassification reviews
§ 3350a. Promoting efficient declassification review
§ 3351. Improving quality of information in background investigation request packages
§ 3351a. Making certain policies and execution plans relating to personnel clearances available to industry partners
§ 3351b. Limitations on determinations regarding certain security classifications
§ 3352. Definitions
§ 3352a. Reports and plans relating to security clearances and background investigations
§ 3352b. Improving the process for security clearances
§ 3352c. Goals for promptness of determinations regarding security clearances
§ 3352d. Reports on reciprocity for security clearances inside of departments and agencies
§ 3352e. Periodic report on positions in the intelligence community that can be conducted without access to classified information, networks, or facilities
§ 3352f. Information-sharing program for positions of trust and security clearances
§ 3352g. Requirement to authorize additional security clearances for certain contractors
§ 3352h. Timeliness standard for rendering determinations of trust for personnel vetting

§ 3341. Security clearances

(a) DefinitionsIn this section:

(1) The term “agency” means—

(A) an executive agency (as that term is defined in section 105 of title 5);

(B) a military department (as that term is defined in section 102 of title 5); or

(2) The term “authorized investigative agency” means an agency designated by the head of the agency selected pursuant to subsection (b) to conduct a counterintelligence investigation or investigation of persons who are proposed for access to classified information to ascertain whether such persons satisfy the criteria for obtaining and retaining access to such information.

(3) The term “authorized adjudicative agency” means an agency authorized by law, regulation, or direction of the Director of National Intelligence to determine eligibility for access to classified information in accordance with Executive Order 12968.

(4) The term “highly sensitive program” means—

(A) a government program designated as a Special Access Program (as that term is defined in section 4.1(h) of Executive Order 12958 or any successor Executive order); or

(B) a government program that applies restrictions required for—

(i) restricted data (as that term is defined in section 2014(y) of title 42); or

(ii) other information commonly referred to as “sensitive compartmented information”.

(5) The term “current investigation file” means, with respect to a security clearance, a file on an investigation or adjudication that has been conducted during—

(A) the 5-year period beginning on the date the security clearance was granted, in the case of a Top Secret Clearance, or the date access was granted to a highly sensitive program;

(B) the 10-year period beginning on the date the security clearance was granted in the case of a Secret Clearance; and

(6) The term “personnel security investigation” means any investigation required for the purpose of determining the eligibility of any military, civilian, or government contractor personnel to access classified information.

(7) The term “periodic reinvestigations” means investigations conducted for the purpose of updating a previously completed background investigation—

(A) every 5 years in the case of a top secret clearance or access to a highly sensitive program;

(B) every 10 years in the case of a secret clearance; or

(8) The term “appropriate committees of Congress” means—

(A) the Permanent Select Committee on Intelligence and the Committees on Armed Services, Homeland Security, Government Reform, and the Judiciary of the House of Representatives; and

(B) the Select Committee on Intelligence and the Committees on Armed Services, Homeland Security and Governmental Affairs, and the Judiciary of the Senate.

(9)Access determination.—The term “access determination” means the determination regarding whether an employee—

(A) is eligible for access to classified information in accordance with Executive Order 12968 (60 Fed. Reg. 40245; relating to access to classified information), or any successor thereto, and Executive Order 10865 (25 Fed. Reg. 1583; relating to safeguarding classified information within industry), or any successor thereto; and

(B) possesses a need to know under such an Order.

(b) Selection of entityExcept as otherwise provided, not later than 90 days after December 17, 2004, the President shall select a single department, agency, or element of the executive branch to be responsible for—

(1) directing day-to-day oversight of investigations and adjudications for personnel security clearances, including for highly sensitive programs, throughout the United States Government;

(2) developing and implementing uniform and consistent policies and procedures to ensure the effective, efficient, and timely completion of security clearances and determinations for access to highly sensitive programs, including the standardization of security questionnaires, financial disclosure requirements for security clearance applicants, and polygraph policies and procedures;

(3) serving as the final authority to designate an authorized investigative agency or authorized adjudicative agency;

(4) ensuring reciprocal recognition of access to classified information among the agencies of the United States Government, including acting as the final authority to arbitrate and resolve disputes involving the reciprocity of security clearances and access to highly sensitive programs pursuant to subsection (d);

(5) ensuring, to the maximum extent practicable, that sufficient resources are available in each agency to achieve clearance and investigative program goals;

(6) reviewing and coordinating the development of tools and techniques for enhancing the conduct of investigations and granting of clearances; and

(7) not later than 180 days after July 7, 2014, and consistent with subsection (j)—

(A) developing policies and procedures that permit, to the extent practicable, individuals alleging reprisal for having made a protected disclosure (provided the individual does not disclose classified information or other information contrary to law) to appeal any action affecting an employee’s access to classified information and to retain their government employment status while such challenge is pending; and

(B) developing and implementing uniform and consistent policies and procedures to ensure proper protections during the process for denying, suspending, or revoking a security clearance or access to classified information following a protected disclosure, including the ability to appeal such a denial, suspension, or revocation, except that there shall be no appeal of an agency’s suspension of a security clearance or access determination for purposes of conducting an investigation, if that suspension lasts no longer than 1 year or the head of the agency or a designee of the head of the agency certifies that a longer suspension is needed before a final decision on denial or revocation to prevent imminent harm to the national security.

(1) Notwithstanding any other provision of law, not later than 180 days after December 17, 2004, the President shall, in consultation with the head of the entity selected pursuant to subsection (b), select a single agency of the executive branch to conduct, to the maximum extent practicable, security clearance investigations of employees and contractor personnel of the United States Government who require access to classified information and to provide and maintain all security clearances of such employees and contractor personnel. The head of the entity selected pursuant to subsection (b) may designate other agencies to conduct such investigations if the head of the entity selected pursuant to subsection (b) considers it appropriate for national security and efficiency purposes.

(2) The agency selected under paragraph (1) shall—

(A) take all necessary actions to carry out the requirements of this section, including entering into a memorandum of understanding with any agency carrying out responsibilities relating to security clearances or security clearance investigations before December 17, 2004;

(B) as soon as practicable, integrate reporting of security clearance applications, security clearance investigations, and determinations of eligibility for security clearances, with the database required by subsection (e); and

(C) ensure that security clearance investigations are conducted in accordance with uniform standards and requirements established under subsection (b), including uniform security questionnaires and financial disclosure requirements.

(d) Reciprocity of security clearance and access determinations

(1) All security clearance background investigations and determinations completed by an authorized investigative agency or authorized adjudicative agency shall be accepted by all agencies.

(2) All security clearance background investigations initiated by an authorized investigative agency shall be transferable to any other authorized investigative agency.

(3)

(A) An authorized investigative agency or authorized adjudicative agency may not establish additional investigative or adjudicative requirements (other than requirements for the conduct of a polygraph examination) that exceed requirements specified in Executive Orders establishing security requirements for access to classified information without the approval of the head of the entity selected pursuant to subsection (b).

(B) Notwithstanding subparagraph (A), the head of the entity selected pursuant to subsection (b) may establish such additional requirements as the head of such entity considers necessary for national security purposes.

(4) An authorized investigative agency or authorized adjudicative agency may not conduct an investigation for purposes of determining whether to grant a security clearance to an individual where a current investigation or clearance of equal level already exists or has been granted by another authorized adjudicative agency.

(5) The head of the entity selected pursuant to subsection (b) may disallow the reciprocal recognition of an individual security clearance by an agency under this section on a case-by-case basis if the head of the entity selected pursuant to subsection (b) determines that such action is necessary for national security purposes.

(6) The head of the entity selected pursuant to subsection (b) shall establish a review procedure by which agencies can seek review of actions required under this section.

(e) Database on security clearances

(1) Not later than 12 months after December 17, 2004, the Director of the Office of Personnel Management shall, in cooperation with the heads of the entities selected pursuant to subsections (b) and (c), establish and commence operating and maintaining an integrated, secure, database into which appropriate data relevant to the granting, denial, or revocation of a security clearance or access pertaining to military, civilian, or government contractor personnel shall be entered from all authorized investigative and adjudicative agencies.

(2) The database under this subsection shall function to integrate information from existing Federal clearance tracking systems from other authorized investigative and adjudicative agencies into a single consolidated database.

(3) Each authorized investigative or adjudicative agency shall check the database under this subsection to determine whether an individual the agency has identified as requiring a security clearance has already been granted or denied a security clearance, or has had a security clearance revoked, by any other authorized investigative or adjudicative agency.

(4) The head of the entity selected pursuant to subsection (b) shall evaluate the extent to which an agency is submitting information to, and requesting information from, the database under this subsection as part of a determination of whether to certify the agency as an authorized investigative agency or authorized adjudicative agency.

(5) The head of the entity selected pursuant to subsection (b) may authorize an agency to withhold information about certain individuals from the database under this subsection if the head of the entity considers it necessary for national security purposes.

(f) Evaluation of use of available technology in clearance investigations and adjudications

(1) The head of the entity selected pursuant to subsection (b) shall evaluate the use of available information technology and databases to expedite investigative and adjudicative processes for all and to verify standard information submitted as part of an application for a security clearance.

(2) The evaluation shall assess the application of the technologies described in paragraph (1) for—

(A) granting interim clearances to applicants at the secret, top secret, and special access program levels before the completion of the appropriate full investigation;

(B) expediting investigations and adjudications of security clearances, including verification of information submitted by the applicant;

(C) ongoing verification of suitability of personnel with security clearances in effect for continued access to classified information;

(D) use of such technologies to augment periodic reinvestigations;

(E) assessing the impact of the use of such technologies on the rights of applicants to verify, correct, or challenge information obtained through such technologies; and

(F) such other purposes as the head of the entity selected pursuant to subsection (b) considers appropriate.

(3) An individual subject to verification utilizing the technology described in paragraph (1) shall be notified of such verification, shall provide consent to such use, and shall have access to data being verified in order to correct errors or challenge information the individual believes is incorrect.

(4) Not later than one year after December 17, 2004, the head of the entity selected pursuant to subsection (b) shall submit to the President and the appropriate committees of Congress a report on the results of the evaluation, including recommendations on the use of technologies described in paragraph (1).

(g), (h). Repealed. Pub. L. 118–31, div. G, title VII, §§ 7702(a)(3), 7703(c), Dec. 22, 2023, 137 Stat. 1101, 1102

(i) Authorization of appropriations

(j) Retaliatory revocation of security clearances and access determinations

(1) In generalAgency personnel with authority to take, direct others to take, recommend, or approve personnel security clearance or access determinations shall not take or fail to take, or threaten to take or fail to take, any action with respect to any employee’s security clearance or access determination in retaliation for—

(A) any lawful disclosure of information to the Director of National Intelligence (or an employee designated by the Director of National Intelligence for such purpose) or a supervisor in the employee’s direct chain of command, or a supervisor of the employing agency with responsibility for the subject matter of the disclosure, up to and including the head of the employing agency (or employee designated by the head of that agency for such purpose) by an employee that the employee reasonably believes evidences—

(i) a violation of any Federal law, rule, or regulation; or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(B) any lawful disclosure to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee reasonably believes evidences—

(i) a violation of any Federal law, rule, or regulation; or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

(i) subsections (a)(1), (d), and (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); 1

1 See References in Text note below.

(ii) subparagraphs (A), (D), and (H) of section 3517(d)(5) of this title; or

(iii) subparagraphs (A), (D), and (I) of section 3033(k)(5) of this title; and

(D) if the actions do not result in the employee or applicant unlawfully disclosing information specifically required by Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, any lawful disclosure in conjunction with—

(i) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;

(ii) testimony for or otherwise lawfully assisting any individual in the exercise of any right referred to in clause (i); or

(iii) cooperation with or disclosing information to the Inspector General of an agency, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General.

(2) Rule of construction

(3) DisclosuresA disclosure shall not be excluded from paragraph (1) because—

(A) the disclosure was made to a person, including a supervisor, who participated in an activity that the employee reasonably believed to be covered by paragraph (1)(A)(ii);

(B) the disclosure revealed information that had been previously disclosed;

(D) the disclosure was made while the employee was off duty;

(E) of the amount of time which has passed since the occurrence of the events described in the disclosure; or

(F) the disclosure was made during the normal course of duties of an employee.

(4) Agency adjudication

(A) Remedial procedure

(B) Corrective action

(D) TollingThe time requirement established by subparagraph (A) for an employee or former employee to appeal the decision of an agency may be tolled if the employee or former employee presents substantial credible evidence showing why the employee or former employee did not timely initiate the appeal and why the enforcement of the time requirement would be unfair, such as evidence showing that the employee or former employee—

(i) did not receive notice of the decision; or

(ii) could not timely initiate the appeal because of factors beyond the control of the employee or former employee.

(5) Appellate review of security clearance access determinations by Director of National Intelligence

(A) Appeal

(B) Policies and procedures

(6) Judicial reviewNothing in this section shall be construed to permit or require judicial review of any—

(A) agency action under this section; or

(B) action of the appellate review procedures established under paragraph (5).

(7) Private cause of action

(8) Enforcement

(9) Inclusion of contractor employees

(Pub. L. 108–458, title III, § 3001, Dec. 17, 2004, 118 Stat. 3705; Pub. L. 113–126, title VI, § 602(a)(1), (b), (c), July 7, 2014, 128 Stat. 1416, 1417, 1419; Pub. L. 113–293, title III, § 310, Dec. 19, 2014, 128 Stat. 3999; Pub. L. 115–118, title I, § 110(c), Jan. 19, 2018, 132 Stat. 17; Pub. L. 117–103, div. X, title V, § 501(b)–(d)(1), (e)(2), (h)–(k), Mar. 15, 2022, 136 Stat. 981–985; Pub. L. 117–286, § 4(b)(101), Dec. 27, 2022, 136 Stat. 4353; Pub. L. 118–31, div. G, title VII, §§ 7702(a)(3), 7703(c), title IX, § 7901(e), Dec. 22, 2023, 137 Stat. 1101, 1102, 1107.)

§ 3342. Security clearances for transition team members

(1) Definition

(2) In general

(3) Completion date

(Pub. L. 108–458, title VII, § 7601(c), Dec. 17, 2004, 118 Stat. 3857; Pub. L. 111–283, § 2(c)(1), Oct. 15, 2010, 124 Stat. 3048.)

§ 3343. Security clearances; limitations

(a) Definitions

In this section:

(1) Controlled substance

(2) Covered person

The term “covered person” means—

(A) an officer or employee of a Federal agency;

(B) a member of the Army, Navy, Air Force, or Marine Corps who is on active duty or is in an active status; and

(3) Restricted Data

(4) Special access program

(b) Prohibition

(1) In general

After January 1, 2008, absent an express written waiver granted in accordance with paragraph (2), the head of a Federal agency may not grant or renew a security clearance described in paragraph (3) for a covered person who—

(A) has been convicted in any court of the United States of a crime, was sentenced to imprisonment for a term exceeding 1 year, and was incarcerated as a result of that sentence for not less than 1 year;

(B) has been discharged or dismissed from the Armed Forces under dishonorable conditions; or

(C) is mentally incompetent, as determined by an adjudicating authority, based on an evaluation by a duly qualified mental health professional employed by, or acceptable to and approved by, the United States Government and in accordance with the adjudicative guidelines required by subsection (d).

(2) Waiver authority

In a meritorious case, an exception to the disqualification in this subsection may be authorized if there are mitigating factors. Any such waiver may be authorized only in accordance with—

(A) standards and procedures prescribed by, or under the authority of, an Executive order or other guidance issued by the President; or

(B) the adjudicative guidelines required by subsection (d).

(3) Covered security clearances

This subsection applies to security clearances that provide for access to—

(A) special access programs;

(B) Restricted Data; or

(4) Annual report

(A) Requirement for report

(B) Definitions

In this paragraph:

(i) Appropriate committees of Congress

The term “appropriate committees of Congress” means, with respect to a report submitted under subparagraph (A) by the head of a Federal agency—

(I) the congressional defense committees;(II) the congressional intelligence committees;(III) the Committee on Homeland Security and Governmental Affairs of the Senate;(IV) the Committee on Oversight and Government Reform of the House of Representatives; and(V) each Committee of the Senate or the House of Representatives with oversight authority over such Federal agency.

(ii) Congressional defense committees

(iii) Congressional intelligence committees

(d) Adjudicative guidelines

(1) Requirement to establish

(2) Requirements related to mental health

The guidelines required by paragraph (1) shall—

(A) include procedures and standards under which a covered person is determined to be mentally incompetent and provide a means to appeal such a determination; and

(B) require that no negative inference concerning the standards in the guidelines may be raised solely on the basis of seeking mental health counseling.

(Pub. L. 108–458, title III, § 3002, as added Pub. L. 110–181, div. A, title X, § 1072(a), Jan. 28, 2008, 122 Stat. 328.)

§ 3344. Classification training program

(a) In generalThe head of each Executive agency, in accordance with Executive Order 13526, shall require annual training for each employee who has original classification authority. For employees who perform derivative classification, or are responsible for analysis, dissemination, preparation, production, receipt, publication, or otherwise communication of classified information, training shall be provided at least every two years. Such training shall—

(1) educate the employee, as appropriate, regarding—

(A) the guidance established under subparagraph (G) of section 3024(g)(1) of this title, as added by section 5(a)(3),1

1 See References in Text note below.

regarding the formatting of finished intelligence products;

(B) the proper use of classification markings, including portion markings that indicate the classification of portions of information; and

(2) ensure such training is a prerequisite, once completed successfully, as evidenced by an appropriate certificate or other record, for—

(A) obtaining original classification authority or derivatively classifying information; and

(B) maintaining such authority.

(b) Relationship to other programs

(Pub. L. 111–258, § 7, Oct. 7, 2010, 124 Stat. 2652.)

§ 3344a. Training to promote sensible classification

(a) Definitions

In this section:

(1) Over-classification

(2) Sensible classification

(b) Training required

(Pub. L. 118–31, div. G, title VI, § 7603, Dec. 22, 2023, 137 Stat. 1097.)

§ 3345. Limitation on handling, retention, and storage of certain classified materials by the Department of State

(a) Certification regarding full compliance with requirements

(b) Limitation on certification

(d) Effects of certification of non-full compliance

(1) Subject to subsection (e), effective as of January 1, 2001, a covered element of the Department of State may not retain or store covered classified material unless the Director has certified under subsection (a) as of such date that the covered element is in full compliance with the directives referred to in subsection (a).

(2) If the prohibition in paragraph (1) takes effect in accordance with that paragraph, the prohibition shall remain in effect until the date on which the Director certifies under subsection (a) that the covered element involved is in full compliance with the directives referred to in that subsection.

(e) Waiver by Director of Central Intelligence

(1) The Director of Central Intelligence may waive the applicability of the prohibition in subsection (d) to an element of the Department of State otherwise covered by such prohibition if the Director determines that the waiver is in the national security interests of the United States.

(2) The Director shall submit to appropriate committees of Congress a report on each exercise of the waiver authority in paragraph (1).

(3) Each report under paragraph (2) with respect to the exercise of authority under paragraph (1) shall set forth the following:

(A) The covered element of the Department of State addressed by the waiver.

(B) The reasons for the waiver.

(C) The actions that will be taken to bring such element into full compliance with the directives referred to in subsection (a), including a schedule for completion of such actions.

(D) The actions taken by the Director to protect any covered classified material to be handled, retained, or stored by such element pending achievement of full compliance of such element with such directives.

(f) DefinitionsIn this section:

(1) The term “appropriate committees of Congress” means the following:

(A) The Select Committee on Intelligence and the Committee on Foreign Relations of the Senate.

(B) The Permanent Select Committee on Intelligence and the Committee on International Relations of the House of Representatives.

(2) The term “covered classified material” means any material classified at the Sensitive Compartmented Information (SCI) level.

(3) The term “covered element of the Department of State” means each element of the Department of State that handles, retains, or stores covered classified material.

(4) The term “material” means any data, regardless of physical form or characteristic, including written or printed matter, automated information systems storage media, maps, charts, paintings, drawings, films, photographs, engravings, sketches, working notes, papers, reproductions of any such things by any means or process, and sound, voice, magnetic, or electronic recordings.

(5) The term “Sensitive Compartmented Information (SCI) level”, in the case of classified material, means a level of classification for information in such material concerning or derived from intelligence sources, methods, or analytical processes that requires such information to be handled within formal access control systems established by the Director of Central Intelligence.

(Pub. L. 106–567, title III, § 309, Dec. 27, 2000, 114 Stat. 2840.)

§ 3346. Compilation and organization of previously declassified records

(a), (b) Omitted

(d) Special searches

For the purpose of this section, the term “special search” means the response of the Department of Defense to any of the following:

(1) A statutory requirement to conduct a declassification review on a specified set of agency records.

(2) An Executive order to conduct a declassification review on a specified set of agency records.

(3) An order from the President or an official with delegated authority from the President to conduct a declassification review on a specified set of agency records.

(Pub. L. 106–398, § 1 [[div. A], title X, § 1075], Oct. 30, 2000, 114 Stat. 1654, 1654A–280.)

§ 3347. Secrecy agreements used in intelligence activitiesNotwithstanding any other provision of law not specifically referencing this section, a nondisclosure policy form or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum—

(1) require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government; and

(2) provide that the form or agreement does not bar—

(A) disclosures to Congress; or

(B) disclosures to an authorized official of an executive agency that are deemed essential to reporting a violation of United States law.

(Pub. L. 104–93, title III, § 306, Jan. 6, 1996, 109 Stat. 966.)

§ 3348. Reports relating to certain special access programs and similar programs

(a) In general

(1) Not later than February 1 of each year, the head of each covered department or agency shall submit to the congressional oversight committees a report on each special access program carried out in the department or agency.

(2) Each such report shall set forth—

(A) the total amount requested by the department or agency for special access programs within the budget submitted under section 1105 of title 31 for the fiscal year following the fiscal year in which the report is submitted; and

(B) for each program in such budget that is a special access program—

(i) a brief description of the program;

(ii) in the case of a procurement program, a brief discussion of the major milestones established for the program;

(iii) the actual cost of the program for each fiscal year during which the program has been conducted before the fiscal year during which that budget is submitted; and

(iv) the estimated total cost of the program and the estimated cost of the program for (I) the current fiscal year, (II) the fiscal year for which the budget is submitted, and (III) each of the four succeeding fiscal years during which the program is expected to be conducted.

(b) Newly designated programs

(1) Not later than February 1 of each year, the head of each covered department or agency shall submit to the congressional oversight committees a report that, with respect to each new special access program of that department or agency, provides—

(A) notice of the designation of the program as a special access program; and

(B) justification for such designation.

(2) A report under paragraph (1) with respect to a program shall include—

(A) the current estimate of the total program cost for the program; and

(B) an identification, as applicable, of existing programs or technologies that are similar to the technology, or that have a mission similar to the technology, or that have a mission similar to the mission, of the program that is the subject of the notice.

(3) In this subsection, the term “new special access program” means a special access program that has not previously been covered in a notice and justification under this subsection.

(1) Whenever a change in the classification of a special access program of a covered department or agency is planned to be made or whenever classified information concerning a special access program of a covered department or agency is to be declassified and made public, the head of the department or agency shall submit to the congressional oversight committees a report containing a description of the proposed change or the information to be declassified, the reasons for the proposed change or declassification, and notice of any public announcement planned to be made with respect to the proposed change or declassification.

(2) Except as provided in paragraph (3), a report referred to in paragraph (1) shall be submitted not less than 14 days before the date on which the proposed change, declassification, or public announcement is to occur.

(3) If the head of the department or agency determines that because of exceptional circumstances the requirement of paragraph (2) cannot be met with respect to a proposed change, declassification, or public announcement concerning a special access program of the department or agency, the head of the department or agency may submit the report required by paragraph (1) regarding the proposed change, declassification, or public announcement at any time before the proposed change, declassification, or public announcement is made and shall include in the report an explanation of the exceptional circumstances.

(d) Revision of criteria for designating programs

(e) Waiver of reporting requirement

(1) The head of a covered department or agency may waive any requirement under subsection (a), (b), or (c) that certain information be included in a report under that subsection if the head of the department or agency determines that inclusion of that information in the report would adversely affect the national security. Any such waiver shall be made on a case-by-case basis.

(2) If the head of a department or agency exercises the authority provided under paragraph (1), the head of the department or agency shall provide the information described in that subsection with respect to the special access program concerned, and the justification for the waiver, to the congressional oversight committees.

(f) Initiation of programsA special access program may not be initiated by a covered department or agency until—

(1) the congressional oversight committees are notified of the program; and

(2) a period of 30 days elapses after such notification is received.

(g) DefinitionsFor purposes of this section:

(1) Congressional oversight committeesThe term “congressional oversight committees” means—

(A) congressional leadership and authorizing and appropriations congressional committees with jurisdiction or shared jurisdiction over a department or agency;

(B) the Committee on Homeland Security and Governmental Affairs of the Senate; and

(2) Covered department or agency

(A) Except as provided in subparagraph (B), the term “covered department or agency” means any department or agency of the Federal Government that carries out a special access program.

(B) Such term does not include—

(i) the Department of Defense (which is required to submit reports on special access programs under section 119 of title 10);

(ii) the National Nuclear Security Administration (which is required to submit reports on special access programs under section 2426 of this title); or

(iii) an agency in the Intelligence Community (as defined in section 3003(4) of this title).

(3) Special access program

(Pub. L. 103–160, div. A, title XI, § 1152, Nov. 30, 1993, 107 Stat. 1758; Pub. L. 106–65, div. C, title XXXII, § 3294(e)(2), Oct. 5, 1999, 113 Stat. 970; Pub. L. 115–390, title I, § 103, Dec. 21, 2018, 132 Stat. 5177.)

§ 3348a. Congressional oversight of sensitive programs not covered by other provisions of law

(a) Reports required

(1) In general

(2) ContentsEach such report shall set forth—

(A) the total amount requested by the covered element for covered programs within the budget submitted under section 1105 of title 31 for the fiscal year following the fiscal year in which the report is submitted; and

(B) for each program in such budget that is a covered program—

(i) a brief description of the program;

(ii) in the case of a procurement program, a brief discussion of the major milestones established for the program;

(iii) the actual cost of the program for each fiscal year during which the program has been conducted before the fiscal year during which that budget is submitted; and

(iv) the estimated total cost of the program and the estimated cost of the program for—(I) the current fiscal year;(II) the fiscal year for which the budget is submitted; and(III) each of the four succeeding fiscal years during which the program is expected to be conducted.

(b) Newly designated programs

(1) In generalNot later than February 1 of each year, the head of each covered element shall submit to congressional leadership a report that, with respect to each new covered program of that covered element, provides—

(A) notice of the designation of the program as a special access program; and

(B) justification for such designation.

(2) ContentsA report under paragraph (1) with respect to a program shall include—

(A) the current estimate of the total program cost for the program; and

(3) New covered program defined

(1) In general

(2) Period for submittal

(3) Exception

(d) Revision of criteria for designating programs

(e) Initiation of programsA covered program may not be initiated by a covered element until—

(1) congressional leadership is notified of the program; and

(2) a period of 30 days elapses after such notification is received.

(f) Limitation on use of funds

(g) DefinitionsIn this section:

(1) Covered elementThe term “covered element” means any element or portion of the Federal Government that is not—

(A) a covered department or agency as defined in section 3348(g) of this title;

(B) the Department of Defense (which is required to submit reports on special access programs under section 119 of title 10);

(C) the National Nuclear Security Administration (which is required to submit reports on special access programs under section 2426 of this title); or

(D) an element of the intelligence community (as defined in section 3003 of this title).

(2) Congressional leadershipThe term “congressional leadership” means—

(A) the majority leader of the Senate;

(B) the minority leader of the Senate;

(D) the minority leader of the House of Representatives.

(3) Covered program

(Pub. L. 117–103, div. HH, title V, § 501, Mar. 15, 2022, 136 Stat. 1114.)

§ 3349. Notification regarding the authorized public disclosure of national intelligence

(a) NotificationIn the event of an authorized disclosure of national intelligence or intelligence related to national security to the persons or entities described in subsection (b), the government official responsible for authorizing the disclosure shall submit to the congressional intelligence committees on a timely basis a notification of the disclosure if—

(1) at the time of the disclosure—

(A) such intelligence is classified; or

(B) is declassified for the purpose of the disclosure; and

(2) the disclosure will be made by an officer, employee, or contractor of the Executive branch.

(b) Persons or entities describedThe persons or entities described in this subsection are as follows:

(1) Media personnel.

(2) Any person or entity, if the disclosure described in subsection (a) is made with the intent or knowledge that such information will be made publicly available.

(1) provide the specific title and authority of the individual authorizing the disclosure;

(2) if applicable, provide the specific title and authority of the individual who authorized the declassification of the intelligence disclosed; and

(3) describe the intelligence disclosed, including the classification of the intelligence prior to its disclosure or declassification and the rationale for making the disclosure.

(d) ExceptionThe notification requirement in this section does not apply to a disclosure made—

(1) pursuant to any statutory requirement, including to section 552 of title 5 (commonly referred to as the “Freedom of Information Act”);

(2) in connection with a civil, criminal, or administrative proceeding;

(3) as a result of a declassification review process under Executive Order 13526 (50 U.S.C. 435 note) [now 50 U.S.C. 3161 note] or any successor order; or

(4) to any officer, employee, or contractor of the Federal government or member of an advisory committee to an element of the intelligence community who possesses an active security clearance and a need to know the specific national intelligence or intelligence related to national security, as defined in section 3003(5) of this title.

(Pub. L. 112–277, title V, § 504, Jan. 14, 2013, 126 Stat. 2477; Pub. L. 113–126, title III, § 328, July 7, 2014, 128 Stat. 1405.)

§ 3350. Maximum amount charged for declassification reviews

In reviewing and processing a request by a person for the mandatory declassification of information pursuant to Executive Order No. 13526, a successor executive order, or any provision of law, the head of an element of the intelligence community—

(1) may not charge the person reproduction fees in excess of the amount of fees that the head would charge the person for reproduction required in the course of processing a request for information under section 552 of title 5 (commonly referred to as the “Freedom of Information Act”); and

(2) may waive or reduce any processing fees in the same manner as the head waives or reduces fees under such section 552.

(Pub. L. 115–31, div. N, title III, § 313, May 5, 2017, 131 Stat. 816.)

§ 3350a. Promoting efficient declassification review

(a) In general

Whenever an agency is processing a request pursuant to section 552 of title 5 (commonly known as the “Freedom of Information Act”) or the mandatory declassification review provisions of Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, and identifies responsive classified records that are more than 25 years of age as of December 31 of the year in which the request is received, the head of the agency shall, in accordance with existing processes to protect national security under the Freedom of Information Act and the mandatory review provisions of Executive Order 12526,1

1 So in original. Probably should be “13526,”.

review the record and process the record for declassification and release by the National Declassification Center of the National Archives and Records Administration, unless the head of agency—

(1) makes a certification to Congress, including the congressional intelligence committees, the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Committee on the Judiciary of the Senate, and the Committee on Armed Services, the Committee on Oversight and Accountability, the Committee on Foreign Affairs, and the Committee on the Judiciary of the House of Representatives, that the declassification of certain components within the record would be harmful to the protection of sources and methods or national security, pursuant to existing processes; and

(2) provides an explanation to Congress, including the congressional intelligence committees, the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Committee on the Judiciary of the Senate, and the Committee on Armed Services, the Committee on Oversight and Accountability, the Committee on Foreign Affairs, and the Committee on the Judiciary of the House of Representatives, for such certification.

(b) Application

(Pub. L. 118–31, div. G, title VI, § 7602, Dec. 22, 2023, 137 Stat. 1096.)

§ 3351. Improving quality of information in background investigation request packages

(a) Report on metrics and best practices

Not later than 180 days after December 20, 2019, the Director of the Defense Counterintelligence and Security Agency, which serves as the primary executive branch service provider for background investigations for eligibility for access to classified information, eligibility to hold a sensitive position, and for suitability and fitness for other matters pursuant to Executive Order 13467 (50 U.S.C. 3161 note; relating to reforming processes related to suitability for Government employment, fitness for contractor employees, and eligibility for access to classified national security information), shall, in consultation with the Security, Suitability, and Credentialing Performance Accountability Council established under such executive order, submit to Congress a report on—

(1) metrics for assessing the completeness and quality of packages for background investigations submitted by agencies requesting background investigations from the Defense Counterintelligence and Security Agency;

(2) rejection rates of background investigation submission packages due to incomplete or erroneous data, by agency; and

(3) best practices for ensuring full and complete information in background investigation requests.

(b) Annual report on performance

(1) Identification

(2) Plans

(Pub. L. 116–92, div. A, title XVII, § 1757, Dec. 20, 2019, 133 Stat. 1860.)

§ 3351a. Making certain policies and execution plans relating to personnel clearances available to industry partners

(a) Definitions

In this section:

(1) Security executive agent

(2) Appropriate industry partner

(b) Sharing of policies and plans required

(Pub. L. 116–92, div. E, title LIV, § 5402, Dec. 20, 2019, 133 Stat. 2143.)

§ 3351b. Limitations on determinations regarding certain security classifications

(a) Prohibition

(b) Classification determinations

(1) In general

(2) Nominations of Director of National Intelligence

(Pub. L. 116–92, div. E, title LXIII, § 6310, Dec. 20, 2019, 133 Stat. 2190.)

§ 3352. Definitions

In this title:

(1) Appropriate congressional committees

The term “appropriate congressional committees” means—

(A) the congressional intelligence committees;

(B) the Committee on Armed Services of the Senate;

(D) the Committee on Homeland Security and Governmental Affairs of the Senate;

(E) the Committee on Armed Services of the House of Representatives;

(F) the Committee on Appropriations of the House of Representatives;

(G) the Committee on Homeland Security of the House of Representatives; and

(H) the Committee on Oversight and Reform of the House of Representatives.

(2) Appropriate industry partner

(3) Continuous vetting

(4) Council

(5) Reciprocity

(6) Security Executive Agent

(7) Suitability and Credentialing Executive Agent

(Pub. L. 116–92, div. E, title LXVI, § 6601, Dec. 20, 2019, 133 Stat. 2209.)

§ 3352a. Reports and plans relating to security clearances and background investigations

(a) Sense of Congress

It is the sense of Congress that—

(1) ensuring the trustworthiness and security of the workforce, facilities, and information of the Federal Government is of the highest priority to national security and public safety;

(2) the President and Congress should prioritize the modernization of the personnel security framework to improve its efficiency, effectiveness, and accountability;

(3) the current system for background investigations for security clearances, suitability and fitness for employment, and credentialing lacks efficiencies and capabilities to meet the current threat environment, recruit and retain a trusted workforce, and capitalize on modern technologies; and

(4) changes to policies or processes to improve this system should be vetted through the Council to ensure standardization, portability, and reciprocity in security clearances across the Federal Government.

(b) Accountability plans and reports

(1) Plans

Not later than 90 days after December 20, 2019, the Council shall submit to the appropriate congressional committees and make available to appropriate industry partners the following:

(A) A plan, with milestones, to reduce the background investigation inventory to 200,000, or an otherwise sustainable steady-level, by the end of year 2020. Such plan shall include notes of any required changes in investigative and adjudicative standards or resources.

(B) A plan to consolidate the conduct of background investigations associated with the processing for security clearances in the most effective and efficient manner in the Defense Counterintelligence and Security Agency. Such plan shall address required funding, personnel, contracts, information technology, field office structure, policy, governance, schedule, transition costs, and effects on stakeholders.

(2) Report on the future of personnel security

(A) In general

(B) Contents

The report submitted under subparagraph (A) shall include the following:

(i) A risk framework for granting and renewing access to classified information.

(ii) A discussion of the use of technologies to prevent, detect, and monitor threats.

(iii) A discussion of efforts to address reciprocity and portability.

(iv) A discussion of the characteristics of effective insider threat programs.

(v) An analysis of how to integrate data from continuous vetting, insider threat programs, and human resources data.

(vi) Recommendations on interagency governance.

(3) Plan for implementation

(4) Congressional notifications

(Pub. L. 116–92, div. E, title LXVI, § 6602, Dec. 20, 2019, 133 Stat. 2210.)

§ 3352b. Improving the process for security clearances

(a) ReviewsNot later than 180 days after December 20, 2019, the Security Executive Agent, in coordination with the members of the Council, shall submit to the appropriate congressional committees and make available to appropriate industry partners a report that includes the following:

(1) A review of whether the information requested on the Questionnaire for National Security Positions (Standard Form 86) and by the Federal Investigative Standards prescribed by the Suitability and Credentialing Executive Agent and the Security Executive Agent appropriately supports the adjudicative guidelines under Security Executive Agent Directive 4 (known as the “National Security Adjudicative Guidelines”). Such review shall include identification of whether any such information currently collected is unnecessary to support the adjudicative guidelines.

(2) An assessment of whether such Questionnaire, Standards, and guidelines should be revised to account for the prospect of a holder of a security clearance becoming an insider threat.

(3) Recommendations to improve the background investigation process by—

(A) simplifying the Questionnaire for National Security Positions (Standard Form 86) and increasing customer support to applicants completing such Questionnaire;

(B) using remote techniques and centralized locations to support or replace field investigation work;

(D) building the capacity of the background investigation workforce; and

(E) replacing periodic reinvestigations with continuous vetting techniques in all appropriate circumstances.

(b) Policy, strategy, and implementationNot later than 180 days after December 20, 2019, the Security Executive Agent shall, in coordination with the members of the Council, establish the following:

(1) A policy and implementation plan for the issuance of interim security clearances.

(2) A policy and implementation plan to ensure contractors are treated consistently in the security clearance process across agencies and departments of the United States as compared to employees of such agencies and departments. Such policy shall address—

(A) prioritization of processing security clearances based on the mission the contractors will be performing;

(B) standardization in the forms that agencies issue to initiate the process for a security clearance;

(D) use of the polygraph;

(E) the application of the adjudicative guidelines under Security Executive Agent Directive 4 (known as the “National Security Adjudicative Guidelines”);

(F) reciprocal recognition of clearances across agencies and departments of the United States, regardless of status of periodic reinvestigation;

(G) tracking of clearance files as individuals move from employment with an agency or department of the United States to employment in the private sector;

(H) collection of timelines for movement of contractors across agencies and departments;

(I) reporting on security incidents and job performance, consistent with section 552a of title 5 (commonly known as the “Privacy Act of 1974”), that may affect the ability to hold a security clearance;

(J) any recommended changes to the Federal Acquisition Regulations (FAR) necessary to ensure that information affecting contractor clearances or suitability is appropriately and expeditiously shared between and among agencies and contractors; and

(K) portability of contractor security clearances between or among contracts at the same agency and between or among contracts at different agencies that require the same level of clearance.

(3) A strategy and implementation plan that—

(A) provides for periodic reinvestigations as part of a security clearance determination only on an as-needed, risk-based basis;

(B) includes actions to assess the extent to which automated records checks and other continuous vetting methods may be used to expedite or focus reinvestigations; and

(C) provides an exception to the requirement under subparagraph (A) for certain populations if the Security Executive Agent—

(i) determines such populations require reinvestigations at regular intervals; and

(ii) provides written justification to the appropriate congressional committees for any such determination.

(4) A policy and implementation plan for agencies and departments of the United States, as a part of the security clearance process, to accept automated records checks generated pursuant to a security clearance applicant’s employment with a prior employer.

(5) A policy for the use of certain background information on individuals collected by the private sector for background investigation purposes.

(6) Uniform standards for agency continuous vetting programs to ensure quality and reciprocity in accepting enrollment in a continuous vetting program as a substitute for a periodic investigation for continued access to classified information.

(Pub. L. 116–92, div. E, title LXVI, § 6603, Dec. 20, 2019, 133 Stat. 2211.)

§ 3352c. Goals for promptness of determinations regarding security clearances

(a) In generalThe Council shall reform the security clearance process with the objective that, by December 31, 2021, 90 percent of all determinations, other than determinations regarding populations identified under section 3352b(b)(3)(C) of this title, regarding—

(1) security clearances—

(A) at the secret level are issued in 30 days or fewer; and

(B) at the top secret level are issued in 90 days or fewer; and

(2) reciprocity of security clearances at the same level are recognized in 2 weeks or fewer.

(b) Certain reinvestigations

(1) In general

(2) Notice

(d) Plan

(Pub. L. 116–92, div. E, title LXVI, § 6604, Dec. 20, 2019, 133 Stat. 2213; Pub. L. 117–263, div. F, title LXVIII, § 6824(b)(3), Dec. 23, 2022, 136 Stat. 3615.)

§ 3352d. Reports on reciprocity for security clearances inside of departments and agencies

(a) Reports to Security Executive Agent

The head of each Federal department or agency shall submit an annual report to the Security Executive Agent that, with respect to the period covered by the report—

(1) identifies the number of individuals whose security clearances took more than 2 weeks for reciprocity recognition after such individuals move to another part of such department or agency; and

(2) breaks out the information described in paragraph (1) by type of clearance and the reasons for any delays.

(b) Annual report

(Pub. L. 116–92, div. E, title LXVI, § 6608, Dec. 20, 2019, 133 Stat. 2216.)

§ 3352e. Periodic report on positions in the intelligence community that can be conducted without access to classified information, networks, or facilities

Not later than 180 days after December 20, 2019, and biennially thereafter, the Director of National Intelligence shall submit to the congressional intelligence committees a report that reviews the intelligence community for which positions can be conducted without access to classified information, networks, or facilities, or may only require a security clearance at the secret level. Such report shall take into account the potential effect of maintaining continuity of operations during a covered national emergency (as defined by section 3316b of this title) and the assessed needs of the intelligence community to maintain such continuity of operations.

(Pub. L. 116–92, div. E, title LXVI, § 6610, Dec. 20, 2019, 133 Stat. 2218; Pub. L. 117–103, div. X, title VIII, § 801, Mar. 15, 2022, 136 Stat. 1011.)

§ 3352f. Information-sharing program for positions of trust and security clearances

(a) Program required

(1) In general

(2) Designation

(b) Privacy safeguards

(d) Information and records

The information and records considered under the Program shall include the following:

(1) Date and place of birth.

(2) Citizenship or immigration and naturalization information.

(3) Education records.

(4) Employment records.

(5) Employment or social references.

(6) Military service records.

(7) State and local law enforcement checks.

(8) Criminal history checks.

(9) Financial records or information.

(10) Foreign travel, relatives, or associations.

(11) Social media checks.

(12) Such other information or records as may be relevant to obtaining or maintaining national security, suitability, fitness, or credentialing eligibility.

(e) Implementation plan

(1) In general

(2) Elements

The plan required by paragraph (1) shall include the following:

(A) Mechanisms that address privacy, national security, suitability or fitness, credentialing, and human resources or military recruitment processes.

(B) Such recommendations for legislative or administrative action as the Security Executive Agent and the Suitability and Credentialing Executive Agent consider appropriate to carry out or improve the Program.

(f) Plan for pilot program on two-way information sharing

(1) In general

(2) Elements

The plan required by paragraph (1) shall include the following:

(A) Mechanisms that address privacy, national security, suitability or fitness, credentialing, and human resources or military recruitment processes.

(g) Review

(Pub. L. 116–92, div. E, title LXVI, § 6611, Dec. 20, 2019, 133 Stat. 2218.)

§ 3352g. Requirement to authorize additional security clearances for certain contractors

(a) DefinitionsIn this section:

(1) Appropriate committees of CongressThe term “appropriate committees of Congress” means—

(A) the congressional intelligence committees;

(B) the Subcommittee on Defense of the Committee on Appropriations of the Senate; and

(2) Covered contract or agreement

(3) Covered person

(b) Plan and study

(1) In generalNo later than April 1, 2024, the Director of National Intelligence shall—

(A) complete a study on the feasibility and advisability of implementing a program to authorize additional security clearances for certain contractors as described in subsection (c);

(B) develop a plan to implement the program described in subparagraph (A); and

(i) a report on the findings of the Director with respect to the study completed pursuant to subparagraph (A); and

(ii) the plan developed pursuant to subparagraph (B).

(2) Study elementsThe study completed pursuant to paragraph (1)(A) shall address the following:

(A) For contracts agreed to after December 22, 2023, how private entities that contract with the intelligence community would make payments for additional clearances for their employees and how the intelligence community would receive payments.

(B) A list of and changes to provisions of law required in order to fully implement the program required by subsection (c) and achieve the intent indicated in subparagraph (A) of this paragraph.

(C) Such considerations as the Director may have for carrying out the program required by subsection (c) and achieving the intent indicated in subparagraph (A) of this paragraph.

(c) Program to authorize additional security clearances for certain contractors Subject to the limitations described in subsection (d), the Director shall establish a program under which—

(1) any entity that enters into a covered contract or agreement with an element of the intelligence community may designate an additional number of covered persons who may submit an application for a security clearance;

(2) the appropriate authorized investigative agency and authorized adjudicative agency, as such terms are defined in section 3341(a) of this title, shall—

(A) upon receiving such an application—

(i) conduct an appropriate investigation of the background of the additional covered person; and

(ii) make a determination as to whether the additional covered person is eligible for access to classified information; and

(B) if the determination under subparagraph (A)(ii) is favorable, upon any of the specified number of covered persons required to hold a security clearance for the performance of work under that covered contract or agreement becoming unable to perform such work, make a determination as to whether the additional covered person has a demonstrated need-to-know under Executive Order 12968 (60 Fed. Reg. 40245; relating to access to classified information), or any successor thereto, or Executive Order 10865 (25 Fed. Reg. 1583; relating to safeguarding classified information within industry), or any successor thereto (without requiring an additional investigation to be conducted under subparagraph (A)(i)); and

(3) if the additional covered person receives a favorable determination regarding the need-to-know under paragraph (2)(B) and signs an approved nondisclosure agreement, the additional covered person may perform such work in lieu of such covered person.

(d) LimitationsThe limitations described in this subsection are as follows:

(1) Limitation on number designated per contractThe additional number designated by an entity under the program established pursuant to subsection (c) for each covered contract or agreement may not exceed the greater of the following:

(A) 10 percent of the number of security clearances required to be held by covered persons to perform work under the covered contract or agreement.

(B) 1 person.

(2) Limitation on number designated per entityThe total additional number designated by an entity under the program established pursuant to subsection (c) may not exceed the greater of the following:

(A) 10 percent of the sum total number of security clearances required to be held by covered persons to perform work under all covered contracts or agreements of the entity.

(B) 1 person.

(e) Prohibitions

(1) In general

(2) Prohibition on bearing costs

(f) Rule of construction

(Pub. L. 118–31, div. G, title V, § 7505, Dec. 22, 2023, 137 Stat. 1084.)

§ 3352h. Timeliness standard for rendering determinations of trust for personnel vetting

(a) Timeliness standard

(1) In general

(2) Quinquennial reviewsNot less frequently than once every 5 years, the President shall, acting through the Security Executive Agent and the Suitability and Credentialing Executive Agent—

(A) review the standards established pursuant to paragraph (1); and

(B) pursuant to such review—

(i) update such standards as the President considers appropriate; and

(ii) publish in the Federal Register such updates as may be made pursuant to clause (i).

(3) Omitted

(b) Quarterly reports on implementation

(1) In general

(2) Disaggregation

(Pub. L. 118–31, div. G, title VII, § 7702, Dec. 22, 2023, 137 Stat. 1100.)