Transferring Responsibility for Background Investigations to the Department of Defense

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

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,

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

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;

  (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

                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.

                    (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.