§ 3161. Procedures

(iii) shall promote reciprocal recognition of suitability or fitness determinations among the agencies, including acting as the final authority to arbitrate and resolve disputes among the agencies involving the reciprocity of investigations and adjudications of suitability and fitness;

(iv) shall continue to initially approve, and periodically review for renewal, agencies’ requests to administer polygraphs in connection with appointment in the competitive service, in consultation with the Security Executive Agent as appropriate;

(v) shall make a continuing review of agency programs for suitability and fitness vetting to determine whether they are being implemented according to this order;

(vi) may issue guidelines and instructions to the heads of agencies to promote appropriate uniformity, centralization, efficiency, effectiveness, reciprocity, timeliness, and security in processes relating to determining suitability or fitness; and

(vii) shall, pursuant to section 1104 of title 5, United States Code, prescribe performance standards and a system of oversight for any suitability or fitness function delegated by the Director to the head of another agency, including uniform and consistent policies and procedures to ensure the effective, efficient, timely, and secure completion of delegated functions.

(c) With respect to the Credentialing Executive Agent functions, the Director of the Office of Personnel Management:

(i) shall develop standards for investigations, reinvestigations, and continuous vetting for a covered individual’s eligibility for a personal identity verification credential permitting logical and physical access to federally controlled facilities and federally controlled information systems (PIV credential);

(ii) shall develop adjudicative guidelines for a covered individual’s eligibility for a PIV credential;

(iii) shall develop guidelines on reporting and recording determinations of eligibility for a PIV credential;

(iv) shall develop standards for unfavorable determinations of eligibility for a PIV credential, including procedures for denying and revoking the eligibility for a PIV credential, for reconsideration of unfavorable determinations, and for rendering the PIV credential inoperable;

(v) shall develop standards and procedures for suspending eligibility for a PIV credential when there is a reasonable basis to believe there may be an unacceptable risk pending an inquiry or investigation, including special standards and procedures for imminent risk;

(vi) shall be responsible for developing uniform and consistent policies and procedures to ensure the effective, efficient, timely, and secure completion of investigations and adjudications relating to eligibility for a PIV credential;

(vii) may develop guidelines and instructions to the heads of agencies as necessary to ensure appropriate uniformity, centralization, efficiency, effectiveness, and timeliness in processes relating to eligibility for a PIV credential;

(viii) shall monitor and make a continuing review of agency programs for determining eligibility for a PIV credential to determine whether they are being implemented according to this order; and

(ix) shall consult to the extent practicable with other agencies with responsibilities related to PIV credentials to ensure that policies and procedures are consistent with law including:

(A) the Office of Management and Budget, in exercising its responsibilities under section 11331 of title 40, United States Code, section 3553(a) of title 44, United States Code, division A, sections 1086(b)(2) and (b)(3) of Public Law 114–92, and Homeland Security Presidential Directive 12 of August 27, 2004;

(B) the Department of Homeland Security, in exercising its responsibilities under sections 3553(b), (f), and (g) of title 44, United States Code;

(C) the Department of Defense, in exercising its responsibilities under section 3553(e) of title 44, United States Code, and division A, sections 1086(a)(1)(E), (b)(1), and (b)(2) of Public Law 114–92;

(D) the Office of the Director of National Intelligence, in exercising its responsibilities under section 3553(e) of title 44, United States Code, and division A, section 1086(b)(2) of Public Law 114–92;

(E) the Department of Commerce and the National Institute of Standards and Technology, in exercising their responsibilities under section 278g–3 of title 15, United States Code, and Homeland Security Presidential Directive 12 of August 27, 2004;

(F) the General Services Administration, in exercising its responsibilities under division A, section 1086(b)(2) of Public Law 114–92; and

(G) the Federal Acquisition Regulation agencies, in exercising their responsibilities under [former] chapter 137 of title 10, section 121(c) of title 40, and section 20113 of title 51, United States Code.

(d) In fulfilling the Credentialing Executive Agent function of developing policies and procedures for determining eligibility for a PIV credential and to protect the national security, the Director of the Office of Personnel Management shall coordinate with and obtain the concurrence of the other Council Principals. Agencies with authority to establish standards or guidelines or issue instructions related to PIV credentials shall retain the discretion as to whether to establish policies, guidelines, or instructions developed by the Credentialing Executive Agent.

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

(i) shall direct the oversight of investigations, reinvestigations, adjudications, and, as applicable, polygraphs for eligibility for access to classified information or eligibility to hold a sensitive position made by any agency;

(ii) shall make a continuing review of agencies’ national security background investigation and adjudication programs to determine whether they are being implemented according to this order;

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

(iv) may issue guidelines and instructions to the heads of agencies to ensure appropriate uniformity, centralization, efficiency, effectiveness, timeliness, and security in processes relating to determinations by agencies of eligibility for access to classified information or eligibility to hold a sensitive position, to include such matters as investigations, polygraphs, adjudications, and reciprocity;

(v) may, if consistent with the national security, authorize exceptions to or waivers of national security investigative requirements, and may issue implementing or clarifying guidance as necessary;

(vi) shall serve as the final authority to designate an agency or agencies, to the extent that it is not practicable to use the Defense Counterintelligence and Security Agency, to conduct investigations of persons who are proposed for access to classified information or for eligibility to hold a sensitive position to ascertain whether such persons satisfy the criteria for obtaining and retaining access to classified information or eligibility to hold a sensitive position;

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

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

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

(f) Nothing in this section shall be construed in a manner that would limit the authorities of the Director of the Office of Personnel Management, the Director of National Intelligence, or the Secretary of Defense under law.

Sec. 2.6. Roles and Responsibilities of the Department of Defense, the Office of Personnel Management, and the Office of Management and Budget.

(a) The National Background Investigations Bureau shall, until such functions are transferred or delegated, as applicable, to the Defense Counterintelligence and Security Agency:

(i) serve as the primary executive branch service provider for background investigations for eligibility for access to classified information; eligibility to hold a sensitive position; 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;

(ii) provide effective, efficient, and secure personnel background investigations for the Federal Government;

(iii) provide the Council information, to the extent permitted by law, on matters of performance, timeliness, capacity, information technology modernization, continuous performance improvement, and other relevant aspects of NBIB operations;

(iv) be headquartered in or near Washington, District of Columbia;

(v) have dedicated resources, including but not limited to a senior privacy and civil liberties official;

(vi) institutionalize interagency collaboration and leverage expertise across the executive branch;

(vii) continuously improve investigative operations, emphasizing information accuracy and protection, and regularly integrate best practices, including those identified by subject matter experts from industry, academia, or other relevant sources;

(viii) conduct personnel background investigations in accordance with uniform and consistent policies, procedures, standards, and requirements established by the Security Executive Agent and the Suitability and Credentialing Executive Agent exercising its Suitability Executive Agent functions; and

(ix) conduct other personnel background investigations as authorized by law, rule, regulation, or Executive Order;” [sic]

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.

(b) The Secretary of Defense shall design, develop, deploy, operate, secure, defend, and continuously update and modernize, as necessary, vetting information technology systems that support all background investigation processes conducted by the National Background Investigations Bureau. Design and operation of the information technology systems for the National Background Investigations Bureau shall comply with applicable information technology standards and, to the extent practicable, ensure security and interoperability with other background investigation information technology systems. 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 and following an explicit delegation from the Director of the Office of Personnel Management pursuant to section 1104 of title 5, United States Code.

(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 [sic] 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 [sic] 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, [5 U.S.C. 7301 note] 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.” [sic]

(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.

(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) [10 U.S.C. 1564 note], 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.

Sec. 2.7. Additional Functions. (a) The duties assigned to the Security Policy Board by Executive Order 12968 of August 2, 1995, to consider, coordinate, and recommend policy directives for executive branch security policies, procedures, and practices are reassigned to the Security Executive Agent.

(b) Heads of agencies shall:

(i) designate, or cause to be designated, as a “sensitive position,” any position occupied by a covered individual in which the occupant could bring about by virtue of the nature of the position, a material adverse effect on the national security;

(ii) establish and maintain within their respective agencies, an effective program to ensure that employment and retention of any covered individual within the agency is clearly consistent with the interests of national security and, as applicable, meets standards for eligibility for access to classified information or to hold a sensitive position, suitability, fitness, or credentialing, established by the respective Executive Agent;

(iii) carry out any function assigned to the agency head by the Chair, and shall assist the Chair, the Council, the Executive Agents, the National Background Investigations Bureau, and the Department of Defense in carrying out any function under sections 2.4, 2.5, and 2.6 of this order;

(iv) implement any policy or procedure established pursuant to this order;

(v) to the extent permitted by law, make available to the Council, the Executive Agents, the National Background Investigations Bureau, and the Department of Defense such information as may be requested to implement this order, including information necessary to implement enterprise-wide vetting policies and procedures;

(vi) except as authorized by section 3341(e)(5) of title 50, United States Code, promptly furnish, or cause to be promptly furnished, to the Office of Personnel Management the information deemed by the Executive Agents to be necessary for purposes of record keeping and reciprocity including, but not limited to, the date on which a background investigation is initiated, the date on which the background investigation is closed, and the specific adjudicative or access decision made. The Executive Agents shall determine the appropriate timeline pursuant to which this information must be reported to the Office of Personnel Management. The Executive Agents shall maintain discretion to determine the scope of information needed for record keeping and reciprocity purposes. The Office of Personnel Management shall regularly provide this information to the Director of National Intelligence for national security purposes.

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

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

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

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

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

(D) supervise the unitary executive branch.

(c) All investigations being conducted by agencies that develop information indicating that an individual may have been subjected to coercion, influence, or pressure to act contrary to the interests of the national security, or information that the individual may pose a counterintelligence or terrorist threat, or as otherwise provided by law, shall be referred to the Federal Bureau of Investigation for potential investigation, and may also be referred to other agencies where appropriate.

PART 3—MISCELLANEOUS

Sec. 3. General Provisions. (a) Executive Order 13381 of June 27, 2005 [amending Ex. Ord. No. 12171, set out as a note under section 7103 of Title 5, Government Organization and Employees], as amended, and Executive Order 10450 of April 27, 1953 [formerly set out as a note under section 7311 of Title 5], as amended, are revoked. By revoking Executive Order 10450 of April 27, 1953, as amended, there is no intent to alter the requirement for an investigation for national security purposes or the “clearly consistent with the interest of national security” standard prescribed by that Executive Order for making the determinations referenced in section 2.7(b)(ii). Further, suitability, fitness, credentialing, and national security eligibility regulations, standards and guidance issued by, or interagency agreements entered into by, the Council, the Executive Agents, or any agency pursuant to Executive Order 10450 of April 27, 1953, as amended, shall remain valid until superseded. Nothing in this order shall:

(i) supersede, impede, or otherwise affect:

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

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

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

(D) Executive Order 13526 of December 29, 2009; or

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

(iii) be applied in such a way as to affect any administrative proceeding pending on the date of this order.

(b) [Amended Ex. Ord. No. 12968, set out as a note above.]

(c) Provisions of Executive Order 12968 of August 2, 1995, as amended, that apply to eligibility for access to classified information shall apply to eligibility to hold any sensitive position regardless of whether that sensitive position requires access to classified information, subject to the Security Executive Agent issuing implementing or clarifying guidance regarding requirements for sensitive positions. Nothing in this order shall supersede, impede, or otherwise affect the remainder of Executive Order 12968 of August 2, 1995, as amended.

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

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

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

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

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

(g) Existing delegations of authority made by the Office of Personnel Management to any agency relating to suitability or fitness shall remain in effect, subject to the exercise of authorities to revise or revoke such delegations.

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

(i) This order is 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.

Ex. Ord. No. 13526. Classified National Security Information

Ex. Ord. No. 13526, Dec. 29, 2009, 75 F.R. 707, 1013, provided:

This order prescribes a uniform system for classifying, safeguarding, and declassifying national security information, including information relating to defense against transnational terrorism. Our democratic principles require that the American people be informed of the activities of their Government. Also, our Nation’s progress depends on the free flow of information both within the Government and to the American people. Nevertheless, throughout our history, the national defense has required that certain information be maintained in confidence in order to protect our citizens, our democratic institutions, our homeland security, and our interactions with foreign nations. Protecting information critical to our Nation’s security and demonstrating our commitment to open Government through accurate and accountable application of classification standards and routine, secure, and effective declassification are equally important priorities.

NOW, THEREFORE, I, BARACK OBAMA, by the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

PART 1—Original Classification

Section 1.1. Classification Standards. (a) Information may be originally classified under the terms of this order only if all of the following conditions are met:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

(b) If there is significant doubt about the need to classify information, it shall not be classified. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(c) Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information.

(d) The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.

Sec. 1.2. Classification Levels. (a) Information may be classified at one of the following three levels:

(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.

(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.

(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.

(b) Except as otherwise provided by statute, no other terms shall be used to identify United States classified information.

(c) If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.

Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

(2) agency heads and officials designated by the President; and

(3) United States Government officials delegated this authority pursuant to paragraph (c) of this section.

(b) Officials authorized to classify information at a specified level are also authorized to classify information at a lower level.

(c) Delegation of original classification authority.

(1) Delegations of original classification authority shall be limited to the minimum required to administer this order. Agency heads are responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise this authority.

(2) “Top Secret” original classification authority may be delegated only by the President, the Vice President, or an agency head or official designated pursuant to paragraph (a)(2) of this section.

(3) “Secret” or “Confidential” original classification authority may be delegated only by the President, the Vice President, an agency head or official designated pursuant to paragraph (a)(2) of this section, or the senior agency official designated under section 5.4(d) of this order, provided that official has been delegated “Top Secret” original classification authority by the agency head.

(4) Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided in this order. Each delegation shall identify the official by name or position.

(5) Delegations of original classification authority shall be reported or made available by name or position to the Director of the Information Security Oversight Office.

(d) All original classification authorities must receive training in proper classification (including the avoidance of over-classification) and declassification as provided in this order and its implementing directives at least once a calendar year. Such training must include instruction on the proper safeguarding of classified information and on the sanctions in section 5.5 of this order that may be brought against an individual who fails to classify information properly or protect classified information from unauthorized disclosure. Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place. A waiver may be granted by the agency head, the deputy agency head, or the senior agency official if an individual is unable to receive such training due to unavoidable circumstances. Whenever a waiver is granted, the individual shall receive such training as soon as practicable.

(e) Exceptional cases. When an employee, government contractor, licensee, certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that person to require classification, the information shall be protected in a manner consistent with this order and its implementing directives. The information shall be transmitted promptly as provided under this order or its implementing directives to the agency that has appropriate subject matter interest and classification authority with respect to this information. That agency shall decide within 30 days whether to classify this information.

Sec. 1.4. Classification Categories. Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to one or more of the following:

(a) military plans, weapons systems, or operations;

(b) foreign government information;

(c) intelligence activities (including covert action), intelligence sources or methods, or cryptology;

(d) foreign relations or foreign activities of the United States, including confidential sources;

(e) scientific, technological, or economic matters relating to the national security;

(f) United States Government programs for safeguarding nuclear materials or facilities;

(g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or (h) the development, production, or use of weapons of mass destruction.

Sec. 1.5. Duration of Classification. (a) At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information. Upon reaching the date or event, the information shall be automatically declassified. Except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the date or event shall not exceed the time frame established in paragraph (b) of this section.

(b) If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision.

(c) An original classification authority may extend the duration of classification up to 25 years from the date of origin of the document, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under this order are followed.

(d) No information may remain classified indefinitely. Information marked for an indefinite duration of classification under predecessor orders, for example, marked as “Originating Agency’s Determination Required,” or classified information that contains incomplete declassification instructions or lacks declassification instructions shall be declassified in accordance with part 3 of this order.

Sec. 1.6. Identification and Markings. (a) At the time of original classification, the following shall be indicated in a manner that is immediately apparent:

(1) one of the three classification levels defined in section 1.2 of this order;

(2) the identity, by name and position, or by personal identifier, of the original classification authority;

(3) the agency and office of origin, if not otherwise evident;

(4) declassification instructions, which shall indicate one of the following:

(A) the date or event for declassification, as prescribed in section 1.5(a);

(B) the date that is 10 years from the date of original classification, as prescribed in section 1.5(b);

(C) the date that is up to 25 years from the date of original classification, as prescribed in section 1.5(b); or

(D) in the case of information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the marking prescribed in implementing directives issued pursuant to this order; and

(5) a concise reason for classification that, at a minimum, cites the applicable classification categories in section 1.4 of this order.

(b) Specific information required in paragraph (a) of this section may be excluded if it would reveal additional classified information.

(c) With respect to each classified document, the agency originating the document shall, by marking or other means, indicate which portions are classified, with the applicable classification level, and which portions are unclassified. In accordance with standards prescribed in directives issued under this order, the Director of the Information Security Oversight Office may grant and revoke temporary waivers of this requirement. The Director shall revoke any waiver upon a finding of abuse.

(d) Markings or other indicia implementing the provisions of this order, including abbreviations and requirements to safeguard classified working papers, shall conform to the standards prescribed in implementing directives issued pursuant to this order.

(e) Foreign government information shall retain its original classification markings or shall be assigned a U.S. classification that provides a degree of protection at least equivalent to that required by the entity that furnished the information. Foreign government information retaining its original classification markings need not be assigned a U.S. classification marking provided that the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings.

(f) Information assigned a level of classification under this or predecessor orders shall be considered as classified at that level of classification despite the omission of other required markings. Whenever such information is used in the derivative classification process or is reviewed for possible declassification, holders of such information shall coordinate with an appropriate classification authority for the application of omitted markings.

(g) The classification authority shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form.

(h) Prior to public release, all declassified records shall be appropriately marked to reflect their declassification.

Sec. 1.7. Classification Prohibitions and Limitations. (a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

(3) restrain competition; or

(4) prevent or delay the release of information that does not require protection in the interest of the national security.

(b) Basic scientific research information not clearly related to the national security shall not be classified.

(c) Information may not be reclassified after declassification and release to the public under proper authority unless:

(1) the reclassification is personally approved in writing by the agency head based on a document-by-document determination by the agency that reclassification is required to prevent significant and demonstrable damage to the national security;

(2) the information may be reasonably recovered without bringing undue attention to the information;

(3) the reclassification action is reported promptly to the Assistant to the President for National Security Affairs (National Security Advisor) and the Director of the Information Security Oversight Office; and

(4) for documents in the physical and legal custody of the National Archives and Records Administration (National Archives) that have been available for public use, the agency head has, after making the determinations required by this paragraph, notified the Archivist of the United States (Archivist), who shall suspend public access pending approval of the reclassification action by the Director of the Information Security Oversight Office. Any such decision by the Director may be appealed by the agency head to the President through the National Security Advisor. Public access shall remain suspended pending a prompt decision on the appeal.

(d) Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of section 3.5 of this order only if such classification meets the requirements of this order and is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.4 of this order. The requirements in this paragraph also apply to those situations in which information has been declassified in accordance with a specific date or event determined by an original classification authority in accordance with section 1.5 of this order.

(e) Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that:

(1) meets the standards for classification under this order; and

(2) is not otherwise revealed in the individual items of information.

Sec. 1.8. Classification Challenges. (a) Authorized holders of information who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information in accordance with agency procedures established under paragraph (b) of this section.

(b) In accordance with implementing directives issued pursuant to this order, an agency head or senior agency official shall establish procedures under which authorized holders of information, including authorized holders outside the classifying agency, are encouraged and expected to challenge the classification of information that they believe is improperly classified or unclassified. These procedures shall ensure that:

(1) individuals are not subject to retribution for bringing such actions;

(2) an opportunity is provided for review by an impartial official or panel; and

(3) individuals are advised of their right to appeal agency decisions to the Interagency Security Classification Appeals Panel (Panel) established by section 5.3 of this order.

(c) Documents required to be submitted for prepublication review or other administrative process pursuant to an approved nondisclosure agreement are not covered by this section.

Sec. 1.9. Fundamental Classification Guidance Review. (a) Agency heads shall complete on a periodic basis a comprehensive review of the agency’s classification guidance, particularly classification guides, to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified. The initial fundamental classification guidance review shall be completed within 2 years of the effective date of this order.

(b) The classification guidance review shall include an evaluation of classified information to determine if it meets the standards for classification under section 1.4 of this order, taking into account an up-to-date assessment of likely damage as described under section 1.2 of this order.

(c) The classification guidance review shall include original classification authorities and agency subject matter experts to ensure a broad range of perspectives.

(d) Agency heads shall provide a report summarizing the results of the classification guidance review to the Director of the Information Security Oversight Office and shall release an unclassified version of this report to the public.

PART 2—Derivative Classification

Sec. 2.1. Use of Derivative Classification. (a) Persons who reproduce, extract, or summarize classified information, or who apply classification markings derived from source material or as directed by a classification guide, need not possess original classification authority.

(b) Persons who apply derivative classification markings shall:

(1) be identified by name and position, or by personal identifier, in a manner that is immediately apparent for each derivative classification action;

(2) observe and respect original classification decisions; and

(3) carry forward to any newly created documents the pertinent classification markings. For information derivatively classified based on multiple sources, the derivative classifier shall carry forward:

(A) the date or event for declassification that corresponds to the longest period of classification among the sources, or the marking established pursuant to section 1.6(a)(4)(D) of this order; and

(B) a listing of the source materials.

(c) Derivative classifiers shall, whenever practicable, use a classified addendum whenever classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form.

(d) Persons who apply derivative classification markings shall receive training in the proper application of the derivative classification principles of the order, with an emphasis on avoiding over-classification, at least once every 2 years. Derivative classifiers who do not receive such training at least once every 2 years shall have their authority to apply derivative classification markings suspended until they have received such training. A waiver may be granted by the agency head, the deputy agency head, or the senior agency official if an individual is unable to receive such training due to unavoidable circumstances. Whenever a waiver is granted, the individual shall receive such training as soon as practicable.

Sec. 2.2. Classification Guides. (a) Agencies with original classification authority shall prepare classification guides to facilitate the proper and uniform derivative classification of information. These guides shall conform to standards contained in directives issued under this order.

(b) Each guide shall be approved personally and in writing by an official who:

(1) has program or supervisory responsibility over the information or is the senior agency official; and

(2) is authorized to classify information originally at the highest level of classification prescribed in the guide.

(c) Agencies shall establish procedures to ensure that classification guides are reviewed and updated as provided in directives issued under this order.

(d) Agencies shall incorporate original classification decisions into classification guides on a timely basis and in accordance with directives issued under this order.

(e) Agencies may incorporate exemptions from automatic declassification approved pursuant to section 3.3(j) of this order into classification guides, provided that the Panel is notified of the intent to take such action for specific information in advance of approval and the information remains in active use.

(f) The duration of classification of a document classified by a derivative classifier using a classification guide shall not exceed 25 years from the date of the origin of the document, except for:

(1) information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction; and

(2) specific information incorporated into classification guides in accordance with section 2.2(e) of this order.

PART 3—Declassification and Downgrading

Sec. 3.1. Authority for Declassification. (a) Information shall be declassified as soon as it no longer meets the standards for classification under this order.

(b) Information shall be declassified or downgraded by:

(1) the official who authorized the original classification, if that official is still serving in the same position and has original classification authority;

(2) the originator’s current successor in function, if that individual has original classification authority;

(3) a supervisory official of either the originator or his or her successor in function, if the supervisory official has original classification authority; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official of the originating agency.

(c) The Director of National Intelligence (or, if delegated by the Director of National Intelligence, the Principal Deputy Director of National Intelligence) may, with respect to the Intelligence Community, after consultation with the head of the originating Intelligence Community element or department, declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.

(d) It is presumed that information that continues to meet the classification requirements under this order requires continued protection. In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure. This provision does not:

(1) amplify or modify the substantive criteria or procedures for classification; or

(2) create any substantive or procedural rights subject to judicial review.

(e) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the National Security Advisor. The information shall remain classified pending a prompt decision on the appeal.

(f) The provisions of this section shall also apply to agencies that, under the terms of this order, do not have original classification authority, but had such authority under predecessor orders.

(g) No information may be excluded from declassification under section 3.3 of this order based solely on the type of document or record in which it is found. Rather, the classified information must be considered on the basis of its content.

(h) Classified nonrecord materials, including artifacts, shall be declassified as soon as they no longer meet the standards for classification under this order.

(i) When making decisions under sections 3.3, 3.4, and 3.5 of this order, agencies shall consider the final decisions of the Panel.

Sec. 3.2. Transferred Records.

(a) In the case of classified records transferred in conjunction with a transfer of functions, and not merely for storage purposes, the receiving agency shall be deemed to be the originating agency for purposes of this order.

(b) In the case of classified records that are not officially transferred as described in paragraph (a) of this section, but that originated in an agency that has ceased to exist and for which there is no successor agency, each agency in possession of such records shall be deemed to be the originating agency for purposes of this order. Such records may be declassified or downgraded by the agency in possession of the records after consultation with any other agency that has an interest in the subject matter of the records.

(c) Classified records accessioned into the National Archives shall be declassified or downgraded by the Archivist in accordance with this order, the directives issued pursuant to this order, agency declassification guides, and any existing procedural agreement between the Archivist and the relevant agency head.

(d) The originating agency shall take all reasonable steps to declassify classified information contained in records determined to have permanent historical value before they are accessioned into the National Archives. However, the Archivist may require that classified records be accessioned into the National Archives when necessary to comply with the provisions of the Federal Records Act. This provision does not apply to records transferred to the Archivist pursuant to section 2203 of title 44, United States Code, or records for which the National Archives serves as the custodian of the records of an agency or organization that has gone out of existence.

(e) To the extent practicable, agencies shall adopt a system of records management that will facilitate the public release of documents at the time such documents are declassified pursuant to the provisions for automatic declassification in section 3.3 of this order.

Sec. 3.3 Automatic Declassification.

(a) Subject to paragraphs (b)–(d) and (g)–(j) of this section, all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed. All classified records shall be automatically declassified on December 31 of the year that is 25 years from the date of origin, except as provided in paragraphs (b)–(d) and (g)–(j) of this section. If the date of origin of an individual record cannot be readily determined, the date of original classification shall be used instead.

(b) An agency head may exempt from automatic declassification under paragraph (a) of this section specific information, the release of which should clearly and demonstrably be expected to:

(1) reveal the identity of a confidential human source, a human intelligence source, a relationship with an intelligence or security service of a foreign government or international organization, or a nonhuman intelligence source; or impair the effectiveness of an intelligence method currently in use, available for use, or under development;

(2) reveal information that would assist in the development, production, or use of weapons of mass destruction;

(3) reveal information that would impair U.S. cryptologic systems or activities;

(4) reveal information that would impair the application of state-of-the-art technology within a U.S. weapon system;

(5) reveal formally named or numbered U.S. military war plans that remain in effect, or reveal operational or tactical elements of prior plans that are contained in such active plans;

(6) reveal information, including foreign government information, that would cause serious harm to relations between the United States and a foreign government, or to ongoing diplomatic activities of the United States;

(7) reveal information that would impair the current ability of United States Government officials to protect the President, Vice President, and other protectees for whom protection services, in the interest of the national security, are authorized;

(8) reveal information that would seriously impair current national security emergency preparedness plans or reveal current vulnerabilities of systems, installations, or infrastructures relating to the national security; or

(9) violate a statute, treaty, or international agreement that does not permit the automatic or unilateral declassification of information at 25 years.

(c)(1) An agency head shall notify the Panel of any specific file series of records for which a review or assessment has determined that the information within that file series almost invariably falls within one or more of the exemption categories listed in paragraph (b) of this section and that the agency proposes to exempt from automatic declassification at 25 years.

(2) The notification shall include:

(A) a description of the file series;

(B) an explanation of why the information within the file series is almost invariably exempt from automatic declassification and why the information must remain classified for a longer period of time; and

(C) except when the information within the file series almost invariably identifies a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, a specific date or event for declassification of the information, not to exceed December 31 of the year that is 50 years from the date of origin of the records.

(3) The Panel may direct the agency not to exempt a designated file series or to declassify the information within that series at an earlier date than recommended. The agency head may appeal such a decision to the President through the National Security Advisor.

(4) File series exemptions approved by the President prior to December 31, 2008, shall remain valid without any additional agency action pending Panel review by the later of December 31, 2010, or December 31 of the year that is 10 years from the date of previous approval.

(d) The following provisions shall apply to the onset of automatic declassification:

(1) Classified records within an integral file block, as defined in this order, that are otherwise subject to automatic declassification under this section shall not be automatically declassified until December 31 of the year that is 25 years from the date of the most recent record within the file block.

(2) After consultation with the Director of the National Declassification Center (the Center) established by section 3.7 of this order and before the records are subject to automatic declassification, an agency head or senior agency official may delay automatic declassification for up to five additional years for classified information contained in media that make a review for possible declassification exemptions more difficult or costly.

(3) Other than for records that are properly exempted from automatic declassification, records containing classified information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies with respect to the classified information and could reasonably be expected to fall under one or more of the exemptions in paragraph (b) of this section shall be identified prior to the onset of automatic declassification for later referral to those agencies.

(A) The information of concern shall be referred by the Center established by section 3.7 of this order, or by the centralized facilities referred to in section 3.7(e) of this order, in a prioritized and scheduled manner determined by the Center.

(B) If an agency fails to provide a final determination on a referral made by the Center within 1 year of referral, or by the centralized facilities referred to in section 3.7(e) of this order within 3 years of referral, its equities in the referred records shall be automatically declassified.