In June 2008 the President issued Executive Order (EO) 13467, “Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility Access to Classified National Security Information.” The goal of the EO was to align the three major federal personnel security programs, provide consistent standards, facilitate reciprocity, and create a system where “. . . each successively higher level of investigation and adjudication shall build upon, but not duplicate, the ones below it.” Seven years later progress toward this goal has been disappointing.
In December 2008 the Director of National Intelligence (DNI) and the Acting Director of the Office of Personnel Management (OPM) approved new Federal Investigative Standards (FIS) to comply with EO 13467. The 2008 FIS created a three-tier concept and represented the most significant change to investigations since 1953. Incremental implementation of these standards was planned to begin in spring 2009, but nothing happened. By early 2010 it was evident that the 2008 FIS had been scrapped.
In August 2010 OPM and DNI issued a memorandum advising federal agencies of a different set of changes to the FIS and the transition period for implementing those changes. A year later the changes were fully implemented. These revised standards represented a significant retreat from the three-tier concept approved in December 2008. They were essentially the same as the investigative structure that existed for over a decade, except that a few superfluous investigations were eliminated.
In December 2012 OPM and DNI approved yet another new FIS. The new FIS consist of five tiers of investigations. Tier 2 to Tier 5 each has a separate reinvestigation requirement (i.e. Tier 2R, Tier 3R, Tier 4R, and Tier 5R). Initially the new FIS were to be implemented within 180 days; however a less aggressive phased implementation plan was later approved. It wasn’t until October 2014 that OPM rolled out Tier 1 and Tier 2 investigations and October 2015 when OPM implemented Tier 3 investigations.
Neither the new 2012 FIS nor its implementation plan has been made public. However, according to the 3rd Quarter FY2015 “Cross Agency Priority Goals for Insider Threat and Security Clearance Reform,” the Initial Operating Capability (IOC) for Tier 4 and Tier 5 investigations is expected by October 2016, and Full Operating Capability (FOC) for all Tier level investigations is expected by September 2017. The difference between IOC and FOC is not clear, but FOC probably includes the change to a five-year reinvestigation interval for Tier 3 and implementation of new Continuous Evaluation requirements for Tier 5. It may also include the new requirements that “Queries be conducted against the most complete criminal history repository of the law enforcement agency(s) for any jurisdiction. . . .” and that “When appropriate, statements shall be taken from the Subject and signed pursuant to 28 U.S.C. 1746.”
|Tier 1||NACI||Low Risk, Non-Sensitive, including HSPD-12 Credentialing||None||None||SF85|
|Tier 2||MBI||Moderate Risk Public Trust (MRPT)||Tier 2R||NACLC||SF85P|
|Tier 3||NACLC & ANACI||Non-Critical Sensitive National Security, including Secret & “L” access eligibility||Tier 3R||NACLC||SF86|
|Tier 4||BI||High Risk Public Trust (HRPT)||Tier 4R||PRI||SF85P|
|Tier 5||SSBI||Critical Sensitive and Special Sensitive National Security, including Top Secret, SCI, and “Q” access eligibility||Tier 5R||SSBI-PR & PPR||SF86|
Note: Reinvestigations for MRPT and HRPT positions are already required at five-year intervals. Descriptions of the “traditional” (old) investigations are listed in an October 2011 article.
There are some anomalies in the 2012 FIS and in its implementation:
- In a redacted version of the 2012 FIS obtained under the Freedom of Information Act, the Enhanced Subject Interview (ESI) is listed as being optional for Tier 2 investigations. This was supported by Federal Investigative Notice No. 15-03 (FIN 15-03), which offered Tier 2 investigations with and without an ESI. However, no such option was included in the OPM schedule of investigations and billing rates for FY2015 (FIN 14-07) or for FY2016 (FIN 16-01).
- Title 5 Code of Federal Regulations Part 1400 (5 CFR 1400), “Designation of National Security Positions,” made it a requirement that non-critical sensitive national security positions also be designated as MRPT. This creates a problem unless ESIs are either not required or only optional for MRPT, thereby permitting Tier 3 investigations to be used for this purpose. Otherwise, OPM no longer offers a single investigation for non-critical sensitive positions that are also designated MRPT. MRPT positions currently require reinvestigations at five-year intervals, but 5 CFR 1400 only requires reinvestigations at five-year intervals for those non-critical sensitive positions that don’t require access to classified information.
- Even though E.O. 13467 mandates consistent Government-wide standards, the FIS again fails to address investigative standards for interim clearances. DOD issued its own new standards for interim Secret clearances in January 2014. Title 5 CFR 1400 also creates different standards for some non-critical sensitive positions and for federal competitive service positons.
Thus far the only major change to investigative scope appears to affect Tier 3. Instead of different investigations for two different groups of applicants—the ANACI for federal civilian employees and the NACLC for military and contractor personnel—Tier 3 is now applicable to both groups and closely resembles the scope of an ANACI investigation. By itself this change will increase average investigative time for Secret clearances. The written inquiries (INV Forms 41, 42, and 43), which are sent out and returned by U.S. Postal Service Mail as part of Tier 3 investigations, will become the pacing factor in most cases. It follows that potentially disqualifying information will be developed in a greater percentage of cases, resulting in longer turnaround times.
It seems that the changes to the FIS will not do much to meet the objectives of E.O. 13467. The broad definitions of national security positions contained in 5 CFR 1400 are a step in the right direction, but they don’t go far enough. Having three different application forms is probably the greatest impediment to aligning investigations. The SF85 doesn’t ask about criminal convictions, and neither the SF85 nor the SF85P has any questions regarding foreign connections or allegiance to the U.S. Until the three existing major federal personnel security programs are conflated and one standard application form and one set of adjudicative criteria replace the three in existence, it’s doubtful that the necessary changes can be made to fully align the investigations. Regardless of the stated purpose of each program, they all affect national security and should use the same basic standards. For example the potential for undue foreign influence should be considered not just for security clearance eligibility, but also for determining a person’s suitability for federal employment and for access to federal facilities or computer systems. It’s illogical not to consider sympathetic association with people involved in sabotage, espionage, treason, terrorism, or sedition against the U.S. as a potentially disqualifying condition under all three programs.
Perhaps one of the underlying problems is E.O. 13467 itself. It created two separate Executive Agents—one for national security and one for federal employment suitability/fitness, further delineating the differences between these two domains. The simple solution would be to designate all Government jobs as national security positions. Public Trust positions could be redesignated as either non-critical or critical sensitive, and Public Trust designations could be completely eliminated (Positions of trust designated non-critical or critical sensitive that don’t involve access to classified national security information have existed for decades in the federal Government).
By William H. Henderson
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