S.Amdt. 2035

SA 2035. Mr. TESTER (for himself and Mr. Kaine) submitted an
amendment intended to be proposed to amendment SA 1463 proposed by Mr.
McCain to the bill H.R. 1735, to authorize appropriations for fiscal
year 2016 for military activities of the Department of Defense, for
military construction, and for defense activities of the Department of
Energy, to prescribe military personnel strengths for such fiscal year,
and for other purposes; which was ordered to lie on the table; as
follows:

At the end of subtitle G of title X, add the following:

SEC. 1085. ACCESS TO CRIMINAL HISTORY RECORDS FOR NATIONAL
SECURITY AND OTHER PURPOSES.

(a) Definition.--Section 9101(a) of title 5, United States
Code, is amended by adding at the end the following:
``(7) The terms `Security Executive Agent' and `Suitability
Executive Agent' mean the Security Executive Agent and the
Suitability Executive Agent, respectively, established under
Executive Order 13467 (73 Fed. Reg. 38103), or any successor
thereto.''.
(b) Covered Agencies.--Section 9101(a)(6) of title 5,
United States Code, is amended by adding at the end the
following:
``(G) The Department of Homeland Security.
``(H) The Office of the Director of National Intelligence.
``(I) An Executive agency that--
``(i) is authorized to conduct background investigations
under a Federal statute; or
``(ii) is delegated authority to conduct background
investigations in accordance with procedures established by
the Security Executive Agent or the Suitability Executive
Agent under subsection (b) or (c)(iv) of section 2.3 of
Executive Order 13467 (73 Fed. Reg. 38103), or any successor
thereto.
``(J) A contractor that conducts a background investigation
on behalf of an agency described in subparagraphs (A) through
(I).''.
(c) Applicable Purposes of Investigations.--Section
9101(b)(1) of title 5, United States Code, is amended--
(1) by redesignating subparagraphs (A) through (D) as
clauses (i) through (iv), respectively, and adjusting the
margins accordingly;
(2) in the matter preceding clause (i), as redesignated--
(A) by striking ``the head of'';
(B) by inserting ``all'' before ``criminal history record
information''; and
(C) by striking ``for the purpose of determining
eligibility for any of the following:'' and inserting ``, in
accordance with Federal Investigative Standards jointly
promulgated by the Suitability Executive Agent and Security
Executive Agent, for the purpose of--
``(A) determining eligibility for--'';
(3) in clause (i), as redesignated--
(A) by striking ``Access'' and inserting ``access''; and
(B) by striking the period and inserting a semicolon;
(4) in clause (ii), as redesignated--
(A) by striking ``Assignment'' and inserting
``assignment''; and
(B) by striking the period and inserting ``or positions;'';

[[Page S4164]]

(5) in clause (iii), as redesignated--
(A) by striking ``Acceptance'' and inserting
``acceptance''; and
(B) by striking the period and inserting ``; or'';
(6) in clause (iv), as redesignated--
(A) by striking ``Appointment'' and inserting
``appointment'';
(B) by striking ``or a critical or sensitive position'';
and
(C) by striking the period and inserting ``; or''; and
(7) by adding at the end the following:
``(B) conducting a basic suitability or fitness assessment
for Federal or contractor employees, using Federal
Investigative Standards jointly promulgated by the Security
Executive Agent and the Suitability Executive Agent in
accordance with--
``(i) Executive Order 13467 (73 Fed. Reg. 38103), or any
successor thereto; and
``(ii) the Office of Management and Budget Memorandum
`Assignment of Functions Relating to Coverage of Contractor
Employee Fitness in the Federal Investigative Standards',
dated December 6, 2012;
``(C) credentialing under the Homeland Security
Presidential Directive 12 (dated August 27, 2004); and
``(D) Federal Aviation Administration checks required
under--
``(i) the Federal Aviation Administration Drug Enforcement
Assistance Act of 1988 (subtitle E of title VII of Public Law
100-690; 102 Stat. 4424) and the amendments made by that Act;
or
``(ii) section 44710 of title 49.''.
(d) Biometric and Biographic Searches.--Section 9101(b)(2)
of title 5, United States Code, is amended to read as
follows:
``(2)(A) A State central criminal history record depository
shall allow a covered agency to conduct both biometric and
biographic searches of criminal history record information.
``(B) Nothing in subparagraph (A) shall be construed to
prohibit the Federal Bureau of Investigation from requiring a
request for criminal history record information to be
accompanied by the fingerprints of the individual who is the
subject of the request.''.
(e) Use of Most Cost-effective System.--Section 9101(e) of
title 5, United States Code, is amended by adding at the end
the following:
``(6) If a criminal justice agency is able to provide the
same information through more than 1 system described in
paragraph (1), a covered agency may request information under
subsection (b) from the criminal justice agency, and require
the criminal justice agency to provide the information, using
the system that is most cost-effective for the Federal
Government.''.
(f) Sealed or Expunged Records; Juvenile Records.--
(1) In general.--Section 9101(a)(2) of title 5, United
States Code, is amended--
(A) in the first sentence, by inserting before the period
the following: ``, and includes any analogous juvenile
records''; and
(B) by striking the third sentence and inserting the
following: ``The term includes those records of a State or
locality sealed pursuant to law if such records are
accessible by State and local criminal justice agencies for
the purpose of conducting background checks.''.
(2) Sense of congress.--It is the sense of Congress that
the Federal Government should not uniformly reject applicants
for employment with the Federal Government or Federal
contractors based on--
(A) sealed or expunged criminal records; or
(B) juvenile records.
(g) Interaction With Law Enforcement and Intelligence
Agencies Abroad.--Section 9101 of title 5, United States
Code, is amended by adding at the end the following:
``(g) Upon request by a covered agency and in accordance
with the applicable provisions of this section, the Deputy
Assistant Secretary of State for Overseas Citizens Services
shall make available criminal history record information
collected by the Deputy Assistant Secretary with respect to
an individual who is under investigation by the covered
agency regarding any interaction of the individual with a law
enforcement agency or intelligence agency of a foreign
country.''.
(h) Clarification of Security Requirements for Contractors
Conducting Background Investigations.--Section 9101 of title
5, United States Code, as amended by this section, is amended
by adding at the end the following:
``(h) If a contractor described in subsection (a)(6)(J)
uses an automated information delivery system to request
criminal history record information, the contractor shall
comply with any necessary security requirements for access to
that system.''.
(i) Clarification Regarding Adverse Actions.--Section 7512
of title 5, United States Code, is amended--
(1) in subparagraph (D), by striking ``or'';
(2) in subparagraph (E), by striking the period and
inserting ``, or''; and
(3) by adding at the end the following:
``(F) a suitability action taken by the Office under
regulations prescribed by the Office, subject to the rules
prescribed by the President under this title for the
administration of the competitive service.''.
(j) Annual Report by Suitability and Security Clearance
Performance Accountability Council.--Section 9101 of title 5,
United States Code, as amended by this section, is amended by
adding at the end the following:
``(i) The Suitability and Security Clearance Performance
Accountability Council established under Executive Order
13467 (73 Fed. Reg. 38103), or any successor thereto, shall
submit to the Committee on Armed Services, the Committee on
Homeland Security and Governmental Affairs, the Committee on
Appropriations, and the Select Committee on Intelligence of
the Senate, and the Committee on Armed Services, the
Committee on Oversight and Government Reform, the Committee
on Appropriations, and the Permanent Select Committee on
Intelligence of the House of Representatives, an annual
report that--
``(1) describes efforts of the Council to integrate
Federal, State, and local systems for sharing criminal
history record information;
``(2) analyzes the extent and effectiveness of Federal
education programs regarding criminal history record
information;
``(3) provides an update on the implementation of best
practices for sharing criminal history record information,
including ongoing limitations experienced by investigators
working for or on behalf of a covered agency with respect to
access to State and local criminal history record
information; and
``(4) provides a description of limitations on the sharing
of information relevant to a background investigation, other
than criminal history record information, between--
``(A) investigators working for or on behalf of a covered
agency; and
``(B) State and local law enforcement agencies.''.
(k) GAO Report on Enhancing Interoperability and Reducing
Redundancy in Federal Critical Infrastructure Protection
Access Control, Background Check, and Credentialing
Standards.--
(1) In general.--Not later than 6 months after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to the congressional defense committees,
the Committee on Homeland Security of the House of
Representatives, and the Committee on Homeland Security and
Governmental Affairs of the Senate a report on the background
check, access control, and credentialing requirements of
Federal programs for the protection of critical
infrastructure and key resources.
(2) Contents.--The Comptroller General shall include in the
report required under paragraph (1)--
(A) a summary of the major characteristics of each such
Federal program, including the types of infrastructure and
resources covered;
(B) a comparison of the requirements, whether mandatory or
voluntary in nature, for regulated entities under each such
program to--
(i) conduct background checks on employees, contractors,
and other individuals;
(ii) adjudicate the results of a background check,
including the utilization of a standardized set of
disqualifying offenses or the consideration of minor, non-
violent, or juvenile offenses; and
(iii) establish access control systems to deter
unauthorized access, or provide a security credential for any
level of access to a covered facility or resource;
(C) a review of any efforts that the Screening Coordination
Office of the Department of Homeland Security has undertaken
or plans to undertake to harmonize or standardize background
check, access control, or credentialing requirements for
critical infrastructure and key resource protection programs
overseen by the Department; and
(D) recommendations, developed in consultation with
appropriate stakeholders, regarding--
(i) enhancing the interoperability of security credentials
across critical infrastructure and key resource protection
programs;
(ii) eliminating the need for redundant background checks
or credentials across existing critical infrastructure and
key resource protection programs;
(iii) harmonizing, where appropriate, the standards for
identifying potentially disqualifying criminal offenses and
the weight assigned to minor, nonviolent, or juvenile
offenses in adjudicating the results of a completed
background check; and
(iv) the development of common, risk-based standards with
respect to the background check, access control, and security
credentialing requirements for critical infrastructure and
key resource protection programs.
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