Proposed Rule2024-01874
Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material
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Published
January 31, 2024
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE) proposes to amend its regulations, which set forth the policies and procedures for resolving questions concerning eligibility for DOE access authorizations. The proposed revisions would: expand the scope of the current rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; update and add clarity, including by deleting obsolete references, throughout the rule for consistency with national policies and DOE practices; and update references to DOE officials and offices.
Full Text
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<title>Federal Register, Volume 89 Issue 21 (Wednesday, January 31, 2024)</title>
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[Federal Register Volume 89, Number 21 (Wednesday, January 31, 2024)]
[Proposed Rules]
[Pages 6025-6031]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01874]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 21 / Wednesday, January 31, 2024 /
Proposed Rules
[[Page 6025]]
DEPARTMENT OF ENERGY
10 CFR Part 710
[EHSS-RM-20-PACNM]
RIN 1992-AA64
Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material
AGENCY: Office of Health, Safety, and Security. Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) proposes to amend its
regulations, which set forth the policies and procedures for resolving
questions concerning eligibility for DOE access authorizations. The
proposed revisions would: expand the scope of the current rule to
include individuals applying for or in positions requiring eligibility
to hold a sensitive position; update and add clarity, including by
deleting obsolete references, throughout the rule for consistency with
national policies and DOE practices; and update references to DOE
officials and offices.
DATES: Written comments on this proposed rule must be received on or
before March 1, 2024.
ADDRESSES: You may submit comments, identified by ``Determining
Eligibility for Access and RIN 1992-AA64,'' by any of the following
methods (comments by email are encouraged):
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow
the instructions for submitting comments.
<bullet> Email to:
<a href="/cdn-cgi/l/email-protection#1f507979767c7a70795b7a6f7e6d6b727a716b7e734f7a6d6c7071717a734c7a7c6a6d766b665f776e317b707a31787069"><span class="__cf_email__" data-cfemail="c38ca5a5aaa0a6aca587a6b3a2b1b7aea6adb7a2af93a6b1b0acadada6af90a6a0b6b1aab7ba83abb2eda7aca6eda4acb5">[email protected]</span></a>. Include Determining
Eligibility for Access and RIN 1992-AA64 in the subject line of the
message.
<bullet> Mail to: U.S. Department of Energy, Office of Departmental
Personnel Security, EHSS-53, 1000 Independence Avenue SW, Washington,
DC 20585.
FOR FURTHER INFORMATION CONTACT: Tracy L. Kindle, U.S. Department of
Energy, Office of Departmental Personnel Security, (202) 586-3249,
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="caa5acaca3a9afa5acaeafbaabb8bea7afa4beaba6baafb8b9a5a4a4afa6b9afa9bfb8a3beb38aa2bbe4aea5afe4ada5bc">[email protected]</a>, or Christina Pak,
Office of the General Counsel, (202) 586-4114,
<a href="/cdn-cgi/l/email-protection#9af9f2e8f3e9eef3f4fbb4eafbf1daf2ebb4fef5ffb4fdf5ec"><span class="__cf_email__" data-cfemail="f3909b819a80879a9d92dd839298b39b82dd979c96dd949c85">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background and Summary
II. Section-by-Section Description of Proposed Changes
III. Regulatory Review
I. Background and Summary
DOE is publishing this notice of proposed rulemaking in order to
update and clarify DOE's policies and procedures for determining
eligibility for access authorizations. The current rule implements the
requirement in Executive Order (E.O.) 12968, Access to Classified
Information, that agencies promulgate regulations to provide review
proceedings to individuals whose eligibility for access to classified
information is denied or revoked.
The current rule has not been substantively updated since 2016 (81
FR 71331, Oct. 17, 2016). Since then, as various national policies were
issued and amended and DOE has gained additional implementation
experience under the current rule, so proposed revisions to update and
clarify provisions in the rule are appropriate. The proposed revisions
would: (1) expand the scope of the current rule to include individuals
applying for or in positions requiring eligibility to hold a sensitive
position; (2) incorporate requirements of Security Executive Agent
Directive (SEAD) 9, Appellate Review of Retaliation Regarding Security
Clearances and Access Determinations, which provides appeal rights to
both federal and contractor employees; (3) update hearing procedures to
more accurately reflect current practices; (4) update references to DOE
offices and officials to reflect new titles and organizational names;
(5) remove appendix A, SEAD 4, National Security Adjudicative
Guidelines (June 8, 2017); (6) revise and add definitions for certain
terms; and (7) make minor updates to improve clarity and delete
obsolete references.
II. Section-by-Section Description of Proposed Changes
DOE proposes to amend title 10 Code of Federal Regulation (CFR)
part 710 as follows:
1. The title of this part would be amended to add, ``OR ELIGIBILITY
TO HOLD A SENSITIVE POSITION'' at the end to reflect the proposed
expansion of the scope of the rule, as explained in paragraph 4.
2. The authority section of this part would be amended to add a
reference to E.O. 13467. Context for this proposed change is explained
in paragraph 4.
3. In proposed Sec. 710.1, ``Purpose,'' Sec. 710.1(a) would be
amended to add at the end ``or eligibility to hold a sensitive position
pursuant to Executive Order 13467 (Reforming Processes Related to
Suitability for Government Employment, Fitness for Contractor
Employees, and Eligibility for Access to Classified National Security
Information),'' to reflect the proposed change to the scope of the
rule, as explained below in paragraph 4. Section 710.1(b) would be
amended to add after the citation for E.O. 10865, ``Executive Order
13467, 73 FR 38103 (June 30, 2008) as amended'' and to add ``or
successor directive'' after the reference to SEAD 4.
4. In proposed Sec. 710.2 ``Scope,'' a new paragraph would be
added to make the provisions of the rule applicable to an individual's
eligibility to hold a sensitive position. This proposed change would
clarify that, except when specifically noted, any provision that
applies to determinations of eligibility for access to classified
information or special nuclear matter would also apply to
determinations of eligibility to hold a sensitive position. Conforming
changes are also proposed to be made in Sec. 710.2.
In 2017, E.O. 13467, Reforming Processes Related to Suitability for
Government Employment, Fitness for Contractor Employees, and
Eligibility for Access to Classified National Security Information, was
amended by E.O. 13764 to make the provisions of E.O. 12968 that apply
to eligibility for access to classified information to also apply to
eligibility to hold a sensitive position regardless of whether or not
that sensitive position requires access to classified information.
The term ``sensitive position'' is defined in E.O. 13467, as
amended, to mean any position within or in support of a Federal
department or agency, the occupant of which could bring about, by
virtue of the nature of the position, a material adverse effect on
national security regardless of whether the occupant has access to
classified information and regardless of whether
[[Page 6026]]
the occupant is an employee, military service member, or contractor.
The current scope of 10 CFR part 710 applies only to individuals
who require eligibility for access to classified information and
special nuclear materials and does not address individuals who require
eligibility to hold a sensitive position where an access authorization
is not a requirement of the position.
Expanding the applicability of this rule to individuals applying
for or in positions requiring eligibility to hold a sensitive position,
who do not require an access authorization, would bring DOE into
compliance with E.O. 13467, as amended.
5. Existing Sec. 710.3, ``Reference,'' would be deleted in its
entirety because appendix A, SEAD 4, National Security Adjudicative
Guidelines (June 8, 2017), is proposed for removal as explained below
in paragraph 22.
6. In Sec. 710.4, ``Policy,'' Sec. 710.4(a) would be amended to
add at the end ``or eligibility to hold a sensitive position,'' and
Sec. 710.4(b) would be amended to add ``or eligibility to hold a
sensitive position'' after ``access authorization'' to reflect the
proposed change to Sec. 710.2 ``Scope.''
7. In Sec. 710.5, ``Definitions,'' a number of new or amended
definitions are proposed.
The term ``Continuous Vetting'' would be added to reflect recent
national policies under Trusted Workforce (TW) 2.0, as explained in
paragraph 8.
The term ``Local Director of Security'' would be amended by
removing the references to ``Chicago'' and ``Oak Ridge,'' and adding
``for the Office of Science (SC), the individual designated in writing
by the Deputy Director for Operations,'' removing the references to
Richland and Savannah River and adding ``for the Office of
Environmental Management (EM), the individual(s) designated in writing
by the Senior Advisor, or delegee, adding an ``s'' after ``individual''
in the reference to the National Nuclear Security Administration, and
adding ``Security'' in the title of the Naval Nuclear Propulsion
Program. These changes would reflect new titles and organization name
changes since the last changes to this rule.
The term ``Manager'' would be amended by removing the references to
the Chicago Operations Office, the Oak Ridge Operations Office, and the
``Director, Office of Headquarters Security Operations''. ``Manager''
would be changed by adding ``(to include the Office of River
Protection)'' in the reference to ``Richland,'' adding ``for the Office
of Environmental Management (EM), the individuals(s) designated in
writing by the Senior Advisor, or delegee, adding ``for the Office of
Science (SC), the individual designated in writing by the Deputy
Director for Operations,'' adding ``Security'' in the title of the
Naval Nuclear Propulsion Program, and adding ``Director, Office of
Headquarters Security Vetting'' in place of ``Director, Office of
Headquarters Security Operations''. These proposed changes would
reflect new titles and organization name changes since the last change
to this rule.
The term ``Sensitive Position'' would be added to reflect the
expansion of the scope of the rule to apply to individuals applying for
or in sensitive positions, consistent with E.O. 13467, as amended, as
explained in paragraph 4.
8. In Sec. 710.6, ``Cooperation by the individual,'' Sec.
710.6(a)(1) would be amended to add ``continuous vetting'' after
``reinvestigation.'' The Director of National Intelligence and the
Director of the Office of Personnel Management, pursuant to their
responsibilities as Executive Agents under E.O. 13467, as amended,
launched the ``Trusted Workforce 2.0'' initiative to transform Federal
personnel vetting programs. One of the changes included a transition
from traditional periodic reinvestigations to government-wide
continuous vetting. Paragraph (a)(1) would also delete ``interviews''
and add in its place ``consultations'' for consistency with current DOE
terminology. It would also delete ``investigative activities'' and add
in its place ``actions'' for consistency with current DOE terminology.
The last sentence of paragraph (a)(1) would also be amended to add the
language ``for incumbents'' before ``any access authorization then in
effect may be administratively withdrawn'' to clarify that the term
``administratively withdrawn'' applies to incumbents while
``administratively terminated'' applies to applicants. Paragraph (c)
would be amended to delete the words ``his/her'' and add in their place
the word ``their'' for consistency with other DOE policies.
9. Section 710.7(d) would be amended to delete ``reports of
investigation'' and add in its place ``investigative results report''
for consistency with DOE and other Federal agency practices.
10. Section 710.8(a) would be amended by removing references to an
``interview'' wherever it occurs and adding, in their place references
to a ``consultation'' for consistency with current DOE terminology.
11. Section 710.9(e) would be amended to reflect the requirements
in SEAD 9, Appellate Review of Retaliation Regarding Security
Clearances and Access Determinations. In 2022, the Director of National
Intelligence issued SEAD 9, which established an appellate review
process for employees who seek to appeal an adverse final agency
determination with respect to alleged retaliatory action(s) taken by an
employing agency affecting the employees' security clearance or access
determination as a result of protected disclosures. SEAD 9 clarified
that the agency review and appeal rights were available to both federal
and contractor employees. Therefore, paragraph (e) would be amended to
remove the words, ``if the individual is a Federal employee,'' and add
language to address the appeal rights under SEAD 9. Paragraphs (e) and
(f) would be amended to delete the words, ``his/her,'' and add in their
place the word ``their'' for consistency with other DOE policies.
12. Section 710.20 would be amended to remove the word
``interview'' and add in its place the word ``consultation'' for
consistency with current DOE terminology.
13. Section 710.21 would be amended to delete from it the words
``his/her'' and add in their place the word ``their'' for consistency
with other DOE policies. Paragraph (c)(1) would be amended to add a
requirement for the Manager to provide a copy of SEAD 4 or successor
directive as part of the notification letter. Since Appendix A, which
currently contains SEAD 4, is proposed for removal, this proposed
amendment would ensure that an individual going through administrative
review under this part will receive a copy of the applicable
adjudicative standards. Paragraph (c)(2) would be amended to remove the
words, ``For Federal employees only'', and add language to reflect the
requirements in SEAD 9, Appellate Review of Retaliation Regarding
Security Clearances and Access Determinations, which extended appeal
rights beyond Federal employees to include Federal contractors, as
detailed in the explanation of proposed changes to Sec. 710.9(e), in
paragraph 11.
14. Proposed Sec. 710.22(c)(4) would be amended to clarify that
the 30 days provided to the individual for requesting review of the
Manager's initial decision is subject to any extensions granted by the
Director under paragraph (c)(3).
15. Proposed Sec. 710.25(c) would be amended to delete the words
``his/her'' and add in their place the words ``their'' for consistency
with other DOE policies. Paragraph (e) would be amended to delete
language stating that hearings will normally be held at or near a DOE
[[Page 6027]]
facility unless determined otherwise by the Administrative Judge and
also to delete that the hearing location will be selected for all the
participants' convenience. Paragraph (f) would be amended to add
language to clarify that conferences may be conducted by telephone,
video teleconference, or other means as directed by the Administrative
Judge. These changes to paragraphs (e) and (f) are proposed in order to
conform to current agency practice.
16. Proposed Sec. 710.26(a) would be amended to delete the words
``his/her'' and add in their place the words ``their'' for consistency
with other DOE policies. Paragraph (d) would be amended to delete
language that requires the proponent of a witness to conduct the direct
examination of their witness. This change is proposed because if an
individual is represented by counsel, the individual's counsel will
often conduct the direct examination of the individual's witnesses.
However, when the individual is not represented by counsel, the
individual may choose to allow DOE counsel to conduct the direct
examination of the individual's witnesses. This proposed change would
align the regulation with current DOE practices, which provides the
individual with flexibility in the conduct of direct examinations. In
addition, the language currently in Sec. 710.26(d), ``[w]henever
reasonably possible, testimony shall be given in person,'' would be
deleted to reflect the current practice that testimony is normally
given live via video teleconference and not in-person.
17. Proposed Sec. 710.27(b) would be amended to delete the word
``handicapped'' and add in its place the word ``prejudiced'' to reflect
updated terminology.
18. Proposed Sec. 710.28(a)(4) would be amended to delete the
words ``his/her'' and add in their place the words ``their'' for
consistency with other DOE policies.
19. Proposed Sec. 710.29(c) would be amended to delete the words
``his/her'' and add in their place the word ``their'' to reflect
updated terminology for consistency with other DOE policies.
20. In Sec. 710.31, paragraphs (b)(4), (b)(5), and (b)(6) would be
amended to correct typographical errors made in the last substantive
revision to this regulation. Specifically, paragraphs (b)(4) and (b)(5)
would be amended to delete the language ``provisions of Sec.
710.31(2)'' and add, in their place, ``provisions of Sec.
710.31(b)(2)'' since Sec. 710.31(2) does not exist in the current rule
and the correct reference should have been to paragraph (b)(2), which
describes the actions to be taken depending on whether a
reconsideration request is approved. Paragraph (b)(6) would be amended
to delete the language ``paragraphs (f) or (g)'' and add, in their
place, ``paragraphs (b)(4) or (b)(5)''. There are no paragraphs (f) and
(g) in the current Sec. 710.31 and paragraph (b)(6) should have
referenced Sec. Sec. 710.31(b)(4) and 710.31(b)(5), which describe the
actions to be taken based on whether an individual is found to be
eligible for access authorization. Paragraph (b)(6) would also be
amended to delete the language ``set forth in paragraph (d)'' and add,
in its place, ``set forth in paragraph (b)(2)'' for the same reason
explained previously. This change is proposed because there is no Sec.
710.31(d) in the current rule. The correct reference should have been
Sec. 710.31(b)(2).
21. Appendix A to Part 710--SEAD 4, National Security Adjudicative
Guidelines (June 8, 2017) would be deleted in its entirety. On October
17, 2016, DOE removed its adjudicative criteria from the regulation in
order to rely solely on the national security adjudicative guidelines
(81 FR 71331). As part of that rule, DOE added the entire text of the
national security adjudicative guidelines to the regulation as appendix
A. The intent behind adding appendix A was to provide the maximum
transparency and notice to the public as to the applicable adjudicative
criteria in determining eligibility for access to classified
information. On December 4, 2017, this regulation was updated to
include the latest version of the national security adjudicative
guidelines, SEAD 4, which was issued by the Director of National
Intelligence. Future updates to the National Security Adjudicative
Guidelines are likely and DOE believes retaining appendix A, which may
not reflect the latest updated version due to the time it takes to
amend a regulation, may cause confusion to the public as to which
version of the guidelines applies to their eligibility determination.
Therefore, DOE proposes to remove appendix A, SEAD 4, National Security
Adjudicative Guidelines (June 8, 2017), and require that a copy of the
applicable guidelines be provided to individuals as part of the
notification letter, as proposed in Sec. 710.21(c)(1).
III. Regulatory Review
A. Executive Orders 12866, 13563, and 14094
This proposed regulatory action has been determined not to be a
``significant regulatory action'' under E.O. 12866, Regulatory Planning
and Review, 58 FR 51735 (October 4, 1993) as supplemented and
reaffirmed by E.O. 13563, ``Improving Regulation and Regulatory
Review,'' 76 FR 3821 (Jan. 21, 2011) and amended by E.O. 14094,
``Modernizing Regulatory Review'', 88 FR 21879 (April 11, 2023).
Accordingly, this proposed rule is not subject to review under the E.O.
by the Office of Information and Regulatory Affairs (OIRA) within the
Office of Management and Budget (OMB).
B. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' 61 FR 4729
(February 7, 1996), imposes on Executive agencies the general duty
to adhere to the following requirements: (1) eliminate drafting errors
and ambiguity; (2) write regulations to minimize litigation; and (3)
provide a clear legal standard for affected conduct rather than a
general standard and promote simplification and burden reduction. With
regard to the review required by section 3(a), section 3(b) of E.O.
12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of E.O. 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
this proposed regulation meets the relevant standards of E.O. 12988.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking,'' (67 FR 53461, August 16, 2002), DOE published procedures
and policies on
[[Page 6028]]
February 19, 2003, to ensure that the potential impacts of its rules on
small entities are properly considered during the rulemaking process
(68 FR 7990). DOE has made its procedures and policies available on the
Office of the General Counsel's website at <a href="http://www.gc.doe.gov">www.gc.doe.gov</a>.
DOE has reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed rule would amend procedures that apply
to the determination of eligibility of individuals for access to
classified information and access to special nuclear material. The
proposed rule applies to individuals, and would not apply to ``small
entities,'' as that term is defined in the Regulatory Flexibility Act.
In addition, as stated previously, DOE has no discretion in adopting
the national policies; it is the national policies themselves that
impose any impact on affected individuals. As a result, if adopted, the
proposed rule would not have a significant economic impact on a
substantial number of small entities.
Accordingly, DOE certifies that the proposed rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis is required, and DOE
has not prepared a regulatory flexibility analysis for this rulemaking.
DOE's certification and supporting statement of factual basis will be
provided to the Chief Counsel for Advocacy of the Small Business
Administration for review under 5 U.S.C. 605(b).
D. Paperwork Reduction Act
This proposed rule does not impose a collection of information
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.
E. National Environmental Policy Act
DOE has determined that this proposed rule is covered under the
Categorial Exclusion found in DOE's National Environmental Policy Act
regulations at paragraph A5 of appendix A to subpart D, 10 CFR part
1021, which applies to a rulemaking that amends an existing rule or
regulation and that does not change the environmental effect of the
rule or regulation being amended. Accordingly, neither an environmental
assessment nor an environmental impact statement is required.
F. Executive Order 13132
E.O. 13132, ``Federalism'', 64 FR 43255 (August 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it does not preempt State law and, if adopted, would
not have a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
No further action is required by E.O. 13132.
G. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and Tribal
governments, in the aggregate, or to the private sector, other than to
the extent such actions merely incorporate requirements specifically
set forth in a statute. Section 202 of that title requires a Federal
agency to perform a detailed assessment of the anticipated costs and
benefits of any rule that includes a Federal mandate which may result
in costs to State, local, or Tribal governments, or to the private
sector, of $100 million or more in any one year (adjusted annually for
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title
requires each agency that proposes a rule containing a significant
Federal intergovernmental mandate to develop an effective process for
obtaining meaningful and timely input from elected officers of State,
local, and tribal governments. 2 U.S.C. 1534. The proposed rule would
expand the scope of the current rule with respect to individuals
covered, make updates and clarifications for consistency with national
polices and DOE practices, update references to DOE officials and
offices, and make minor updates to improve clarity and delete obsolete
references. The proposed rule would not result in the expenditure by
State, local or tribal governments in the aggregate, or by the private
sector, of $100 million or more in any one year. Accordingly, no
assessment or analysis is required under the Unfunded Mandates Reform
Act of 1995.
H. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule that may affect
family well-being. This proposed rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Executive Order 13211
E.O. 13211, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22,
2001), requires Federal agencies to prepare and submit to, OMB, a
Statement of Energy Effects for any proposed significant energy action.
A ``significant energy action'' is defined as any action by an agency
that promulgates or is expected to lead to promulgation of a final
rule, and that: (1) is a significant regulatory action under E.O.
12866, or any successor order, and (2) is likely to have a significant
adverse effect on the supply, distribution, or use of energy, or (3) is
designated by the Administrator of OIRA as a significant energy action.
For any proposed significant energy action, the agency must give a
detailed statement of any adverse effects on energy supply,
distribution, or use should the proposal be implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use. This regulatory action would not
have a significant adverse effect on the supply, distribution, or use
of energy and is therefore not a significant energy action.
Accordingly, DOE has not prepared a Statement of Energy Effects.
J. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and
[[Page 6029]]
DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE
has reviewed this proposed rule under the OMB and DOE guidelines and
has concluded that it is consistent with applicable policies in those
guidelines.
K. Approval by the Office of the Secretary of Energy
The Secretary of Energy has approved issuance of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Government employees, Nuclear energy.
Signing Authority
This document of the Department of Energy was signed on January 24,
2024, by Jennifer Granholm, Secretary of Energy. That document with the
original signature and date is maintained by DOE. For administrative
purposes only, and in compliance with requirements of the Office of the
Federal Register, the undersigned DOE Federal Register Liaison Officer
has been authorized to sign and submit the document in electronic
format for publication, as an official document of the Department of
Energy. This administrative process in no way alters the legal effect
of this document upon publication in the Federal Register.
Signed in Washington, DC on January 26, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set out in the preamble, DOE proposes to amend part
710 of title 10 of the Code of Federal Regulations as set forth below:
PART 710--PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO
CLASSIFIED MATTER AND SPECIAL NUCLEAR MATERIAL OR ELIGIBILTY TO
HOLD A SENSITIVE POSITION
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1. The authority citation for part 710 is revised to read as follows:
Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-l;
50 U.S.C. 2401 et seq.; E.O. 10865, 3 CFR 1959-1963 comp., p. 398,
as amended, 3 CFR Chap. IV; E.O. 13526, 3 CFR 2010 Comp., pp. 298-
327 (or successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391;
E.O. 13467, 3 CFR 2008 Comp., p. 196.
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2. Revise the part 710 heading to read as set forth above.
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3. Revise Sec. 710.1 to read as follows:
Sec. 710.1 Purpose.
(a) This part establishes the procedures for determining the
eligibility of individuals described in Sec. 710.2 for access to
classified matter or special nuclear material, pursuant to the Atomic
Energy Act of 1954, or for access to national security information in
accordance with E.O. 13526 (Classified National Security Information),
or eligibility to hold a sensitive position pursuant to E.O. 13467
(Reforming Processes Related to Suitability for Government Employment,
Fitness for Contractor Employees, and Eligibility for Access to
Classified National Security Information).
(b) This part implements: E.O. 12968, 60 FR 40245 (August 2, 1995),
as amended; E.O. 13526, 75 FR 707 (January 5, 2010) as amended; E.O.
10865, 25 FR 1583 (February 24, 1960), as amended; E.O. 13467, 73 FR
38103 (June 30, 2008) as amended; and the National Security
Adjudicative Guidelines, issued as SEAD 4, by the Director of National
Intelligence on December 10, 2016, or successor directive.
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4. Revise Sec. 710.2 to read as follows:
Sec. 710.2 Scope.
(a) The procedures outlined in this rule apply to determinations of
eligibility for access authorization or eligibility to hold a sensitive
position for:
(1) Employees (including consultants) of, and applicants for
employment with, contractors and agents of the DOE;
(2) Access permittees of the DOE and their employees (including
consultants) and applicants for employment;
(3) Employees (including consultants) of, and applicants for
employment with, the DOE; and
(4) Other persons designated by the Secretary of Energy.
(b) To the extent the procedures in this rule apply to
determinations of eligibility for access to classified information or
special nuclear material, they shall also apply to determinations of
eligibility to hold a sensitive position, except as specifically noted.
Sec. 710.3 [Removed and Reserved]
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5. Remove and reserve Sec. 710.3.
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6. Revise Sec. 710.4 to read as follows:
Sec. 710.4 Policy.
(a) It is the policy of DOE to provide for the security of its
programs in a manner consistent with traditional American concepts of
justice and fairness. To this end, the Secretary has established
procedures that will afford those individuals described in Sec. 710.2
the opportunity for administrative review of questions concerning their
eligibility for access authorization or eligibility to hold a sensitive
position.
(b) It is also the policy of DOE that none of the procedures
established for determining eligibility for access authorization or
eligibility to hold a sensitive position shall be used for an improper
purpose, including any attempt to coerce, restrain, threaten,
intimidate, or retaliate against individuals for exercising their
rights under any statute, regulation or DOE directive. Any DOE officer
or employee violating, or causing the violation of this policy, shall
be subject to appropriate disciplinary action.
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7. Amend Sec. 710.5 by:
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a. Adding in alphabetical order the definition for ``Continuous
vetting'';
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b. Revising the definitions for ``Local Director of Security'' and
``Manager''; and
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c. Adding in alphabetical order the definition for ``Sensitive
position''.
The additions and revisions read as follows:
Sec. 710.5 Definitions.
* * * * *
Continuous vetting means reviewing the background of an individual
described in Sec. 710.2(a)(1) through (4) of this part at any time to
determine whether that individual continues to meet applicable
requirements for access authorization or a sensitive position.
* * * * *
Local Director of Security means the individual with primary
responsibility for safeguards and security at the Idaho Operations
Office; for the Office of Environmental Management (EM), the
individual(s) designated in writing by the Senior Advisor, or delegee;
for the Office of Science (SC), the individual designated in writing by
the Deputy Director for Operations; for Naval Reactors, the
individual(s) designated under the authority of the Director, Security
Naval Nuclear Propulsion Program; for the National Nuclear Security
Administration (NNSA), the individual(s) designated in writing by the
Chief, Defense Nuclear Security; and for DOE Headquarters cases the
Director, Office of Headquarters Personnel Security Operations.
Manager means the senior Federal official at the Idaho, Richland
(to include the Office of River Protection) Operations Offices; for the
Office of Environmental Management, the individual(s) designated in
writing by the Senior Advisor, or delegee; for the Office of Science
(SC), the individual designated in writing by the Deputy Director for
Operations; for Naval Reactors, the individual designated
[[Page 6030]]
under the authority of the Director, Security Naval Nuclear Propulsion
Program; for the NNSA, the individual designated in writing by the NNSA
Administrator or Deputy Administrator; and for DOE Headquarters cases,
the Director, Office of Headquarters Security Vetting.
* * * * *
Sensitive position means any position within or in support of a
department or agency, the occupant of which could bring about, by
virtue of the nature of the position, a material adverse effect on the
national security, regardless of whether the occupant has access to
classified information, and regardless of whether the occupant is an
employee, a military service member, or a contractor. Sensitive
positions for the purpose of this part only include individuals
designated by DOE in non-critical sensitive, critical sensitive or
special sensitive positions.
* * * * *
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8. Amend Sec. 710.6 by:
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a. Revising paragraph (a)(1); and
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b. Removing in paragraph (c), in the first sentence the words ``his/
her'' and adding in their place the word ``their''.
The revision reads as follows:
Sec. 710.6 Cooperation by the individual.
(a)(1) It is the responsibility of the individual to provide full,
frank, and truthful answers to DOE's relevant and material questions,
and when requested, to furnish or authorize others to furnish
information that the DOE deems pertinent to the individual's
eligibility for access authorization. This obligation to cooperate
applies when completing security forms, during the course of a
personnel security background investigation, reinvestigation or
continuous vetting, and at any stage of DOE's processing of the
individual's access authorization request, including but not limited
to, personnel security consultations, DOE-sponsored mental health
evaluations, and other authorized DOE actions under this part. The
individual may elect not to cooperate; however, such refusal may
prevent DOE from reaching an affirmative finding required for granting
or continuing the access authorization. In this event, for incumbents
any access authorization then in effect may be administratively
withdrawn or, for applicants, further processing may be
administratively terminated.
* * * * *
Sec. 710.7 [Amended]
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9. Amend Sec. 710.7 paragraph (d) by removing the words ``reports of
investigation'' and adding, in their place, the words ``investigative
results report''.
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10. Amend Sec. 710.8 paragraph (a) by revising the first sentence to
read as follows:
Sec. 710.8 Action on derogatory information.
(a) If a question arises as to the individual's access
authorization eligibility, the Local Director of Security shall
authorize the conduct of a consultation with the individual, or other
appropriate actions and, on the basis of the results of such
consultation or actions, may authorize the granting of the individual's
access authorization. * * *
* * * * *
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11. Amend Sec. 710.9 by:
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a. Revising paragraph (e); and
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b. Removing in paragraph (f), in the second sentence the words ``his/
her'' and adding in their place the word ``their''.
The revision reads as follows:
Sec. 710.9 Suspension of access authorization.
* * * * *
(e) Written notification to the individual shall include
notification that if the individual believes that the action to suspend
their access authorization was taken as retaliation against the
individual for having made a protected disclosure, as defined in
Presidential Policy Directive 19, Protecting Whistleblowers with Access
to Classified Information, or any successor directive issued under the
authority of the President, the individual may submit a request for
review of this matter directly to the DOE Office of the Inspector
General. Such a request shall have no impact upon the continued
processing of the individual's access authorization eligibility under
this part. If the individual receives an adverse final agency
determination in response to such request, the individual may submit an
appeal of that decision to the Director of National Intelligence, in
accordance with the Security Executive Agent Directive 9, Appellate
Review of Retaliation Regarding Security Clearances and Access
Determinations, or to the Inspector General of the Intelligence
Community, in accordance with Intelligence Community Directive 120,
Intelligence Community Whistleblower Protection.
* * * * *
Sec. 710.20 [Amended]
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12. Amend Sec. 710.20 by removing the word ``interview'' and adding in
its place ``consultation''.
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13. Amend Sec. 710.21 by:
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a. Removing in paragraphs (b)(7) and (b)(12)(iii) the words ``his/her''
and adding in their place the word ``their''; and
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b. Revising paragraphs (c)(1) and (2).
The revisions read as follows:
Sec. 710.21 Notice to the individual.
* * * * *
(c) * * *
(1) Include a copy of this part and SEAD 4, National Security
Adjudicative Guidelines, or successor directive; and
(2) Indicate that if the individual believes that the action to
process the individual under this part was taken as retaliation against
the individual for having made a protected disclosure, as defined in
Presidential Policy Directive 19, Protecting Whistleblowers with Access
to Classified Information, or any successor directive issued under the
authority of the President, the individual may submit a request for
review of this matter directly to the DOE Office of the Inspector
General. Such a request shall have no impact upon the continued
processing of the individual's access authorization eligibility under
this part. If the individual receives an adverse final agency
determination in response to such request, the individual may submit an
appeal of that decision to the Director of National Intelligence, in
accordance with the SEAD 9, Appellate Review of Retaliation Regarding
Security Clearances and Access Determinations, or to the Inspector
General of the Intelligence Community, in accordance with Intelligence
Community Directive 120, Intelligence Community Whistleblower
Protection.
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14. Amend Sec. 710.22 by revising paragraph (c)(4) to reads as
follows:
Sec. 710.22 Initial decision process.
* * * * *
(c) * * *
(4) That if the written request for a review of the Manager's
initial decision by the Appeal Panel is not filed within 30 calendar
days of the individual's receipt of the Manager's letter, or by the
date to which the Director has granted an extension, the Manager's
initial decision in the case shall be final and not subject to further
review or appeal.
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15. Amend Sec. 710.25 by:
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a. Removing in paragraph (c) the words ``his/her'' and adding in their
place the word ``their''; and
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b. Revising paragraphs (e) and (f).
The revisions read as follows:
Sec. 710.25 Appointment of Administrative Judge; prehearing
conference; commencement of hearings.
* * * * *
[[Page 6031]]
(e) The Administrative Judge shall determine the day, time, and
place for the hearing and shall decide whether the hearing will be
conducted via video teleconferencing. In the event the individual fails
to appear at the time and place specified, without good cause shown,
the record in the case shall be closed and returned to the Manager, who
shall then make an initial determination regarding the eligibility of
the individual for DOE access authorization in accordance with Sec.
710.22(a)(3).
(f) At least 7 calendar days prior to the date scheduled for the
hearing, the Administrative Judge shall convene a prehearing conference
for the purpose of discussing stipulations and exhibits, identifying
witnesses, and disposing of other appropriate matters. The conference
may be conducted by telephone, video teleconference, or other means as
directed by the Administrative Judge.
* * * * *
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16. Amend Sec. 710.26 by:
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a. Removing in paragraph (a) wherever it appears the words ``his/her''
and adding in their place the word ``their''; and
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b. Revising paragraph (d).
The revision reads as follows:
Sec. 710.26 Conduct of hearings.
* * * * *
(d) DOE Counsel shall assist the Administrative Judge in
establishing a complete administrative hearing record in the proceeding
and bringing out a full and true disclosure of all facts, both
favorable and unfavorable, having a bearing on the issues before the
Administrative Judge. The individual shall be afforded the opportunity
of presenting testimonial, documentary, and physical evidence,
including testimony by the individual in the individual's own behalf.
All witnesses shall be subject to cross-examination, if possible.
* * * * *
Sec. 710.27 [Amended]
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17. Amend Sec. 710.27 paragraph (b), in the second sentence by
removing the word ``handicapped'' and adding in its place, the word
``prejudiced''.
Sec. 710.28 [Amended]
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18. Amend Sec. 710.28 in paragraph (a)(4) by removing the words ``his/
her'' and adding in their place the word ``their''.
Sec. 710.29 [Amended]
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19. Amend Sec. 710.29 paragraph (c), in the first sentence by removing
the words ``his/her'' and adding in their place the word ``their''.
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20. Amend Sec. 710.31 by revising paragraphs (b)(4), (5), and (6) to
read as follows:
Sec. 710.31 Reconsideration of access eligibility.
* * * * *
(b) * * *
(4) If, pursuant to the provisions of paragraph (b)(2) of this
section, the Manager determines the individual is eligible for access
authorization, the Manager shall grant access authorization.
(5) If, pursuant to the provisions of paragraph (b)(2) of this
section, the Manager determines the individual remains ineligible for
access authorization, the Manager shall so notify the Director in
writing. If the Director concurs, the Director shall notify the
individual in writing. This decision is final and not subject to review
or appeal. If the Director does not concur, the Director shall confer
with the Manager on further actions.
(6) Determinations as to eligibility for access authorization
pursuant to paragraphs (b)(4) or (5) of this section may be based
solely upon the mitigation of derogatory information which was relied
upon in a final decision to deny or to revoke access authorization. If,
pursuant to the procedures set forth in paragraph (b)(2) of this
section, previously unconsidered derogatory information is identified,
a determination as to eligibility for access authorization must be
subject to a new Administrative Review proceeding.
Appendix A to Part 710 [Removed]
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21. Appendix A to part 710 is removed.
[FR Doc. 2024-01874 Filed 1-30-24; 8:45 am]
BILLING CODE 6450-01-P
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</html>Indexed from Federal Register on January 31, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.