Rule2024-16136
Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 23, 2024
Effective
August 22, 2024
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE) publishes a final rule to amend its regulations, which set forth the policies and procedures for resolving questions concerning eligibility for DOE access authorizations. The final rule expands the scope of the rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; updates and adds clarity, including by deleting obsolete references throughout the rule for consistency with national policies and DOE practices; and updates references to DOE officials and offices.
Full Text
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<title>Federal Register, Volume 89 Issue 141 (Tuesday, July 23, 2024)</title>
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[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Rules and Regulations]
[Pages 59591-59597]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16136]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
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Federal Register / Vol. 89 , No. 141 / Tuesday, July 23, 2024 / Rules
and Regulations
[[Page 59591]]
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: Final rule.
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SUMMARY: The Department of Energy (DOE) publishes a final rule to amend
its regulations, which set forth the policies and procedures for
resolving questions concerning eligibility for DOE access
authorizations. The final rule expands the scope of the rule to include
individuals applying for or in positions requiring eligibility to hold
a sensitive position; updates and adds clarity, including by deleting
obsolete references throughout the rule for consistency with national
policies and DOE practices; and updates references to DOE officials and
offices.
DATES: This rule is effective August 22, 2024.
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#f49b92929d97919b9290918495868099919a809598849186879b9a9a919887919781869d808db49c85da909b91da939b82"><span class="__cf_email__" data-cfemail="a1cec7c7c8c2c4cec7c5c4d1c0d3d5ccc4cfd5c0cdd1c4d3d2cecfcfc4cdd2c4c2d4d3c8d5d8e1c9d08fc5cec48fc6ced7">[email protected]</span></a>, or Christina Pak,
Office of the General Counsel, (202) 586-4114,
<a href="/cdn-cgi/l/email-protection#a3c0cbd1cad0d7cacdc28dd3c2c8e3cbd28dc7ccc68dc4ccd5"><span class="__cf_email__" data-cfemail="9dfef5eff4eee9f4f3fcb3edfcf6ddf5ecb3f9f2f8b3faf2eb">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
II. Summary of Final Rule
III. Section-by-Section Analysis
IV. Regulatory Review
V. Congressional Notification
VI. Approval by the Office of the Secretary of Energy
I. Introduction and Background
DOE is publishing this final rule 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 Executive orders,
Security Executive Agent Directives, and the Federal Personnel Vetting
Core Doctrine were issued and amended, DOE has gained additional
implementation experience under the current rule, so proposed revisions
to update and clarify provisions in the rule became appropriate.
On January 31, 2024, DOE published a notice of proposed rulemaking
(NOPR) to propose the updating of part 710 (89 FR 6025). The NOPR
proposed amending the existing rule to: (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.
DOE had a 30-day comment period inviting public comments on the
proposed regulatory changes, and no public comments were received.
II. Summary of Final Rule
As described, DOE's revisions to the existing rule are identical to
those proposed in the NOPR. The final rule: (1) expands the scope of
the current rule to include individuals applying for or in positions
requiring eligibility to hold a sensitive position; (2) incorporates
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) updates hearing procedures to more accurately
reflect current practices; (4) updates references to DOE offices and
officials to reflect new titles and organizational names; (5) removes
appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8,
2017); (6) revises and adds definitions for certain terms; and (7)
makes minor updates to improve clarity and delete obsolete references.
III. Section-By-Section Analysis
DOE amends title 10 of the Code of Federal Regulations (CFR) part
710 as follows:
1. The part heading of this part is amended to add, ``OR
ELIGIBILITY TO HOLD A SENSITIVE POSITION'' at the end to reflect the
expanded scope of the rule, as explained in paragraph 4.
2. The authority section of this part is amended to add a reference
to E.O. 13467. Context for this change is explained in paragraph 4.
3. In Sec. 710.1, ``Purpose,'' Sec. 710.1(a) is 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 change to the scope of the rule, as explained in
paragraph 4. Section 710.1(b) is 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 Sec. 710.2 ``Scope,'' a new paragraph is added to make the
provisions of the rule applicable to an individual's eligibility to
hold a sensitive position. This change clarifies that, except when
specifically noted, any provision that applies to determinations of
eligibility for access to classified information or special nuclear
matter also applies to determinations of eligibility to hold a
sensitive position. Conforming changes are also 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
[[Page 59592]]
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 the occupant is an
employee, military service member, or contractor.
The scope of 10 CFR part 710 applied only to individuals who
require eligibility for access to classified information and special
nuclear materials and did 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, brings DOE into compliance
with E.O. 13467, as amended.
5. Existing Sec. 710.3, ``Reference,'' is deleted in its entirety
because appendix A, SEAD 4, National Security Adjudicative Guidelines
(June 8, 2017), is removed as explained in paragraph 22.
6. In Sec. 710.4, ``Policy,'' Sec. 710.4(a) is amended to add at
the end ``or eligibility to hold a sensitive position,'' and Sec.
710.4(b) is amended to add ``or eligibility to hold a sensitive
position'' after ``access authorization'' to reflect the change to
Sec. 710.2 ``Scope.''
7. In Sec. 710.5, ``Definitions,'' there are a number of new or
amended definitions.
The term ``Continuous Vetting'' is added to reflect recent national
policies under Trusted Workforce (TW) 2.0, as explained in paragraph 8.
The term ``Local Director of Security'' is 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 reflect new titles and organization name changes since
the last changes to this rule.
The term ``Manager'' is amended by removing the references to the
Chicago Operations Office, the Oak Ridge Operations Office, and the
``Director, Office of Headquarters Security Operations''. ``Manager''
is 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 changes reflect new titles and
organization name changes.
The term ``Sensitive Position'' is 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) is 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) also deletes ``interviews'' and
adds in its place ``consultations'' for consistency with current DOE
terminology. It also deletes ``investigative activities'' and adds in
its place ``actions'' for consistency with current DOE terminology. The
last sentence of paragraph (a)(1) is also 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) is
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) is 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) is 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) is 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) is 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) are
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 is amended to remove the word ``interview'' and
add in its place the word ``consultation'' for consistency with current
DOE terminology.
13. Section 710.21 is 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) is 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, has been removed, this 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) is 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
changes to Sec. 710.9(e), in paragraph 11.
14. Section 710.22(c)(4) is amended to clarify that the 30 days
provided to the individual for requesting review of the Manager's
initial decision is subject to
[[Page 59593]]
any extensions granted by the Director under paragraph (c)(3).
15. Section 710.25(c) is amended to delete the words ``his/her''
and add in their place the words ``their'' for consistency with other
DOE policies. Paragraph (e) is amended to delete language stating that
hearings will normally be held at or near a DOE 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) is 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 made in order to conform to current agency
practice.
16. Section 710.26(a) is amended to delete the words ``his/her''
and add in their place the words ``their'' for consistency with other
DOE policies. Paragraph (d) is amended to delete language that requires
the proponent of a witness to conduct the direct examination of their
witness. This change is made 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 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 in Sec.
710.26(d), ``[w]henever reasonably possible, testimony shall be given
in person,'' will be deleted to reflect the current practice that
testimony is normally given live via video teleconference and not in-
person.
17. Section 710.27(b) is amended to delete the word ``handicapped''
and add in its place the word ``prejudiced'' to reflect updated
terminology.
18. Section 710.28(a)(4) is amended to delete the words ``his/her''
and add in their place the words ``their'' for consistency with other
DOE policies.
19. Section 710.29(c) is 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) through (b)(6) are amended
to correct typographical errors made in the last substantive revision
to this regulation. Specifically, paragraphs (b)(4) and (5) are 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 rule and the correct reference should be to
paragraph (b)(2), which describes the actions to be taken depending on
whether a reconsideration request is approved. Paragraph (b)(6) is
amended to delete the language ``paragraphs (f) or (g)'' and add, in
their place, ``paragraph (b)(4) or (5)''. There are no paragraphs (f)
and (g) in Sec. 710.31 and paragraph (b)(6) should reference
Sec. Sec. 710.31(b)(4) and (5), which describe the actions to be taken
based on whether an individual is found to be eligible for access
authorization. Paragraph (b)(6) is also 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 made because there is no Sec. 710.31(d) in the rule. The
correct reference should be to Sec. 710.31(b)(2).
21. Appendix A to Part 710--SEAD 4, National Security Adjudicative
Guidelines (June 8, 2017) is 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 is removing appendix A, SEAD 4, National Security
Adjudicative Guidelines (June 8, 2017), and requiring that a copy of
the applicable guidelines be provided to individuals as part of the
notification letter, as stated in Sec. 710.21(c)(1).
IV. Regulatory Review
A. Executive Orders 12866, 13563, and 14094
This final rule 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 final 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 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
[[Page 59594]]
published procedures and policies on 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 rule under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. This rule amends procedures that apply to the determination
of eligibility of individuals for access to classified information and
access to special nuclear material. This rule applies to individuals,
and does 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, this rule would not have a significant economic impact on a
substantial number of small entities.
Accordingly, DOE certifies that this 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 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 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 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 rule expands the
scope of the current rule with respect to individuals covered, makes
updates and clarifications for consistency with national policies and
DOE practices, updates references to DOE officials and offices, and
makes minor updates to improve clarity and delete obsolete references.
The 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 rule that may affect family
well-being. This 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 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 DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed this rule under the OMB and DOE guidelines and has
concluded that
[[Page 59595]]
it is consistent with applicable policies in those guidelines.
V. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that the rule does not meet the criteria set forth in 5 U.S.C.
804(2).
VI. Approval by the Office of the Secretary of Energy
The Secretary of Energy has approved issuance of this final rule.
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 July 12,
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 July 18, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set out in the preamble, DOE amends 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
0
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 part 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 part 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) 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
[[Page 59596]]
Reactors, the individual designated 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. In paragraph (c), in the first sentence, removing 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, in 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, in 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. In paragraph (f), in the second sentence, removing 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 the word ``consultation''.
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13. Amend Sec. 710.21 by:
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a. In paragraphs (b)(7) and (b)(12)(iii), removing 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 read 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. In paragraph (c), removing the words ``his/her'' and adding in their
place the word ``their''; and
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b. Revising paragraphs (e) and (f).
[[Page 59597]]
The revisions read as follows:
Sec. 710.25 Appointment of Administrative Judge; prehearing
conference; commencement of hearings.
* * * * *
(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. In paragraph (a), removing wherever they appear 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, in 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, in 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) through (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 paragraph (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. Remove appendix A.
[FR Doc. 2024-16136 Filed 7-22-24; 8:45 am]
BILLING CODE 6450-01-P
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</html>Indexed from Federal Register on July 23, 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.