Federal Register: August 16, 1999 (Volume 64, Number 157)
Proposed Rules
Page 44433-44444
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DEPARTMENT OF ENERGY
10 CFR Part 710
RIN 1992-AA22
Office of Nonproliferation and National Security; Criteria and
Procedures for Determining Eligibility for Access to Classified Matter
or Special Nuclear Material
AGENCY: Office of Nonproliferation and National Security, DOE.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The DOE proposes to amend its regulations concerning the
procedures used to render final determinations of eligibility for
access to classified matter and/or special nuclear material. The
purpose of the amendments is to ensure that DOE procedures in this
regard conform to the access eligibility determination provisions in
Part 5 of Executive Order 12968,"Access to Classified Information,"
signed by the President in August 1995.
DATES: Comments may be submitted by October 15, 1999.
ADDRESSES: Ten (10) copies of comments should be sent to: A. Barry
Dalinsky, Policy, Standards and Analysis Division, Office of Safeguards
and Security, NN-512, U.S. Department of Energy, 19901 Germantown Road,
Germantown, MD 20874-1290.
FOR FURTHER INFORMATION CONTACT: A. Barry Dalinsky at the address above
or telephone 301-903-5010.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
II. Summary of Proposed Changes
III. Section by Section Discussion of Changes
IV. Procedural Requirements
A. Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the National Environmental Policy Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12988
F. Review Under the Unfunded Mandates Reform Act of 1995
G. Review Under the Treasury and General Government
Appropriations Act, 1999
V. Opportunity for Public Comment
I. Introduction and Background
The DOE has established procedures to resolve questions concerning
the access authorization eligibility for individuals (including
consultants and agents) who are applicants for employment or employed
by: the DOE; DOE contractors and subcontractors at any tier; DOE access
permittees; and other persons designated by the Secretary of Energy for
access to DOE classified matter and/or special nuclear material. This
access authorization is commonly referred to as a security clearance.
These procedures are codified in Subpart A of Title 10, Code of Federal
Regulations, Part 710 (hereafter referred to as 10 CFR Part 710) which
would be amended if today's proposed rule were promulgated as a final
rule.
When the DOE proposes to deny or revoke an access authorization
under current procedures, the individual is afforded an opportunity to
appear before a DOE Hearing Officer. The Hearing Officer considers
favorable and unfavorable information presented during the hearing and
prepares a report of findings, relative to the merit of the DOE
allegations, and an opinion as to whether access authorization for the
individual should be granted or denied, or reinstated or revoked. The
Hearing Officer's findings and opinion may be appealed by either the
individual or the DOE to the Director, Office of Hearings and Appeals.
The administrative record, which includes the opinions rendered by the
Hearing Officer and the Director, Office of Hearings and Appeals, is
then forwarded to the Director, Office of Security Affairs, who
carefully considers the record and makes a final determination as to
whether access authorization for the individual will be either granted
or denied, or reinstated or revoked. On August 2, 1995, the President
signed Executive Order 12968, "Access to Classified Information,"
which requires that an individual determined not to meet the standards
for access authorization be provided an opportunity to appeal in
writing a denial of access to a high level panel comprised of at least
three members, two of whom shall be selected from outside the security
field. As noted above, current DOE procedures allow for opinions to be
rendered by the Hearing Officer and the Director, Office of Hearings
and Appeals. However, the final determination in a case under review is
rendered by the Director, Office of Security Affairs. In order to
comply with the Executive Order requirement that an individual be
afforded the opportunity to appeal to a high level panel, the DOE
proposes to amend 10 CFR Part 710 to allow for: an initial decision
concerning access authorization eligibility to be made by the local DOE
Manager; a review decision to be made after completion of a hearing by
a Hearing Officer; and a final decision to be made by a high level
three member Appeal Panel (hereafter referred to as "Appeal Panel")
at DOE Headquarters. This Appeal Panel, consistent with Executive Order
12968, would consist of one DOE security official and two other DOE
officials outside the security field. The DOE proposes that its Appeal
Panel be comprised of: the Director, Office of Security Affairs; an
attorney from the Office of General Counsel; and a representative from
the appropriate DOE Headquarters office. The notifications currently
provided to the individual and the opportunity afforded the individual
to participate in a hearing before a DOE Hearing Officer would not be
affected by the amendments proposed today. The DOE also proposes
several other amendments to 10 CFR Part 710 as described below.
II. Summary of Proposed Changes
As noted above, the proposed regulations will revise existing
regulations to comply with Executive Order 12968. The proposed
procedures continue to provide for a hearing before a Hearing Officer;
however, the possibility of an appeal of the Hearing Officer's opinion
to the Director, Office of Hearings and Appeals, is eliminated and the
final determination currently rendered by the Director, Office of
Security Affairs, is replaced by a final decision rendered by an Appeal
Panel.
Under the proposed regulations, the initial decision is to be made
by the local Manager to deny or revoke an individual's access
authorization. The individual is advised of the initial decision and
the reason(s) therefor and offered the opportunity to appear at a
hearing before a DOE Hearing Officer. If the individual elects not to
participate
[[Page 44434]]
in a hearing, the initial decision by the Manager is considered final
unless the individual requests a review and final decision by the
Appeal Panel. If the individual elects to participate in a hearing, the
Hearing Officer will conduct a hearing and render a written decision
upon completion of the hearing to either grant or deny, or reinstate or
revoke, access authorization for the individual. The individual is
advised of the Hearing Officer's decision which, if unfavorable to the
individual, is referred at the individual's request to the Appeal Panel
for further review and a final decision as to the individual's access
authorization eligibility. If the individual fails to request a
referral to the Appeal Panel, the decision rendered by the Hearing
Officer is final. If the Hearing Officer's decision is favorable to the
individual, either the Manager or Director, Office of Safeguards and
Security, may elect to refer the individual's case to the Appeal Panel
for further review and a final decision. If DOE officials elect not to
refer the individual's case to the Appeal Panel for further review, the
Hearing Officer's decision in the case is final. If a case is referred
to the Appeal Panel by either the individual or DOE officials, the
Appeal Panel members will review the administrative record and any
additional material submitted for consideration by the parties, and
render a final written decision, decided by majority vote of the panel
members, as to the individual's access authorization eligibility. The
decision will be made a part of the administrative record.
Upon issuance of the final rule, there will be a provision
specifying that cases in process, wherein the individual has been
provided a notification letter by the DOE, will continue to be subject
to the current regulations.
III. Section by Section Discussion of Changes
Section 710.1 Purpose
Paragraph (b) of this section would be changed by: replacing the
reference to Executive Order 12356 with a reference to Executive Order
12958; adding a reference to Executive Order 12968, "Access to
Classified Information;" and adding a reference to a new Appendix B to
the subpart.
Section 710.4 Policy
No substantive changes would be made to paragraphs (a), (b), (d),
(e), and (f) of this section. Paragraph (c) would be amended to allow
the DOE to determine whether further processing should be continued or
suspended for an access authorization applicant who is awaiting trial.
The DOE would consider the seriousness of the crime with which the
individual has been charged before deciding whether to continue or
suspend further processing of the access authorization request. A
decision to suspend further processing of the access authorization
request could be appealed by the individual under the newly added
paragraph (g) to this section which would also allow the individual to
appeal an unfavorable decision made under paragraphs (d) and (e) of
this section to the Director, Office of Safeguards and Security.
Section 710.5 Definitions
Minor changes would be made to the definitions for Local Director
of Security, National Security Information, and Operations Office
Manager or Manager to reflect updated organizational changes and an
updated reference to the Executive Order. A definition for Classified
Matter would be added to this section.
Section 710.7 Application of the Criteria
Changes would be made to paragraph (a) to clarify that: the
decision process applies not only to the granting but also the
continuation of access authorization; any doubt as to access
authorization eligibility would be resolved in favor of the national
security (as required in Executive Order 12968); and, absent any
derogatory information, a favorable decision usually would be made as
to the individual's access authorization eligibility.
Section 710.8 Criteria
Minor nomenclature changes would be made to paragraph (f);
paragraph (g) would be expanded to include classified and sensitive
information technology systems; the term "other licensed physician"
would be deleted from paragraphs (h) and (j), and the term "board-
certified psychiatrist" would be changed in those paragraphs to
"psychiatrist;" the word "Federal" would be inserted before the
word "law" in paragraph (k); and the term "conflicting allegiances"
would be added to the second sentence in paragraph (l).
Section 710.9 Action on Derogatory Information
This section is reformatted to clarify DOE internal procedures. The
proposed changes will not affect the application of the procedures to
the individual.
Section 710.10 Suspension of Access Authorization
Paragraph (a) is rewritten for clarity. Paragraphs (e) and (f)
would be added to this section to clarify DOE internal procedures. No
substantive changes are made to paragraphs (b), (c), and (d) of this
section.
Section 710.21 Notice to Individual
Paragraph (b)(2) is expanded to require the DOE to advise the
individual of the specific reason(s) the conduct and/or circumstances
have raised a doubt concerning his/her access authorization
eligibility. The current section 710.22, Additional information, would
be incorporated into this section as a new paragraph (c). Paragraph
(c)(3) would be modified to include explaining the individual's rights
under the Freedom of Information Act as well as the Privacy Act. The
proposed changes will not affect the application of the procedures to
the individual.
Section 710.22 Initial Decision Process
This section is retitled and will establish the process by which
the Manager renders an initial decision concerning the individual's
access authorization eligibility when the individual elects not to
request a hearing before a DOE Hearing Officer or fails to respond to
the DOE's Notification Letter. The individual will then be notified in
writing of the Manager's initial decision and the reason(s) therefor,
and, if the initial decision is unfavorable to the individual, the
right to file a written request for a review of the matter by the
Appeal Panel. In unfavorable initial decisions, if the individual fails
to respond to the Manager's notification or fails to file a written
request for review by the Appeal Panel, the initial decision of the
Manager is final. This initial decision process is similar to current
regulations and would implement the first decision level of the three-
tiered access eligibility decision process required by Executive Order
12968.
Section 710.23 Extension of Times by the Manager
The words "Operations Office" are deleted from the section title.
Section 710.27 Hearing Officer's Decision
Currently titled "Opinion of the Hearing Officer," this section
is retitled and changed to allow the Hearing Officer to render a
decision as to the individual's access authorization eligibility after
completion of the hearing. Previously, the Hearing Officer rendered an
opinion only as to the
[[Page 44435]]
individual's access authorization eligibility. The procedures used by
the Hearing Officer in reaching the findings of fact are not changed.
Section 710.28 Action on the Hearing Officer's Decision
This section is retitled to reflect that the Hearing Officer will
issue a decision rather than an opinion. Procedures are established for
the individual or DOE officials to request that the case be reviewed by
the Appeal Panel. If no such request is made, the decision of the
Hearing Officer in the case is final. The party requesting a review of
the case by the Appeal Panel is responsible for notifying the other
party of the filing and providing the other party with a copy of the
statement filed with the Appeal Panel. The Hearing Officer's decision
represents the second level in the three-tiered access eligibility
decision process required by Executive Order 12968.
Section 710.29 Final Appeal Process
Sections 710.29 through 710.34 would be redesignated as sections
710.30 through 710.34. A new section 710.29, "Final appeal process,"
is added to implement the third decision level of the three-tiered
access eligibility decision process required by Executive Order 12968.
Currently, the final decision as to the individual's access
authorization eligibility is rendered by the Director, Office of
Security Affairs, unless a final decision is rendered by the Manager
under section 710.21(b)(8) or the Secretary of Energy under section
710.31. Under the proposed regulations, a final decision as to the
individual's access authorization eligibility would be rendered by a
three member Appeal Panel comprised of: the Director, Office of
Security Affairs, serving as a permanent panel member and as the Appeal
Panel Chairman; a DOE attorney designated by the General Counsel; and a
DOE employee designated by the head of the appropriate DOE Headquarters
element or, in special circumstances by the Director, Office of
Security Affairs. Each panel member will be a United States citizen and
hold a DOE Q access authorization. The Appeal Panel will convene in
response to a request filed by the individual or a DOE official for
further review of the individual's case; review the administrative
record and any new material submitted by the individual or the DOE; and
render a final decision in writing as to whether access authorization
should be granted or denied, or reinstated or revoked for the
individual. Appeals will be decided by a majority vote of the panel
members. The individual will be informed in writing of the Appeal
Panel's final decision. This section would be changed also to allow the
Director, Office of Security Affairs, with the approval of the
Secretary, to defer an Appeal Panel final decision if the individual is
the subject of an unresolved inquiry or investigation of a matter that
would affect the individual's DOE access authorization eligibility;
and, in rare circumstances, to refer a case to the Secretary for a
final decision if the Director is aware of information that can not for
national security reasons be disclosed in the proceedings before a DOE
Hearing Officer.
Section 710.30 New Evidence
Minor changes are made to this newly redesignated section to
reflect the new decision structure in the process. The changes do not
affect the application of the procedures to the individual.
Section 710.31 Action by the Secretary
Paragraphs (a), (b), and (c) of this newly designated section would
be changed and a new paragraph (d) added to allow the Secretary to
approve the deferral of an Appeal Panel final decision and to render a
final decision in cases where information cannot be disclosed, for
national security reasons, during the proceedings before a DOE Hearing
Officer.
Section 710.32 Reconsideration of Access Eligibility
Paragraph (c) of this newly redesignated section has been clarified
to reflect that only the individual can request reconsideration of his
or her case.
Section 710.33 Terminations
This newly redesignated section is changed to allow final decisions
to be made a part of the administrative record prior to the DOE being
notified of the termination.
Section 710.34 Attorney Representation
No substantive changes are made to this newly redesignated section.
Section 710.35 Timeframes
No substantive changes are made to this newly redesignated section.
Section 710.36 Acting Officials
This section would be added to the current regulations to allow the
authorities conferred in this subpart to be exercised by persons
designated in writing as acting for, or in the temporary capacity of,
the principal decision-makers.
Appendix B
This appendix is added to this subpart for reference purposes only.
The Adjudicative Guidelines were developed by the Security Policy Board
in March 1997 for distribution throughout the Executive Branch. The
guidelines are not subject to public notice and comment rulemaking
procedures.
IV. Procedural Requirements
A. Executive Order 12866
Today's regulatory action has been determined not to be a
"significant regulatory action" under Executive Order 12866,
"Regulatory Planning and Review" (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that
a federal agency prepare a regulatory flexibility analysis for any rule
for which the agency is required to publish a general notice of
proposed rulemaking. Such an analysis is not required, however, if the
agency certifies that the rule would not, if promulgated, have a
significant economic impact on a substantial number of small entities
(5 U.S.C. 605(b)).
DOE certifies that the amendments to 10 CFR Part 710 proposed today
would not have a significant economic impact on a substantial number of
small entities. This proposed rule, if promulgated as a final rule,
would change the Department's procedures for eligibility determinations
for access to classified matter and/or special nuclear material. The
amendments, which are required to conform 10 CFR Part 710 to the
requirements of Executive Order 12968, would affect only individual
employees or applicants for employment. The rule does not directly
regulate small entities.
C. Review Under the National Environmental Policy Act
DOE has concluded that the proposed rule, which would amend the
Department's procedures for eligibility determinations for access to
classified matter and/or special nuclear material, falls into a class
of actions that would not individually or cumulatively have a
significant impact on the human environment as determined by DOE's
regulations (10 CFR Part 1021, Subpart D) implementing the National
Environmental Policy Act of 1969 (42
[[Page 44436]]
U.S.C. 4321 et seq.). Specifically, the proposed rule is categorically
excluded from environmental review as the proposed rule is strictly
procedural (Category Exclusion A6). Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
D. Review Under the Paperwork Reduction Act
No new collection of information is proposed to be imposed by this
rulemaking. Accordingly, no clearance by the Office of Management and
Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501,
et seq.).
E. Review Under Executive Order 12988
Section 3 of Executive Order 12988 (61 FR 4729) instructs each
agency to adhere to certain requirements in promulgating new
regulations and reviewing existing regulations. These requirements, set
forth in sections 3 (a) and (b), include eliminating drafting errors
and ambiguity, drafting the regulations to minimize litigation,
providing clear and certain legal standards for affected conduct, and
promoting simplification and burden reduction. Agencies are also
instructed to make every reasonable effort to ensure that the
regulation specifies clearly any preemptive effect, effect on existing
Federal law or regulation, and retroactive effect; describes any
administrative proceedings to be available prior to judicial review and
any provisions for the exhaustion of such administrative proceedings;
and defines key terms. The DOE certifies that today's proposed rule
meets the requirements of sections 3 (a) and (b) of Executive Order
12988.
F. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
et seq., requires each federal agency, to the extent permitted by law,
to prepare a written assessment of the effects of any federal mandate
in an agency rule that may result in the expenditure by state, local,
and tribal governments in the aggregate, or by the private sector, of
$100 million or more in any one year. The Act also requires a federal
agency to develop an effective process to permit timely input by
elected officers of state, local, and tribal governments on a proposed
"significant intergovernmental mandate," and it requires an agency to
develop a plan for giving notice and opportunity for timely input to
potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. The rule amendments proposed today would not impose a
federal mandate on state, local, or tribal governments or on the
private sector. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
G. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. No. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule or policy that may
affect family well-being. Today's proposal 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 Statement.
V. Opportunity for Public Comment
DOE believes that no substantial issue of fact or law exists with
respect to the proposed amendments, and that the proposed amendments
will not have a substantial impact on the nation's economy or large
numbers of individuals or businesses. Therefore, the DOE does not
intend to provide an opportunity for oral presentation of views or
arguments regarding the proposed amendments. Nevertheless, the DOE will
consider scheduling a public hearing for the oral presentation of views
and arguments if members of the public requesting a hearing present a
reasonable argument that a hearing is appropriate. The public is
invited to submit written comments regarding the proposed amendments
set forth in this notice to the address indicated in the "addresses"
section of this preamble. The designation "Amendment of Rules--10 CFR
Part 710" should be indicated on the outside of the envelope and ten
(10) copies of comments should be submitted. All comments received by
the DOE will be available for public inspection and copying in the
DOE's Freedom of Information Reading Room, Room 1E-190, Forrestal
Building, 1000 Independence Avenue, SW, Washington, DC 20585, telephone
number (202) 586-3142, between 9:00 a.m. and 4:00 p.m., Monday through
Friday excluding holidays.
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, Classified information,
Governments contracts, Nuclear materials.
Issued in Washington, DC, on August 3, 1999.
Rose Gottemoeller,
Assistant Secretary for Nonproliferation and National Security.
For the reasons set forth in the preamble, Part 710 of Title 10 of
the Code of Federal Regulations is proposed to be amended as set forth
below.
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL
1. The authority citation for Part 710 is revised to read as
follows:
Authority: Atomic Energy Act of 1954, sec. 141, 68 Stat. 940, as
amended (42 U.S.C. 2161); Atomic Energy Act of 1954, sec. 145, 68
Stat. 942, as amended (42 U.S.C. 2165); Atomic Energy Act of 1954,
sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); E.O. 10450, 3
CFR 1949-1953 comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963
comp., p. 398, as amended, 3 CFR Chap. IV; E.O. 12958, 3 CFR 1995,
comp., p. 333; E.O. 12968, 3 CFR 1995, comp., p. 391.
Subpart A--General Criteria and Procedures for Determining
Eligibility for Access to Classified Matter or Special Nuclear
Material
2. Section 710.1 is amended by revising paragraph (b) to read as
follows:
Sec. 710.1 Purpose.
* * * * *
(b) This subpart is published to implement: Executive Order 12968,
60 FR 40245 (August 7, 1995); Executive Order 12958, 60 FR 19825 (April
20, 1995); Executive Order 10865, 25 FR 1583 (February 24, 1960), as
amended; Executive Order 10450, 18 FR 2489 (April 27, 1954), as
amended; and the 1997 Adjudicative Guidelines approved by the President
and set forth in Appendix B to this subpart.
3. Section 710.4 is amended by revising paragraph (c) and adding
paragraph (g) as follows:
Sec. 710.4 Policy.
* * * * *
(c) If the individual is currently awaiting hearing or trial, or
has been convicted of a crime punishable by imprisonment of six (6)
months or longer, or is awaiting or serving a form of preprosecution
probation, suspended or deferred sentencing, court ordered probation,
or parole in conjunction with an arrest or criminal charges initiated
against the individual for a crime that is punishable by imprisonment
of six (6) months or longer, DOE may suspend processing an application
for access authorization until such time as the
[[Page 44437]]
hearing, trial, criminal prosecution, suspended sentencing, deferred
sentencing, probation, or parole has been completed.
* * * * *
(g) If an individual believes that the provisions of paragraph (c),
(d), or (e) of this section have been inappropriately applied, a
written appeal may be filed with the Director, Office of Safeguards and
Security, DOE Headquarters, within 30 calendar days of the date the
individual was notified of the action. The Director, Office of
Safeguards and Security, shall act on the written appeal as described
in section 710.6(c).
4. Section 710.5 is amended by adding in alphabetical order a
definition for the term "Classified Matter" and by revising the
definitions for "Local Director of Security," "National Security
Information," and "Operations Office Manager or Manager" as follows:
Sec. 710.5 Definitions.
* * * * *
Classified Matter means the material of thought or expression that
is classified pursuant to statute or Executive Order.
* * * * *
Local Director of Security means the Operations Office or Naval
Reactors Office Security and Safeguards Division Director, or other
similar title; for Washington, DC area cases, the Director,
Headquarters Operations Division; for the Idaho Operations Office, the
Program Manager, Security and Resource Management Division; for the
Pittsburgh Naval Reactors Office, the Director, Contracts and
Securities Division; for the Savannah River Operations Office, the
Director, Internal Security Division; and any person designated in
writing to serve in one of the aforementioned positions in an
"acting" capacity.
* * * * *
National Security Information means any information that has been
determined, pursuant to Executive Order 12958 or any predecessor Order,
to require protection against unauthorized disclosure and that is so
designated.
* * * * *
Operations Office Manager or Manager means the Manager of a DOE
Operations Office (Albuquerque, Chicago, Idaho, Nevada, Oak Ridge,
Oakland, Richland, or Savannah River), the Manager of the Pittsburgh
Naval Reactors Office, the Manager of the Schenectady Naval Reactors
Office, and, for Washington, DC area cases, the Director, Office of
Safeguards and Security.
* * * * *
5. Section 710.7 is amended by revising paragraph (a) to read as
follows:
Sec. 710.7 Application of the criteria.
(a) The decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all relevant
information, favorable or unfavorable, as to whether the granting or
continuation of access authorization will not endanger the common
defense and security and is clearly consistent with the national
interest. Any doubt as to an individual's access authorization
eligibility shall be resolved in favor of the national security. Absent
any derogatory information, a favorable determination usually will be
made as to access authorization eligibility.
* * * * *
6. Section 710.8 is amended by adding the words "(or National
Security)" between the words "Sensitive" and "Positions" in the
first sentence of paragraph (f) and revising paragraphs (g), (h), (j),
(k), and (l) to read as follows:
Sec. 710.8 Criteria.
* * * * *
(g) Failed to protect classified matter, or safeguard special
nuclear material; or violated or disregarded security or safeguards
regulations to a degree which would be inconsistent with the national
security; or disclosed classified information to a person unauthorized
to receive such information; or violated or disregarded regulations,
procedures, or guidelines pertaining to classified or sensitive
information technology systems.
(h) An illness or mental condition of a nature which, in the
opinion of a psychiatrist or licensed clinical psychologist, causes or
may cause, a significant defect in judgment or reliability.
* * * * *
(j) Been, or is, a user of alcohol habitually to excess, or has
been diagnosed by a psychiatrist or a licensed clinical psychologist as
alcohol dependent or as suffering from alcohol abuse.
(k) Trafficked in, sold, transferred, possessed, used, or
experimented with a drug or other substance listed in the Schedule of
Controlled Substances established pursuant to section 202 of the
Controlled Substances Act of 1970 (such as marijuana, cocaine,
amphetamines, barbiturates, narcotics, etc.) except as prescribed or
administered by a physician licensed to dispense drugs in the practice
of medicine, or as otherwise authorized by Federal law.
(l) Engaged in any unusual conduct or is subject to any
circumstances which tend to show that the individual is not honest,
reliable, or trustworthy; or which furnishes reason to believe that the
individual may be subject to pressure, coercion, exploitation, or
duress which may cause the individual to act contrary to the best
interests of the national security. Such conduct or circumstances
include, but are not limited to, criminal behavior, a pattern of
financial irresponsibility, conflicting allegiances, or violation of
any commitment or promise upon which DOE previously relied to favorably
resolve an issue of access authorization eligibility.
7. Section 710.9 is revised to read as follows:
Sec. 710.9 Action on derogatory information.
(a) If the reports of investigation of an individual or other
reliable information tend to establish the validity and significance of
one or more items in the criteria, or of other reliable information or
facts which are of security concern, although outside the scope of the
stated categories, such information shall be regarded as derogatory and
create a question as to the individual's access authorization
eligibility.
(b) If a question arises as to the individual's access
authorization eligibility, the Local Director of Security shall
authorize the conduct of an interview with the individual, or other
appropriate actions, which may include a DOE-sponsored mental
evaluation, and, on the basis of the results of such interview or
actions, may authorize the granting of the individual's access
authorization. If, in the opinion of the Local Director of Security,
the question as to the individual's access authorization eligibility
has not been favorably resolved, he shall submit the matter to the
Manager with a recommendation that authority be obtained to process the
individual's case under administrative review procedures.
(c) If the Manager agrees that unresolved derogatory information is
present and that appropriate attempts to resolve such derogatory
information have been unsuccessful, he shall submit a request for
authority to conduct an administrative review proceeding, accompanied
by an explanation of the security concerns and a duplicate Personnel
Security File, to the Director, Office of Safeguards and Security. If
the Manager believes that the derogatory
[[Page 44438]]
information has been favorably resolved, he shall direct that access
authorization be granted for the individual. The Manager may also
direct the Local Director of Security to obtain additional information
in the matter prior to deciding whether to grant the individual access
authorization or to submit a request for authority to conduct an
administrative review proceeding. A decision in the matter shall be
rendered by the Manager within 10 calendar days of its receipt.
(d) Upon receipt of the Manager's request for authority to conduct
an administrative review proceeding, the Director, Office of Safeguards
and Security, shall review the matter and shall authorize:
(1) The institution of administrative review proceedings set forth
in sections Secs. 710.20 through 710.32;
(2) The granting of access authorization; or
(3) Such other action as the Director deems appropriate.
(e) The Director, Office of Safeguards and Security, shall
authorize one of these options within 30 calendar days of the receipt
of the Manager's request unless an extension is granted by the
Director, Office of Security Affairs.
8. Section 710.10 is amended by revising paragraph (a) and adding
paragraphs (e) and (f) as follows:
Sec. 710.10 Suspension of access authorization.
(a) If information is received that raises a question concerning an
individual's continued access authorization eligibility, the Local
Director of Security shall authorize action(s), to be taken on an
expedited basis, to resolve the question pursuant to section
Sec. 710.9(b). If the question as to the individual's continued access
authorization eligibility is not resolved in favor of the individual,
the Local Director of Security shall submit the matter to the Manager
with a recommendation that the individual's access authorization be
suspended pending the final determination resulting from the procedures
in this subpart.
* * * * *
(e) Upon receipt of the Manager's request for authority to conduct
an administrative review proceeding, the Director, Office of Safeguards
and Security shall review the matter and shall authorize:
(1) The institution of administrative review procedures set forth
in Secs. 710.20 through 710.32;
(2) The reinstatement of access authorization; or
(3) Such other action as the Director deems appropriate.
(f) The Director, Office of Safeguards and Security, shall
authorize one of these options within 30 calendar days of the receipt
of the Manager's request unless an exception is granted by the
Director, Office of Security Affairs.
9. Section 710.21 is amended by revising paragraphs (a) and (b)(2)
and adding paragraph (c) to read as follows:
Sec. 710.21 Notice to the individual.
(a) Unless an extension is authorized by the Director, Office of
Safeguards and Security, within 30 calendar days of receipt of
authority to institute administrative review procedures, the Manager
shall prepare and deliver to the individual a notification letter
approved by the local Office of Chief Counsel, or the Office of General
Counsel for Headquarters cases. Where practicable, the letter shall be
delivered to the individual in person.
(b) * * *
(1) * * *
(2) The information which creates a substantial doubt regarding the
individual's access authorization eligibility (which shall be as
comprehensive and detailed as the national security permits) and why
that information creates such doubt.
* * * * *
(c) The notification letter referenced in paragraph (b) of this
section shall also:
(1) Describe the individual's access authorization status until
further notice;
(2) Advise the individual of the right to representation at the
individual's own expense at each and every stage of the proceedings;
(3) Provide the name and telephone number of the designated DOE
official to contact for any further information desired concerning the
proceedings, including an explanation of the individual's rights under
the Freedom of Information and Privacy Acts; and
(4) Include a copy of this subpart.
10. Section 710.22 is revised to read as follows:
Sec. 710.22 Initial decision process.
(a) The Manager shall make an initial decision as to the
individual's access authorization eligibility based on the existing
information in the case if:
(1) The individual fails to respond to the notification letter by
filing a timely written request for a hearing before a Hearing Officer
or fails to respond to the notification letter after requesting an
extension of time to do so;
(2) The individual's response to the notification letter does not
request a hearing before a Hearing Officer; or
(3) The Hearing Officer refers the individual's case to the Manager
in accordance with Sec. 710.25(e) or Sec. 710.26(b).
(b) Unless an extension of time is granted by the Director, Office
of Safeguards and Security, the Manager's initial decision as to the
individual's access authorization eligibility shall be made within 15
calendar days of the date of receipt of the information requested in
paragraph (a) of this section. The Manager shall either grant or deny,
or reinstate or revoke, the individual's access authorization.
(c) A letter reflecting the Manager's initial decision in the
individual's case shall be signed by the Manager and delivered to the
individual within 15 calendar days of the date of the Manager's
decision unless an extension of time is granted by the Director, Office
of Safeguards and Security. If the Manager's initial decision is
unfavorable to the individual, the individual shall be advised:
(1) Of the Manager's unfavorable decision and the reason(s)
therefor;
(2) That within 30 calendar days from the date of receipt of the
letter, he may file a written request for a review of the Manager's
initial decision through the Director, Office of Safeguards and
Security, DOE Headquarters, to the DOE Headquarters Appeal Panel
(hereafter referred to as the "Appeal Panel");
(3) That the Director, Office of Safeguards and Security, may, for
good cause shown, at the written request of the individual, extend the
time for filing a written request for a review of the case by the
Appeal Panel; and
(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, the Manager's
initial decision in the case shall be final.
Sec. 710.23 [Amended]
11. Section 710.23 is amended by removing the words "Operations
Office" from the section heading.
12. Section 710.27 is amended by revising the section heading,
removing the words "an initial opinion" in the first sentence of
paragraph (a) and inserting in their place the words "a decision," by
removing sections 710.27(e), 710.27(f), and 710.27(g) and by revising
section 710.27(d) to read as follows:
Sec. 710.27 Hearing Officer's decision.
* * * * *
(d) The Hearing Officer's decision shall be based on the Hearing
Officer's findings of fact. If, after considering all
[[Page 44439]]
of the factors in light of the criteria set forth in this subpart, the
Hearing Officer is of the opinion that it will not endanger the common
defense and security and will be clearly consistent with the national
interest to grant or reinstate access authorization for the individual,
the Hearing Officer shall render a favorable decision; otherwise, the
Hearing Officer shall render an unfavorable decision. Within 15
calendar days of the Hearing Officer's written decision, the Hearing
Officer shall provide copies of the decision and the administrative
record to the Manager and the Director, Office of Safeguards and
Security.
13. Section 710.28 is revised to read as follows:
Sec. 710.28 Action on the Hearing Officer's decision.
(a) Within 10 calendar days of receipt of the decision and the
administrative record, unless an extension of time is granted by the
Director, Office of Safeguards and Security, the Manager shall:
(1) Notify the individual in writing of the Hearing Officer's
decision;
(2) Advise the individual in writing of the appeal procedures
available to the individual in paragraph (b) of this section if the
decision is unfavorable to the individual;
(3) Advise the individual in writing of the appeal procedures
available to the Manager and the Director, Office of Safeguards and
Security, in paragraph (c) of this section if the decision is favorable
to the individual; and,
(4) Provide the individual and/or counsel or representative, a copy
of the Hearing Officer's decision and the administrative record.
(b) If the Hearing Officer's decision is unfavorable to the
individual:
(1) The individual may file with the Director, Office of Safeguards
and Security, a written request for further review of the decision by
the Appeal Panel along with a statement required by paragraph (e) of
this section within 30 calendar days of the individual's receipt of the
Manager's notice;
(2) The Director, Office of Safeguards and Security may, for good
cause shown, extend the time for filing a request for further review of
the decision by the Appeal Panel at the written request of the
individual provided the request for an extension of time is filed by
the individual within 30 calendar days of receipt of the Manager's
notice;
(3) The Hearing Officer's decision shall be considered final if the
individual does not: file a written request for a review of the
decision by the Appeal Panel or for an extension of time to file a
written request for further review of the decision by the Appeal Panel
in accordance with paragraphs (b)(1) or (b)(2) of this section; or,
file a written request for a further review of the decision by the
Appeal Panel after having been granted an extension of time to do so.
(c) If the Hearing Officer's decision is favorable to the
individual, within 30 calendar days of the individual's receipt of the
Manager's notice:
(1) The Manager or the Director, Office of Safeguards and Security,
may file a written request for further review of the decision by the
Appeal Panel along with the statement required by paragraph (e) of this
section;
(2) The Director, Office of Security Affairs, may, at the written
request of the Manager or Director, Office of Safeguards and Security,
extend the time for filing a request for further review of the decision
by the Appeal Panel; or
(3) The Manager, with the concurrence of the Director, Office of
Safeguards and Security, shall grant or reinstate the individual's
access authorization.
(d) A copy of any request for further review of the individual's
case by the Appeal Panel filed by the Manager or the Director, Office
of Safeguards and Security, shall be provided to the individual by the
Manager.
(e) The party filing a request for review of the individual's case
by the Appeal Panel shall include with the request a statement
identifying the issues on which it wishes the Appeal Panel to focus. A
copy of such statement shall be served on the other party, who may file
a response with the Appeal Panel within 20 calendar days of receipt of
the statement.
14. Sections 710.29 through 710.34 are redesignated as Secs. 710.30
through 710.35 and a new Peace Corps Sec. 710.29 is added to read as
follows:
Sec. 710.29 Final appeal process.
(a) The Appeal Panel shall be convened by the Director, Office of
Security Affairs, to review and render a final decision in an access
authorization eligibility case referred by the individual, the Manager,
or the Director, Office of Safeguards and Security, in accordance with
Secs. 710.22, 710.28, and 710.32 of this subpart.
(b) The Appeal Panel shall consist of three members, each of whom
shall be a DOE Headquarters employee, a United States citizen, and hold
a DOE Q access authorization. The Director, Office of Security Affairs,
shall serve as a permanent member of the Appeal Panel and as the Appeal
Panel Chairman. The second member of on the Appeal Panel shall be a DOE
attorney designated by the General Counsel. The head of the DOE
Headquarters element who has cognizance over the individual whose
access authorization eligibility is being considered may designate an
employee to act as the third member on the Appeal Panel; otherwise, the
third member will be designated by the Chairman. Only one member of the
Appeal Panel shall be from the security field.
(c) In filing a written request for a review by the Appeal Panel in
accordance with Secs. 710.22 and 710.28, the individual, or the counsel
or representative, shall identify the relevant issues and may also
submit any relevant material in support of the individual. The
individual's written request and supportive material shall be made a
part of the administrative record. The Director, Office of Safeguards
and Security, shall provide staff support to the Appeal Panel as
requested by the Director, Office of Security Affairs.
(d) Within 15 calendar days from the date of receipt of a request
for a review of a case by the Appeal Panel, the Director, Office of
Security Affairs, shall:
(1) Request the General Counsel to designate an attorney who shall
serve as an Appeal Panel member;
(2) Either request the head of the cognizant DOE element to
designate, or designate himself, an employee from outside the security
field who shall serve as the third member of the Appeal Panel; and
(3) Arrange for the Appeal Panel members to convene to review the
administrative record or provide a copy of the administrative record to
the other Appeal Panel members for their independent review.
(e) The Appeal Panel may initiate an investigation of any statement
or material contained in the request for an Appeal Panel review and use
any relevant facts obtained by such investigation in the conduct of the
final decision process. The Appeal Panel may solicit and accept
submissions from either the individual or DOE officials that are
relevant to the final decision process and may establish appropriate
time frames to allow for such submissions. The Appeal Panel may also
consider any other source of information that will advance the final
decision process, provided that both parties are afforded an
opportunity to respond to all third party submissions. All information
obtained by the Appeal
[[Page 44440]]
Panel under this section shall be made a part of the administrative
record.
(f) Within 45 work days of the closing of the administrative
record, the Appeal Panel shall render a final written decision in the
case predicated upon an evaluation of the administrative record,
findings as to each of the allegations contained in the notification
letter, and any new evidence that may have been submitted pursuant to
Sec. 710.30. Prior to the Appeal Panel reaching its decision, the
Director, Office of Security Affairs, shall remind the other panel
members that, in accordance with the requirements of Part 3--Access
Eligibility Standards of Executive Order 12968, any doubt regarding
access eligibility shall be resolved in favor of the national security.
If a majority of the Appeal Panel members determine that it will not
endanger the common defense and security and will be clearly consistent
with the national interest, the Director, Office of Security Affairs,
shall grant or reinstate access authorization for the individual;
otherwise, the Director, Office of Security Affairs, shall deny or
revoke access authorization for the individual. The Appeal Panel
written decision shall be made a part of the administrative record.
(g) The Director, Office of Security Affairs, through the Director,
Office of Safeguards and Security, shall inform in writing the
individual involved and counsel or representative of the Appeal Panel's
final decision. A copy of the correspondence shall also be provided to
the other panel members and the Manager.
(h) If, upon receipt of a written request for a review of the
individual's case by the Appeal Panel, the Director, Office of Security
Affairs, is aware or subsequently becomes aware of information that the
individual is the subject of an unresolved inquiry or investigation of
a matter that could reasonably be expected to affect the individual's
DOE access authorization eligibility, the Director may defer action by
the Appeal Panel on the request until the inquiry or investigation is
completed and its results available for review by the Appeal Panel. In
such instances, the Director, Office of Security Affairs, shall:
(1) Obtain written approval from the Secretary to defer review of
the individual's case by the Appeal Panel for an initial interval not
to exceed 90 calendar days;
(2) Advise the individual and appropriate DOE officials in writing
of the initial deferral and the reason(s) therefor;
(3) Request that the individual's employment status not be affected
during the initial and any subsequent deferral interval, except at the
written request of the individual;
(4) Obtain written approval from the Secretary to extend the
deferral for each subsequent 90 calendar day interval and advise in
writing all concerned parties of the Secretary's approval;
(5) Inform in writing all concerned parties when the inquiry or
investigation has been completed and the results made available to the
Appeal Panel.
(i) If, upon receipt of a written request for review of an
individual's case by the Appeal Panel, the Director, Office of Security
Affairs, is aware or subsequently becomes aware of information that
adversely affects the individual's DOE access authorization eligibility
and which can not for national security reasons be disclosed in the
proceedings before a DOE Hearing Officer, the Director may refer the
information and the administrative record to the Secretary for the
final decision as to the individual's DOE access authorization
eligibility. In such instances, the Director, Office of Security
Affairs, shall notify in writing all concerned parties that the
individual's case has been provided to the Secretary for a final
decision in accordance with Sec. 710.31 of this subpart.
15. Newly redesignated Sec. 710.30 is amended by replacing the word
"determination" with the word "decision" in paragraph (a) and
replacing the words "an opinion" with the words "a decision" in
paragraph (b)(1), by replacing the word "getting" with the word
"receiving" in paragraph (b)(1), and by revising paragraph (b)(2) to
read as follows:
Sec. 710.30 New evidence.
* * * * *
(b)(2) In those cases where the Hearing Officer's decision has been
issued, the application for presentation of new evidence shall be
referred to the Director, Office of Security Affairs. In the event that
the Director, Office of Security Affairs, determines that the new
evidence shall be received, he shall determine the form in which it,
and the other party's response, shall be received.
* * * * *
16. Newly redesignated Sec. 710.31 is revised to read as follows:
Sec. 710.31 Action by the Secretary.
(a) Whenever an individual has not been afforded an opportunity to
cross-examine witnesses who have furnished information adverse to the
individual under the provisions of Secs. 710.26(l) or (o), or the
opportunity to review and respond to the information provided by the
Director, Office of Security Affairs, to the Secretary under
Sec. 710.29(i), only the Secretary may issue a final decision to deny
or revoke DOE access authorization for the individual after personally
reviewing the administrative record and any additional material
provided by the Director, Office of Security Affairs. The Secretary's
authority may not be delegated and may be exercised only when the
Secretary determines that the circumstances described in
Secs. 710.26(l) or (o), or 710.29(i) are present, and such
determination shall be final.
(b) Whenever the Secretary issues a final decision as to the
individual's DOE access authorization eligibility, the individual and
other concerned parties will be notified in writing, by the Director,
Office of Security Affairs, of that decision and of the Secretary's
findings with respect to each of the allegations contained in the
notification letter and each substantial issue identified in the
statement in support of the request for review to the extent allowed by
the national security.
(c) Nothing contained in these procedures shall be deemed to limit
or affect the responsibility and powers of the Secretary to issue
subpoenas or to deny or revoke access to Restricted Data, national
security information, or special nuclear material.
(d) Only the Secretary may approve initial and subsequent requests
under section 710.29(h) by the Director, Office of Security Affairs, to
defer the review of an individual's case by the Appeal Panel.
17. Newly redesignated Sec. 710.32 is revised to read as follows:
Sec. 710.32 Reconsideration of access eligibility.
(a) If, pursuant to the procedures set forth in Secs. 710.20
through 710.31 of this subpart, the Manager, Hearing Officer, Appeal
Panel, or the Secretary has made a decision granting or reinstating
access authorization for an individual, the individual's access
authorization eligibility shall be reconsidered as a new administrative
review under the procedures set forth in this subpart when previously
unconsidered derogatory information is identified, or the individual
violates a commitment or promise upon which the DOE previously relied
to favorably resolve an issue of access authorization eligibility.
(b) If, pursuant to the procedures set forth in Secs. 710.20
through 710.31 of this subpart, the Manager, Hearing Officer, Appeal
Panel, or the Secretary has made a decision denying or revoking access
authorization for the individual, the
[[Page 44441]]
individual's access authorization eligibility may be reconsidered only
when the individual so requests, when there is a bona fide offer of
employment requiring access to Restricted Data, national security
information, or special nuclear material, and when there is either:
(1) Material and relevant new evidence which the individual and the
individual's representatives are without fault in failing to present
earlier, or
(2) Convincing evidence of rehabilitation or reformation.
(c) A request for reconsideration shall be submitted in writing to
the Director, Office of Security Affairs, accompanied by an affidavit
setting forth in detail the new evidence or evidence of rehabilitation
or reformation. The Director, Office of Security Affairs, shall decide
and notify the individual as to whether the individual's access
authorization shall be reconsidered and, if so, the method by which
reconsideration shall be accomplished.
(d) Final decisions regarding access authorization eligibility in
reconsideration cases shall be made by the Appeal Panel.
18. Newly redesignated Sec. 710.33 is revised to read as follows:
Sec. 710.33 Terminations.
If the individual is no longer an applicant for access
authorization or no longer requires access authorization, the
procedures of this subpart shall be terminated without a final decision
as to the individual's access authorization eligibility, unless a final
decision has been rendered prior to the DOE being notified of the
change in the individual's pending access authorization status.
19. Newly redesignated Sec. 710.35 is revised to read as follows:
Sec. 710.35 Timeframes.
Statements of time established for processing aspects of a case
under this subpart are the agency's desired time frames in implementing
the procedures set forth in this subpart. They shall have no impact
upon the final disposition of an access authorization by a Manager,
Hearing Officer, the Appeal Panel, or the Secretary, and shall confer
no procedural or substantive rights upon an individual whose access
authorization eligibility is being considered.
20. Section 710.36 is added to read as follows:
Sec. 710.36 Acting officials.
Except for the Secretary, the responsibilities and authorities
conferred in this subpart may be exercised by persons who have been
designated in writing as acting for, or in the temporary capacity of,
the following DOE positions: the Local Director of Security, the
Manager, the Director, Office of Safeguards and Security, or the
General Counsel. The responsibilities and authorities of the Director,
Office of Security Affairs, may be exercised in his absence only by the
Deputy Director, Office of Security Affairs.
21. Appendix B to subpart A of Part 710 is added to read as
follows:
Appendix B to Subpart A of Part 710--Adjudicative Guidelines
Approved by the President in Accordance With the Provisions of
Executive Order 12968
(The following guidelines, included in this subpart for reference
purposes only, are reproduced as provided to the DOE by the Security
Policy Board. The President may change the guidelines without
notice.)
Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information
1. Introduction. The following adjudicative guidelines are
established for all U.S. government civilian and military personnel,
consultants, contractors, employees of contractors, licensees,
certificate holders or grantees and their employees and other
individuals who require access to classified information. They apply
to persons being considered for initial or continued eligibility for
access to classified information, to include sensitive compartmented
information and special access programs and are to be used by
government departments and agencies in all final clearance
determinations.
2. The Adjudicative Process. (a) The adjudicative process is an
examination of a sufficient period of a person's life to make an
affirmative determination that the person is eligible for a security
clearance. Eligibility for access to classified information is
predicated upon the individual meeting these personnel security
guidelines. The adjudicative process is the careful weighing of a
number of variables known as the whole person concept. Available,
reliable information about the person, past and present, favorable
and unfavorable, should be considered in reaching a determination.
In evaluating the relevance of an individual's conduct, the
adjudicator should consider the following factors:
(1) The nature, extent, and seriousness of the conduct;
(2) the circumstances surrounding the conduct, to include
knowledgeable participation;
(3) the frequency and recency of the conduct;
(4) the individual's age and maturity at the time of the
conduct;
(5) the voluntariness of participation;
(6) the presence or absence of rehabilitation and other
pertinent behavioral changes;
(7) the motivation for the conduct;
(8) the potential for pressure, coercion, exploitation, or
duress; and
(9) the likelihood of continuation or recurrence.
(b) Each case must be judged on its own merits, and final
determination remains the responsibility of the specific department
or agency. Any doubt as to whether access to classified information
is clearly consistent with national security will be resolved in
favor of the national security.
(c) The ultimate determination of whether the granting or
continuing of eligibility for a security clearance is clearly
consistent with the interests of national security must be an
overall common sense determination based upon careful consideration
of the following, each of which is to be evaluated in the context of
the whole person concept, as explained further below:
(1) GUIDELINE A: Allegiance to the United States;
(2) GUIDELINE B: Foreign influence;
(3) GUIDELINE C: Foreign preference;
(4) GUIDELINE D: Sexual behavior;
(5) GUIDELINE E: Personal conduct;
(6) GUIDELINE F: Financial considerations;
(7) GUIDELINE G: Alcohol consumption;
(8) GUIDELINE H: Drug involvement;
(9) GUIDELINE I: Emotional, mental, and personality disorders;
(10) GUIDELINE J: Criminal Conduct;
(11) GUIDELINE K: Security violations;
(12) GUIDELINE L: Outside activities;
(13) GUIDELINE M: Misuse of Information Technology Systems.
(d) Although adverse information concerning a single criterion
may not be sufficient for an unfavorable determination, the
individual may be disqualified if available information reflects a
recent or recurring pattern of questionable judgment,
irresponsibility, or emotionally unsta[Federal Register: August 16, 1
the whole person concept, pursuit of further investigation may be
terminated by an appropriate adjudicative agency in the face of
reliable, significant, disqualifying, adverse information.
(e) When information of security concern becomes known about an
individual who is currently eligible for access to classified
information, the adjudicator should consider whether the person:
(1) Voluntarily reported the information;
(2) was truthful and complete in responding to questions;
(3) sought assistance and followed professional guidance, where
appropriate;
(4) resolved or appears likely to favorably resolve the security
concern;
(5) has demonstrated positive changes in behavior and
employment;
(6) should have his or her access temporarily suspended pending
final adjudication of the information.
(f) If after evaluating information of security concern, the
adjudicator decides that the information is not serious enough to
warrant a recommendation of disapproval or revocation of the
security clearance, it may be appropriate to recommend approval with
a warning that future incidents of a similar nature may result in
revocation of access.
Guideline A: Allegiance To The United States
3. The Concern. An individual must be of unquestioned allegiance
to the United States.
[[Page 44442]]
The willingness to safeguard classified information is in doubt if
there is any reason to suspect an individual's allegiance to the
United States.
4. Conditions that could raise a security concern and may be
disqualifying include:
(a) Involvement in any act of sabotage, espionage, treason,
terrorism, sedition, or other act whose aim is to overthrow the
Government of the United States or alter the form of government by
unconstitutional means;
(b) association or sympathy with persons who are attempting to
commit, or who are committing, any of the above acts;
(c) association or sympathy with persons or organizations that
advocate the overthrow of the United States Government, or any state
or subdivision, by force or violence or by other unconstitutional
means;
(d) involvement in activities which unlawfully advocate or
practice the commission of acts of force or violence to prevent
others from exercising their rights under the Constitution or laws
of the United States or of any state.
5. Conditions that could mitigate security concerns include:
(a) The individual was unaware of the unlawful aims of the
individual or organization and severed ties upon learning of these;
(b) the individual's involvement was only with the lawful or
humanitarian aspects of such an organization;
(c) involvement in the above activities occurred for only a
short period of time and was attributable to curiosity or academic
interest;
(d) the person has had no recent involvement or association with
such activities.
Guideline B: Foreign Influence
6. The Concern. A security risk may exist when an individual's
immediate family, including cohabitants and other persons to whom he
or she may be bound by affection, influence, or obligation are not
citizens of the United States or may be subject to duress. These
situations could create the potential for foreign influence that
could result in the compromise of classified information. Contacts
with citizens of other countries or financial interests in other
countries are also relevant to security determinations if they make
an individual potentially vulnerable to coercion, exploitation, or
pressure.
7. Conditions that could raise a security concern and may be
disqualifying include:
(a) An immediate family member, or a person to whom the
individual has close ties of affection or obligation, is a citizen
of, or resident or present in, a foreign country.
(b) sharing living quarters with a person or persons, regardless
of their citizenship status, if the potential for adverse foreign
influence or duress exists;
(c) relatives, cohabitants, or associates who are connected with
any foreign country;
(d) failing to report, where required, associations with foreign
nationals;
(e) unauthorized association with a suspected or known
collaborator or employee of a foreign intelligence service;
(f) conduct which may make the individual vulnerable to
coercion, exploitation, or pressure by a foreign government;
(g) indications that representatives or nationals from a foreign
country are acting to increase the vulnerability of the individual
to possible future exploitation, coercion or pressure;
(h) a substantial financial interest in a country, or in any
foreign owned or operated business that could make the individual
vulnerable to foreign influence.
8. Conditions that could mitigate security concerns include:
(a) A determination that the immediate family member(s) (spouse,
father, mother, sons, daughters, brothers, sisters), cohabitant, or
associate(s) in question are not agents of a foreign power or in a
position to be exploited by a foreign power in a way that could
force the individual to choose between loyalty to the person(s)
involved and the United States;
(b) contacts with foreign citizens are the result of official
United States Government business;
(c) contact and correspondence with foreign citizens are casual
and infrequent;
(d) the individual has promptly complied with existing agency
requirements regarding the reporting of contacts, requests, or
threats from persons or organizations from a foreign country;
(e) foreign financial interests are minimal and not sufficient
to affect the individual's security responsibilities.
Guideline C: Foreign Preference
9. The Concern. When an individual acts in such a way as to
indicate a preference for a foreign country over the United States,
then he or she may be prone to provide information or make decisions
that are harmful to the interests of the United States.
10. Conditions that could raise a security concern and may be
disqualifying include:
(a) The exercise of dual citizenship;
(b) possession and/or use of a foreign passport;
(c) military service or a willingness to bear arms for a foreign
country;
(d) accepting educational, medical, or other benefits, such as
retirement and social welfare, from a foreign country;
(e) residence in a foreign country to meet citizenship
requirements;
(f) using foreign citizenship to protect financial or business
interests in another country;
(g) seeking or holding political office in the foreign country;
(h) voting in foreign elections; and
(i) performing or attempting to perform duties, or otherwise
acting, so as to serve the interests of another government in
preference to the interests of the United States.
11. Conditions that could mitigate security concerns include:
(a) Dual citizenship is based solely on parents' citizenship or
birth in a foreign country;
(b) indicators of possible foreign preference (e.g., foreign
military service) occurred before obtaining United States
citizenship;
(c) activity is sanctioned by the United States;
(d) individual has expressed a willingness to renounce dual
citizenship.
Guideline D: Sexual Behavior
12. The Concern. Sexual behavior is a security concern if it
involves a criminal offense, indicates a personality or emotional
disorder, may subject the individual to coercion, exploitation, or
duress, or reflects lack of judgment or discretion. (The adjudicator
should also consider guidelines pertaining to criminal conduct
(Guideline J) and emotional, mental, and personality disorders
(Guideline I) in determining how to resolve the security concerns
raised by sexual behavior.) Sexual orientation or preference may not
be used as a basis for a disqualifying factor in determining a
person's eligibility for a security clearance.
13. Conditions that could raise a security concern and may be
disqualifying include:
(a) Sexual behavior of a criminal nature, whether or not the
individual has been prosecuted;
(b) Compulsive or addictive sexual behavior when the person is
unable to stop a pattern of self-destructive high-risk behavior or
that which is symptomatic of a personality disorder;
(c) Sexual behavior that causes an individual to be vulnerable
to coercion, exploitation, or duress;
(d) Sexual behavior of a public nature and/or that which
reflects lack of discretion or judgment.
14. Conditions that could mitigate security concerns include:
(a) The behavior occurred during or prior to adolescence and
there is no evidence of subsequent conduct of a similar nature;
(b) The behavior was not recent and there is no evidence of
subsequent conduct of a similar nature;
(c) There is no other evidence of questionable judgment,
irresponsibility, or emotional instability;
(d) The behavior no longer serves as a basis for coercion,
exploitation, or duress.
Guideline E: Personal Conduct
15. The Concern. Conduct involving questionable judgment,
untrustworthiness, unreliability, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations could indicate
that the person may not properly safeguard classified information.
The following will normally result in an unfavorable clearance
action or administrative termination of further processing for
clearance eligibility:
(a) Refusal to undergo or cooperate with required security
processing, including medical and psychological testing; or
(b) Refusal to complete required security forms, releases, or
provide full, frank and truthful answers to lawful questions of
investigators, security officials or other official representatives
in connection with a personnel security or trustworthiness
determination.
16. Conditions that could raise a security concern and may be
disqualifying also include:
(a) Reliable, unfavorable information provided by associates,
employers, coworkers, neighbors, and other acquaintances;
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(b) The deliberate omission, concealment, or falsification of
relevant and material facts from any personnel security
questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award
benefits or status, determine security clearance eligibility or
trustworthiness, or award fiduciary responsibilities;
(c) Deliberately providing false or misleading information
concerning relevant and material matters to an investigator,
security official, competent medical authority, or other official
representative in connection with a personnel security or
trustworthiness determination.
(d) Personal conduct or concealment of information that may
increase an individual's vulnerability to coercion, exploitation, or
duress, such as engaging in activities which, if known, may affect
the person's personal, professional, or community standing or render
the person susceptible to blackmail;
(e) A pattern of dishonesty or rule violations, including
violation of any written or recorded agreement made between the
individual and the agency;
(f) Association with persons involved in criminal activity.
17. Conditions that could mitigate security concerns include:
(a) The information was unsubstantiated or not pertinent to a
determination of judgment, trustworthiness, or reliability;
(b) The falsification was an isolated incident, was not recent,
and the individual has subsequently provided correct information
voluntarily;
(c) The individual made prompt, good-faith efforts to correct
the falsification before being confronted with the facts;
(d) Omission of material facts was caused or significantly
contributed to by improper or inadequate advice of authorized
personnel, and the previously omitted information was promptly and
fully provided;
(e) The individual has taken positive steps to significantly
reduce or eliminate vulnerability to coercion, exploitation, or
duress;
(f) A refusal to cooperate was based on advice from legal
counsel or other officials that the individual was not required to
comply with security processing requirements and, upon being made
aware of the requirement, fully and truthfully provided the
requested information;
(g) Association with persons involved in criminal activities has
ceased.
Guideline F: Financial Considerations
18. The Concern. An individual who is financially overextended
is at risk of having to engage in illegal acts to generate funds.
Unexplained affluence is often linked to proceeds from financially
profitable criminal acts.
19. Conditions that could raise a security concern and may be
disqualifying include:
(a) A history of not meeting financial obligations;
(b) Deceptive or illegal financial practices such as
embezzlement, employee theft, check fraud, income tax evasion,
expense account fraud, filing deceptive loan statements, and other
intentional financial breaches of trust;
(c) Inability or unwillingness to satisfy debts;
(d) Unexplained affluence;
(e) Financial problems that are linked to gambling, drug abuse,
alcoholism, or other issues of security concern.
20. Conditions that could mitigate security concerns include:
(a) The behavior was not recent;
(b) It was an isolated incident;
(c) The conditions that resulted in the behavior were largely
beyond the person's control (e.g., loss of employment, a business
downturn, unexpected medical emergency, or a death, divorce or
separation);
(d) The person has received or is receiving counseling for the
problem and there are clear indications that the problem is being
resolved or is under control;
(e) The affluence resulted from a legal source; and
(f) The individual initiated a good-faith effort to repay
overdue creditors or otherwise resolve debts.
Guideline G: Alcohol Consumption
21. The Concern. Excessive alcohol consumption often leads to
the exercise of questionable judgment, unreliability, failure to
control impulses, and increases the risk of unauthorized disclosure
of classified information due to carelessness.
22. Conditions that could raise a security concern and may be
disqualifying include:
(a) Alcohol-related incidents away from work, such as driving
while under the influence, fighting, child or spouse abuse, or other
criminal incidents related to alcohol use;
(b) Alcohol-related incidents at work, such as reporting for
work or duty in an intoxicated or impaired condition, or drinking on
the job;
(c) Diagnosis by a credentialed medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of alcohol abuse
or alcohol dependence;
(d) Evaluation of alcohol abuse or alcohol dependence by a
licensed clinical social worker who is a staff member of a
recognized alcohol treatment program;
(e) Habitual or binge consumption of alcohol to the point of
impaired judgment;
(f) Consumption of alcohol, subsequent to a diagnosis of
alcoholism by a credentialed medical professional and following
completion of an alcohol rehabilitation program.
23. Conditions that could mitigate security concerns include:
(a) The alcohol related incidents do not indicate a pattern;
(b) The problem occurred a number of years ago and there is no
indication of a recent problem;
(c) Positive changes in behavior supportive of sobriety;
(d) Following diagnosis of alcohol abuse or alcohol dependence,
the individual has successfully completed inpatient or outpatient
rehabilitation along with aftercare requirements, participated
frequently in meetings of Alcoholics Anonymous or a similar
organization, has abstained from alcohol for a period of at least 12
months, and received a favorable prognosis by a credentialed medical
professional or a licensed clinical social worker who is a staff
member of a recognized alcohol treatment program.
Guideline H: Drug Involvement
24. The Concern.
(a) Improper or illegal involvement with drugs raises questions
regarding an individual's willingness or ability to protect
classified information. Drug abuse or dependence may impair social
or occupational functioning, increasing the risk of an unauthorized
disclosure of classified information.
(b) Drugs are defined as mood and behavior altering substances
and include: (1) drugs, materials, and other chemical compounds
identified and listed in the Controlled Substances Act of 1970, as
amended (e.g., marijuana or cannabis, depressants, narcotics,
stimulants, and hallucinogens), and (2) inhalants and other similar
substances.
(c) Drug abuse is the illegal use of a drug or use of a legal
drug in a manner that deviates from approved medical direction.
25. Conditions that could raise a security concern and may be
disqualifying include:
(a) Any drug abuse (see above definition);
(b) Illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution;
(c) Diagnosis by a credentialed medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of drug abuse or
drug dependence;
(d) Evaluation of drug abuse or drug dependence by a licensed
clinical social worker who is a staff member of a recognized drug
treatment program;
(e) Failure to successfully complete a drug treatment program
prescribed by a credentialed medical professional. Recent drug
involvement, especially following the granting of a security
clearance, or an expressed intent not to discontinue use, will
almost invariably result in an unfavorable determination.
26. Conditions that could mitigate security concerns include:
(a) The drug involvement was not recent;
(b) The drug involvement was an isolated or aberrational event;
(c) A demonstrated intent not to abuse any drugs in the future;
(d) Satisfactory completion of a prescribed drug treatment
program, including rehabilitation and aftercare requirements,
without recurrence of abuse, and a favorable prognosis by a
credentialed medical professional.
Guideline I: Emotional, Mental, and Personality Disorders
27. The Concern. Emotional, mental, and personality disorders
can cause a significant defect in an individual's psychological,
social and occupational functioning. These disorders are of security
concern because they may indicate a defect in judgment, reliability,
or stability. A credentialed mental health professional (e.g.,
clinical psychologist or psychiatrist), employed by, acceptable to
or approved by the government, should be utilized in evaluating
potentially
[[Page 44444]]
disqualifying and mitigating information fully and properly, and
particularly for consultation with the individual's mental health
care provider.
28. Conditions that could raise a security concern and may be
disqualifying include:
(a) An opinion by a credentialed mental health professional that
the individual has a condition or treatment that may indicate a
defect in judgment, reliability, or stability;
(b) Information that suggests that an individual has failed to
follow appropriate medical advice relating to treatment of a
condition, e.g., failure to take prescribed medication;
(c) A pattern of high-risk, irresponsible, aggressive, anti-
social or emotionally unstable behavior;
(d) Information that suggests that the individual's current
behavior indicates a defect in his or her judgment or reliability.
29. Conditions that could mitigate security clearance concerns
include:
(a) There is no indication of a current problem;
(b) Recent opinion by a credentialed mental health professional
that an individual's previous emotional, mental, or personality
disorder is cured, under control or in remission and has a low
probability of recurrence or exacerbation;
(c) The past emotional instability was a temporary condition
(e.g., one caused by a death, illness, or marital breakup), the
situation has been resolved, and the individual is no longer
emotionally unstable.
Guideline J: Criminal Conduct
30. The Concern. A history or pattern of criminal activity
creates a doubt about a person's judgment, reliability and
trustworthiness.
31. Conditions that could raise a security concern and may be
disqualifying include:
(a) Allegations or admissions of criminal conduct, regardless of
whether the person was formally charged;
(b) A single serious crime or multiple lesser offenses.
32. Conditions that could mitigate security concerns include:
(a) The criminal behavior was not recent;
(b) The crime was an isolated incident;
(c) The person was pressured or coerced into committing the act
and those pressures are no longer present in that person's life;
(d) The person did not voluntarily commit the act and/or the
factors leading to the violation are not likely to recur;
(e) Acquittal;
(f) There is clear evidence of successful rehabilitation.
Guideline K: Security Violations
33. The Concern. Noncompliance with security regulations raises
doubt about an individual's trustworthiness, willingness, and
ability to safeguard classified information.
34. Conditions that could raise a security concern and may be
disqualifying include:
(a) Unauthorized disclosure of classified information;
(b) Violations that are deliberate or multiple or due to
negligence.
35. Conditions that could mitigate security concerns include
actions that:
(a) Were inadvertent;
(b) Were isolated or infrequent;
(c) Were due to improper or inadequate training;
(d) Demonstrate a positive attitude towards the discharge of
security responsibilities.
Guideline L: Outside Activities
36. The Concern. Involvement in certain types of outside
employment or activities is of security concern if it poses a
conflict with an individual's security responsibilities and could
create an increased risk of unauthorized disclosure of classified
information.
37. Conditions that could raise a security concern and may be
disqualifying include any service, whether compensated, volunteer,
or employment with:
(a) A foreign country;
(b) Any foreign national;
(c) A representative of any foreign interest;
(d) Any foreign, domestic, or international organization or
person engaged in analysis, discussion, or publication of material
on intelligence, defense, foreign affairs, or protected technology.
38. Conditions that could mitigate security concerns include:
(a) Evaluation of the outside employment or activity indicates
that it does not pose a conflict with an individual's security
responsibilities;
(b) The individual terminates employment or discontinues the
activity upon being notified that it is in conflict with his or her
security responsibilities.
Guideline M: Misuse of Information Technology Systems
39. The Concern. Noncompliance with rules, procedures,
guidelines, or regulations pertaining to information technology
systems may raise security concerns about an individual's
trustworthiness, willingness, and ability to properly protect
classified systems, networks, and information. Information
Technology Systems include all related equipment used for the
communication, transmission, processing, manipulation, and storage
of classified or sensitive information.
40. Conditions that could raise a security concern and may be
disqualifying include:
(a) Illegal or unauthorized entry into any information
technology system;
(b) Illegal or unauthorized modification destruction,
manipulation or denial of access to information residing on an
information technology system;
(c) Removal (or use) of hardware, software, or media from any
information technology system without authorization, when
specifically prohibited by rules, procedures, guidelines or
regulations;
(d) Introduction of hardware, software, or media into any
information technology system without authorization, when
specifically prohibited by rules, procedures, guidelines or
regulations.
41. Conditions that could mitigate security concerns include:
(a) The misuse was not recent or significant;
(b) The conduct was unintentional or inadvertent;
(c) The introduction or removal of media was authorized;
(d) The misuse was an isolated event;
(e) The misuse was followed by a prompt, good faith effort to
correct the situation.
[FR Doc. 99-20841 Filed 8-13-99; 8:45 am]