Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 /
Proposed Rules
[[Page 22920]]
DEPARTMENT OF ENERGY
10 CFR Part 710
[Docket No. DOE-HQ-2012-0001-0274]
RIN 1992-AA36
Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) proposes to amend its
regulations which set forth the policies and procedures for resolving
questions concerning eligibility for DOE access authorization. The
proposed revisions would update and provide added clarity throughout
the current rule, and streamline the process for resolving access
authorization eligibility determinations. Additionally, DOE proposes to
update references to DOE Offices and officials to reflect the current
DOE organizational structure.
DATES: Written comments on this proposed rulemaking must be received on
or before close of business May 19, 2016.
ADDRESSES: You may submit comments, identified by ``Determining
Eligibility for Access and RIN 1992-AA36,'' by any of the following
methods (comments by email are encouraged):
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email to:
[email protected]. Include Determining
Eligibility for Access and RIN 1992-AA36 in the subject line of the
message.
Mail to: U.S. Department of Energy, Office of Departmental
Personnel Security, AU-53, 1000 Independence Avenue SW., Washington, DC
20585.
FOR FURTHER INFORMATION CONTACT: Mark R. Pekrul, Office of Departmental
Personnel Security, (202) 586-4097, [email protected]; or
Christina Pak, Office of the General Counsel, (202) 586-4114,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Analysis
A. Review Under Executive Order 12866 and 13563
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Approval by the Office of the Secretary of Energy
I. Background
The Department of Energy is publishing this notice of proposed
rulemaking (NOPR) in order to update and clarify DOE's policies and
procedures for the denial and revocation of access authorizations.
10 CFR part 710 has not been substantively updated since 2001 (66
FR 47062, Sept. 11, 2001). Since that time, as the Department has
gained operational experience under the current rule, revisions to
update and clarify provisions in the rule are appropriate. The proposed
rule would: (1) Accord primacy to the national Adjudicative Standards
when determining eligibility for access authorization; (2) clarify that
DOE can, in exigent circumstances, suspend an access authorization
without recourse to certain administrative procedures; (3) permit
individuals subject to criminal proceedings to suspend access
authorization revocation proceedings under this part, subject to
certain conditions; (4) limit the ability of the Appeal Panel to
consider new evidence on appeal of a decision by the Department's
Office of Hearings and Appeals or the Manager to deny or revoke access
authorization; (5) introduce a one-year waiting period before an
individual, previously the subject of denial or revocation of access
authorization, may be reconsidered for access authorization; (6) add to
part 710 the requirements of Presidential Policy Directive 19, which
provides appeal rights to the Department's Office of Inspector General
under certain circumstances; (7) revise, delete, and add definitions
for certain terms used in the regulation; and (8) update references to
DOE Offices and officials to reflect the current DOE organizational
structure.
Laws, regulations and directives which may apply to part 710
include, but are not limited to: The Atomic Energy Act of 1954;
Executive Order 13467 (73 FR 38103, June 30, 2008; Executive Order
12968 (60 FR 40245, August 2, 1995, as amended); Executive Order 13526
(75 FR 707, January 5, 2010); Executive Order 10865 (25 FR 1583,
February 24, 1960, as amended); Executive Order 10450 (18 FR 2489,
April 27, 1954, as amended); Presidential Policy Directive 19 (October
10, 2012).
II. Section-by-Section Analysis
DOE proposes to amend 10 CFR part 710 as follows:
The title of this part would be revised to delete the words
``CRITERIA AND'' to reflect the proposed deletion of the criteria in
current Sec. 710.8, and because the term ``Procedures'' adequately
describes the content of the rule. Additionally, the heading, Subpart
A, ``General Criteria and Procedures for Determining Eligibility for
Access to Classified Matter and Special Nuclear Material,'' is proposed
to be deleted. Previously, the entire body of this rule was denominated
as Subpart A to Part 710. In this proposed revision, each existing
undesignated subpart heading would be designated as an individual
subpart, in accordance with the U.S. Government Printing Office's
Document Drafting Handbook.
1. The current heading ``GENERAL PROVISIONS'' located above current
Sec. 710.1 would be revised to add ``SUBPART A--'' at the beginning.
2. Proposed Sec. 710.1 ``Purpose'' would delete references to the
specific types of individuals to which this part applies since this
information is set forth in Sec. 710.2; and would update the
applicable legal authorities.
3. Proposed Sec. 710.2 ``Scope'' would clarify that determining
eligibility for an individual's access authorization would require
application of the national Adjudicative Guidelines, and reference to
``criteria'' would be deleted.
4. Proposed Sec. 710.3 ``Reference'' would delete the reference to
the Atomic Energy Act and replace it with
[[Page 22921]]
a reference to the Adjudicative Guidelines.
5. Proposed Sec. 710.4 ``Policy'' would replace the phrase
``criteria for determining eligibility for access authorization and''
with ``procedures'' in paragraph (a) to reflect the proposed deletion
of the criteria in current Sec. 710.8. Current Sec. 710.4(c) would be
renumbered Sec. 710.32(b)(1). Current Sec. 710.4(d) would be
renumbered Sec. 710.32(b)(2). Current paragraphs (e) and (f) would be
deleted since the situations addressed in those paragraphs are already
covered in the current rule. Current paragraph (g) would be renumbered
Sec. 710.32(c).
6. In proposed Sec. 710.5 ``Definitions'' a number of new or
revised definitions are proposed. In addition, the terms contained in
this section would be re-ordered so that they are listed in
alphabetical order; current Sec. 710.5(b) would be deleted as
unnecessary.
The term ``DOE Counsel'' would be amended to delete the requirement
that such an individual be subject to a favorably adjudicated
background investigation. Instead, the requirement that such an
individual must hold a DOE Q access authorization, the grant of which
is predicated on a favorably adjudicated background investigation,
would be added.
The term ``Administrative Judge'' is proposed to be amended in the
same fashion and for the same reasons as the definition of ``DOE
Counsel,'' and also to delete the requirement that this person be a
``senior management official.''
The term ``Director'' would be added and defined as the Director,
Office of Departmental Personnel Security, to reflect organizational
changes within the DOE's personnel security program.
The terms ``Local Director of Security'' and ``Manager'' would be
revised to reflect organizational changes throughout DOE.
The term ``national security information'' would be deleted as it
does not appear anywhere in this rule.
7. The current heading ``CRITERIA AND PROCEDURES FOR DETERMINING
ELIGIBILITY FOR ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR
MATERIAL'' located above current Sec. 710.6 would be revised to add
``SUBPART B--'' at the beginning, and to delete ``CRITERIA AND'' to
reflect the deletion of the criteria in proposed Sec. 710.8.
8. Proposed Sec. 710.6 ``Cooperation by the individual.''
(1) Proposed paragraph (a)(1) would revise the language for clarity
but would not change it substantively.
(2) Proposed paragraph (a)(2) would update the reference to
polygraph examinations to be consistent with the intent of 10 CFR part
709, and to update terms as in paragraph (a)(1), described above.
(3) Proposed paragraph (b) would reflect current DOE organizational
structures.
(4) Proposed paragraph (c) would clarify the process by which an
individual could appeal decisions taken by DOE under proposed
paragraphs (a)(1) and (a)(2).
9. The proposed changes to Sec. 710.7 ``Application of the
criteria'' would remove references to the criteria and clarify that all
determinations of eligibility for access authorization at DOE would be
made in accordance with the national Adjudicative Guidelines. DOE has
for several decades utilized the criteria currently in Sec. 710.8 to
determine eligibility for access authorization. When the national
Adjudicative Guidelines were introduced in 1997, DOE began using them
in conjunction with the criteria in Sec. 710.8. The revision proposed
today would make all access authorization determinations in reliance
solely on the Adjudicative Guidelines. The current title ``Application
of the criteria'' would be revised to replace ``criteria'' with
``Adjudicative Guidelines.'' Additionally, the current Sec. 710.9(a)
would be renumbered Sec. 710.7(d) to clearly indicate how information
obtained by DOE may be considered derogatory under the Adjudicative
Guidelines and used to determine access authorization eligibility. The
last sentence of the current Sec. 710.7(a) would be moved to the
beginning of proposed Sec. 710.7(d) where it more logically fits.
10. Current Sec. 710.8 ``Criteria'' would be removed in its
entirety, since exclusive reliance on the national Adjudicative
Guidelines for making access authorization eligibility determinations
would render this section unnecessary.
11. The current Sec. 710.9 ``Action on derogatory information''
would be renumbered Sec. 710.8.
(1) Current paragraph (a) would be moved to proposed Sec. 710.7(d)
as indicated in the discussion of proposed Sec. 710.7.
(2) Proposed paragraph (a)--currently paragraph (b)--would remove
the specific reference to a DOE mental evaluation as an example of
actions that can be taken to resolve derogatory information. Since a
mental evaluation is just one of many actions DOE can take to resolve
derogatory information, DOE proposes to delete the example to avoid any
misperception that DOE is limited to this action.
(3) Current paragraph (e) would be renumbered as paragraph (d) and
would be revised to reflect changes in the DOE organizational
structure.
12. Current Sec. 710.10 ``Suspension of access authorization''
would be renumbered Sec. 710.9.
(1) Proposed paragraph (b) would clarify that the Department can
take immediate action to suspend an individual's access authorization,
without taking actions to investigate derogatory information, when
there are immediate threats to the national security or to the safety
and security of a DOE facility or employee. An individual whose access
authorization has been suspended under these circumstances would be
entitled to due process protections as set forth in part 710 before the
Department makes a final decision on the individual's eligibility for
access authorization.
(2) The current paragraph (b) would be renumbered as paragraph (c).
Proposed paragraph (c) would clarify the responsibilities of the
Manager upon the recommendation of a Local Director of Security that an
individual's access authorization should be suspended.
(3) Proposed paragraph (e) has been added to reflect the
requirements of Presidential Policy Directive 19, and would provide
that a Federal employee who believes action to suspend his or her
access authorization was taken as retaliation for having made a
protected disclosure of information may appeal the decision to the
Department's Office of the Inspector General.
13. The current heading, ``ADMINISTRATIVE REVIEW,'' located above
current Sec. 710.20, would be redesignated as Subpart C by adding,
``SUBPART C--'' at the beginning.
14. Section 710.20 ``Purpose of administrative review'' would
remain unchanged except for an editorial revision to clarify that the
procedures in proposed Subpart C ``govern'' and not just ``establish
methods for'' the conduct of administrative review proceedings under
this part.
15. Proposed Sec. 710.21 ``Notice to the individual''
(1) Proposed paragraph (b)(7) would clarify that the Administrative
Judge has the option of conducting administrative review hearings via
video teleconferencing. The use of video teleconferencing for this
purpose has been piloted with successful results. Additionally,
proposed paragraph (b)(7) would include information currently contained
in Sec. 710.34, ``Attorney representation,'' which is proposed to be
deleted. The current Sec. 710.34
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addresses the responsibility of the individual to provide DOE with
notice of representation by an attorney, so the substance of Sec.
710.34 would fit better in proposed paragraph (b)(7) since it already
addresses the individual's right to attorney representation.
(2) Proposed paragraph (b)(8) would clarify that in the event that
an individual fails to file a timely written request for a hearing
before an Administrative Judge, the Manager shall issue a final
decision to revoke or deny an individual's access authorization.
(3) Current paragraphs (c)(1) and (c)(3) would be renumbered as
paragraphs (b)(10) and (b)(11), respectively, for better flow.
(4) Proposed new paragraphs (b)(12)(i) through (iii) would address
the rights of individuals who, at the time they receive a notification
letter pursuant to proposed Sec. 710.21, are the subject of criminal
proceedings for a felony offense or for an offense which is punishable
by more than a year in prison. The proposed addition would clarify that
individuals in that situation have the right to decide whether to
continue with or withdraw from the Administrative Review process. Under
the current rule, the discretion to continue with the Administrative
Review process resides with DOE. Under the proposed revision, the
individual concerned would decide to either (1) proceed with
Administrative Review, requiring him/her to participate fully in the
process, or (2) withdraw from the Administrative Review process,
resulting in the administrative withdrawal of the individual's access
authorization. Once the individual's criminal law matter concludes, a
request for access authorization could be resubmitted.
(5) Proposed new paragraph (c)(2), embodying the requirements of
Presidential Policy Directive 19, would be added to provide that a
Federal employee who believes action to deny or revoke access
authorization under the Administrative Review process was taken as
retaliation for having made a protected disclosure of information may
appeal the decision to the Department's Office of the Inspector
General.
16. Proposed Sec. 710.22 ``Initial Decision Process'' would
clarify, in paragraph (c)(4), that if the individual does not exercise
his/her right to appeal the initial decision of a Manager to deny or
revoke access authorization within 30 calendar days of that decision,
the Manager's initial decision would become final action not subject to
further review or appeal.
17. Proposed Sec. 710.25 ``Appointment of Administrative Judge;
prehearing conference; commencement of hearings'' would clarify the
authority of the Administrative Judge to conduct hearings via video
teleconferencing and shorten the time limit for the Administrative
Judge to commence a hearing, from 90 days to 60 days from the date the
individual's request for hearing is received by the Office of Hearings
and Appeals. This proposed change reflects the DOE Office of Hearings
and Appeals' current internal procedures for commencing a hearing.
18. Proposed Sec. 710.27 ``Administrative Judge's decision'' would
indicate that the Administrative Judge shall render a decision as to
the granting or restoring of an individual's access authorization
within 30 calendar days from the date of receipt of the hearing
transcript. This proposed change reflects the DOE Office of Hearings
and Appeals' current internal procedures for issuing a decision.
19. Proposed Sec. 710.28 ``Action on the Administrative Judge's
decision'' would clarify that an Administrative Judge's decision shall
constitute final action not subject to review or further appeal if a
written request for a review of the decision by the Appeal Panel is not
filed within a timely manner with the Director. Additionally, proposed
paragraph (c) would address the process by which the Department may
appeal a decision by the Administrative Judge to grant or to continue
an individual's access authorization, to comport with the process in
current paragraph (b) which addresses how the individual may appeal a
decision by the Administrative Judge to deny or revoke access
authorization.
20. Proposed Sec. 710.29 ``Final appeal process'' would reflect,
in paragraph (e), that an appeal decision would be based solely upon
information in the administrative record at the time of the Manager's
decision or the Administrative Judge's initial decision. Consequently,
current paragraphs (h), (i) and (j) would be deleted in their entirety.
Paragraphs (a) through (d) would be revised to reflect the current
Departmental organization and to more clearly describe the process by
which an Appeal Panel is convened. Paragraph (f) would be revised to
clarify that the Appeal Panel's decision is not subject to further
review or appeal.
21. Current Sec. 710.30 ``New evidence'' would be deleted to
reflect that an appeal decision would be based solely upon information
in the administrative record at the time of the Manager's decision or
the Administrative Judge's initial decision.
22. Proposed Sec. 710.30 ``Action by the Secretary,'' currently
Sec. 710.31 and renumbered Sec. 710.30 in the proposed rule, would
state that the Secretary's responsibilities could be delegated in
accordance with Executive Orders 12968 and 10865. Also, references to
current Sec. 710.29(h) and (i) would be deleted since those sections
are proposed to be deleted.
23. Proposed Sec. 710.31 ``Reconsideration of Access
Eligibility.'' This proposed section, which would be renumbered from
Sec. 710.32, would provide for a minimum of one year between a final
decision to deny or revoke access authorization and the time when an
individual may apply for reconsideration. Currently, part 710 contains
no time limit and many individuals seek reconsideration within days of
receiving a final decision denying or revoking the individual's access
authorization. Further, individuals have been permitted to file a
request for reconsideration repeatedly, even after previous
reconsideration requests have been denied. A one-year time limit would
convey clear expectations to the individual as to when a
reconsideration request could be accepted and would reduce the undue
burden on the Department of considering multiple close-in-time appeals.
In addition, paragraph (d) would more clearly describe the
reconsideration process.
24. The current heading, ``TERMINATIONS,'' located above current
Sec. 710.33 would be redesignated as Subpart D by adding, ``SUBPART
D--'' at the beginning.
25. Proposed Sec. 710.32 ``Terminations.'' This proposed section,
would be renumbered from Sec. 710.33. Proposed Sec. 710.32(a),
currently Sec. 710.33, would clarify that if the procedures of this
part are terminated after an unfavorable initial agency decision has
been rendered, any subsequent requests for access authorization for an
individual would be processed as a review of the decision by the Appeal
Panel, unless a minimum of one year had elapsed. Proposed Sec.
710.32(b)(1), currently Sec. 710.4(c), would indicate that the type of
criminal proceedings for which DOE may take action to terminate
processing an access authorization application include felony offenses
and offenses punishable by one year of imprisonment or longer.
Currently, this threshold is six months; this proposed change to one
year would be consistent with the one-year time frame in proposed Sec.
710.21. Proposed Sec. 710.32(b)(2) and Sec. 710.32(c), would be
renumbered from current Sec. 710.4(d) and (g), respectively.
26. Current Sec. 710.34 ``Notice to individual'' would be deleted.
The
[[Page 22923]]
substance of current Sec. 710.34 would be added to proposed Sec.
710.21.
27. Proposed Sec. 710.33 ``Time frames,'' currently Sec. 710.35,
would be renumbered as Sec. 710.33.
28. Proposed Sec. 710.34 ``Acting Officials,'' currently Sec.
710.36, would reflect organizational changes within the Department and
permit the Deputy Associate Under Secretary for Environment, Health,
Safety and Security greater flexibility to delegate his/her
responsibilities under part 710. Currently, these responsibilities can
only be exercised by persons in security-related Senior Executive
Service positions. The proposed change would permit the Deputy
Associate Under Secretary for Environment, Health, Safety and Security
to delegate his/her authorities under part 710 to persons in senior
security-related positions. It is expected that only persons in GS-15
or Senior Executive Service positions would meet this requirement. This
proposed change would enhance the Department's ability to effectively
manage the Administrative Review process prescribed by part 710.
APPENDICES
The national Adjudicative Guidelines would be Appendix A.
III. Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
The regulatory action proposed today 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, this proposed rule is not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs
within the Office of Management and Budget.
DOE has also reviewed the proposed regulation pursuant to Executive
Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)).
Executive Order 13563 is supplemental to and explicitly reaffirms the
principles, structures, and definitions governing regulatory review
established in Executive Order 12866. To the extent permitted by law,
agencies are required by Executive Order 13563 to: (1) Propose or adopt
a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor regulations to impose the least
burden on society, consistent with obtaining regulatory objectives,
taking into account, among other things, and to the extent practicable,
the costs of cumulative regulations; (3) select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages; distributive impacts; and equity);
(4) to the extent feasible, specify performance objectives, rather than
specifying the behavior or manner of compliance that regulated entities
must adopt; and (5) identify and assess available alternatives to
direct regulation, including providing economic incentives to encourage
the desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies
to use the best available techniques to quantify anticipated present
and future benefits and costs as accurately as possible. In its
guidance, the Office of Information and Regulatory Affairs has
emphasized that such techniques may include identifying changing future
compliance costs that might result from technological innovation or
anticipated behavioral changes. DOE believes that this NOPR is
consistent with these principles, including the requirement that, to
the extent permitted by law, agencies adopt a regulation only upon a
reasoned determination that its benefits justify its costs and, in
choosing among alternative regulatory approaches, those approaches
maximize net benefits.
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 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
Executive Order 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 Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this proposed regulation meet the relevant standards
of Executive Order 12988.
C. Review Under the 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 Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' (67 FR 53461, August 16, 2002), DOE 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 Web site at http://www.gc.doe.gov.
This proposed rule would amend procedures that apply to the
determination of eligibility of individuals for access to classified
information and access to special nuclear material. The proposed rule
applies to individuals, and would not apply to ``small entities,'' as
that term is defined in the Regulatory Flexibility Act. As a result, if
adopted, the proposed rule would not have a significant economic impact
on a substantial number of small entities.
Accordingly, DOE certifies that the proposed rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis is required.
D. Review Under the Paperwork Reduction Act
This proposed rule does not impose a collection of information
requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.
[[Page 22924]]
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR part 1021, subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is categorically excluded from
NEPA review because the amendments to the existing rule are strictly
procedural (categorical exclusion A6). Therefore, this proposed rule
does not require an environmental impact statement or environmental
assessment pursuant to NEPA.
F. Review Under Executive Order 13132
Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes
certain requirements on agencies formulating and implementing policies
or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it does not preempt State law and, if adopted, would
not have a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
No further action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires a Federal agency to perform a detailed assessment of costs and
benefits of any rule imposing a Federal Mandate with costs to State,
local or tribal governments, or to the private sector, of $100 million
or more. This rulemaking does not impose a Federal mandate on State,
local or tribal governments or on the private sector.
H. Review Under the 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 or policy that may affect
family well being. The proposed rule, if adopted, will have no impact
on family well-being. Accordingly, DOE has concluded that it is not
necessary to prepare a Family Policymaking Assessment.
I. Review Under Executive Order 13211
Executive Order 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 the
Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, 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 Executive Order 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 proposed rule is not a significant energy action. Accordingly, DOE
has not prepared a Statement of Energy Effects.
J. Review Under the 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 implementing 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 proposed rule under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Approval by the Office of the Secretary of Energy
The Office of the Secretary of Energy has approved issuance of this
proposed rule.
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Government employees, nuclear energy.
Issued in Washington, DC, on March 28, 2016.
Elizabeth Sherwood-Randall,
Deputy Secretary.
For the reasons set out in the preamble, DOE is proposing to revise
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
Subpart A--General Provisions
Sec.
710.1 Purpose.
710.2 Scope.
710.3 Reference.
710.4 Policy.
710.5 Definitions.
Subpart B--Eligibility for Access to Classified Matter or Special
Nuclear Material
710.6 Cooperation by the individual.
710.7 Application of the adjudicative guidelines.
710.8 Action on derogatory information.
710.9 Suspension of access authorization.
Subpart C--Administrative Review
710.20 Purpose of administrative review.
710.21 Notice to the individual.
710.22 Initial decision process.
710.23 Extensions of time by the manager.
710.24 Appointment of DOE Counsel.
710.25 Appointment of Administrative Judge; prehearing conference;
commencement of hearings.
710.26 Conduct of hearings.
710.27 Administrative Judge's decision.
710.28 Action on the Administrative Judge's decision.
710.29 Final appeal process.
710.30 Action by the Secretary.
710.31 Reconsideration of access eligibility.
Subpart D--Miscellaneous
710.32 Terminations.
710.33 Time frames.
710.34 Acting officials.
Appendix A--Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (December 30, 2005)
Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-l;
50 U.S.C. 2401 et seq.; 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. 13526, 3 CFR 2010 Comp., pp. 298-327 (or
successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391.
Subpart A--General Provisions
Sec. 710.1 Purpose.
(a) This part establishes the procedures for determining the
eligibility of individuals described in
[[Page 22925]]
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 Executive Order 13526
(Classified National Security Information).
(b) This part implements: Executive Order 12968, 60 FR 40245
(August 2, 1995), as amended; Executive Order 13526, 75 FR 707 (January
5, 2010); Executive Order 10865, 25 FR 1583 (February 24, 1960), as
amended; Executive Order 10450, 18 FR 2489 (April 27, 1954), as
amended; and the Adjudicative Guidelines for Determining Eligibility
for Access to Classified Information approved by the President (the
``Adjudicative Guidelines''; see Appendix A of this part).
Sec. 710.2 Scope.
The procedures outlined in this rule require the application of the
Adjudicative Guidelines (see Sec. 710.7) in determining eligibility
for access authorization for:
(a) Employees (including consultants) of, and applicants for
employment with, contractors and agents of the DOE;
(b) Access permittees of the DOE and their employees (including
consultants) and applicants for employment;
(c) Employees (including consultants) of, and applicants for
employment with, the DOE; and
(d) Other persons designated by the Secretary of Energy.
Sec. 710.3 Reference.
The Adjudicative Guidelines are set forth in Appendix A to this
part.
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.
(b) It is also the policy of DOE that none of the procedures
established for determining eligibility for access authorization 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.
Sec. 710.5 Definitions.
(a) As used in this part:
Access authorization means an administrative determination that an
individual is eligible for access to classified matter or is eligible
for access to, or control over, special nuclear material.
Administrative Judge means a DOE attorney appointed by the
Director, Office of Hearings and Appeals, pursuant to Sec. 710.25 of
this part. An Administrative Judge shall be a U.S. citizen and shall
hold a Q access authorization.
Classified matter means the material of thought or expression that
is classified pursuant to statute or Executive Order.
Director means the Director, DOE Office of Departmental Personnel
Security.
DOE Counsel means a DOE attorney assigned to represent DOE in
proceedings under this part. DOE Counsel shall be a U.S. citizen and
shall hold a Q access authorization.
Local Director of Security means the individual with primary
responsibility for safeguards and security at the Chicago, Idaho, Oak
Ridge, Richland, and Savannah River Operations Offices; for Naval
Reactors, the individual(s) designated under the authority of the
Director of the Naval Nuclear Propulsion Program; for the National
Nuclear Security Administration (NNSA), the individual 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 Chicago, Idaho,
Oak Ridge, Richland, or Savannah River Operations Offices; for Naval
Reactors, the individual designated under the authority of the Director
of the 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 Operations.
Secretary means the Secretary of Energy, as provided by section 201
of the Department of Energy Organization Act.
Special nuclear material means plutonium, uranium enriched in the
isotope 233, or in the isotope 235, and any other material which,
pursuant to the provisions of section 51 of the Atomic Energy Act of
1954, has been determined to be special nuclear material, but does not
include source material; or any material artificially enriched by any
of the foregoing, not including source material.
(b) Reserved.
Subpart B--Eligibility for Access to Classified Matter or Special
Nuclear Material
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 or reinvestigation, and at
any stage of DOE's processing of the individual's access authorization
request, including but not limited to, personnel security interviews,
DOE-sponsored mental health evaluations, and other authorized DOE
investigative activities 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 access
authorization. In this event, any access authorization then in effect
may be administratively withdrawn or, for applicants, further
processing may be administratively terminated.
(2) It is the responsibility of an individual subject to 10 CFR
709.3(d) to consent to and take a polygraph examination required by
part 709. A refusal to consent to or take such an examination may
prevent DOE from reaching an affirmative finding required for
continuing access authorization. In this event, any access
authorization then in effect may be administratively withdrawn.
(b) If the individual believes that the provisions of paragraph (a)
of this section have been inappropriately applied, the individual may
file a written appeal of the action with the Director within 30
calendar days of the date the individual was notified of the action.
(c) Upon receipt of the written appeal, the Director shall conduct
an inquiry as to the circumstances involved in the action and shall,
within 30 calendar days of receipt of the written appeal, notify the
individual, in writing, of his/her decision. If the Director determines
that the action was inappropriate, the Director shall notify the
Manager that access authorization must be reinstated or, for
applicants, that the individual must continue to be processed for
access authorization. If the Director determines
[[Page 22926]]
the action was appropriate, the Director shall notify the individual of
this fact in writing. The Director's decision is final and not subject
to further review or appeal.
Sec. 710.7 Application of the Adjudicative Guidelines.
(a) The decision on an access authorization request is a
comprehensive, commonsense judgment, made after consideration of all
relevant information, favorable and 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.
(b) All such determinations shall be based upon application of the
Adjudicative Guidelines, or any successor national standard issued
under the authority of the President.
(c) Each Adjudicative Guideline sets forth a series of concerns
that may create a doubt regarding an individual's eligibility for
access authorization. In resolving these concerns, all DOE officials
involved in the decision-making process shall consider: The nature,
extent, and seriousness of the conduct; the circumstances surrounding
the conduct, to include knowledgeable participation; the frequency and
recency of the conduct; the age and maturity of the individual at the
time of the conduct; the voluntariness of participation; the absence or
presence of rehabilitation or reformation and other pertinent
behavioral changes; the motivation for the conduct; the potential for
pressure, coercion, exploitation, or duress; the likelihood of
continuation or recurrence; and other relevant and material factors.
(d) If the reports of investigation of an individual or other
reliable information tend to establish the validity and significance of
one or more areas of concern as set forth in the Adjudicative
Guidelines, such information shall be regarded as derogatory and create
a question as to the individual's access authorization eligibility.
Absent any derogatory information, a favorable determination will be
made as to access authorization eligibility.
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 an interview with the individual, or other
appropriate actions 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, the Local Director of Security shall
submit the matter to the Manager with a recommendation that authority
be obtained to process the individual's case under administrative
review procedures set forth in this part.
(b) If the Manager agrees that unresolved derogatory information is
present and that appropriate attempts to resolve such derogatory
information have been unsuccessful, the Manager shall notify the
Director of the proposal to conduct an administrative review
proceeding, accompanied by an explanation of the security concerns and
a duplicate Personnel Security File. If the Manager believes that the
derogatory information has been favorably resolved, the Manager shall
direct that access authorization be granted for the individual. The
Manager may also direct the Local Director of Security to obtain
additional information 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.
(c) Upon receipt of the Manager's notification, the Director shall
review the matter and confer with the Manager on:
(1) The institution of administrative review proceedings set forth
in Sec. Sec. 710.20 through 710.30;
(2) The granting of access authorization; or
(3) Other actions as the Director deems appropriate.
(d) The Director shall act pursuant to one of these options within
30 calendar days of receipt of the Manager's notification unless an
extension is granted by the Deputy Associate Under Secretary for
Environment, Health, Safety and Security.
Sec. 710.9 Suspension of access authorization.
(a) If derogatory information is received, the Local Director of
Security shall authorize action(s), to be taken on an expedited basis,
to resolve the question pursuant to Sec. 710.8(a). 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 the recommendation that the
individual's access authorization be suspended pending the final
determination resulting from the procedures set forth in this part.
(b) If the information received is determined to represent an
immediate threat to national security or to the safety or security of a
DOE facility or employee, or is determined to be so serious in nature
that action(s) to resolve the matter as set forth in Sec. 710.8(b) are
not practical or advisable, the Local Director of Security shall
immediately 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 set forth in this part. The
Manager shall either authorize the immediate suspension of access
authorization, or shall direct the Local Director of Security to take
action(s) as set forth in Sec. 710.8(b), in an expedited manner, to
resolve the matter.
(c) The Manager shall, within two working days of receipt of the
recommendation from the Local Director of Security to suspend the
individual's DOE access authorization:
(1) Approve the suspension of access authorization; or
(2) Direct the continuation of access authorization, or
(3) Take or direct other such action(s) as the Manager deems
appropriate.
(d) Upon suspension of an individual's access authorization
pursuant to paragraph (c)(1) of this section, the individual, the
individual's employer, any other DOE office or program having an access
authorization interest in the individual, and, if known, any other
government agency where the individual holds an access authorization,
security clearance, or access approval, or to which the DOE has
certified the individual's DOE access authorization, shall be notified
immediately in writing. The appropriate DOE database for tracking
access authorizations and related actions shall also be updated.
Notification to the individual shall reflect, in general terms, the
reason(s) why the suspension has been affected. Pending final
determination of the individual's eligibility for access authorization
from the operation of the procedures set forth in this part, the
individual shall not be afforded access to classified matter, special
nuclear material, or unescorted access to security areas that require
the individual to possess a DOE access authorization.
(e) Written notification to the individual shall include, if the
individual is a Federal employee, notification that if the individual
believes that the action to suspend his/her access authorization was
taken as
[[Page 22927]]
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 appeal this matter directly to the DOE Office of the Inspector
General. Such an appeal shall have no impact upon the continued
processing of the individual's access authorization eligibility under
this part.
(f) Following the decision to suspend an individual's DOE access
authorization pursuant to paragraph (c)(1) of this section, the Manager
shall immediately notify the Director in writing of the action and the
reason(s) therefor. In addition, the Manager, within 10 calendar days
of the date of suspension (unless an extension of time is approved by
the Director), shall notify the Director in writing of his/her proposal
to conduct an administrative review proceeding, accompanied by an
explanation of its basis and a duplicate Personnel Security File.
(g) Upon receipt of the Manager's notification, the Director shall
review the matter and confer with the Manager on:
(1) The institution of administrative review procedures set forth
in Sec. Sec. 710.20 through 710.30; or
(2) The reinstatement of access authorization; or
(3) Other actions as the Director deems appropriate.
(h) The Director shall act pursuant to one of these options within
30 calendar days of the receipt of the Manager's notification unless an
extension is granted by the Deputy Associate Under Secretary for
Environment, Health, Safety and Security.
Subpart C--Administrative Review
Sec. 710.20 Purpose of Administrative Review.
These procedures govern the conduct of the administrative review of
questions concerning an individual's eligibility for access
authorization when it is determined that such questions cannot be
favorably resolved by interview or other action.
Sec. 710.21 Notice to the individual.
(a) Unless an extension is authorized in writing by the Director,
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 the General Counsel for Headquarters
cases. Where practicable, the letter shall be delivered to the
individual in person.
(b) The letter shall state:
(1) That reliable information in the possession of DOE has created
a substantial doubt concerning the individual's eligibility for access
authorization.
(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.
(3) That the individual has the option to have the substantial
doubt regarding eligibility for access authorization resolved in one of
two ways:
(i) By the Manager, without a hearing, on the basis of the existing
information in the case; or
(ii) By personal appearance before an Administrative Judge (a
``hearing'').
(4) That, if the individual desires a hearing, the individual must,
within 20 calendar days of the date of receipt of the notification
letter, make a written request for a hearing to the Manager from whom
the letter was received.
(5) That the individual may also file with the Manager the
individual's written answer to the reported information which raises
the question of the individual's eligibility for access authorization,
and that, if the individual requests a hearing without filing a written
answer, the request shall be deemed a general denial of all of the
reported information.
(6) That, if the individual so requests, a hearing shall be
scheduled before an Administrative Judge, with due regard for the
convenience and necessity of the parties or their representatives, for
the purpose of affording the individual an opportunity of supporting
his eligibility for access authorization. The Administrative Judge
shall decide whether the hearing will be conducted via video
teleconferencing.
(7) That, if a hearing is requested, the individual will have the
right to appear personally before an Administrative Judge or, at the
discretion of the Administrative Judge, via video teleconferencing; to
present evidence in his/her own behalf, through witnesses, or by
documents, or both; and, subject to the limitations set forth in Sec.
710.26(g), to be present during the entire hearing and be accompanied,
represented, and advised by counsel or other representative of the
individual's choosing and at the individual's own expense at every
stage of the proceedings. Such representative or counsel, if
applicable, shall be identified in writing to the Administrative Judge
and DOE Counsel and authorized by the individual to receive all
correspondence, transcripts and other documents pertaining to the
proceedings under this part.
(8) That the individual's failure to file a timely written request
for a hearing before an Administrative Judge in accordance with
paragraph (b)(4) of this section, unless time deadlines are extended
for good cause, shall be considered as a relinquishment by the
individual of the right to a hearing provided in this part, and that in
such event a final decision to deny or revoke the individual's access
authorization shall be made by the Manager.
(9) That in any proceedings under this subpart DOE Counsel will
participate on behalf of and representing DOE and that any statements
made by the individual to DOE Counsel may be used in subsequent
proceedings;
(10) The individual's access authorization status until further
notice;
(11) 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 Act and Privacy Act;
(12) If applicable, that if the individual is currently the subject
of criminal charges for a felony offense or an offense punishable by
imprisonment of one year or more, the individual must elect either to
continue with the Administrative Review process and have the
substantial doubt regarding eligibility for access authorization
resolved by the Manager or by a hearing, or to withdraw from the
Administrative Review process.
(i) If the individual elects to continue with the Administrative
Review process a determination as to the individual's access
authorization shall be made by the Manager or by an Administrative
Judge via a hearing. The individual will be expected to participate
fully in the process. Any refusal to cooperate, answer all questions,
or provide requested information may prevent DOE from reaching an
affirmative finding required for granting or continuing access
authorization.
(ii) If the individual elects to withdraw from the Administrative
Review process, the individual's access authorization shall be
administratively withdrawn. Such action shall be taken in accordance
with applicable procedures set forth in pertinent Departmental
directives. Any future requests for access authorization for the
individual must be accompanied by documentary evidence of resolution of
the criminal charges.
[[Page 22928]]
(iii) The individual must, within 20 calendar days of receipt of
the notification letter, indicate in writing his/her decision to
continue or to withdraw from the Administrative Review process. Such
notification must be made to the Manager from whom the notification
letter was received.
(c) The notification letter referenced in paragraph (b) of this
section shall also:
(1) Include a copy of this part, and
(2) For Federal employees only, 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 appeal this matter directly to the DOE Office of the Inspector
General. Such an appeal shall have no impact upon the continued
processing of the individual's access authorization eligibility under
this part.
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 an Administrative
Judge 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 an Administrative Judge; or
(3) The Administrative Judge 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, 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 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 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. 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, the individual may file a written request for a review of the
Manager's initial decision, through the Director, to the DOE
Headquarters Appeal Panel (Appeal Panel);
(3) That the Director 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 and not subject to further
review or appeal.
Sec. 710.23 Extensions of time by the manager.
The Manager may, for good cause shown, at the written request of
the individual, extend the time for filing a written request for a
hearing, and/or the time for filing a written answer to the matters
contained in the notification letter. The Manager shall notify the
Director, in writing, when such extensions have been approved.
Sec. 710.24 Appointment of DOE Counsel.
(a) Upon receipt from the individual of a written request for a
hearing, a DOE attorney shall forthwith be assigned by the Manager to
act as DOE Counsel.
(b) DOE Counsel is authorized to consult directly with the
individual if he/she is not represented by counsel, or with the
individual's counsel or other representative if so represented, to
clarify issues and reach stipulations with respect to testimony and
contents of documents and physical evidence. Such stipulations shall be
binding upon the individual and the DOE Counsel for the purposes of
this part.
Sec. 710.25 Appointment of Administrative Judge; prehearing
conference; commencement of hearings.
(a) Upon receipt of a request for a hearing, the Manager shall in a
timely manner transmit that request to the Office of Hearings and
Appeals, and identify the DOE Counsel. The Manager shall at the same
time transmit a copy of the notification letter and the individual's
response to the Office of Hearings and Appeals.
(b) Upon receipt of the hearing request from the Manager, the
Director, Office of Hearings and Appeals, shall appoint, as soon as
practicable, an Administrative Judge.
(c) Immediately upon appointment, the Administrative Judge shall
notify the individual and DOE Counsel of his/her identity and the
address to which all further correspondence should be sent.
(d) The Administrative Judge shall have all powers necessary to
regulate the conduct of proceedings under this part, including, but not
limited to, establishing a list of persons to receive service of
papers, issuing subpoenas for witnesses to attend the hearing or for
the production of specific documents or physical evidence,
administering oaths and affirmations, ruling upon motions, receiving
evidence, regulating the course of the hearing, disposing of procedural
requests or similar matters, and taking other actions consistent with
the regulations in this part. Requests for subpoenas shall be liberally
granted except where the Administrative Judge finds that the issuance
of subpoenas would result in evidence or testimony that is repetitious,
incompetent, irrelevant, or immaterial to the issues in the case. The
Administrative Judge may take sworn testimony, sequester witnesses, and
control the dissemination or reproduction of any record or testimony
taken pursuant to this part, including correspondence, or other
relevant records or physical evidence including, but not limited to,
information retained in computerized or other automated systems in
possession of the subpoenaed person.
(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. Hearings will normally be held at
or near the relevant DOE facility, unless the Administrative Judge
determines that another location would be more appropriate. Normally
the location for the hearing will be selected for the convenience of
all participants. 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
will usually be conducted by telephone.
(g) Hearings shall commence within 60 calendar days from the date
the individual's request for a hearing is
[[Page 22929]]
received by the Office of Hearings and Appeals. Any extension of the
hearing date past 60 calendar days from the date the request for a
hearing is received by the Office of Hearings and Appeals shall be
decided by the Director, Office of Hearings and Appeals.
Sec. 710.26 Conduct of hearings.
(a) In all hearings conducted under this part, the individual shall
have the right to be represented by a person of his/her own choosing,
at the individual's own expense. The individual is responsible for
producing witnesses in his/her own behalf, including requesting the
issuance of subpoenas, if necessary, or presenting testimonial,
documentary, or physical evidence before the Administrative Judge to
support the individual's defense to the derogatory information
contained in the notification letter. With the exception of procedural
or scheduling matters, the Administrative Judge is prohibited from
initiating or otherwise engaging in ex parte discussions about the case
during the pendency of proceedings under this part.
(b) Unless the Administrative Judge finds good cause for deferring
issuance of a decision, in the event that the individual unduly delays
the hearing, such as by failure to meet deadlines set by the
Administrative Judge, the record shall be closed, and an initial
decision shall be made by the Manager on the basis of the record in the
case per Sec. 710.22(a)(3).
(c) Hearings shall be open only to DOE Counsel, duly authorized
representatives of DOE, the individual and the individual's counsel or
other representatives, and such other persons as may be authorized by
the Administrative Judge. Unless otherwise ordered by the
Administrative Judge, witnesses shall testify in the presence of the
individual but not in the presence of other witnesses.
(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.
The proponent of a witness shall conduct the direct examination of that
witness. All witnesses shall be subject to cross-examination, except as
provided in Sec. 710.26(l). Whenever reasonably possible, testimony
shall be given in person.
(e) The Administrative Judge may ask the witnesses any questions
which the Administrative Judge deems appropriate to assure the fullest
possible disclosure of relevant and material facts.
(f) During the course of the hearing, the Administrative Judge
shall rule on all objections raised.
(g) In the event it appears during the course of the hearing that
classified matter may be disclosed, it shall be the duty of the
Administrative Judge to assure that disclosure is not made to persons
who are not authorized to receive it, and take other appropriate
measures.
(h) Formal rules of evidence shall not apply, but the Federal Rules
of Evidence may be used as a guide for procedures and principles
designed to assure production of the most probative evidence available.
The Administrative Judge shall admit into evidence any matters, either
oral or written, which are material, relevant, and competent in
determining issues involved, including the testimony of responsible
persons concerning the integrity of the individual. In making such
determinations, the utmost latitude shall be permitted with respect to
relevancy, materiality, and competency. The Administrative Judge may
also exclude evidence which is incompetent, immaterial, irrelevant, or
unduly repetitious. Every reasonable effort shall be made to obtain the
best evidence available. Subject to Sec. Sec. 710.26(l), 710.26(m),
710.26(n) and 710.26(o), hearsay evidence may, at the discretion of the
Administrative Judge and for good cause show, be admitted without
strict adherence to technical rules of admissibility and shall be
accorded such weight as the Administrative Judge deems appropriate.
(i) Testimony of the individual and witnesses shall be given under
oath or affirmation. Attention of the individual and each witness shall
be directed to 18 U.S.C. 1001 and 18 U.S.C. 1621.
(j) The Administrative Judge shall endeavor to obtain all the facts
that are reasonably available in order to arrive at a decision. If,
prior to or during the proceedings, in the opinion of the
Administrative Judge, the derogatory information in the notification
letter is not sufficient to address all matters into which inquiry
should be directed, the Administrative Judge may recommend to the
Manager concerned that, in order to give more adequate notice to the
individual, the notification letter should be amended. Any amendment
shall be made with the concurrence of the local Office of Chief Counsel
or the Office of the General Counsel in Headquarters cases. If, in the
opinion of the Administrative Judge, the circumstances of such
amendment may involve undue hardship to the individual because of
limited time to respond to the new derogatory information in the
notification letter, an appropriate adjournment shall be granted upon
the request of the individual.
(k) A written or oral statement of a person relating to the
characterization in the notification letter of any organization or
person other than the individual may be received and considered by the
Administrative Judge without affording the individual an opportunity to
cross-examine the person making the statement on matters relating to
the characterization of such organization or person, provided the
individual is given notice that such a statement has been received and
may be considered by the Administrative Judge, and is informed of the
contents of the statement, provided such notice is not prohibited by
paragraph (g) of this section.
(l) Any oral or written statement adverse to the individual
relating to a controverted issue may be received and considered by the
Administrative Judge without affording an opportunity for cross-
examination in either of the following circumstances:
(1) The head of the agency supplying the statement certifies that
the person who furnished the information is a confidential informant
who has been engaged in obtaining intelligence information for the
Government and that disclosure of the informant's identity would be
substantially harmful to the national interest;
(2) The Secretary or the Secretary's special designee for that
particular purpose has preliminarily determined, after considering
information furnished by the investigative agency as to the reliability
of the person and the accuracy of the statement concerned, that:
(i) The statement concerned appears to be reliable and material;
and
(ii) Failure of the Administrative Judge to receive and consider
such statement would, in view of the access sought to classified matter
or special nuclear material, be substantially harmful to the national
security and that the person who furnished the information cannot
appear to testify:
(A) Due to death, severe illness, or similar cause, in which case
the identity of the person and the information to be considered shall
be made available to the individual, or
[[Page 22930]]
(B) Due to some other specified cause determined by the Secretary
to be good and sufficient.
(m) Whenever procedures under paragraph (l) of this section are
used:
(1) The individual shall be given a summary or description of the
information which shall be as comprehensive and detailed as the
national interest permits, and
(2) Appropriate consideration shall be accorded to the fact that
the individual did not have an opportunity to cross-examine such
person(s).
(n) Records compiled in the regular course of business, or other
evidence other than investigative reports obtained by DOE, may be
received and considered by the Administrative Judge subject to rebuttal
without authenticating witnesses, provided that such information has
been furnished to DOE by an investigative agency pursuant to its
responsibilities in connection with assisting the Secretary to
safeguard classified matter or special nuclear material.
(o) Records compiled in the regular course of business, or other
evidence other than investigative reports, relating to a controverted
issue which, because they are classified, may not be inspected by the
individual, may be received and considered by the Administrative Judge,
provided that:
(1) The Secretary or the Secretary's special designee for that
particular purpose has made a preliminary determination that such
evidence appears to be material;
(2) The Secretary or the Secretary's special designee for that
particular purpose has made a determination that failure to receive and
consider such evidence would, in view of the access sought to
classified matter or special nuclear material, be substantially harmful
to the national security; and
(3) To the extent that national security permits, a summary or
description of such evidence is made available to the individual. In
every such case, information as to the authenticity and accuracy of
such evidence furnished by the investigative agency shall be
considered.
(p) The Administrative Judge may request the Local Director of
Security to arrange for additional investigation on any points which
are material to the deliberations of the Administrative Judge and which
the Administrative Judge believes need further investigation or
clarification. In this event, the Administrative Judge shall set forth
in writing those issues upon which more evidence is requested,
identifying where possible persons or sources from which the evidence
should be sought. The Local Director of Security shall make every
effort through appropriate sources to obtain additional information
upon the matters indicated by the Administrative Judge.
(q) A written transcript of the entire hearing shall be made and,
except for portions containing classified matter, a copy of such
transcript shall be furnished to the individual without cost.
(r) Whenever information is made a part of the record under the
exceptions authorized by paragraphs (l) or (o) of this section, the
record shall contain certificates evidencing that the determinations
required therein have been made.
Sec. 710.27 Administrative Judge's decision.
(a) The Administrative Judge shall carefully consider the entire
record of the proceeding and shall render a decision, within 30
calendar days of the receipt of the hearing transcript, as to whether
granting or restoring the individual's access authorization would not
endanger the common defense and security and would be clearly
consistent with the national interest. In resolving a question
concerning the eligibility of an individual for access authorization
under these procedures, the Administrative Judge shall consider the
factors stated in Sec. 710.7(c) to determine whether the findings will
be favorable or unfavorable.
(b) In reaching the findings, the Administrative Judge shall
consider the demeanor of the witnesses who have testified at the
hearing, the probability or likelihood of the truth of their testimony,
their credibility, and the authenticity and accuracy of documentary
evidence, or lack of evidence on any material points in issue. If the
individual is, or may be, handicapped by the non-disclosure to the
individual of undisclosed information or by lack of opportunity to
cross-examine confidential informants, the Administrative Judge shall
take that fact into consideration. The possible adverse impact of the
loss of the individual's access authorization upon the DOE program in
which the individual works shall not be considered by the
Administrative Judge.
(c) The Administrative Judge shall make specific findings based
upon the record as to the validity of each instance of derogatory
information contained in the notification letter and the significance
which the Administrative Judge attaches to it. These findings shall be
supported fully by a statement of reasons which constitute the basis
for such findings.
(d) The Administrative Judge's decision shall be based on the
Administrative Judge's findings of fact. If, after considering all of
the factors set forth in Sec. 710.7(c) in light of the Adjudicative
Guidelines, the Administrative Judge 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 Administrative Judge shall render a favorable
decision; otherwise, the Administrative Judge shall render an
unfavorable decision. Within 15 calendar days of the Administrative
Judge's written decision, the Administrative Judge shall provide copies
of the decision and the administrative record to the Manager and the
Director.
Sec. 710.28 Action on the Administrative Judge'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, the Manager shall:
(1) Notify the individual in writing of the Administrative Judge'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 in paragraph (c) of this
section if the decision is favorable to the individual; and
(4) Provide the individual and/or his/her counsel or other
representative a copy of the Administrative Judge's decision and the
administrative record.
(b) If the Administrative Judge's decision is unfavorable to the
individual:
(1) The individual may file with the Director 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 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 Administrative Judge's decision shall be final and not
subject to review or appeal if the individual does not:
[[Page 22931]]
(i) 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
review of the decision by the Appeal Panel in accordance with
paragraphs (b)(1) or (b)(2) of this section, or
(ii) File a written request for review of the decision by the
Appeal Panel after having been granted an extension of time to do so.
(c) If the Administrative Judge's decision is favorable to the
individual:
(1) The Manager, with the concurrence of the Director, shall grant
or reinstate the individual's access authorization within 30 calendar
days of the Administrative Judge's decision becoming final, or
(2) The Manager or the Director may file a written request with the
Deputy Associate Under Secretary for Environment, Health, Safety and
Security for review of the decision by the Appeal Panel, along with
statement required by paragraph (e) of this section, within 30 calendar
days of the individual's receipt of the Manager's notice.
(3) The Deputy Associate Under Secretary for Environment, Health,
Safety and Security may, for good cause shown, extend the time for
filing a request for review of the decision by the Appeal Panel at the
request of the Manager or Director, provided the request for an
extension of time is filed by the Manager or Director within 30
calendar days of the receipt of the Manager's notice;
(4) The Administrative Judge's decision shall constitute final
action, and not be subject to review or appeal, if the Manager or
Director does not:
(i) File a written request for review of the decision by the Appeal
Panel or for an extension of time to file a written request for review
of the decision by the Appeal Panel in accordance with paragraphs
(c)(2) or (c)(3) of this section, or
(ii) File a written request for a review of the decision by the
Appeal Panel after having been granted an extension of time to do so.
(d) A copy of any request for review of the individual's case by
the Appeal Panel filed by the Manager or the Director shall be provided
to the individual by the Manager.
(e) The party filing a request for review by the Appeal Panel shall
include with the request a statement identifying the issues upon which
the appeal is based. A copy of the request and 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.
Sec. 710.29 Final appeal process.
(a) The Appeal Panel shall be convened by the Deputy Associate
Under Secretary for Environment, Health, Safety and Security to review
and render a final decision in access authorization eligibility cases
referred by the individual, the Manager, or the Director in accordance
with Sec. Sec. 710.22 or 710.28.
(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 Deputy Associate Under Secretary for
Environment, Health, Safety and Security shall serve as a permanent
member of the Appeal Panel and as the Appeal Panel Chair. The second
member of the Appeal Panel shall be a DOE attorney designated by the
General Counsel. The head of the DOE Headquarters element which 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 shall be
designated by the Chair. 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 Sec. Sec. 710.22 and 710.28, the individual, or his/
her counsel or other representative, shall identify the issues upon
which the appeal is based. The written request, and any response, shall
be made a part of the administrative record. The Director shall provide
staff support to the Appeal Panel as requested by the Chair.
(d) Within 15 calendar days of the receipt of the request for
review of a case by the Appeal Panel, the Chair shall arrange for the
Appeal Panel members to convene and review the administrative record or
provide a copy of the administrative record to the Appeal Panel members
for their independent review.
(e) The Appeal Panel shall consider only that evidence and
information in the administrative record at the time of the Manager's
or the Administrative Judge's initial decision.
(f) Within 45 calendar days of receipt of the administrative
record, the Appeal Panel shall render a final decision in the case. 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 Chair shall grant or reinstate the
individual's access authorization; otherwise, the Chair shall deny or
revoke the individual's access authorization. The Appeal Panel's
written decision shall be made a part of the administrative record and
is not subject to further review or appeal.
(g) The Chair, through the Director, shall inform the individual in
writing, as well as the individual's counsel or other 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.
Sec. 710.30 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 Sec. Sec. 710.26(l) or (o), the
Secretary may issue a final decision to deny or revoke access
authorization for the individual after personally reviewing the
administrative record and any additional material provided by the
Chair. The Secretary's authority may, in accordance with applicable
provisions of Executive Order 12968, be delegated to the Deputy
Secretary where the effected individual is a Federal employee. The
Secretary's authority, in accordance with applicable provisions of
Executive Order 10865, may not be delegated where the effected
individual is a contractor employee. This authority may be exercised
only when the Secretary determines that the circumstances described in
Sec. 710.26(l) or (o) are present, and such determination shall be
final and not subject to review or appeal.
(b) Whenever the Secretary issues a final decision as to an
individual's access authorization eligibility, the individual and other
concerned parties shall be notified in writing by the Chair of that
decision and of the Secretary's findings with respect to each instance
of derogatory information 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 classified matter or special
nuclear material.
Sec. 710.31 Reconsideration of access eligibility.
(a) If, pursuant to the procedures set forth in Sec. Sec. 710.20
through 710.30 the Manager, Administrative Judge, Appeal Panel, or the
Secretary has made a decision granting or reinstating an individual's
access authorization,
[[Page 22932]]
eligibility shall be reconsidered as a new administrative review under
the procedures set forth in this part when previously unconsidered
derogatory information is identified, or the individual violates a
commitment upon which the DOE previously relied to favorably resolve an
issue of access authorization eligibility.
(b) If, pursuant to the procedures set forth in Sec. Sec. 710.20
through 710.31, the Manager, Administrative Judge, Appeal Panel, or the
Secretary has made a decision denying or revoking the individual's
access authorization, eligibility may be reconsidered only when the
individual so requests in writing, when there is a bona fide offer of
employment requiring access authorization, and when there is either
material and relevant new evidence which the individual and the
individual's representatives were without fault in failing to present
earlier, or convincing evidence of rehabilitation or reformation.
(1) A request for reconsideration shall be accepted when a minimum
of one year has elapsed since the date of the Manager's, Administrative
Judge's, Appeal Panel's or Secretary's final decision, or of a previous
denial of reconsideration. Requests must be submitted in writing to the
Deputy Associate Under Secretary for Environment, Health, Safety and
Security, and must include an affidavit setting forth in detail the new
evidence or evidence of rehabilitation or reformation.
(2) If the Deputy Associate Under Secretary for Environment,
Health, Safety and Security approves the request for reconsideration of
an individual's access authorization eligibility, he/she shall so
notify the individual, and shall direct the Manager to take appropriate
actions to determine whether the individual is eligible for access
authorization.
(3) If the Deputy Associate Under Secretary for Environment,
Health, Safety and Security denies the request for reconsideration of
an individual's access authorization eligibility, he/she shall so
notify the individual in writing. Such a denial is final and not
subject to review or appeal.
(4) If, pursuant to the provisions of Sec. 710.31(2), the Manager
determines the individual is eligible for access authorization, the
Manager shall grant access authorization.
(5) If, pursuant to the provisions of Sec. 710.31(2), the Manager
determines the individual remains ineligible for access authorization,
the Manager shall so notify the Director in writing. If the Director
concurs, the Director shall notify the individual in writing. This
decision is final and not subject to review or appeal. If the Director
does not concur, the Director shall confer with the Manager on further
actions.
(6) Determinations as to eligibility for access authorization
pursuant to paragraphs (f) or (g) 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 (d) 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.
Subpart D--Miscellaneous
Sec. 710.32 Terminations.
(a) If the individual is no longer an applicant for access
authorization or no longer requires access authorization, the
procedures of this part 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. Where
the procedures of this part have been terminated pursuant to this
paragraph after an unfavorable initial agency decision as to the
individual's access authorization eligibility has been rendered, any
subsequent request for access authorization for the individual will be
processed as a request for a review of the initial agency decision by
the Appeal Panel and a final agency decision will be rendered pursuant
to Sec. 710.29, unless a minimum of one year has elapsed since the
date of the initial agency decision.
(b) With regard to applicants (individuals for whom DOE has not yet
approved access authorization), DOE may administratively terminate
processing an application for access authorization under the following
circumstances:
(1) If the applicant is currently the subject of criminal
proceedings for a felony offense or an offense that is punishable by a
term of imprisonment of one year or longer, or is awaiting or serving a
form of probation, suspended or deferred sentencing, or parole. Once
all judicial proceedings on the criminal charges have been finally
resolved, and the term (if any) of imprisonment, probation, or parole
has been completed, DOE processing of a request for access
authorization shall resume upon receipt by DOE of a written request
therefor, provided that the individual has a bona fide offer of
employment requiring access authorization.
(2) If sufficient information about the individual's background
cannot be obtained to meet the investigative scope and extent
requirements for the access authorization requested.
(c) If an individual believes that the provisions of paragraph (b)
of this section have been inappropriately applied, a written appeal may
be filed with the Director within 30 calendar days of the date the
individual was notified of the action. The Director shall act on the
written appeal as described in Sec. 710.6(c).
Sec. 710.33 Time frames.
Statements of time established for processing aspects of a case
under this part are the agency's desired time frames in implementing
the procedures set forth in this part. However, failure to meet the
time frames shall have no impact upon the final disposition of an
access authorization by a Manager, Administrative Judge, the Appeal
Panel, or the Secretary, and shall confer no procedural or substantive
rights upon an individual whose access authorization eligibility is
being considered.
Sec. 710.34 Acting officials.
Except for the Secretary, the responsibilities and authorities
conferred in this part 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, or the General Counsel. The responsibilities and
authorities of the Deputy Associate Under Secretary for Environment,
Health, Safety and Security may be exercised by persons in senior
security-related positions within the Office of Environment, Health,
Safety and Security who have been designated in writing as acting for,
or in the temporary capacity of, the Deputy Associate Under Secretary
for Environment, Health, Safety and Security, with the approval of the
Associate Under Secretary for Environment, Health, Safety and Security.
Appendix A--Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (December 30, 2005)
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
[[Page 22933]]
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. Government departments and agencies may also choose
to apply these guidelines to analogous situations regarding persons
being considered for access to other types of protected information.
Decisions regarding eligibility for access to classified
information take into account factors that could cause a conflict of
interest and place a person in the position of having to choose
between his or her commitment to the United States, including the
commitment to protect classified information, and any other
compelling loyalty. Access decisions also take into account a
person's reliability, trustworthiness and ability to protect
classified information. No coercive policing could replace the self-
discipline and integrity of the person entrusted with the nation's
secrets as the most effective means of protecting them. When a
person's life history shows evidence of unreliability or
untrustworthiness, questions arise whether the person can be relied
on and trusted to exercise the responsibility necessary for working
in a secure environment where protecting classified information is
paramount.
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 an acceptable security risk. Eligibility for access to
classified information is predicated upon the individual meeting
these personnel security guidelines. The adjudication 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 extent to which participation is voluntary;
(6) The presence or absence of rehabilitation and other
permanent 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 concerning personnel being considered for
access to classified information will be resolved in favor of the
national security.
(c) The ability to develop specific thresholds for action under
these guidelines is limited by the nature and complexity of human
behavior. 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 judgment based upon careful consideration of
the following guidelines, each of which is to be evaluated in the
context of the whole person.
(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: Psychological Conditions;
(10) GUIDELINE J: Criminal Conduct;
(11) GUIDELINE K: Handling Protected Information;
(12) GUIDELINE L: Outside Activities;
(13) GUIDELINE M: Use 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 unstable behavior. Notwithstanding
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. 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, support of, training to commit, or advocacy
of any act of sabotage, espionage, treason, terrorism, or sedition
against the United States of America;
(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, threaten, or use force or violence, or use any other
illegal or unconstitutional means, in an effort to:
(1) Overthrow or influence the government of the United States
or any state or local government;
(2) Prevent Federal, state, or local government personnel from
performing their official duties;
(3) Gain retribution for perceived wrongs caused by the Federal,
state, or local government;
(4) 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 involvement or association with such activities occurred
under such unusual circumstances, or so much times has elapsed, that
it is unlikely to recur and does not cast doubt on the individual's
current reliability, trustworthiness, or loyalty.
GUIDELINE B: FOREIGN INFLUENCE
6. The Concern. Foreign contacts and interests may be a security
concern if the individual has divided loyalties or foreign financial
interests, may be manipulated or induced to help a foreign person,
group, organization, or government in a way that is not in U.S.
interests, or is vulnerable to pressure or coercioon by any foreign
interest. Adjudication under this Guideline can and should consider
the identity of the foreign country in which the foreign contact or
financial interest is located, including, but not limited to, such
considerations as whether the foreign country is known to target
United States citizens to obtain protected information and/or is
associated with a risk of terrorism.
7. Conditions that could raise a security concern and may be
disqualifying include:
(a) Contact with a foreign family member, business or
professional associate, friend, or other person who is a citizen of
or resident in a foreign country if that contact creates a
heightened risk of foreign exploitation, inducement, manipulation,
pressure, or coercion;
[[Page 22934]]
(b) Connections to a foreign person, group, government, or
country that create a potential conflict of interest between the
individual's obligation to protect sensitive information or
technology and the individual's desire to help a foreign person,
group, or country by providing that information;
(c) Counterintelligence information, that may be classified,
indicates that the individual's access to protected information may
involve unacceptable risk to national security;
(d) Sharing living quarters with a person or persons, regardless
of citizenship status, if that relationship creates a heightened
risk of foreign inducement, manipulation, pressure, or coercion;
(e) A substantial business, financial, or property interest in a
foreign country, or in any foreign-owned or foreign-operated
business, which could subject the individual to heightened risk of
foreign influence or exploitation;
(f) Failure to report, when required, association with a foreign
national;
(g) Unauthorized association with a suspected or known agent,
associate, or employee of a foreign intelligence service;
(h) Indications that representatives or nationals from a foreign
country are acting to increase the vulnerability of the individual
to possible future exploitation, inducement, manipulation, pressure,
or coercion;
(i) Conduct, especially while traveling outside the U.S., which
may make the individual vulnerable to exploitation, pressure, or
coercion by a foreign person, group, government, or country.
8. Conditions that could mitigate security concerns include:
(a) The nature of the relationships with foreign persons, the
country in which these persons are located, or the positions or
activities of those persons in that country are such that it is
unlikely the individual will be placed in a position of having to
choose between the interests of a foreign individual, group,
organization, or government and the interests of the U.S.;
(b) There is no conflict of interest, either because the
individual's sense of loyalty or obligation to the foreign person,
group, government, or country is so minimal, or the individual has
such deep and longstanding relationships and loyalties in the U.S.,
that the individual can be expected to resolve any conflict of
interest in favor of the U.S. interest;
(c) Contact or communication with foreign citizens is so casual
and infrequent that there is little likelihood that it could create
a risk for foreign influence or exploitation;
(d) The foreign contacts and activities are on U.S. Government
business or are approved by the cognizant security authority;
(e) The individual has promptly complied with existing agency
requirements regarding the reporting of contacts, requests, or
threats from persons, groups, or organizations from a foreign
country;
(f) The value or routine nature of the foreign business,
financial, or property interests is such that they are unlikely to
result in a conflict and could not be used effectively to influence,
manipulate, or pressure the individual.
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) Exercise of any right, privilege or obligation of foreign
citizenship after becoming a U.S. citizen or through the foreign
citizenship of a family member. This includes but is not limited to:
(1) Possession of a current foreign passport;
(2) Military service or a willingness to bear arms for a foreign
country;
(3) Accepting educational, medical, retirement, social welfare,
or other such benefits from a foreign country;
(4) Residence in a foreign country to meet citizenship
requirements;
(5) Using foreign citizenship to protect financial or business
interests in another country;
(6) Seeking or holding political office in a foreign country;
(7) Voting in a foreign election;
(b) Action to acquire or obtain recognition of a foreign
citizenship by an American citizen;
(c) Performing or attempting to perform duties, or otherwise
acting, so as to serve the interests of a foreign person, group,
organization, or government in conflict with the national security
interest;
(d) Any statement or action that shows allegiance to a country
other than the United States: For example, declaration of intent to
renounce United States citizenship; renunciation of United States
citizenship.
11. Conditions that could mitigate security concerns include:
(a) Dual citizenship is based solely on parents' citizenship or
birth in a foreign country;
(b) The individual has expressed a willingness to renounce dual
citizenship;
(c) Exercise of the rights, privileges, or obligations of
foreign citizenship occurred before the individual became a U.S.
citizen or when the individual was a minor;
(d) Use of a foreign passport is approved by the cognizant
security authority;
(e) The passport has been destroyed, surrendered to the
cognizant security authority, or otherwise invalidated;
(f) The vote in a foreign election was encouraged by the United
States Government.
GUIDELINE D: SEXUAL BEHAVIOR
12. The Concern. Sexual behavior that involves a criminal
offense, indicates a personality or emotional disorder, reflects
lack of judgment or discretion, or which may subject the individual
to undue influence or coercion, exploitation, or duress can raise
questions about an individual's reliability, trustworthiness and
ability to protect classified information. No adverse inference
concerning the standards in the Guideline may be raised solely on
the basis of the sexual orientation of the individual.
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) A pattern of compulsive, self-destructive, or high-risk
sexual behavior that the person is unable to stop or that may be
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 prior to or during adolescence and
there is no evidence of subsequent conduct of a similar nature;
(b) The sexual behavior happened so long ago, so infrequently,
or under such unusual circumstances, that it is unlikely to recur
and does not cast doubt on the individual's current reliability,
trustworthiness, or good judgment;
(c) The behavior no longer serves as a basis for coercion,
exploitation, or duress;
(d) The sexual behavior is strictly private, consensual, and
discreet.
GUIDELINE E: PERSONAL CONDUCT
15. The Concern. Conduct involving questionable judgment, lack
of candor, dishonesty, or unwillingness to comply with rules and
regulations can raise questions about an individual's reliability,
trustworthiness and ability to protect classified information. Of
special interest is any failure to provide truthful and candid
answers during the security clearance process or any other failure
to cooperate with the security clearance process.
The following will normally result in an unfavorable clearance
action or administrative termination of further processing for
clearance eligibility:
(a) Refusal, or failure without reasonable cause, to undergo or
cooperate with security processing, including but not limited to
meeting with a security investigator for subject interview,
completing security forms or releases, and cooperation with medical
or psychological evaluation;
(b) Refusal to 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) Deliberate omission, concealment, or falsification of
relevant 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;
(b) Deliberately providing false or misleading information
concerning relevant facts to an employer, investigator, security
official, competent medical authority, or other official government
representative;
(c) Credible adverse information in several adjudicative issue
areas that is not sufficient
[[Page 22935]]
for an adverse determination under any other single guideline, but
which, when considered as a whole, supports a whole-person
assessment of questionable judgment, untrustworthiness,
unreliability, lack of candor, unwillingness to comply with rules
and regulations, or other characteristics indicating that the person
may not properly safeguard protected information;
(d) Credible adverse information that is not explicitly covered
under any other guideline and may not be sufficient by itself for an
adverse determination, but which, when combined with all available
information supports a whole-person assessment of questionable
judgment, untrustworthiness, unreliability, lack of candor,
unwillingness to comply with rules and regulations, or other
characteristics indicating that the person may not properly
safeguard protected information. This includes but is not limited to
consideration of:
(1) Untrustworthy or unreliable behavior to include breach of
client confidentiality, release of proprietary information,
unauthorized release of sensitive corporate or other government
protected information;
(2) Disruptive, violent, or other inappropriate behavior in the
workplace;
(3) A pattern of dishonesty or rule violations;
(4) Evidence of significant misuse of Government or other
employer's time or resources;
(e) Personal conduct or concealment of information about one's
conduct, that creates a vulnerability to exploitation, manipulation,
or duress, such as:
(1) Engaging in activities which, if known, may affect the
person's personal, professional, or community standing, or
(2) While in another country, engaging in any activity that is
illegal in that country or that is legal in that country but illegal
in the United States and may serve as a basis for exploitation or
pressure by the foreign security or intelligence service or other
group;
(f) Violation of a written or recorded commitment made by the
individual to the employer as a condition of employment;
(g) Association with persons involved in criminal activity.
17. Conditions that could mitigate security concerns include:
(a) The individual made prompt, good-faith efforts to correct
the omission, concealment, or falsification before being confronted
with the facts;
(b) The refusal or failure to cooperate, omission, or
concealment was caused or significantly contributed to by improper
or inadequate advice of authorized personnel or legal counsel
advising or instructing the individual specifically concerning the
security clearance process. Upon being made aware of the requirement
to cooperate or provide the information, the individual cooperated
fully and truthfully;
(c) The offense is so minor, or so much time has passed, or the
behavior is so infrequent, or it happened under such unique
circumstances that it is unlikely to recur and does not cast doubt
on the individual's reliability, trustworthiness, or good judgment;
(d) The individual has acknowledged the behavior and obtained
counseling to change the behavior or taken other positive steps to
alleviate the stressors, circumstances, or factors that caused
untrustworthy, unreliable, or other inappropriate behavior, and such
behavior is unlikely to recur;
(e) The individual has taken positive steps to reduce or
eliminate vulnerability to exploitation, manipulation, or duress;
(f) Association with persons involved in criminal activities has
ceased or occurs under circumstances that do not cast doubt upon the
individual's reliability, trustworthiness, judgment, or willingness
to comply with rules and regulations.
GUIDELINE F: FINANCIAL CONSIDERATIONS
18. The Concern. Failure or inability to live within one's
means, satisfy debts, and meet financial obligations may indicate
poor self-control, lack of judgment, or unwillingness to abide by
rules and regulations, all of which can raise questions about an
individual's reliability, trustworthiness and ability to protect
classified information. An individual who is financially
overextended is at risk of having to engage in illegal acts to
generate funds. Compulsive gambling is a concern as it may lead to
financial crimes including espionage. Affluence that cannot be
explained by known sources of income is also a security concern. It
may indicate proceeds from financially profitable criminal acts.
19. Conditions that could raise a security concern and may be
disqualifying include:
(a) Inability or unwillingness to satisfy debts;
(b) Indebtedness caused by frivolous or irresponsible spending
and the absence of any evidence of willingness or intent to pay the
debt or establish a realistic plan to pay the debt.
(c) A history of not meeting financial obligations;
(d) 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;
(e) Consistent spending beyond one's means, which may be
indicated by excessive indebtedness, significant negative cash flow,
high debt-to-income ratio, and/or other financial analysis;
(f) Financial problems that are linked to drug abuse,
alcoholism, gambling problems, or other issues of security concern.
(g) Failure to file annual Federal, state, or local income tax
returns as required or the fraudulent filing of the same;
(h) Unexplained affluence, as shown by a lifestyle or standard
of living, increase in net worth, or money transfers that cannot be
explained by subject's known legal sources of income;
(i) Compulsive or addictive gambling as indicated by an
unsuccessful attempt to stop gambling, ``chasing losses'' (i.e.
increasing the bets or returning another day in an effort to get
even), concealment of gambling losses, borrowing money to fund
gambling or pay gambling debts, family conflict or other problems
caused by gambling.
20. Conditions that could mitigate security concerns include:
(a) The behavior happened so long ago, was so infrequent, or
occurred under such circumstances that it is unlikely to recur and
does not cast doubt on the individual's current reliability,
trustworthiness, or good judgment;
(b) The conditions that resulted in the financial problem were
largely beyond the person's control (e.g. loss of employment, a
business downturn, unexpected medical emergency, or a death, divorce
or separation), and the individual acted responsibly under the
circumstances;
(c) The person has received or is receiving counseling for the
problem and/or there are clear indications that the problem is being
resolved or is under control;
(d) The individual initiated a good-faith effort to repay
overdue creditors or otherwise resolve debts;
(e) The individual has a reasonable basis to dispute the
legitimacy of the past-due debt which is the cause of the problem
and provides documented proof to substantiate the basis of the
dispute or provides evidence of actions to resolve the issue;
(f) The affluence resulted from a legal source of income.
GUIDELINE G: ALCOHOL CONSUMPTION
21. The Concern. Excessive alcohol consumption often leads to
the exercise of questionable judgment or the failure to control
impulses, and can raise questions about an individual's reliability
and trustworthiness.
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,
disturbing the peace, or other incidents of concern, regardless of
whether the individual is diagnosed as an alcohol abuser or alcohol
dependent;
(b) Alcohol-related incidents at work, such as reporting for
work or duty in an intoxicated or impaired condition, or drinking on
the job, regardless of whether the individual is diagnosed as an
alcohol abuser or alcohol dependent;
(c) Habitual or binge consumption of alcohol to the point of
impaired judgment, regardless of whether the individual is diagnosed
as an alcohol abuser or alcohol dependent;
(d) Diagnosis by a duly qualified medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of alcohol abuse
or alcohol dependence;
(e) Evaluation of alcohol abuse or alcohol dependence by a
licensed clinical social worker who is a staff member of a
recognized alcohol treatment program;
(f) Relapse after diagnosis of alcohol abuse or dependence and
completion of an alcohol rehabilitation program;
(g) Failure to follow any court order regarding alcohol
education, evaluation, treatment, or abstinence.
23. Conditions that could mitigate security concerns include:
(a) So much time has passed, or the behavior was so infrequent,
or it happened
[[Page 22936]]
under such unusual circumstances that it is unlikely to recur or
does not cast doubt on the individual's current reliability,
trustworthiness, or good judgment;
(b) The individual acknowledges his or her alcoholism or issues
of alcohol abuse, provides evidence of actions taken to overcome
this problem, and has established a pattern of abstinence (if
alcohol dependent) or responsible use (if an alcohol abuser);
(c) The individual is a current employee who is participating in
a counseling or treatment program, has no history of previous
treatment and relapse, and is making satisfactory progress;
(d) The individual has successfully completed inpatient or
outpatient counseling or rehabilitation along with any required
aftercare, has demonstrated a clear and established pattern of
modified consumption or abstinence in accordance with treatment
recommendations, such as participation in meetings of Alcoholics
Anonymous or a similar organization and has received a favorable
prognosis by a duly qualified 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. Use of an illegal drug or misuse of a
prescription drug can raise questions about an individual's
reliability and trustworthiness, both because it may impair judgment
and because it raises questions about a person's ability or
willingness to comply with laws, rules, and regulations.
(a) 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
(b) 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) Testing positive for illegal drug use;
(c) Illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution; or possession of drug
paraphernalia;
(d) Diagnosis by a duly qualified medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of drug abuse or
drug dependence;
(e) Evaluation of drug abuse or drug dependence by a licensed
clinical social worker who is a staff member of a recognized drug
treatment program;
(f) Failure to successfully complete a drug treatment program
prescribed by a duly qualified medical professional;
(g) Any illegal drug use after being granted a security
clearance;
(h) Expressed intent to continue illegal drug use, or failure to
clearly and convincingly commit to discontinue drug use.
26. Conditions that could mitigate security concerns include:
(a) The behavior happened so long ago, was so infrequent, or
happened under such circumstances that it is unlikely to recur or
does not cast doubt on the individual's current reliability,
trustworthiness, or good judgment;
(b) A demonstrated intent not to abuse any drugs in the future,
such as:
(1) Dissociation from drug-using associates and contacts;
(2) Changing or avoiding the environment where drugs were used;
(3) An appropriate period of abstinence;
(4) A signed statement of intent with automatic revocation of
clearance for any violation;
(c) Abuse of prescription drugs was after a severe or prolonged
illness during which these drugs were prescribed, and abuse has
since ended;
(d) Satisfactory completion of a prescribed drug treatment
program, including but not limited to rehabilitation and aftercare
requirements, without recurrence of abuse, and a favorable prognosis
by a duly qualified medical professional.
GUIDELINE I: PSYCHOLOGICAL CONDITIONS
27. The Concern. Certain emotional, mental, and personality
conditions can impair judgment, reliability, or trustworthiness. A
formal diagnosis of a disorder is not required for there to be a
concern under this guideline. A duly qualified mental health
professional (e.g., clinical psychologist or psychiatrist) employed
by, or acceptable to and approved by the U.S. Government, should be
consulted when evaluating potentially disqualifying and mitigating
information under this guideline. No negative inference concerning
the standards in this Guideline may be raised solely on the basis of
seeking mental health counseling.
28. Conditions that could raise a security concern and may be
disqualifying include:
(a) Behavior that casts doubt on an individual's judgment,
reliability, or trustworthiness that is not covered under any other
guideline, including but not limited to emotionally unstable,
irresponsible, dysfunctional, violent, paranoid, or bizarre
behavior;
(b) An opinion by a duly qualified mental health professional
that the individual has a condition not covered under any other
guideline that may impair judgment, reliability, or trustworthiness;
(c) The individual has failed to follow treatment advice related
to a diagnosed emotional, mental, or personality condition, e.g.
failure to take prescribed medication.
29. Conditions that could mitigate security concerns include:
(a) The identified condition is readily controllable with
treatment, and the individual has demonstrated ongoing and
consistent compliance with the treatment plan;
(b) The individual has voluntarily entered a counseling or
treatment program for a condition that is amenable to treatment, and
the individual is currently receiving counseling or treatment with a
favorable prognosis by a duly qualified mental health professional;
(c) Recent opinion by a duly qualified mental health
professional employed by, or acceptable to and approved by the U.S.
Government that an individual's previous condition is under control
or in remission, and has a low probability of recurrence or
exacerbation;
(d) 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 no longer shows
indications of emotional instability;
(e) There is no indication of a current problem.
GUIDELINE J: CRIMINAL CONDUCT
30. The Concern. Criminal activity creates doubt about a
person's judgment, reliability and trustworthiness. By its very
nature, it calls into question a person's ability or willingness to
comply with laws, rules and regulations.
31. Conditions that could raise a security concern and may be
disqualifying include:
(a) A single serious crime or multiple lesser offenses;
(b) Discharge or dismissal from the Armed Forces under
dishonorable conditions;
(c) Allegation or admission of criminal conduct, regardless of
whether the person was formally charged, formally prosecuted or
convicted;
(d) Individual is currently on parole or probation;
(e) Violation of parole or probation, or failure to complete a
court-mandated rehabilitation program.
32. Conditions that could mitigate security concerns include:
(a) So much time has elapsed since the criminal behavior
happened, or it happened under such unusual circumstances that it is
unlikely to recur or does not cast doubt on the individual's
reliability, trustworthiness, or good judgment;
(b) The person was pressured or coerced into committing the act
and those pressures are no longer present in the person's life;
(c) Evidence that the person did not commit the offense;
(d) There is evidence of successful rehabilitation; including
but not limited to the passage of time without recurrence of
criminal activity, remorse or restitution, job training or higher
education, good employment record, or constructive community
involvement.
GUIDELINE K: HANDLING PROTECTED INFORMATION
33. The Concern. Deliberate or negligent failure to comply with
rules and regulations for protecting classified or other sensitive
information raises doubt about an individual's trustworthiness,
judgment, reliability, or willingness and ability to safeguard such
information, and is a serious security concern.
34. Conditions that could raise a security concern and may be
disqualifying include:
(a) Deliberate or negligent disclosure of classified or other
protected information to unauthorized persons, including but not
limited to personal or business contacts, to the media, or to
persons present at seminars, meetings, or conferences;
[[Page 22937]]
(b) Collecting or storing classified or other protected
information in any unauthorized location;
(c) Loading, drafting, editing, modifying, storing,
transmitting, or otherwise handling classified reports, data, or
other information on any unapproved equipment including but not
limited to any typewriter, word processor, or computer hardware,
software, drive, system, gameboard, handheld, ``palm'' or pocket
device or other adjunct equipment;
(d) Inappropriate efforts to obtain or view classified or other
protected information outside one's need to know;
(e) Copying classified or other protected information in a
manner designed to conceal or remove classification or other
document control markings;
(f) Viewing or downloading information from a secure system when
the information is beyond the individual's need to know;
(g) Any failure to comply with rules for the protection of
classified or other sensitive information;
(h) Negligence or lax security habits that persist despite
counseling by management;
(i) Failure to comply with rules or regulations that results in
damage to the National Security, regardless of whether it was
deliberate or negligent.
35. Conditions that could mitigate security concerns include:
(a) So much time has elapsed since the behavior, or it happened
so infrequently or under such unusual circumstances that it is
unlikely to recur or does not cast doubt on the individual's current
reliability, trustworthiness, or good judgment;
(b) The individual responded favorably to counseling or remedial
security training and now demonstrates a positive attitude toward
the discharge of security responsibilities;
(c) The security violations were due to improper or inadequate
training.
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 of interest 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:
(a) Any employment or service, whether compensated or volunteer,
with:
(1) The government of a foreign country;
(2) Any foreign national, organization, or other entity;
(3) A representative of any foreign interest;
(4) Any foreign, domestic, or international organization or
person engaged in analysis, discussion, or publication of material
on intelligence, defense, foreign affairs, or protected technology;
(b) Failure to report or fully disclose an outside activity when
this is required.
38. Conditions that could mitigate security concerns include:
(a) Evaluation of the outside employment or activity by the
appropriate security or counterintelligence office indicates that it
does not pose a conflict with an individual's security
responsibilities or with the national security interests of the
United States;
(b) The individual terminates the employment or discontinued the
activity upon being notified that it was in conflict with his or her
security responsibilities.
GUIDELINE M: USE 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
reliability and trustworthiness, calling into question the
willingness or ability to properly protect sensitive systems,
networks, and information. Information Technology Systems include
all related computer hardware, software, firmware, and data used for
the communication, transmission, processing, manipulation, storage,
or protection of information.
40. Conditions that could raise a security concern and may be
disqualifying include:
(a) Illegal or unauthorized entry into any information
technology system or component thereof;
(b) Illegal or unauthorized modification, destruction,
manipulation or denial of access to information, software, firmware,
or hardware in an information technology system;
(c) Use of any information technology system to gain
unauthorized access to another system or to a compartmented area
within the same system;
(d) Downloading, storing, or transmitting classified information
on or to any unauthorized software, hardware, or information
technology system;
(e) Unauthorized use of a government or other information
technology system;
(f) Introduction, removal, or duplication of hardware, firmware,
software, or media to or from any information technology system
without authorization, when prohibited by rules, procedures,
guidelines or regulations.
(g) Negligence or lax security habits in handling information
technology that persist despite counseling by management;
(h) Any misuse of information technology, whether deliberate or
negligent, that results in damage to the national security.
41. Conditions that could mitigate security concerns include:
(a) So much time has elapsed since the behavior happened, or it
happened under such unusual circumstances, that it is unlikely to
recur or does not cast doubt on the individual's reliability,
trustworthiness, or good judgment;
(b) The misuse was minor and done only in the interest of
organizational efficiency and effectiveness, such as letting another
person use one's password or computer when no other timely
alternative was readily available;
(c) The conduct was unintentional or inadvertent and was
followed by a prompt, good-faith effort to correct the situation and
by notification of supervisor.
[FR Doc. 2016-08885 Filed 4-18-16; 8:45 am]
BILLING CODE 6450-01-P
