Federal Register: September 11, 2001 (Volume 66, Number 176)
Rules and Regulations
Page 47061-47070
DEPARTMENT OF ENERGY
10 CFR Part 710
RIN 1992-AA22
Criteria And Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material
AGENCY: Office of Security and Emergency Operations, DOE.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) is amending procedures for
making final determinations of eligibility for access to classified
matter and/or special nuclear material. The purpose of the amendments
is to ensure that DOE procedures in this regard conform to the access
eligibility determination provisions in Part 5 of Executive Order
12968, "Access to Classified Information," signed by the President in
August 1995.
EFFECTIVE DATE: This rule is effective September 11, 2001.
FOR FURTHER INFORMATION CONTACT: A. Barry Dalinsky, Policy, Standards
and Analysis Division, Office of Safeguards and Security, SO-211,
Office of Security Affairs, U.S. Department of Energy, 19901 Germantown
Road, Germantown, MD 20874-1290; (301) 903-5010.
SUPPLEMENTARY INFORMATION:
I. Background
II. Public Comments; Changes to Proposed Rule
III. Procedural Requirements
A. Executive Order 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under Executive Order 13132
D. Review Under the National Environmental Policy Act
E. Review Under the Paperwork Reduction Act
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act of 1999
I. Review Under Small Business Regulatory Enforcement Fairness
Act of 1996
IV. Conclusion
I. Background
DOE published a notice of proposed rulemaking in the Federal
Register on August 16, 1999 (64 FR 44433) to amend its procedures for
resolving questions concerning an individual's DOE access authorization
eligibility. These procedures are codified in subpart A of Title 10,
Code of Federal Regulations, part 710 (hereafter referred to as 10 CFR
part 710).
II. Public Comments; Changes to Proposed Rule
DOE did not receive any public comments on its proposed rule .
In two instances DOE has modified the proposed rule. First, we have
added paragraph (j) to Sec. 710.29 ("Final Appeal Process") to state
the Secretary of Energy's authority to exercise the authority of the
Appeal Panel. This addition implements section 5.2(b) of Executive
Order No. 12968, which provides:
Nothing in this (Executive Order) shall prohibit an agency head
from personally exercising the appeal authority * * * (of the appeal
panel) based upon recommendations from an appeals panel. In such
case, the decision of the agency head shall be final.
Second, DOE has determined that today's rule should be effective
immediately. In the Notice of Proposed Rulemaking, DOE stated that the
procedures established by today's rule would not apply to cases when a
"notification letter" (as described in 10 CFR 710.21) already had
been issued on or after the effective date of the regulation. As
proposed, cases in process would be conducted under the procedural
rules in existence on the date of the notification letter.
An agency may apply new procedural rules in pending proceedings as
long as the application of the new procedures does not impair the
rights of, or otherwise cause injury or prejudice to, a party. Since
the new procedures principally revise existing appeal procedures after
a Hearing Officer has issued findings and opinion, DOE has determined
that, at the option of the individual, the procedures adopted today
should be available to any individual in pending cases that have not
already been appealed to the Director, Office of Hearings and Appeals,
as of the effective date of today's regulatory amendments. The final
decision in cases that have been appealed to the Director, Office of
Hearings and Appeals, will be rendered by the Director, Office of
Security Affairs.
III. Procedural Requirements
A. Executive Order 12866
Today's regulatory action has been determined not to be a
"significant regulatory action" under Executive Order 12866,
"Regulatory Planning and Review" (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., requires
that a federal agency prepare a regulatory flexibility analysis for any
rule for which the agency is required to publish a general notice of
proposed rulemaking. Such an analysis is not required, however, if the
agency certifies that the rule would not, if promulgated, have a
significant economic impact on a substantial number of small entities
(5 U.S.C. 605(b)).
DOE certifies that today's amendments to 10 CFR part 710 will not
have a significant economic impact on a substantial number of small
entities. This final rule will only change the Department's procedures
for access authorization eligibility determinations. The amendments are
intended to conform 10 CFR part 710 to the requirements of Executive
Order 12968 and affect only individual employees or applicants for
employment. The rule does not directly regulate small entities.
C. 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 policymaking
discretion of the States
[[Page 47062]]
and carefully assess the necessity for such actions. DOE has examined
today's rule and has determined that it does not preempt State law and
does 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
D. Review Under the National Environmental Policy Act
DOE has concluded that the final rule falls into a class of actions
that would not individually or cumulatively have a significant impact
on the human environment as determined by DOE's regulations (10 CFR
part 1021, subpart D) implementing the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, the final rule is
categorically excluded from environmental review as it is strictly
procedural (Category Exclusion A6). Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
E. Review Under the Paperwork Reduction Act
No new collection of information will be imposed by this
rulemaking. Accordingly, no clearance by the Office of Management and
Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501,
et seq.).
F. Review Under Executive Order 12988
Section 3 of Executive Order 12988 (61 FR 4729) instructs each
agency to adhere to cerain requirements in promulgating new regulations
and reviewing existing regulations. These requirements, set forth in
sections 3(a) and (b), include eliminating drafting errors and
ambiguity, drafting the regulations to minimize litigation, providing
clear and certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. The DOE certifies that today's final rule meets the requirements
of section 3(a) and (b) of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1531, et seq., requires each federal agency, to the extent permitted by
law, to prepare a written assessment of the effects of any federal
mandate in an agency rule that may result in the expenditure by state,
local, and tribal governments in the aggregate, or by the private
sector, of $100 million or more in any one year. The Act also requires
a federal agency to develop an effective process to permit timely input
by elected officers of state, local, and tribal governments on a
proposed "significant intergovernmental mandate," and it requires an
agency to develop a plan for giving notice and opportunity for timely
input to potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. The rule amendments finalized today do not impose a
federal mandate on state, local, or tribal governments or on the
private sector. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
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 proposed rule or policy that may affect
family well-being. Today's final rule does not impact on the autonomy
or integrity of the family institution. Accordingly, DOE has concluded
that it is not necessary to prepare a Family Policymaking Statement.
I. Review Under Small Business Regulatory Enforcement Fairness Act of
1996
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of the rule prior to its effective date. The report will
state that it has been determined that the rule is not a "major rule"
as defined by 5 U.S.C. 804(3).
IV. Conclusion
The Notice of Proposed Rulemaking to amend 10 CFR part 710 was
issued by the Assistant Secretary for Nonproliferation and National
Security. This final rule, however, is being issued by the Secretary.
The rule applies to all Department of Energy Federal and contractor
employees, including Federal and contractor employees of the National
Nuclear Security Administration.
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Nuclear materials.
Issued in Washington, DC, on July 24, 2001.
Spencer Abraham,
Secretary of Energy.
For the reasons set forth in the preamble, part 710 of Title 10 of
the Code of Federal Regulations is amended to read as follows.
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL
1. The authority citation for Part 710 is revised to read as
follows:
Authority: 42 U.S.C. 7101, et seq.; 50 U.S.C. 2401, et seq.;
Atomic Energy Act of 1954, sec. 141, 68 Stat 940, as amended (42
U.S.C. 2161); Atomic Energy Act of 1954, sec. 145, 68 Stat 942, as
amended (42 U.S.C. 2165); Atomic Energy Act of 1954, sec. 161, 68
Stat 948, as amended (42 U.S.C. 2201); E.O. 10450, 3 CFR 1949-1953
comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963 comp., p.
398, as amended, 3 CFR Chap. IV; E.O. 12958, 3 CFR 1995, comp., p.
333; E.O. 12968, 3 CFR 1995, comp., p. 391.
Subpart A--General Criteria and Procedures for Determining
Eligibility for Access to Classified Matter or Special Nuclear
Material
2. Section 710.1 is amended by revising paragraph (b) to read as
follows:
Sec. 710.1 Purpose.
* * * * *
(b) This subpart is published to implement: Executive Order 12968,
60 FR 40245 (August 7, 1995); Executive Order 12958, 60 FR 19825 (April
20, 1995); Executive Order 10865, 25 FR 1583 (February 24, 1960), as
amended; and Executive Order 10450, 18 FR 2489 (April 27, 1954), as
amended. This subpart also provides for public information: selected
provisions of the Atomic Energy Act of 1954, as amended, set forth in
appendix A to this subpart; and the 1997 Adjudicative Guidelines
approved by the President and set forth in appendix B to this subpart.
3. Section 710.4 is amended by revising paragraph (c) and adding
paragraph (g) to read as follows:
Sec. 710.4 Policy.
* * * * *
(c) If the individual is currently awaiting a hearing or trial, or
has been convicted of a crime punishable by
[[Page 47063]]
imprisonment of six (6) months or longer, or is awaiting or serving a
form of preprosecution probation, suspended or deferred sentencing,
court ordered probation, or parole in conjunction with an arrest or
criminal charges initiated against the individual for a crime that is
punishable by imprisonment of six (6) months or longer, DOE may suspend
processing an application for access authorization until such time as
the hearing, trial, criminal prosecution, suspended sentencing,
deferred sentencing, probation, or parole has been completed.
* * * * *
(g) If an individual believes that the provisions of paragraph (c),
(d), or (e) of this section have been inappropriately applied, a
written appeal may be filed with the Director, Office of Safeguards and
Security, DOE Headquarters, within 30 calendar days of the date the
individual was notified of the action. The Director, Office of
Safeguards and Security, shall act on the written appeal as described
in section 710.6(c).
4. Section 710.5 is amended by adding in alphabetical order a
definition for the term "Classified Matter" and by revising the
definitions for "Local Director of Security," "National Security
Information," and "Operations Office Manager or Manager" to read as
follows:
Sec. 710.5 Definitions.
* * * * *
Classified Matter means the material of thought or expression that
is classified pursuant to statute or Executive Order.
* * * * *
Local Director of Security means the Operations Office or Naval
Reactors Office Security and Safeguards Division Director, or other
similar title; for Washington, DC area cases, the Director,
Headquarters Operations Division; for the Idaho Operations Office, the
Program Manager, Security and Resource Management Division; for the
Pittsburgh Naval Reactors Office, the Director, Contracts and
Securities Division; for the Savannah River Operations Office, the
Director, Internal Security Division; and any person designated in
writing to serve in one of the aforementioned positions in an
"acting" capacity.
National Security Information means any information that has been
determined, pursuant to Executive Order 12958 or any predecessor Order,
to require protection against unauthorized disclosure and that is so
designated.
Operations Office Manager or Manager means the Manager of a DOE
Operations Office (Albuquerque, Chicago, Idaho, Nevada, Oak Ridge,
Oakland, Richland, or Savannah River), the Manager of the Pittsburgh
Naval Reactors Office, the Manager of the Schenectady Naval Reactors
Office, and, for Washington, DC area cases, the Director, Office of
Safeguards and Security.
* * * * *
5. Section 710.7 is amended by revising paragraph (a) to read as
follows:
Sec. 710.7 Application of the criteria.
(a) The decision as to access authorization is a comprehensive,
common-sense judgment, made after consideration of all relevant
information, favorable 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. Absent
any derogatory information, a favorable determination usually will be
made as to access authorization eligibility.
* * * * *
6. Section 710.8 is amended by adding the words "(or National
Security)" between the words "Sensitive" and "Positions" in the
first sentence of paragraph (f) and revising paragraphs (g), (h), (j),
(k), and (l) to read as follows:
Sec. 710.8 Criteria.
* * * * *
(g) Failed to protect classified matter, or safeguard special
nuclear material; or violated or disregarded security or safeguards
regulations to a degree which would be inconsistent with the national
security; or disclosed classified information to a person unauthorized
to receive such information; or violated or disregarded regulations,
procedures, or guidelines pertaining to classified or sensitive
information technology systems.
(h) An illness or mental condition of a nature which, in the
opinion of a psychiatrist or licensed clinical psychologist, causes or
may cause, a significant defect in judgment or reliability.
* * * * *
(j) Been, or is, a user of alcohol habitually to excess, or has
been diagnosed by a psychiatrist or a licensed clinical psychologist as
alcohol dependent or as suffering from alcohol abuse.
(k) Trafficked in, sold, transferred, possessed, used, or
experimented with a drug or other substance listed in the Schedule of
Controlled Substances established pursuant to section 202 of the
Controlled Substances Act of 1970 (such as marijuana, cocaine,
amphetamines, barbiturates, narcotics, etc.) except as prescribed or
administered by a physician licensed to dispense drugs in the practice
of medicine, or as otherwise authorized by Federal law.
(l) Engaged in any unusual conduct or is subject to any
circumstances which tend to show that the individual is not honest,
reliable, or trustworthy; or which furnishes reason to believe that the
individual may be subject to pressure, coercion, exploitation, or
duress which may cause the individual to act contrary to the best
interests of the national security. Such conduct or circumstances
include, but are not limited to, criminal behavior, a pattern of
financial irresponsibility, conflicting allegiances, or violation of
any commitment or promise upon which DOE previously relied to favorably
resolve an issue of access authorization eligibility.
7. Section 710.9 is revised to read as follows:
Sec. 710.9 Action on derogatory information.
(a) If the reports of investigation of an individual or other
reliable information tend to establish the validity and significance of
one or more items in the criteria, or of other reliable information or
facts which are of security concern, although outside the scope of the
stated categories, such information shall be regarded as derogatory and
create a question as to the individual's access authorization
eligibility.
(b) If a question arises as to the individual's access
authorization eligibility, the Local Director of Security shall
authorize the conduct of an interview with the individual, or other
appropriate actions, which may include a DOE-sponsored mental
evaluation, and, on the basis of the results of such interview or
actions, may authorize the granting of the individual's access
authorization. If, in the opinion of the Local Director of Security,
the question as to the individual's access authorization eligibility
has not been favorably resolved, he shall submit the matter to the
Manager with a recommendation that authority be obtained to process the
individual's case under administrative review procedures.
(c) If the Manager agrees that unresolved derogatory information is
present and that appropriate attempts to
[[Page 47064]]
resolve such derogatory information have been unsuccessful, he shall
notify the Director, Office of Safeguards and Security, of his 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, he shall direct that access authorization be
granted for the individual. The Manager may also direct the Local
Director of Security to obtain additional information in the matter
prior to deciding whether to grant the individual access authorization
or to submit a request for authority to conduct an administrative
review proceeding. A decision in the matter shall be rendered by the
Manager within 10 calendar days of its receipt.
(d) Upon receipt of the Manager's notification, the Director,
Office of Safeguards and Security, shall review the matter and confer
with the Manager on:
(1) The institution of administrative review proceedings set forth
in Secs. 710.20 through 710.32;
(2) The granting of access authorization; or
(3) Other actions as the Director deems appropriate.
(e) The Director, Office of Safeguards and Security, 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
Director, Office of Security Affairs.
8. Section 710.10 is amended by revising paragraphs (a) and (d) and
adding paragraphs (e) and (f) to read as follows:
Sec. 710.10 Suspension of access authorization.
(a) If information is received that raises a question concerning an
individual's continued access authorization eligibility, the Local
Director of Security shall authorize action(s), to be taken on an
expedited basis, to resolve the question pursuant to Sec. 710.9(b). If
the question as to the individual's continued access authorization
eligibility is not resolved in favor of the individual, the Local
Director of Security shall submit the matter to the Manager with a
recommendation that the individual's access authorization be suspended
pending the final determination resulting from the procedures in this
subpart.
* * * * *
(d) Following the decision to suspend an individual's DOE access
authorization, the Manager shall immediately notify the Director,
Office of Safeguards and Security, of the action and the reason(s)
therefore. In addition, the Manager, within 10 calendar days of the
date of suspension, shall notify the Director, Office of Safeguards and
Security, of his proposal to conduct an administrative review
proceeding, accompanied by an explanation of its basis and a duplicate
Personnel Security File.
(e) Upon receipt of the Manager's notification, the Director,
Office of Safeguards and Security, shall review the matter and confer
with the Manager on:
(1) The institution of administrative review procedures set forth
in Secs. 710.20 through 710.32;
(2) The reinstatement of access authorization; or
(3) Other actions as the Director deems appropriate.
(f) The Director, Office of Safeguards and Security, 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
Director, Office of Security Affairs.
9. Section 710.21 is amended by revising the section heading,
paragraphs (a) and (b)(2) and adding paragraph (c) to read as follows:
Sec. 710.21 Notice to the individual.
(a) Unless an extension is authorized by the Director, Office of
Safeguards and Security, within 30 calendar days of receipt of
authority to institute administrative review procedures, the Manager
shall prepare and deliver to the individual a notification letter
approved by the local Office of Chief Counsel, or the Office of General
Counsel for Headquarters cases. Where practicable, the letter shall be
delivered to the individual in person.
(b) * * *
(1) * * *
(2) The information which creates a substantial doubt regarding the
individual's access authorization eligibility (which shall be as
comprehensive and detailed as the national security permits) and why
that information creates such doubt.
* * * * *
(c) The notification letter referenced in paragraph (b) of this
section shall also:
(1) Describe the individual's access authorization status until
further notice;
(2) Advise the individual of the right to representation at the
individual's own expense at each and every stage of the proceedings;
(3) Provide the name and telephone number of the designated DOE
official to contact for any further information desired concerning the
proceedings, including an explanation of the individual's rights under
the Freedom of Information and Privacy Acts; and
(4) Include a copy of this subpart.
10. Section 710.22 is revised to read as follows:
Sec. 710.22 Initial decision process.
(a) The Manager shall make an initial decision as to the
individual's access authorization eligibility based on the existing
information in the case if:
(1) The individual fails to respond to the notification letter by
filing a timely written request for a hearing before a Hearing Officer
or fails to respond to the notification letter after requesting an
extension of time to do so;
(2) The individual's response to the notification letter does not
request a hearing before a Hearing Officer; or
(3) The Hearing Officer refers the individual's case to the Manager
in accordance with Sec. 710.25(e) or Sec. 710.26(b).
(b) Unless an extension of time is granted by the Director, Office
of Safeguards and Security, the Manager's initial decision as to the
individual's access authorization eligibility shall be made within 15
calendar days of the date of receipt of the information in paragraph
(a) of this section. The Manager shall either grant or deny, or
reinstate or revoke, the individual's access authorization.
(c) A letter reflecting the Manager's initial decision in the
individual's case shall be signed by the Manager and delivered to the
individual within 15 calendar days of the date of the Manager's
decision unless an extension of time is granted by the Director, Office
of Safeguards and Security. If the Manager's initial decision is
unfavorable to the individual, the individual shall be advised:
(1) Of the Manager's unfavorable decision and the reason(s)
therefor;
(2) That within 30 calendar days from the date of receipt of the
letter, he may file a written request for a review of the Manager's
initial decision through the Director, Office of Safeguards and
Security, DOE Headquarters, to the DOE Headquarters Appeal Panel
(hereafter referred to as the "Appeal Panel");
(3) That the Director, Office of Safeguards and Security, may, for
good cause shown, at the written request of the individual, extend the
time for filing a written request for a review of the case by the
Appeal Panel; and
(4) That if the written request for a review of the Manager's
initial decision
[[Page 47065]]
by the Appeal Panel is not filed within 30 calendar days of the
individual's receipt of the Manager's letter, the Manager's initial
decision in the case shall be final.
Sec. 710.23 [Amended]
11. Section 710.23 is amended by removing the words "Operations
Office" from the section heading.
12. Section 710.27 is amended by revising the section heading,
removing the words "an initial opinion" in the first sentence of
paragraph (a) and adding in their place the words "a decision," by
removing paragraphs (e), (f), and (g) and by revising paragraph (d) to
read as follows:
Sec. 710.27 Hearing Officer's decision.
* * * * *
(d) The Hearing Officer's decision shall be based on the Hearing
Officer's findings of fact. If, after considering all of the factors in
light of the criteria set forth in this subpart, the Hearing Officer is
of the opinion that it will not endanger the common defense and
security and will be clearly consistent with the national interest to
grant or reinstate access authorization for the individual, the Hearing
Officer shall render a favorable decision; otherwise, the Hearing
Officer shall render an unfavorable decision. Within 15 calendar days
of the Hearing Officer's written decision, the Hearing Officer shall
provide copies of the decision and the administrative record to the
Manager and the Director, Office of Safeguards and Security.
13. Section 710.28 is revised to read as follows:
Sec. 710.28 Action on the Hearing Officer's decision.
(a) Within 10 calendar days of receipt of the decision and the
administrative record, unless an extension of time is granted by the
Director, Office of Safeguards and Security, the Manager shall:
(1) Notify the individual in writing of the Hearing Officer's
decision;
(2) Advise the individual in writing of the appeal procedures
available to the individual in paragraph (b) of this section if the
decision is unfavorable to the individual;
(3) Advise the individual in writing of the appeal procedures
available to the Manager and the Director, Office of Safeguards and
Security, in paragraph (c) of this section if the decision is favorable
to the individual; and,
(4) Provide the individual and/or counsel or representative, a copy
of the Hearing Officer's decision and the administrative record.
(b) If the Hearing Officer's decision is unfavorable to the
individual:
(1) The individual may file with the Director, Office of Safeguards
and Security, a written request for further review of the decision by
the Appeal Panel along with a statement required by paragraph (e) of
this section within 30 calendar days of the individual's receipt of the
Manager's notice;
(2) The Director, Office of Safeguards and Security may, for good
cause shown, extend the time for filing a request for further review of
the decision by the Appeal Panel at the written request of the
individual provided the request for an extension of time is filed by
the individual within 30 calendar days of receipt of the Manager's
notice;
(3) The Hearing Officer's decision shall be considered final if the
individual does not: file a written request for a review of the
decision by the Appeal Panel or for an extension of time to file a
written request for further review of the decision by the Appeal Panel
in accordance with paragraphs (b)(1) or (b)(2) of this section; or,
file a written request for a further review of the decision by the
Appeal Panel after having been granted an extension of time to do so.
(c) If the Hearing Officer's decision is favorable to the
individual, within 30 calendar days of the individual's receipt of the
Manager's notice:
(1) The Manager or the Director, Office of Safeguards and Security,
may file a written request for further review of the decision by the
Appeal Panel along with the statement required by paragraph (e) of this
section;
(2) The Director, Office of Security Affairs, may, at the written
request of the Manager or Director, Office of Safeguards and Security,
extend the time for filing a request for further review of the decision
by the Appeal Panel; or
(3) The Manager, with the concurrence of the Director, Office of
Safeguards and Security, shall grant or reinstate the individual's
access authorization.
(d) A copy of any request for further review of the individual's
case by the Appeal Panel filed by the Manager or the Director, Office
of Safeguards and Security, shall be provided to the individual by the
Manager.
(e) The party filing a request for review of the individual's case
by the Appeal Panel shall include with the request a statement
identifying the issues on which it wishes the Appeal Panel to focus. A
copy of such statement shall be served on the other party, who may file
a response with the Appeal Panel within 20 calendar days of receipt of
the statement.
14. Sections 710.29 through 710.34 are redesignated as Secs. 710.30
through 710.35 and a new Sec. 710.29 is added to read as follows:
Sec. 710.29 Final appeal process.
(a) The Appeal Panel shall be convened by the Director, Office of
Security Affairs, to review and render a final decision in an access
authorization eligibility case referred by the individual, the Manager,
or the Director, Office of Safeguards and Security, in accordance with
Secs. 710.22, 710.28, and 710.32.
(b) The Appeal Panel shall consist of three members, each of whom
shall be a DOE Headquarters employee, a United States citizen, and hold
a DOE Q access authorization. The Director, Office of Security Affairs,
shall serve as a permanent member of the Appeal Panel and as the Appeal
Panel Chairman. The second member of the Appeal Panel shall be a DOE
attorney designated by the General Counsel. The head of the DOE
Headquarters element who has cognizance over the individual whose
access authorization eligibility is being considered may designate an
employee to act as the third member on the Appeal Panel; otherwise, the
third member will be designated by the Chairman. Only one member of the
Appeal Panel shall be from the security field.
(c) In filing a written request for a review by the Appeal Panel in
accordance with Secs. 710.22 and 710.28, the individual, or the counsel
or representative, shall identify the relevant issues and may also
submit any relevant material in support of the individual. The
individual's written request and supportive material shall be made a
part of the administrative record. The Director, Office of Safeguards
and Security, shall provide staff support to the Appeal Panel as
requested by the Director, Office of Security Affairs.
(d) Within 15 calendar days from the date of receipt of a request
for a review of a case by the Appeal Panel, the Director, Office of
Security Affairs, shall:
(1) Request the General Counsel to designate an attorney who shall
serve as an Appeal Panel member;
(2) Either request the head of the cognizant DOE element to
designate, or himself designate, an employee from outside the security
field who shall serve as the third member of the Appeal Panel; and
(3) Arrange for the Appeal Panel members to convene to review the
[[Page 47066]]
administrative record or provide a copy of the administrative record to
the other Appeal Panel members for their independent review.
(e) The Appeal Panel may initiate an investigation of any statement
or material contained in the request for an Appeal Panel review and use
any relevant facts obtained by such investigation in the conduct of the
final decision process. The Appeal Panel may solicit and accept
submissions from either the individual or DOE officials that are
relevant to the final decision process and may establish appropriate
time frames to allow for such submissions. The Appeal Panel may also
consider any other source of information that will advance the final
decision process, provided that both parties are afforded an
opportunity to respond to all third party submissions. All information
obtained by the Appeal Panel under this section shall be made a part of
the administrative record.
(f) Within 45 work days of the closing of the administrative
record, the Appeal Panel shall render a final written decision in the
case predicated upon an evaluation of the administrative record,
findings as to each of the allegations contained in the notification
letter, and any new evidence that may have been submitted pursuant to
Sec. 710.30. If a majority of the Appeal Panel members determine that
it will not endanger the common defense and security and will be
clearly consistent with the national interest, the Director, Office of
Security Affairs, shall grant or reinstate access authorization for the
individual; otherwise, the Director, Office of Security Affairs, shall
deny or revoke access authorization for the individual. The Appeal
Panel written decision shall be made a part of the administrative
record.
(g) The Director, Office of Security Affairs, through the Director,
Office of Safeguards and Security, shall inform in writing the
individual involved and counsel or representative of the Appeal Panel's
final decision. A copy of the correspondence shall also be provided to
the other panel members and the Manager.
(h) If, upon receipt of a written request for a review of the
individual's case by the Appeal Panel, the Director, Office of Security
Affairs, is aware or subsequently becomes aware of information that the
individual is the subject of an unresolved inquiry or investigation of
a matter that could reasonably be expected to affect the individual's
DOE access authorization eligibility, the Director may defer action by
the Appeal Panel on the request until the inquiry or investigation is
completed and its results available for review by the Appeal Panel. In
such instances, the Director, Office of Security Affairs, shall:
(1) Obtain written approval from the Secretary to defer review of
the individual's case by the Appeal Panel for an initial interval not
to exceed 90 calendar days;
(2) Advise the individual and appropriate DOE officials in writing
of the initial deferral and the reason(s) therefor;
(3) Request that the individual's employment status not be affected
during the initial and any subsequent deferral interval, except at the
written request of the individual;
(4) Obtain written approval from the Secretary to extend the
deferral for each subsequent 90 calendar day interval and advise in
writing all concerned parties of the Secretary's approval;
(5) Inform in writing all concerned parties when the inquiry or
investigation has been completed and the results made available to the
Appeal Panel.
(i) If, upon receipt of a written request for review of an
individual's case by the Appeal Panel, the Director, Office of Security
Affairs, is aware or subsequently becomes aware of information that
adversely affects the individual's DOE access authorization eligibility
and that cannot for national security reasons be disclosed in the
proceedings before a DOE Hearing Officer, the Director may refer the
information and the administrative record to the Secretary for the
final decision as to the individual's DOE access authorization
eligibility. In such instances, the Director, Office of Security
Affairs, shall notify in writing all concerned parties that the
individual's case has been provided to the Secretary for a final
decision in accordance with Sec. 710.31.
(j) Upon the recommendation of the Appeal Panel, the Secretary may
exercise the appeal authority of the Appeal Panel. If the Secretary
exercises the appeal authority, then the decision of the Secretary is
final.
15. Newly redesignated Sec. 710.30 is amended by removing the word
"determination" and adding the word "decision" in paragraph (a) and
removing the words "an opinion" and adding the words "a decision"
in paragraph (b)(1), by removing the word "getting" and adding the
word "receiving" in paragraph (b)(1), and by revising paragraph
(b)(2) to read as follows:
Sec. 710.30 New evidence.
* * * * *
(b) * * *
(2) In those cases where the Hearing Officer's decision has been
issued, the application for presentation of new evidence shall be
referred to the Director, Office of Security Affairs. In the event that
the Director, Office of Security Affairs, determines that the new
evidence shall be received, he shall determine the form in which it,
and the other party's response, shall be received.
* * * * *
16. Newly redesignated Sec. 710.31 is revised to read as follows:
Sec. 710.31 Action by the Secretary.
(a) Whenever an individual has not been afforded an opportunity to
cross-examine witnesses who have furnished information adverse to the
individual under the provisions of Secs. 710.26(l) or (o), or the
opportunity to review and respond to the information provided by the
Director, Office of Security Affairs, to the Secretary under
Sec. 710.29(i), only the Secretary may issue a final decision to deny
or revoke DOE access authorization for the individual after personally
reviewing the administrative record and any additional material
provided by the Director, Office of Security Affairs. The Secretary's
authority may not be delegated and may be exercised only when the
Secretary determines that the circumstances described in Sec. 710.26(l)
or (o), or Sec. 710.29(i) are present, and such determination shall be
final.
(b) Whenever the Secretary issues a final decision as to the
individual's DOE access authorization eligibility, the individual and
other concerned parties will be notified in writing, by the Director,
Office of Security Affairs, of that decision and of the Secretary's
findings with respect to each of the allegations contained in the
notification letter and each substantial issue identified in the
statement in support of the request for review to the extent allowed by
the national security.
(c) Nothing contained in these procedures shall be deemed to limit
or affect the responsibility and powers of the Secretary to issue
subpoenas or to deny or revoke access to Restricted Data, national
security information, or special nuclear material.
(d) Only the Secretary may approve initial and subsequent requests
under Sec. 710.29(h) by the Director, Office of Security Affairs, to
defer the review of an individual's case by the Appeal Panel.
17. Newly redesignated Sec. 710.32 is revised to read as follows:
[[Page 47067]]
Sec. 710.32 Reconsideration of access eligibility.
(a) If, pursuant to the procedures set forth in Secs. 710.20
through 710.31 the Manager, Hearing Officer, Appeal Panel, or the
Secretary has made a decision granting or reinstating access
authorization for an individual, the individual's access authorization
eligibility shall be reconsidered as a new administrative review under
the procedures set forth in this subpart when previously unconsidered
derogatory information is identified, or the individual violates a
commitment or promise upon which the DOE previously relied to favorably
resolve an issue of access authorization eligibility.
(b) If, pursuant to the procedures set forth in Secs. 710.20
through 710.31 the Manager, Hearing Officer, Appeal Panel, or the
Secretary has made a decision denying or revoking access authorization
for the individual, the individual's access authorization eligibility
may be reconsidered only when the individual so requests, when there is
a bona fide offer of employment requiring access to Restricted Data,
national security information, or special nuclear material, and when
there is either:
(1) Material and relevant new evidence which the individual and the
individual's representatives are without fault in failing to present
earlier, or
(2) Convincing evidence of rehabilitation or reformation.
(c) A request for reconsideration shall be submitted in writing to
the Director, Office of Security Affairs, accompanied by an affidavit
setting forth in detail the new evidence or evidence of rehabilitation
or reformation. If the Director, Office of Security Affairs, determines
that the regulatory requirements for reconsideration have been met, the
Director shall notify the individual that the individual's access
authorization shall be reconsidered in accordance with established
procedures for determining eligibility for access authorizations.
(d) If the individual's access authorization is not reinstated
following reconsideration, the individual shall be advised by the
Director, Office of Safeguards and Security, in writing:
(1) Of the unfavorable action and the reason(s) therefor; and
(2) That within 30 calendar days from the date of receipt of the
notification, he may file, through the Director, Office of Safeguards
and Security, DOE Headquarters, a written request for a review of the
decision by the Appeal Panel, in accordance with Sec. 710.29.
18. Newly redesignated Sec. 710.33 is revised to read as follows:
Sec. 710.33 Terminations.
If the individual is no longer an applicant for access
authorization or no longer requires access authorization, the
procedures of this subpart shall be terminated without a final decision
as to the individual's access authorization eligibility, unless a final
decision has been rendered prior to the DOE being notified of the
change in the individual's pending access authorization status.
19. Newly redesignated Sec. 710.35 is revised to read as follows:
Sec. 710.35 Time frames.
Statements of time established for processing aspects of a case
under this subpart are the agency's desired time frames in implementing
the procedures set forth in this subpart. However, failure to meet the
time frames shall have no impact upon the final disposition of an
access authorization by a Manager, Hearing Officer, the Appeal Panel,
or the Secretary, and shall confer no procedural or substantive rights
upon an individual whose access authorization eligibility is being
considered.
20. Section 710.36 is added to read as follows:
Sec. 710.36 Acting officials.
Except for the Secretary, the responsibilities and authorities
conferred in this subpart may be exercised by persons who have been
designated in writing as acting for, or in the temporary capacity of,
the following DOE positions: The Local Director of Security, the
Manager, the Director, Office of Safeguards and Security, or the
General Counsel. The responsibilities and authorities of the Director,
Office of Security Affairs, may be exercised in his absence only by the
Deputy Director, Office of Security Affairs.
21. Appendix B to Subpart A of Part 710 is added to read as
follows:
Appendix B to Subpart A of Part 710--Adjudicative Guidelines Approved
by the President in Accordance With the Provisions of Executive Order
12968
(The following guidelines, included in this subpart for reference
purposes only, are reproduced as provided to the DOE by the Security
Policy Board. The President may change the guidelines without
notice.)
Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information
1. Introduction. The following adjudicative guidelines are
established for all U.S. government civilian and military personnel,
consultants, contractors, employees of contractors, licensees,
certificate holders or grantees and their employees and other
individuals who require access to classified information. They apply
to persons being considered for initial or continued eligibility for
access to classified information, to include sensitive compartmented
information and special access programs and are to be used by
government departments and agencies in all final clearance
determinations.
2. The Adjudicative Process.
(a) The adjudicative process is an examination of a sufficient
period of a person's life to make an affirmative determination that
the person is eligible for a security clearance. Eligibility for
access to classified information is predicated upon the individual
meeting these personnel security guidelines. The adjudicative
process is the careful weighing of a number of variables known as
the whole person concept. Available, reliable information about the
person, past and present, favorable and unfavorable, should be
considered in reaching a determination. In evaluating the relevance
of an individual's conduct, the adjudicator should consider the
following factors:
(1) The nature, extent, and seriousness of the conduct;
(2) The circumstances surrounding the conduct, to include
knowledgeable participation;
(3) The frequency and recency of the conduct;
(4) The individual's age and maturity at the time of the
conduct;
(5) The voluntariness of participation;
(6) The presence or absence of rehabilitation and other
pertinent behavioral changes;
(7) The motivation for the conduct;
(8) The potential for pressure, coercion, exploitation, or
duress; and
(9) The likelihood of continuation or recurrence.
(b) Each case must be judged on its own merits, and final
determination remains the responsibility of the specific department
or agency. Any doubt as to whether access to classified information
is clearly consistent with national security will be resolved in
favor of the national security.
(c) The ultimate determination of whether the granting or
continuing of eligibility for a security clearance is clearly
consistent with the interests of national security must be an
overall common sense determination based upon careful consideration
of the following, each of which is to be evaluated in the context of
the whole person concept, as explained further below:
(1) Guideline A: Allegiance to the United States;
(2) Guideline B: Foreign influence;
(3) Guideline C: Foreign preference;
(4) Guideline D: Sexual behavior;
(5) Guideline E: Personal conduct;
(6) Guideline F: Financial considerations;
(7) Guideline G: Alcohol consumption;
(8) Guideline H: Drug involvement;
(9) Guideline I: Emotional, mental, and personality disorders;
(10) Guideline J: Criminal Conduct;
(11) Guideline K: Security violations;
(12) Guideline L: Outside activities;
(13) Guideline M: Misuse of Information Technology Systems.
[[Page 47068]]
(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 any act of sabotage, espionage, treason,
terrorism, sedition, or other act whose aim is to overthrow the
Government of the United States or alter the form of government by
unconstitutional means;
(b) Association or sympathy with persons who are attempting to
commit, or who are committing, any of the above acts;
(c) Association or sympathy with persons or organizations that
advocate the overthrow of the United States Government, or any state
or subdivision, by force or violence or by other unconstitutional
means;
(d) Involvement in activities which unlawfully advocate or
practice the commission of acts of force or violence to prevent
others from exercising their rights under the Constitution or laws
of the United States or of any state.
5. Conditions that could mitigate security concerns include:
(a) The individual was unaware of the unlawful aims of the
individual or organization and severed ties upon learning of these;
(b) The individual's involvement was only with the lawful or
humanitarian aspects of such an organization;
(c) Involvement in the above activities occurred for only a
short period of time and was attributable to curiosity or academic
interest;
(d) The person has had no recent involvement or association with
such activities.
Guideline B: Foreign Influence
6. The Concern. A security risk may exist when an individual's
immediate family, including cohabitants and other persons to whom he
or she may be bound by affection, influence, or obligation are not
citizens of the United States or may be subject to duress. These
situations could create the potential for foreign influence that
could result in the compromise of classified information. Contacts
with citizens of other countries or financial interests in other
countries are also relevant to security determinations if they make
an individual potentially vulnerable to coercion, exploitation, or
pressure.
7. Conditions that could raise a security concern and may be
disqualifying include:
(a) An immediate family member, or a person to whom the
individual has close ties of affection or obligation, is a citizen
of, or resident or present in, a foreign country.
(b) Sharing living quarters with a person or persons, regardless
of their citizenship status, if the potential for adverse foreign
influence or duress exists;
(c) Relatives, cohabitants, or associates who are connected with
any foreign country;
(d) Failing to report, where required, associations with foreign
nationals;
(e) Unauthorized association with a suspected or known
collaborator or employee of a foreign intelligence service;
(f) Conduct which may make the individual vulnerable to
coercion, exploitation, or pressure by a foreign government;
(g) Indications that representatives or nationals from a foreign
country are acting to increase the vulnerability of the individual
to possible future exploitation, coercion or pressure;
(h) A substantial financial interest in a country, or in any
foreign owned or operated business that could make the individual
vulnerable to foreign influence.
8. Conditions that could mitigate security concerns include:
(a) A determination that the immediate family member(s) (spouse,
father, mother, sons, daughters, brothers, sisters), cohabitant, or
associate(s) in question are not agents of a foreign power or in a
position to be exploited by a foreign power in a way that could
force the individual to choose between loyalty to the person(s)
involved and the United States;
(b) Contacts with foreign citizens are the result of official
United States Government business;
(c) Contact and correspondence with foreign citizens are casual
and infrequent;
(d) The individual has promptly complied with existing agency
requirements regarding the reporting of contacts, requests, or
threats from persons or organizations from a foreign country;
(e) Foreign financial interests are minimal and not sufficient
to affect the individual's security responsibilities.
Guideline C: Foreign Preference
9. The Concern. When an individual acts in such a way as to
indicate a preference for a foreign country over the United States,
then he or she may be prone to provide information or make decisions
that are harmful to the interests of the United States.
10. Conditions that could raise a security concern and may be
disqualifying include:
(a) The exercise of dual citizenship;
(b) Possession and/or use of a foreign passport;
(c) Military service or a willingness to bear arms for a foreign
country;
(d) Accepting educational, medical, or other benefits, such as
retirement and social welfare, from a foreign country;
(e) Residence in a foreign country to meet citizenship
requirements;
(f) Using foreign citizenship to protect financial or business
interests in another country;
(g) Seeking or holding political office in the foreign country;
(h) Voting in foreign elections; and
(i) Performing or attempting to perform duties, or otherwise
acting, so as to serve the interests of another government in
preference to the interests of the United States.
11. Conditions that could mitigate security concerns include:
(a) Dual citizenship is based solely on parents' citizenship or
birth in a foreign country;
(b) Indicators of possible foreign preference (e.g., foreign
military service) occurred before obtaining United States
citizenship;
(c) Activity is sanctioned by the United States;
(d) Individual has expressed a willingness to renounce dual
citizenship.
Guideline D: Sexual Behavior
12. The Concern. Sexual behavior is a security concern if it
involves a criminal offense, indicates a personality or emotional
disorder, may subject the individual to coercion, exploitation, or
duress, or reflects lack of judgment or discretion. (The adjudicator
should also consider guidelines pertaining to criminal conduct
(Guideline J) and emotional, mental, and personality disorders
(Guideline I) in determining how to resolve the security concerns
raised by sexual behavior.) Sexual orientation or preference may not
be used as a basis for a disqualifying factor in determining a
person's eligibility for a security clearance.
13. Conditions that could raise a security concern and may be
disqualifying include:
(a) Sexual behavior of a criminal nature, whether or not the
individual has been prosecuted;
(b) Compulsive or addictive sexual behavior when the person is
unable to stop a pattern of self-destructive high-risk behavior or
that which is symptomatic of a personality disorder;
(c) Sexual behavior that causes an individual to be vulnerable
to coercion, exploitation, or duress;
(d) Sexual behavior of a public nature and/or that which
reflects lack of discretion or judgment.
14. Conditions that could mitigate security concerns include:
[[Page 47069]]
(a) The behavior occurred during or prior to adolescence and
there is no evidence of subsequent conduct of a similar nature;
(b) The behavior was not recent and there is no evidence of
subsequent conduct of a similar nature;
(c) There is no other evidence of questionable judgment,
irresponsibility, or emotional instability;
(d) The behavior no longer serves as a basis for coercion,
exploitation, or duress.
Guideline E: Personal Conduct
15. The Concern. Conduct involving questionable judgment,
untrustworthiness, unreliability, lack of candor, dishonesty, or
unwillingness to comply with rules and regulations could indicate
that the person may not properly safeguard classified information.
The following will normally result in an unfavorable clearance
action or administrative termination of further processing for
clearance eligibility:
(a) Refusal to undergo or cooperate with required security
processing, including medical and psychological testing; or
(b) Refusal to complete required security forms, releases, or
provide full, frank and truthful answers to lawful questions of
investigators, security officials or other official representatives
in connection with a personnel security or trustworthiness
determination.
16. Conditions that could raise a security concern and may be
disqualifying also include:
(a) Reliable, unfavorable information provided by associates,
employers, coworkers, neighbors, and other acquaintances;
(b) The deliberate omission, concealment, or falsification of
relevant and material facts from any personnel security
questionnaire, personal history statement, or similar form used to
conduct investigations, determine employment qualifications, award
benefits or status, determine security clearance eligibility or
trustworthiness, or award fiduciary responsibilities;
(c) Deliberately providing false or misleading information
concerning relevant and material matters to an investigator,
security official, competent medical authority, or other official
representative in connection with a personnel security or
trustworthiness determination.
(d) Personal conduct or concealment of information that may
increase an individual's vulnerability to coercion, exploitation, or
duress, such as engaging in activities which, if known, may affect
the person's personal, professional, or community standing or render
the person susceptible to blackmail;
(e) A pattern of dishonesty or rule violations, including
violation of any written or recorded agreement made between the
individual and the agency;
(f) Association with persons involved in criminal activity.
17. Conditions that could mitigate security concerns include:
(a) The information was unsubstantiated or not pertinent to a
determination of judgment, trustworthiness, or reliability;
(b) The falsification was an isolated incident, was not recent,
and the individual has subsequently provided correct information
voluntarily;
(c) The individual made prompt, good-faith efforts to correct
the falsification before being confronted with the facts;
(d) Omission of material facts was caused or significantly
contributed to by improper or inadequate advice of authorized
personnel, and the previously omitted information was promptly and
fully provided;
(e) The individual has taken positive steps to significantly
reduce or eliminate vulnerability to coercion, exploitation, or
duress;
(f) A refusal to cooperate was based on advice from legal
counsel or other officials that the individual was not required to
comply with security processing requirements and, upon being made
aware of the requirement, fully and truthfully provided the
requested information;
(g) Association with persons involved in criminal activities has
ceased.
Guideline F: Financial Considerations
18. The Concern. An individual who is financially overextended
is at risk of having to engage in illegal acts to generate funds.
Unexplained affluence is often linked to proceeds from financially
profitable criminal acts.
19. Conditions that could raise a security concern and may be
disqualifying include:
(a) A history of not meeting financial obligations;
(b) Deceptive or illegal financial practices such as
embezzlement, employee theft, check fraud, income tax evasion,
expense account fraud, filing deceptive loan statements, and other
intentional financial breaches of trust;
(c) Inability or unwillingness to satisfy debts;
(d) Unexplained affluence;
(e) Financial problems that are linked to gambling, drug abuse,
alcoholism, or other issues of security concern.
20. Conditions that could mitigate security concerns include:
(a) The behavior was not recent;
(b) It was an isolated incident;
(c) The conditions that resulted in the behavior were largely
beyond the person's control (e.g., loss of employment, a business
downturn, unexpected medical emergency, or a death, divorce or
separation);
(d) The person has received or is receiving counseling for the
problem and there are clear indications that the problem is being
resolved or is under control;
(e) The affluence resulted from a legal source; and
(f) The individual initiated a good-faith effort to repay
overdue creditors or otherwise resolve debts.
Guideline G: Alcohol Consumption
21. The Concern. Excessive alcohol consumption often leads to
the exercise of questionable judgment, unreliability, failure to
control impulses, and increases the risk of unauthorized disclosure
of classified information due to carelessness.
22. Conditions that could raise a security concern and may be
disqualifying include:
(a) Alcohol-related incidents away from work, such as driving
while under the influence, fighting, child or spouse abuse, or other
criminal incidents related to alcohol use;
(b) Alcohol-related incidents at work, such as reporting for
work or duty in an intoxicated or impaired condition, or drinking on
the job;
(c) Diagnosis by a credentialed medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of alcohol abuse
or alcohol dependence;
(d) Evaluation of alcohol abuse or alcohol dependence by a
licensed clinical social worker who is a staff member of a
recognized alcohol treatment program;
(e) Habitual or binge consumption of alcohol to the point of
impaired judgment;
(f) Consumption of alcohol, subsequent to a diagnosis of
alcoholism by a credentialed medical professional and following
completion of an alcohol rehabilitation program.
23. Conditions that could mitigate security concerns include:
(a) The alcohol related incidents do not indicate a pattern;
(b) The problem occurred a number of years ago and there is no
indication of a recent problem;
(c) Positive changes in behavior supportive of sobriety;
(d) Following diagnosis of alcohol abuse or alcohol dependence,
the individual has successfully completed inpatient or outpatient
rehabilitation along with aftercare requirements, participated
frequently in meetings of Alcoholics Anonymous or a similar
organization, has abstained from alcohol for a period of at least 12
months, and received a favorable prognosis by a credentialed medical
professional or a licensed clinical social worker who is a staff
member of a recognized alcohol treatment program.
Guideline H: Drug Involvement
24. The Concern.
(a) Improper or illegal involvement with drugs raises questions
regarding an individual's willingness or ability to protect
classified information. Drug abuse or dependence may impair social
or occupational functioning, increasing the risk of an unauthorized
disclosure of classified information.
(b) Drugs are defined as mood and behavior altering substances
and include: (1) Drugs, materials, and other chemical compounds
identified and listed in the Controlled Substances Act of 1970, as
amended (e.g., marijuana or cannabis, depressants, narcotics,
stimulants, and hallucinogens), and (2) inhalants and other similar
substances.
(c) Drug abuse is the illegal use of a drug or use of a legal
drug in a manner that deviates from approved medical direction.
25. Conditions that could raise a security concern and may be
disqualifying include:
(a) Any drug abuse (see above definition);
(b) Illegal drug possession, including cultivation, processing,
manufacture, purchase, sale, or distribution;
(c) Diagnosis by a credentialed medical professional (e.g.,
physician, clinical psychologist, or psychiatrist) of drug abuse or
drug dependence;
[[Page 47070]]
(d) Evaluation of drug abuse or drug dependence by a licensed
clinical social worker who is a staff member of a recognized drug
treatment program;
(e) Failure to successfully complete a drug treatment program
prescribed by a credentialed medical professional. Recent drug
involvement, especially following the granting of a security
clearance, or an expressed intent not to discontinue use, will
almost invariably result in an unfavorable determination.
26. Conditions that could mitigate security concerns include:
(a) The drug involvement was not recent;
(b) The drug involvement was an isolated or aberrational event;
(c) A demonstrated intent not to abuse any drugs in the future;
(d) Satisfactory completion of a prescribed drug treatment
program, including rehabilitation and aftercare requirements,
without recurrence of abuse, and a favorable prognosis by a
credentialed medical professional.
Guideline I: Emotional, Mental, and Personality Disorders
27. The Concern. Emotional, mental, and personality disorders
can cause a significant defect in an individual's psychological,
social and occupational functioning. These disorders are of security
concern because they may indicate a defect in judgment, reliability,
or stability. A credentialed mental health professional (e.g.,
clinical psychologist or psychiatrist), employed by, acceptable to
or approved by the government, should be utilized in evaluating
potentially disqualifying and mitigating information fully and
properly, and particularly for consultation with the individual's
mental health care provider.
28. Conditions that could raise a security concern and may be
disqualifying include:
(a) An opinion by a credentialed mental health professional that
the individual has a condition or treatment that may indicate a
defect in judgment, reliability, or stability;
(b) Information that suggests that an individual has failed to
follow appropriate medical advice relating to treatment of a
condition, e.g., failure to take prescribed medication;
(c) A pattern of high-risk, irresponsible, aggressive, anti-
social or emotionally unstable behavior;
(d) Information that suggests that the individual's current
behavior indicates a defect in his or her judgment or reliability.
29. Conditions that could mitigate security clearance concerns
include:
(a) There is no indication of a current problem;
(b) Recent opinion by a credentialed mental health professional
that an individual's previous emotional, mental, or personality
disorder is cured, under control or in remission and has a low
probability of recurrence or exacerbation;
(c) The past emotional instability was a temporary condition
(e.g., one caused by a death, illness, or marital breakup), the
situation has been resolved, and the individual is no longer
emotionally unstable.
Guideline J: Criminal Conduct
30. The Concern. A history or pattern of criminal activity
creates a doubt about a person's judgment, reliability and
trustworthiness.
31. Conditions that could raise a security concern and may be
disqualifying include:
(a) Allegations or admissions of criminal conduct, regardless of
whether the person was formally charged;
(b) A single serious crime or multiple lesser offenses.
32. Conditions that could mitigate security concerns include:
(a) The criminal behavior was not recent;
(b) The crime was an isolated incident;
(c) The person was pressured or coerced into committing the act
and those pressures are no longer present in that person's life;
(d) The person did not voluntarily commit the act and/or the
factors leading to the violation are not likely to recur;
(e) Acquittal;
(f) There is clear evidence of successful rehabilitation.
Guideline K: Security Violations
33. The Concern. Noncompliance with security regulations raises
doubt about an individual's trustworthiness, willingness, and
ability to safeguard classified information.
34. Conditions that could raise a security concern and may be
disqualifying include:
(a) Unauthorized disclosure of classified information;
(b) Violations that are deliberate or multiple or due to
negligence.
35. Conditions that could mitigate security concerns include
actions that:
(a) Were inadvertent;
(b) Were isolated or infrequent;
(c) Were due to improper or inadequate training;
(d) Demonstrate a positive attitude towards the discharge of
security responsibilities.
Guideline L: Outside Activities
36. The Concern. Involvement in certain types of outside
employment or activities is of security concern if it poses a
conflict with an individual's security responsibilities and could
create an increased risk of unauthorized disclosure of classified
information.
37. Conditions that could raise a security concern and may be
disqualifying include any service, whether compensated, volunteer,
or employment with:
(a) A foreign country;
(b) Any foreign national;
(c) A representative of any foreign interest;
(d) Any foreign, domestic, or international organization or
person engaged in analysis, discussion, or publication of material
on intelligence, defense, foreign affairs, or protected technology.
38. Conditions that could mitigate security concerns include:
(a) Evaluation of the outside employment or activity indicates
that it does not pose a conflict with an individual's security
responsibilities;
(b) The individual terminates employment or discontinues the
activity upon being notified that it is in conflict with his or her
security responsibilities.
Guideline M: Misuse of Information Technology Systems
39. The Concern. Noncompliance with rules, procedures,
guidelines, or regulations pertaining to information technology
systems may raise security concerns about an individual's
trustworthiness, willingness, and ability to properly protect
classified systems, networks, and information. Information
Technology Systems include all related equipment used for the
communication, transmission, processing, manipulation, and storage
of classified or sensitive information.
40. Conditions that could raise a security concern and may be
disqualifying include:
(a) Illegal or unauthorized entry into any information
technology system;
(b) Illegal or unauthorized modification destruction,
manipulation or denial of access to information residing on an
information technology system;
(c) Removal (or use) of hardware, software, or media from any
information technology system without authorization, when
specifically prohibited by rules, procedures, guidelines or
regulations;
(d) Introduction of hardware, software, or media into any
information technology system without authorization, when
specifically prohibited by rules, procedures, guidelines or
regulations.
41. Conditions that could mitigate security concerns include:
(a) The misuse was not recent or significant;
(b) The conduct was unintentional or inadvertent;
(c) The introduction or removal of media was authorized;
(d) The misuse was an isolated event;
(e) The misuse was followed by a prompt, good faith effort to
correct the situation.
[FR Doc. 01-22486 Filed 9-10-01; 8:45 am]
BILLING CODE 6450-01-P