Federal Register: October 28, 2002 (Volume 67, Number 208)
Rules and Regulations
Page 65690-65692
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DEPARTMENT OF ENERGY
10 CFR Part 710
RIN 1992-AA30
Eligibility for Security Police Officer Positions in the
Personnel Security Assurance Program
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending its regulations to
allow newly hired individuals in security police officer positions who
have received an interim Q access authorization through DOE's
Accelerated Access Authorization Program to be eligible to hold a
Personnel Security Assurance Program (PSAP) position.
EFFECTIVE DATE: This final rule will be effective November 27, 2002.
FOR FURTHER INFORMATION CONTACT: Linda Repass, Personnel Security
Assurance Program Manager, Security Policy Staff, Office of Security,
Department of Energy, SO-112, 1000 Independence Ave., SW., Washington,
DC 20585, 301-903-4800.
SUPPLEMENTARY INFORMATION:
I. Background
The Personnel Security Assurance Program (PSAP) is a special access
authorization program, established by DOE pursuant to the Atomic Energy
Act of l954, to assure the reliability of individuals whose positions:
(1) Afford direct access to Category I quantities of special nuclear
material (including guarding and transporting special nuclear
material), (2) are identified as nuclear material production reactor
operators, or (3) have the potential for causing unacceptable damage to
national security. The PSAP regulations are at 10 CFR part 710, subpart
B and currently require an employee or applicant for any PSAP position
to have a Q access authorization based upon a full background
investigation before being granted a PSAP access authorization. 10 CFR
710.60(c).
On April 4, 2002, DOE proposed a rule to amend 10 CFR 710.60 to
permit security police officers (SPOs) to be eligible for a PSAP access
authorization based on an interim access authorization obtained through
the Department's Accelerated Access Authorization Program (AAAP) (see
67 FR 16061). DOE explained in the notice of proposed rulemaking (NOPR)
that the events of September 11, 2001, have made use of the AAAP to
expedite SPO screening vitally important, particularly because of the
need for DOE to increase the size of its protective forces.
The AAAP was implemented to assist DOE managers and DOE contractors
who request interim access authorization for individuals pursuant to
DOE Order 472.1B, DOE Manual 472.1-1B, and related DOE directives.
Entry into the AAAP is voluntary and written consent of the employee or
applicant is required. The AAAP includes the following screening
elements:
(1) Testing for the use of illegal drugs in accordance with the
provisions of DOE directives implementing Executive Order 12564 or, for
contractor employees, the provisions of 10 CFR part 707, ``Workplace
Substance Abuse Programs at DOE Sites'';
(2) Completion of a National Agency Check; for contractor
employees, this includes checks of Office of Personnel Management
security indices, Department of Defense clearance indices, Federal
Bureau of Investigation name and fingerprint indices, and Credit Bureau
files, and for Federal
[[Page 65691]]
employees, the National Agency Check also includes written inquiries to
past employers, references given by the individual, and any educational
institutions attended recently;
(3) A psychological assessment using a standard psychological
screening test to determine if the individual has any psychological/
behavioral condition which might call into question the individual's
reliability, judgment, and trustworthiness;
(4) A controlled counterintelligence-scope polygraph examination in
accordance with 10 CFR part 709; and
(5) Review of the applicant's completed ``Questionnaire for
National Security Positions'' (Standard Form 86).
With the exception of the AAAP-specific psychological/behavioral
evaluation, the AAAP screening elements are required elements for
anyone in a PSAP position. Thus, as explained in the NOPR, the rule
change proposed by DOE would enhance the ability of SPOs who have
completed their required training and received an interim access
authorization to assume PSAP duties prior to completion of their
background investigation. Due to the controlled nature and continuous
oversight of SPO positions, there is no appreciable risk to allowing
assumption of PSAP duties by SPOs prior to completion and adjudication
of the background investigation.
DOE received no comments in response to the NOPR.
II. Summary of Rule Amendment
Having received no public comment, DOE today is adopting the
proposed rule as final without change.
This final rule amends section 710.60 of the PSAP regulations to
permit newly hired SPOs who obtain interim access authorization through
the AAAP to assume their PSAP duties before completion of the ongoing
full background investigation. When effective, this provision will
allow newly hired SPOs who obtain an interim access authorization
through the AAAP and successfully complete the PSAP requirements to
assume their PSAP duties immediately upon completing the 9-week basic
SPO training course.
This final rule also adds to section 710.54 of the PSAP regulations
a definition of the term ``Accelerated Access Authorization Program''
that contains the central elements of the AAAP.
III. Regulatory and Procedural Requirements
A. Review Under 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, this
action was not subject to review under that Executive Order by the
Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB).
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) and 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 final rule meets 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. This rule
would not directly regulate small businesses or other small entities.
It would apply only to individuals who apply for SPO positions at sites
owned or operated by DOE or DOE contractors. DOE management and
operating contractors are not small businesses. Accordingly, DOE
certified in the NOPR that the rule, if promulgated, would not have a
significant economic impact on a substantial number of small entities.
DOE today affirms that certification.
D. Review Under the Paperwork Reduction Act
No new collection of information would be imposed by this proposed
rule. Accordingly, no clearance by the Office of Management and Budget
is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this 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 implementing the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.). Specifically, this rule would amend DOE's
regulations governing access to PSAP and would not change the
environmental effect of the PSAP regulations. Therefore, this
rulemaking is covered under the Categorical Exclusion in paragraph A5
to subpart D, 10 CFR part 1021. Accordingly, neither an environmental
assessment nor an environmental impact statement is required.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' (64 FR 43255, August 10,
1999) requires agencies to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have ``federalism
implications.'' Policies that have federalism implications are defined
in the Executive Order to include regulations that have ``substantial
direct effects 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.'' On March 14,
2000, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations (65 FR 13735). DOE has examined today's
rule and determined that it would not have a substantial direct effect
on the States,
[[Page 65692]]
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 the Executive
Order.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each federal agency to prepare a written assessment of the
effects of any federal mandate in a proposed or final rule that may
result in the expenditure by state, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million 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 requirement that might
significantly or uniquely affect them. This rule does not contain any
federal mandate, so these requirements do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999, Pub. L. 105-277, requires Federal agencies to issue a
Family Policymaking Assessment for any proposed rule that may affect
family well-being. Today's rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. 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
the 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, or use.
Today's rule is not a significant energy action. Accordingly, DOE
has not prepared a Statement of Energy Effects.
J. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of today's final rule prior to the effective
date set forth at the outset of this notice. The report will state that
it has been determined that the rule is not a ``major rule'' as defined
by 5 U.S.C. 801(2).
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Government employees, Nuclear materials,
Revocation, Security measures, Suspension.
Issued in Washington, on October 16, 2002.
Spencer Abraham,
Secretary of Energy.
For the reasons set forth in the preamble, part 710 of chapter III
of title 10, Code of Federal Regulations is amended, as set forth
below:
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL
1. The authority citation for part 710 is revised to read as
follows:
Authority: 42 U.S.C. 2165; 2201; 5815; 7101 et seq.; 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.
2. Section 710.54 of subpart B is amended by adding, in
alphabetical order, the definition of ``Accelerated Access
Authorization Program'' to read as follows:
Sec. 710.54 Definitions.
* * * * *
Accelerated Access Authorization Program means the DOE program for
granting interim access to classified matter and special nuclear
material based on a drug test, a National Agency Check, a psychological
assessment, a counterintelligence-scope polygraph examination in
accordance with 10 CFR part 709, and a review of the applicant's
completed ``Questionnaire for National Security Positions.'' (Standard
Form 86).
* * * * *
3. Section 710.60 of subpart B is amended by revising paragraph (c)
to read as follows:
Sec. 710.60 DOE security review and clearance determination.
* * * * *
(c) Review for initial PSAP access authorization. An initial PSAP
access authorization requires the applicant or employee to have a DOE Q
access authorization based upon a background investigation, except for
Security Police Officers who may be granted PSAP access authorization
based on an interim Q access authorization obtained through the
Accelerated Access Authorization Program. The adjudication and
determination for a PSAP access authorization shall be based upon a
review of security information, including the results of the background
investigation (or Accelerated Access Authorization Program screening
elements in the case of Security Police Officers) and the information
provided by management and medical sources.
* * * * *
[FR Doc. 02-27205 Filed 10-25-02; 8:45 am]
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