Federal Register: October 28, 2002 (Volume 67, Number 208)
Rules and Regulations               
Page 65690-65692                      



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.


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.


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 
    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 
    (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 

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, 

    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 

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 


    1. The authority citation for part 710 is revised to read as 

    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. 

    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]