[Federal Register Volume 66, Number 176 (Tuesday, September 11, 2001)]
[Rules and Regulations]
[Pages 47061-47070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22486]



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  Federal Register / Vol. 66, No. 176 / Tuesday, September 11, 2001 / 
Rules and Regulations  

[[Page 47061]]



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