[Federal Register Volume 67, Number 65 (Thursday, April 4, 2002)]
[Proposed Rules]
[Pages 16061-16063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8134]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 67, No. 65 / Thursday, April 4, 2002 / 
Proposed Rules  

[[Page 16061]]


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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: Notice of proposed rulemaking and opportunity for public 
comment.

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SUMMARY: The Department of Energy (DOE) proposes to amend its 
regulations to allow newly hired individuals in security police officer 
(SPO) positions who have received an interim Q access authorization 
through DOE's Accelerated Access Authorization Program (AAAP) to be 
eligible to hold a Personnel Security Assurance Program (PSAP) 
position. Currently, DOE's regulations require a Q access authorization 
based upon a full background investigation for all PSAP positions. The 
events of September 11, 2001, have made use of the AAAP to expedite SPO 
screening vitally important. Our activities will need to increase the 
size of their protective forces, and use of the AAAP will enable them 
to do so in a timely manner.

DATES: Written comments must be received on or before May 6, 2002.

ADDRESSES: Comments (3 copies) should be addressed to: 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.

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 and Explanation of Proposal

    The Personnel Security Assurance Program (PSAP) is a special access 
authorization program, established by DOE pursuant to the Atomic Energy 
Act of 1954, 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).
    This proposed rule would 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). A 
definition of the term ``Accelerated Access Authorization Program'' is 
proposed to be added to section 710.54 of the PSAP regulations. The 
proposed rule would 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. If the 
proposed rule is adopted, newly hired SPOs who obtain an interim access 
authorization through the AAAP and successfully complete the PSAP 
requirements will be able to assume their PSAP duties immediately upon 
completing the 9-week basic SPO training course.
    The AAAP was implemented to assist DOE managers and DOE contractors 
who request interim access authorization for individuals pursuant to 
DOE Order 472.1, DOE Order 5631.2C (Chapters I-IX), and related DOE 
directives. Entry into the AAAP is voluntary and written consent of the 
employee or applicant is required.
    The events of September 11, 2001, have made use of the AAAP to 
expedite SPO screening vitally important. Our activities will need to 
increase the size of their protective forces, and use of the AAAP will 
enable them to do so in a timely manner.
    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 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, the proposed rule change would enhance 
the ability for 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.

II. 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

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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 proposed 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 
proposed 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 certifies that the proposed rule, if promulgated, 
would not have a significant economic impact on a substantial number of 
small entities. DOE has not prepared a regulatory flexibility analysis 
for this rulemaking.

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 proposed 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 proposed 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 
proposed rule and determined that it would not have a substantial 
direct effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. No further 
action is required by 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 proposed 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, Public Law 105-277, requires Federal agencies to issue a 
Family Policymaking Assessment for any proposed rule that may affect 
family well-being. Today's proposal 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 proposed 
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

[[Page 16063]]

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 proposed rule is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

III. Opportunity for Public Comment

    Interested persons are invited to participate by submitting data, 
views or arguments with respect to the rule amendment proposed in this 
notice. Three copies of written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice. All comments 
received will be available for public inspection as part of the 
administrative record on file for this rulemaking in the Department of 
Energy Reading Room, Room 1E-190, Forrestal Building, 1000 Independence 
Avenue, SW, Washington, DC 20585, (202) 586-3142, between the hours 9 
a.m. and 4 p.m., Monday through Friday, except Federal holidays. All 
written comments received by the date indicated in the DATES section of 
this notice and all other relevant information in the record will be 
carefully assessed and fully considered prior to the publication of a 
final rule. Any information of data that the submitter considers to be 
exempt from public disclosure by law must be so identified and 
submitted in writing (one copy), as well as one complete copy from 
which the information believed to be exempt from disclosure is deleted. 
DOE will determine if the information or data is exempt from 
disclosure.
    DOE has not scheduled a public hearing to receive oral 
presentations of views, data and arguments because DOE does not believe 
the proposed rule presents a substantial issue of fact or law or that 
the proposed rule would likely have a substantial impact on the 
Nation's economy or large numbers of individuals or businesses. DOE 
will reconsider this matter if public comments show that such issues or 
potential impacts exist.

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 March 22, 2002.
Spencer Abraham,
Secretary.

    For the reasons set forth in the preamble, Part 710 of Chapter III 
of Title 10, Code of Federal Regulations is proposed to be 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. 02-8134 Filed 4-3-02; 8:45 am]
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