[Federal Register Volume 76, Number 44 (Monday, March 7, 2011)]
[Rules and Regulations]
[Pages 12271-12273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5046]


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DEPARTMENT OF ENERGY

10 CFR Part 712

RIN 1992-AZ00


Human Reliability Program: Identification of Reviewing Official

AGENCY: Department of Energy (DOE).

ACTION: Final rule.

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SUMMARY: DOE is amending the Human Reliability Program (HRP) rule to 
designate the appropriate Under Secretary as the person with the 
authority to issue a final written decision to recertify or revoke the 
certification of an individual in the HRP. This action places 
decisional authority in the Under Secretary responsible for the 
operational functioning of the program in which the certification issue 
arises. It also streamlines internal procedures and facilitates timely 
final agency decision-making. This amendment modifies internal agency 
responsibilities but does not alter substantive rights or obligations 
under current law.

DATES: Effective Date: This rule is effective on March 7, 2011.

FOR FURTHER INFORMATION CONTACT: John Gurney, Office of the General 
Counsel, GC-53, 1000 Independence Avenue, SW., Washington, DC 20585; 
[email protected]; 202-586-8269; Dane Woodard, Office of Personnel 
Security, 1000 Independence Avenue, SW., Washington, DC 20585; 
[email protected]; 202-586-4148.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Pursuant to the Atomic Energy Act of 1954 (the AEA), the DOE owns, 
leases, operates or supervises activities at facilities in various 
locations in the United States. Many of these facilities are involved 
in researching, testing, producing, disassembling, or transporting 
nuclear explosives, which, when combined with Department of Defense 
delivery systems, become nuclear weapons systems. These facilities are 
often involved in other activities that affect the national security. 
Compromise of these and other DOE facilities would severely damage 
national security. To guard against such compromise, DOE established 
the Human Reliability Program (HRP), 10 CFR part 712. 69 FR 3213 
(January 23, 2004). The HRP is designed to ensure that individuals who 
occupy positions affording unescorted access to certain materials, 
facilities, and programs meet the highest standards of reliability, as 
well as physical and mental suitability, through a system of continuous 
evaluation of those individuals. The purpose of this continuous 
evaluation is to identify, in a timely manner, individuals whose 
judgment may be impaired by physical or mental/personality disorders; 
the use of illegal drugs or the abuse of legal drugs or other 
substances; the abuse of alcohol; or any other condition or 
circumstance that may represent a reliability, safety, or security 
concern.
    The HRP requires that all individuals who work in positions 
affording unescorted access to certain materials, facilities, and 
programs be certified as meeting the highest standards of reliability 
and physical and mental/personality suitability before such access may 
be granted.
    Under current regulations, an individual's HRP certification is 
subject to immediate review in the event a supervisor has a reasonable 
belief that the individual is not reliable, based on either a safety or 
security concern (10 CFR 712.19(a)). During the pendency of the review, 
the individual will be removed from assigned HRP duties. This temporary 
removal is an interim, precautionary action and does not constitute a 
determination of reliability or access authorization status. If the 
removal is based on a general security concern, 10 CFR 712.19 provides 
for resolution under 10 CFR part 710, subpart A (General Criteria and 
Procedures for Determining Eligibility for Access to Classified Matter 
or Special Nuclear Material). Individuals who are removed from HRP 
duties for reasons not related to general security concerns (e.g., 
reliability) are entitled to resolve these issues through a formal 
procedure outlined in 10 CFR 712.19 through 712.23. The part 712 
regulations require that the individual be given a written statement of 
the issues, an opportunity to respond, including an opportunity for a 
hearing before a DOE Office of Hearings and Appeals hearing officer, 
and an opportunity to have the opinion of the hearing officer reviewed 
at a higher level before a final determination is made.

[[Page 12272]]

    As promulgated in 2004, the existing part 712 rule designates the 
Deputy Secretary as the person responsible for conducting the review of 
the hearing officer's opinion and the Director, Office of Security's 
recommendation, and issuing a final written decision. This designation 
has proved to be impracticable, as the responsibility to review the 
entire record of every HRP certification suspension proceeding 
conducted before DOE's Office of Hearings and Appeals imposes an undue 
burden upon the Department's second highest-ranking official, given the 
substantial number and nature of the Deputy Secretary's 
responsibilities for the management of the Department. Consequently, to 
relieve this burden, promote administrative efficiency, and facilitate 
prompt resolution of HRP certification suspension cases, DOE is 
amending the HRP rule to assign the responsibility for reviewing the 
recommendation of the Chief Health, Safety, and Security Officer to the 
particular Under Secretary with cognizance over the program which makes 
the HRP certification in question. The amendment will streamline 
internal procedures, and more closely align the final agency decision 
in HRP certification suspension cases with the responsibilities of the 
relevant secretarial officer.
    None of the regulatory amendments in this final rule alter 
substantive rights or obligations under current law.
    This final rule has been approved by the Office of the Secretary of 
Energy.

II. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Administrative Procedure Act

    The regulatory amendments in this notice of final rulemaking 
reflect a transfer of function that relates solely to internal agency 
organization, management or personnel. As such, pursuant to 5 U.S.C. 
553(a)(2), this rule is not subject to the rulemaking requirements of 
the Administrative Procedure Act, including the requirements to provide 
prior notice and an opportunity for public comment and a 30-day delay 
in effective date.

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. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies to ensure that the potential impacts of its 
draft rules on small entities are properly considered during the 
rulemaking process (68 FR 7990, February 19, 2003), and has made them 
available on the Office of General Counsel's Web site: http://www.gc.doe.gov.
    As this rule of agency organization, management and personnel is 
not subject to the requirement to provide prior notice and an 
opportunity for public comment under 5 U.S.C. 553 or any other law, 
this rule is not subject to the analytical requirements of the 
Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

    This final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rule amends existing 
regulations without changing the environmental effect of the 
regulations being amended, and, therefore, is covered under the 
Categorical Exclusion in paragraph A5 of Appendix A 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 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 the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order also requires agencies 
to have an accountable process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined today's rule and 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.

G. 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 
Federal 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. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this final rule meets the relevant standards of 
Executive Order 12988.

[[Page 12273]]

H. 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 assess the effects of a Federal 
regulatory action on State, local, and tribal governments, and the 
private sector. DOE has determined that today's regulatory action does 
not impose a Federal mandate on State, local or tribal governments or 
on the private sector.

I. 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 rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guideline issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

K. 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 promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
Today's regulatory action is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule. The report will state 
that it has been determined that the rule is not a ``major rule'' as 
defined by 5 U.S.C. 801(2).

    Issued in Washington, DC, on February 28, 2011.
Scott Blake Harris,
General Counsel.

    For the reasons stated in the preamble, part 712 of chapter III of 
title 10, Code of Federal Regulations, is amended as set forth below:

PART 712--HUMAN RELIABILITY PROGRAM

0
1. The authority citation for part 712 continues to read as follows:

    Authority: 42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-5815; 
42 U.S.C. 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.


Sec.  712.12  [Amended]

0
2. Section 712.12(d) is amended by removing ``Deputy Secretary'' and 
adding in its place ``Under Secretary with cognizance over the program 
which makes the HRP certification at issue (hereinafter `cognizant 
Under Secretary'), in consultation with the DOE General Counsel''.


Sec.  712.22  [Amended]

0
3. Section 712.22 is amended by removing ``Deputy Secretary'' and 
adding in its place ``cognizant Under Secretary''.

0
4. Section 712.23 is amended by revising the section heading to read as 
set forth below, and in the first sentence by removing ``Deputy 
Secretary'' and adding in its place ``cognizant Under Secretary, in 
consultation with the DOE General Counsel''.


Sec.  712.23  Final decision by DOE Under Secretary.

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[FR Doc. 2011-5046 Filed 3-4-11; 8:45 am]
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