[Federal Register Volume 78, Number 177 (Thursday, September 12, 2013)]
[Rules and Regulations]
[Pages 56132-56135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22231]


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DEPARTMENT OF ENERGY

10 CFR Part 712

RIN 1992-AA44


Human Reliability Program: Technical Amendments

AGENCY: Department of Energy.

ACTION: Final rule; technical amendment.

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SUMMARY: The Department of Energy (DOE) is amending its Human 
Reliability Program (HRP) regulations to eliminate references to 
obsolete provisions and to update part 712 to reflect organizational 
changes within the DOE. Today's regulatory amendments do not alter 
substantive rights or obligations under current law.

DATES: Effective Date: This rule is effective on September 12, 2013.

FOR FURTHER INFORMATION CONTACT: Regina G. Cano, Office of Security, 
Office of Health, Safety and Security, U.S. Department of Energy, 1000 
Independence Avenue SW., Washington, DC 20585; [email protected]; 
301-903-3473.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    DOE's HRP, is designed to ensure that individuals who occupy 
positions affording unescorted access to certain nuclear materials, 
nuclear explosive devices, programs, and facilities where (among other 
activities) nuclear explosives are tested produced, disassembled and 
transported, 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.

A. Accelerated Access Authorization Program

    The HRP requires that all individuals who work in positions 
affording unescorted access to certain materials, facilities, and 
program be certified as meeting the highest standards of reliability 
and physical and mental/personality suitability before such access may 
be granted. As promulgated in 2004 (69 FR 3213; January 23, 2004), the 
part 712 rule requires in Sec.  712.11(a)(1) that each individual 
applying for or in an HRP position must have a DOE ``Q'' access 
authorization based on a background investigation, ``except for 
security police officers who have been granted an interim ``Q'' through 
the Accelerated Access Authorization Program (AAAP).'' The AAAP is 
defined in the current rule as ``the DOE program for granting interim 
access to classified matter and special nuclear material based on a 
drug test,

[[Page 56133]]

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).''
    In 2007, however, the Chief Health, Safety and Security Officer 
directed the termination of the AAAP as no longer necessary to meet 
DOE's access authorization needs. This elimination of the AAAP from the 
process for granting interim access authorizations was formalized on 
July 21, 2011 by DOE Order 472.2, Personnel Security. DOE is amending 
the part 712 rule now to eliminate any reference to the obsolete AAAP.

B. Questionnaire for National Security Positions (QNSP), Part 2

    One of the four components of the annual HRP recertification 
process involves a review of an HRP incumbent's personnel security file 
by the DOE office responsible for the ``Q'' access authorization held 
by that individual. As part of this review, the current HRP rule 
requires the annual submission of the ``SF-86, OMB Control No. 3206-
0007, Questionnaire for National Security Positions [QNSP], Part 2'' 
(emphasis added) by each HRP incumbent. Under the current rule, the 
submission of the QNSP Part 2 (1995 QNSP) requires an HRP incumbent to 
report sensitive personal information the DOE deems relevant for 
determining continued eligibility for a ``Q'' access authorization.
    In July 2008, however, OPM revised the QNSP, both structurally and 
substantively, and the new QNSP (2008 QNSP) was issued a new OMB 
control number. Specifically, in addition to eliminating the former 
two-part structure of the 1995 version, the 2008 QNSP differs from the 
1995 version as to what is reportable. Based on these substantive 
differences and the change to the OMB control number, DOE no longer 
collects information from the public using the version of the QNSP 
referenced in the current rule. Therefore, DOE is amending the rule to 
eliminate the requirement for submission of the SF-86, OMB Control No. 
3206-0007, QNSP Part 2.

C. Internal Agency Responsibilities

    DOE is amending part 712 to reflect recent organizational changes 
within DOE. Under current regulations, the Director, Office of Policy, 
within the Office of Health, Safety and Security (HSS) is responsible 
for HRP policy. The Chief Health, Safety and Security Officer has 
transferred the responsibility for HRP policy to the Director, Office 
of Security within HSS. Therefore, this amendment replaces all 
references to the former ``Director, Office of Policy'' with 
``Director, Office of Security, or designee.''
    In addition, the definition of ``Manager'' in the current rule does 
not reflect recent changes within DOE's organizational structure. Part 
712 defines ``Manager'' to mean ``the Manager of the Chicago, Idaho, 
Oak Ridge, Richland, and Savannah River Operations Offices; Manager of 
the Pittsburgh Naval Reactors Office and the Schenectady Naval Reactors 
Office; Site Office Managers for Livermore, Los Alamos, Sandia, Y-12, 
Nevada, Pantex, Kansas City, and Savannah River; Director of the 
Service Center, Albuquerque; Assistant Deputy Administrator for the 
Office of Secure Transportation, Albuquerque; and for the Washington, 
DC area, the Deputy Chief for Operations, Office of HSS.'' At this 
time, the Managers of the Chicago Operations Office; the Pittsburgh and 
Schenectady Naval Reactors Offices; Site Office Managers for the 
National Nuclear Security Administration (NNSA) Savannah River, Y-12 
and Pantex sites; the Director of the NNSA Service Center; and the 
Deputy Chief for Operations no longer have HRP management 
responsibilities under part 712 or the named offices have been 
eliminated as a result of reorganization. In addition, a number of 
site-level DOE or NNSA line-management officials have been assigned HRP 
``Manager'' authorities, but are not listed in the definition of 
``Manager.''
    DOE has decided to substitute the following definition of 
``Manager'' for the current listing in Sec.  712.3: ``Manager means the 
senior Federal line manager at a departmental site or Federal office 
with HRP-designated positions.'' This revised definition in no way 
changes the actual HRP authorities of the senior Federal line 
management officials, who otherwise would be listed if the current 
paradigm were continued. On the other hand, such a functional 
definition should eliminate the need in future for technical amendments 
that merely reflect changed nomenclature or the removal of any HRP 
responsibilities at a site or within a program management office.

II. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    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 OMB Office of Information and Regulatory Affairs.
    DOE has also reviewed this rule pursuant to Executive Order 13563, 
issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive 
Order 13563 is supplemental to and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, agencies are 
required by Executive Order 13563 to: (1) Propose or adopt a regulation 
only upon a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. DOE believes that today's rule is 
consistent with these principles, including the requirement that, to 
the extent permitted by law, agencies adopt a regulation only upon a 
reasoned determination that its benefits justify its costs and, in 
choosing among alternative regulatory approaches, those approaches 
maximize net benefits.

[[Page 56134]]

B. 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 the General Counsel's Web site: http://www.gc.doe.gov.
    The regulatory changes in this notice of final rulemaking are 
technical amendments to remove references to a program that no longer 
exists and to a form that is no longer in use, and to conform 
references to position descriptions that relate solely to internal 
agency organization, management or personnel, and as such, are not 
subject to the requirement for a general notice of proposed rulemaking 
under the Administrative Procedure Act (5 U.S.C. 553). Consequently, 
this rulemaking is exempt from the requirements of the Regulatory 
Flexibility Act.

C. 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.).

D. 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.

E. 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.

F. 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.

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 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.

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 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.

I. 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 guidelines 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 rulemaking under the OMB and DOE guidelines and has concluded 
that it is consistent with applicable policies in those guidelines.

J. 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

[[Page 56135]]

promulgates 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.

K. Administrative Procedure Act

    The regulatory changes in this notice of final rulemaking consist 
of technical amendments to remove references a program that no longer 
exists and to a form that is no longer in use, and to conform 
references to position descriptions that relate 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.

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 prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 712

    Administrative practice and procedure, Alcohol abuse, Classified 
information, Drug abuse, Government contracts, Government employees, 
Health, Occupational safety and health, Radiation protection, Security 
measures.

    Issued in Washington, DC on August 29, 2013.
Glenn Podonsky,
Chief Health, Safety and Security Officer.

    For the reasons set forth in the preamble, DOE amends part 712 of 
chapter III, title 10, Code of Federal Regulations, 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.


0
2. Section 712.3 is amended by:
0
a. Removing the definition of ``Accelerated Access Authorization 
Program.''
0
b. Revising the definition of ``Manager'' to read as follows:


Sec.  712.3  Definitions.

* * * * *
    Manager means the senior Federal line manager at a departmental 
site or Federal office with HRP-designated positions.
* * * * *

0
3. Revise Sec.  712.11(a)(1) and (2) to read as follows:


Sec.  712.11  General requirements for HRP certification.

    (a) * * *
    (1) A DOE ``Q'' access authorization based on a background 
investigation;
    (2) An annual review of the personnel security file;
* * * * *


Sec.  712.12  [Amended]

0
4. Sections 712.12(e) and 712.12(f)(1) are amended by removing 
``Policy'' after ``Office of'' and adding in its place ``Security, or 
designee.''

[FR Doc. 2013-22231 Filed 9-11-13; 8:45 am]
BILLING CODE 6450-01-P