[Federal Register Volume 89, Number 141 (Tuesday, July 23, 2024)]
[Rules and Regulations]
[Pages 59591-59597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16136]



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 Rules and Regulations
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  Federal Register / Vol. 89 , No. 141 / Tuesday, July 23, 2024 / Rules 
and Regulations  

[[Page 59591]]



DEPARTMENT OF ENERGY

10 CFR Part 710

[EHSS-RM-20-PACNM]
RIN 1992-AA64


Procedures for Determining Eligibility for Access to Classified 
Matter or Special Nuclear Material

AGENCY: Office of Health, Safety, and Security, Department of Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) publishes a final rule to amend 
its regulations, which set forth the policies and procedures for 
resolving questions concerning eligibility for DOE access 
authorizations. The final rule expands the scope of the rule to include 
individuals applying for or in positions requiring eligibility to hold 
a sensitive position; updates and adds clarity, including by deleting 
obsolete references throughout the rule for consistency with national 
policies and DOE practices; and updates references to DOE officials and 
offices.

DATES: This rule is effective August 22, 2024.

FOR FURTHER INFORMATION CONTACT: Tracy L. Kindle, U.S. Department of 
Energy, Office of Departmental Personnel Security, (202) 586-3249, 
[email protected], or Christina Pak, 
Office of the General Counsel, (202) 586-4114, 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Introduction and Background
II. Summary of Final Rule
III. Section-by-Section Analysis
IV. Regulatory Review
V. Congressional Notification
VI. Approval by the Office of the Secretary of Energy

I. Introduction and Background

    DOE is publishing this final rule to update and clarify DOE's 
policies and procedures for determining eligibility for access 
authorizations. The current rule implements the requirement in 
Executive Order (E.O.) 12968, Access to Classified Information, that 
agencies promulgate regulations to provide review proceedings to 
individuals whose eligibility for access to classified information is 
denied or revoked.
    The current rule has not been substantively updated since 2016 (81 
FR 71331, Oct. 17, 2016). Since then, as various Executive orders, 
Security Executive Agent Directives, and the Federal Personnel Vetting 
Core Doctrine were issued and amended, DOE has gained additional 
implementation experience under the current rule, so proposed revisions 
to update and clarify provisions in the rule became appropriate.
    On January 31, 2024, DOE published a notice of proposed rulemaking 
(NOPR) to propose the updating of part 710 (89 FR 6025). The NOPR 
proposed amending the existing rule to: (1) expand the scope of the 
current rule to include individuals applying for or in positions 
requiring eligibility to hold a sensitive position; (2) incorporate 
requirements of Security Executive Agent Directive (SEAD) 9, Appellate 
Review of Retaliation Regarding Security Clearances and Access 
Determinations, which provides appeal rights to both Federal and 
contractor employees; (3) update hearing procedures to more accurately 
reflect current practices; (4) update references to DOE offices and 
officials to reflect new titles and organizational names; (5) remove 
appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8, 
2017); (6) revise and add definitions for certain terms; and (7) make 
minor updates to improve clarity and delete obsolete references.
    DOE had a 30-day comment period inviting public comments on the 
proposed regulatory changes, and no public comments were received.

II. Summary of Final Rule

    As described, DOE's revisions to the existing rule are identical to 
those proposed in the NOPR. The final rule: (1) expands the scope of 
the current rule to include individuals applying for or in positions 
requiring eligibility to hold a sensitive position; (2) incorporates 
requirements of Security Executive Agent Directive (SEAD) 9, Appellate 
Review of Retaliation Regarding Security Clearances and Access 
Determinations, which provides appeal rights to both Federal and 
contractor employees; (3) updates hearing procedures to more accurately 
reflect current practices; (4) updates references to DOE offices and 
officials to reflect new titles and organizational names; (5) removes 
appendix A, SEAD 4, National Security Adjudicative Guidelines (June 8, 
2017); (6) revises and adds definitions for certain terms; and (7) 
makes minor updates to improve clarity and delete obsolete references.

III. Section-By-Section Analysis

    DOE amends title 10 of the Code of Federal Regulations (CFR) part 
710 as follows:
    1. The part heading of this part is amended to add, ``OR 
ELIGIBILITY TO HOLD A SENSITIVE POSITION'' at the end to reflect the 
expanded scope of the rule, as explained in paragraph 4.
    2. The authority section of this part is amended to add a reference 
to E.O. 13467. Context for this change is explained in paragraph 4.
    3. In Sec.  710.1, ``Purpose,'' Sec.  710.1(a) is amended to add at 
the end ``or eligibility to hold a sensitive position pursuant to 
Executive Order 13467 (Reforming Processes Related to Suitability for 
Government Employment, Fitness for Contractor Employees, and 
Eligibility for Access to Classified National Security Information),'' 
to reflect the change to the scope of the rule, as explained in 
paragraph 4. Section 710.1(b) is amended to add after the citation for 
E.O. 10865, ``Executive Order 13467, 73 FR 38103 (June 30, 2008) as 
amended'' and to add ``or successor directive'' after the reference to 
SEAD 4.
    4. In Sec.  710.2 ``Scope,'' a new paragraph is added to make the 
provisions of the rule applicable to an individual's eligibility to 
hold a sensitive position. This change clarifies that, except when 
specifically noted, any provision that applies to determinations of 
eligibility for access to classified information or special nuclear 
matter also applies to determinations of eligibility to hold a 
sensitive position. Conforming changes are also made in Sec.  710.2.
    In 2017, E.O. 13467, Reforming Processes Related to Suitability for 
Government Employment, Fitness for Contractor Employees, and 
Eligibility for Access to Classified National Security Information, was 
amended by E.O. 13764 to make the provisions of

[[Page 59592]]

E.O. 12968 that apply to eligibility for access to classified 
information to also apply to eligibility to hold a sensitive position 
regardless of whether or not that sensitive position requires access to 
classified information.
    The term ``sensitive position'' is defined in E.O. 13467, as 
amended, to mean any position within or in support of a Federal 
department or agency, the occupant of which could bring about, by 
virtue of the nature of the position, a material adverse effect on 
national security regardless of whether the occupant has access to 
classified information and regardless of whether the occupant is an 
employee, military service member, or contractor.
    The scope of 10 CFR part 710 applied only to individuals who 
require eligibility for access to classified information and special 
nuclear materials and did not address individuals who require 
eligibility to hold a sensitive position where an access authorization 
is not a requirement of the position.
    Expanding the applicability of this rule to individuals applying 
for or in positions requiring eligibility to hold a sensitive position, 
who do not require an access authorization, brings DOE into compliance 
with E.O. 13467, as amended.
    5. Existing Sec.  710.3, ``Reference,'' is deleted in its entirety 
because appendix A, SEAD 4, National Security Adjudicative Guidelines 
(June 8, 2017), is removed as explained in paragraph 22.
    6. In Sec.  710.4, ``Policy,'' Sec.  710.4(a) is amended to add at 
the end ``or eligibility to hold a sensitive position,'' and Sec.  
710.4(b) is amended to add ``or eligibility to hold a sensitive 
position'' after ``access authorization'' to reflect the change to 
Sec.  710.2 ``Scope.''
    7. In Sec.  710.5, ``Definitions,'' there are a number of new or 
amended definitions.
    The term ``Continuous Vetting'' is added to reflect recent national 
policies under Trusted Workforce (TW) 2.0, as explained in paragraph 8.
    The term ``Local Director of Security'' is amended by removing the 
references to ``Chicago'' and ``Oak Ridge,'' and adding ``for the 
Office of Science (SC), the individual designated in writing by the 
Deputy Director for Operations,'' removing the references to Richland 
and Savannah River and adding ``for the Office of Environmental 
Management (EM), the individual(s) designated in writing by the Senior 
Advisor, or delegee, adding an ``s'' after ``individual'' in the 
reference to the National Nuclear Security Administration, and adding 
``Security'' in the title of the Naval Nuclear Propulsion Program. 
These changes reflect new titles and organization name changes since 
the last changes to this rule.
    The term ``Manager'' is amended by removing the references to the 
Chicago Operations Office, the Oak Ridge Operations Office, and the 
``Director, Office of Headquarters Security Operations''. ``Manager'' 
is changed by adding ``(to include the Office of River Protection)'' in 
the reference to ``Richland,'' adding ``for the Office of Environmental 
Management (EM), the individuals(s) designated in writing by the Senior 
Advisor, or delegee, adding ``for the Office of Science (SC), the 
individual designated in writing by the Deputy Director for 
Operations,'' adding ``Security'' in the title of the Naval Nuclear 
Propulsion Program, and adding ``Director, Office of Headquarters 
Security Vetting'' in place of ``Director, Office of Headquarters 
Security Operations''. These changes reflect new titles and 
organization name changes.
    The term ``Sensitive Position'' is added to reflect the expansion 
of the scope of the rule to apply to individuals applying for or in 
sensitive positions, consistent with E.O. 13467, as amended, as 
explained in paragraph 4.
    8. In Sec.  710.6, ``Cooperation by the individual,'' Sec.  
710.6(a)(1) is amended to add ``continuous vetting'' after 
``reinvestigation.'' The Director of National Intelligence and the 
Director of the Office of Personnel Management, pursuant to their 
responsibilities as Executive Agents under E.O. 13467, as amended, 
launched the ``Trusted Workforce 2.0'' initiative to transform Federal 
personnel vetting programs. One of the changes included a transition 
from traditional periodic reinvestigations to government-wide 
continuous vetting. Paragraph (a)(1) also deletes ``interviews'' and 
adds in its place ``consultations'' for consistency with current DOE 
terminology. It also deletes ``investigative activities'' and adds in 
its place ``actions'' for consistency with current DOE terminology. The 
last sentence of paragraph (a)(1) is also amended to add the language 
``for incumbents'' before ``any access authorization then in effect may 
be administratively withdrawn'' to clarify that the term 
``administratively withdrawn'' applies to incumbents while 
``administratively terminated'' applies to applicants. Paragraph (c) is 
amended to delete the words ``his/her'' and add in their place the word 
``their'' for consistency with other DOE policies.
    9. Section 710.7(d) is amended to delete ``reports of 
investigation'' and add in its place ``investigative results report'' 
for consistency with DOE and other Federal agency practices.
    10. Section 710.8(a) is amended by removing references to an 
``interview'' wherever it occurs and adding, in their place references 
to a ``consultation'' for consistency with current DOE terminology.
    11. Section 710.9(e) is amended to reflect the requirements in SEAD 
9, Appellate Review of Retaliation Regarding Security Clearances and 
Access Determinations. In 2022, the Director of National Intelligence 
issued SEAD 9, which established an appellate review process for 
employees who seek to appeal an adverse final agency determination with 
respect to alleged retaliatory action(s) taken by an employing agency 
affecting the employees' security clearance or access determination as 
a result of protected disclosures. SEAD 9 clarified that the agency 
review and appeal rights were available to both Federal and contractor 
employees. Therefore, paragraph (e) is amended to remove the words, 
``if the individual is a Federal employee,'' and add language to 
address the appeal rights under SEAD 9. Paragraphs (e) and (f) are 
amended to delete the words, ``his/her,'' and add in their place the 
word ``their'' for consistency with other DOE policies.
    12. Section 710.20 is amended to remove the word ``interview'' and 
add in its place the word ``consultation'' for consistency with current 
DOE terminology.
    13. Section 710.21 is amended to delete from it the words ``his/
her'' and add in their place the word ``their'' for consistency with 
other DOE policies. Paragraph (c)(1) is amended to add a requirement 
for the Manager to provide a copy of SEAD 4 or successor directive as 
part of the notification letter. Since appendix A, which currently 
contains SEAD 4, has been removed, this amendment would ensure that an 
individual going through administrative review under this part will 
receive a copy of the applicable adjudicative standards. Paragraph 
(c)(2) is amended to remove the words, ``For Federal employees only'', 
and add language to reflect the requirements in SEAD 9, Appellate 
Review of Retaliation Regarding Security Clearances and Access 
Determinations, which extended appeal rights beyond Federal employees 
to include Federal contractors, as detailed in the explanation of 
changes to Sec.  710.9(e), in paragraph 11.
    14. Section 710.22(c)(4) is amended to clarify that the 30 days 
provided to the individual for requesting review of the Manager's 
initial decision is subject to

[[Page 59593]]

any extensions granted by the Director under paragraph (c)(3).
    15. Section 710.25(c) is amended to delete the words ``his/her'' 
and add in their place the words ``their'' for consistency with other 
DOE policies. Paragraph (e) is amended to delete language stating that 
hearings will normally be held at or near a DOE facility unless 
determined otherwise by the Administrative Judge and also to delete 
that the hearing location will be selected for all the participants' 
convenience. Paragraph (f) is amended to add language to clarify that 
conferences may be conducted by telephone, video teleconference, or 
other means as directed by the Administrative Judge. These changes to 
paragraphs (e) and (f) are made in order to conform to current agency 
practice.
    16. Section 710.26(a) is amended to delete the words ``his/her'' 
and add in their place the words ``their'' for consistency with other 
DOE policies. Paragraph (d) is amended to delete language that requires 
the proponent of a witness to conduct the direct examination of their 
witness. This change is made because if an individual is represented by 
counsel, the individual's counsel will often conduct the direct 
examination of the individual's witnesses. However, when the individual 
is not represented by counsel, the individual may choose to allow DOE 
counsel to conduct the direct examination of the individual's 
witnesses. This change would align the regulation with current DOE 
practices, which provides the individual with flexibility in the 
conduct of direct examinations. In addition, the language in Sec.  
710.26(d), ``[w]henever reasonably possible, testimony shall be given 
in person,'' will be deleted to reflect the current practice that 
testimony is normally given live via video teleconference and not in-
person.
    17. Section 710.27(b) is amended to delete the word ``handicapped'' 
and add in its place the word ``prejudiced'' to reflect updated 
terminology.
    18. Section 710.28(a)(4) is amended to delete the words ``his/her'' 
and add in their place the words ``their'' for consistency with other 
DOE policies.
    19. Section 710.29(c) is amended to delete the words ``his/her'' 
and add in their place the word ``their'' to reflect updated 
terminology for consistency with other DOE policies.
    20. In Sec.  710.31, paragraphs (b)(4) through (b)(6) are amended 
to correct typographical errors made in the last substantive revision 
to this regulation. Specifically, paragraphs (b)(4) and (5) are amended 
to delete the language ``provisions of Sec.  710.31(2)'' and add, in 
their place, ``provisions of Sec.  710.31(b)(2)'' since Sec.  710.31(2) 
does not exist in the rule and the correct reference should be to 
paragraph (b)(2), which describes the actions to be taken depending on 
whether a reconsideration request is approved. Paragraph (b)(6) is 
amended to delete the language ``paragraphs (f) or (g)'' and add, in 
their place, ``paragraph (b)(4) or (5)''. There are no paragraphs (f) 
and (g) in Sec.  710.31 and paragraph (b)(6) should reference 
Sec. Sec.  710.31(b)(4) and (5), which describe the actions to be taken 
based on whether an individual is found to be eligible for access 
authorization. Paragraph (b)(6) is also amended to delete the language 
``set forth in paragraph (d)'' and add, in its place, ``set forth in 
paragraph (b)(2)'' for the same reason explained previously. This 
change is made because there is no Sec.  710.31(d) in the rule. The 
correct reference should be to Sec.  710.31(b)(2).
    21. Appendix A to Part 710--SEAD 4, National Security Adjudicative 
Guidelines (June 8, 2017) is deleted in its entirety. On October 17, 
2016, DOE removed its adjudicative criteria from the regulation in 
order to rely solely on the national security adjudicative guidelines 
(81 FR 71331). As part of that rule, DOE added the entire text of the 
national security adjudicative guidelines to the regulation as appendix 
A. The intent behind adding appendix A was to provide the maximum 
transparency and notice to the public as to the applicable adjudicative 
criteria in determining eligibility for access to classified 
information. On December 4, 2017, this regulation was updated to 
include the latest version of the national security adjudicative 
guidelines, SEAD 4, which was issued by the Director of National 
Intelligence. Future updates to the National Security Adjudicative 
Guidelines are likely and DOE believes retaining appendix A, which may 
not reflect the latest updated version due to the time it takes to 
amend a regulation, may cause confusion to the public as to which 
version of the guidelines applies to their eligibility determination. 
Therefore, DOE is removing appendix A, SEAD 4, National Security 
Adjudicative Guidelines (June 8, 2017), and requiring that a copy of 
the applicable guidelines be provided to individuals as part of the 
notification letter, as stated in Sec.  710.21(c)(1).

IV. Regulatory Review

A. Executive Orders 12866, 13563, and 14094

    This final rule has been determined not to be a ``significant 
regulatory action'' under E.O. 12866, Regulatory Planning and Review, 
58 FR 51735 (October 4, 1993) as supplemented and reaffirmed by E.O. 
13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 
21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review'', 
88 FR 21879 (April 11, 2023). Accordingly, this final rule is not 
subject to review under the E.O. by the Office of Information and 
Regulatory Affairs (OIRA) within the Office of Management and Budget 
(OMB).

B. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of E.O. 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), section 3(b) of E.O. 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 
E.O. 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 regulation meets the relevant standards 
of E.O. 12988.

C. 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 E.O. 13272, ``Proper Consideration of Small Entities in Agency 
Rulemaking,'' (67 FR 53461, August 16, 2002), DOE

[[Page 59594]]

published procedures and policies on February 19, 2003, to ensure that 
the potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's website at www.gc.doe.gov.
    DOE has reviewed this rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. This rule amends procedures that apply to the determination 
of eligibility of individuals for access to classified information and 
access to special nuclear material. This rule applies to individuals, 
and does not apply to ``small entities,'' as that term is defined in 
the Regulatory Flexibility Act. In addition, as stated previously, DOE 
has no discretion in adopting the national policies; it is the national 
policies themselves that impose any impact on affected individuals. As 
a result, this rule would not have a significant economic impact on a 
substantial number of small entities.
    Accordingly, DOE certifies that this rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis is required, and DOE 
has not prepared a regulatory flexibility analysis for this rulemaking. 
DOE's certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

D. Paperwork Reduction Act

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

E. National Environmental Policy Act

    DOE has determined that this rule is covered under the Categorial 
Exclusion found in DOE's National Environmental Policy Act regulations 
at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which 
applies to a rulemaking that amends an existing rule or regulation and 
that does not change the environmental effect of the rule or regulation 
being amended. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

F. Executive Order 13132

    E.O. 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. DOE has examined this rule and has 
determined that it does not preempt State law and, if adopted, 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 E.O. 13132.

G. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and Tribal governments. Subsection 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or Tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and Tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or Tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and Tribal governments. 2 U.S.C. 1534. The rule expands the 
scope of the current rule with respect to individuals covered, makes 
updates and clarifications for consistency with national policies and 
DOE practices, updates references to DOE officials and offices, and 
makes minor updates to improve clarity and delete obsolete references. 
The rule would not result in the expenditure by State, local or Tribal 
governments in the aggregate, or by the private sector, of $100 million 
or more in any one year. Accordingly, no assessment or analysis is 
required under the Unfunded Mandates Reform Act of 1995.

H. 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. Executive Order 13211

    E.O. 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, OMB, a 
Statement of Energy Effects for any significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgates or is expected to lead to promulgation of a final 
rule, and that: (1) is a significant regulatory action under E.O. 
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. This regulatory action would not 
have a significant adverse effect on the supply, distribution, or use 
of energy and is therefore not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

J. 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 this rule under the OMB and DOE guidelines and has 
concluded that

[[Page 59595]]

it is consistent with applicable policies in those guidelines.

V. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that the rule does not meet the criteria set forth in 5 U.S.C. 
804(2).

VI. Approval by the Office of the Secretary of Energy

    The Secretary of Energy has approved issuance of this final rule.

List of Subjects in 10 CFR Part 710

    Administrative practice and procedure, Classified information, 
Government contracts, Government employees, Nuclear energy.

Signing Authority

    This document of the Department of Energy was signed on July 12, 
2024, by Jennifer Granholm, Secretary of Energy. That document with the 
original signature and date is maintained by DOE. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DOE Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of the Department of 
Energy. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

    Signed in Washington, DC, on July 18, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set out in the preamble, DOE amends part 710 of 
title 10 of the Code of Federal Regulations as set forth below:

PART 710--PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO 
CLASSIFIED MATTER AND SPECIAL NUCLEAR MATERIAL OR ELIGIBILTY TO 
HOLD A SENSITIVE POSITION

0
1. The authority citation for part 710 is revised to read as follows:

    Authority:  42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-l; 
50 U.S.C. 2401 et seq.; E.O. 10865, 3 CFR 1959-1963 comp., p. 398, 
as amended, 3 CFR Chap. IV; E.O. 13526, 3 CFR 2010 Comp., pp. 298-
327 (or successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391; 
E.O. 13467, 3 CFR 2008 Comp., p. 196.


0
2. Revise the part 710 heading to read as set forth above.

0
3. Revise Sec.  710.1 to read as follows:


Sec.  710.1  Purpose.

    (a) This part establishes the procedures for determining the 
eligibility of individuals described in Sec.  710.2 for access to 
classified matter or special nuclear material, pursuant to the Atomic 
Energy Act of 1954, or for access to national security information in 
accordance with E.O. 13526 (Classified National Security Information), 
or eligibility to hold a sensitive position pursuant to E.O. 13467 
(Reforming Processes Related to Suitability for Government Employment, 
Fitness for Contractor Employees, and Eligibility for Access to 
Classified National Security Information).
    (b) This part implements: E.O. 12968, 60 FR 40245 (August 2, 1995), 
as amended; E.O. 13526, 75 FR 707 (January 5, 2010) as amended; E.O. 
10865, 25 FR 1583 (February 24, 1960), as amended; E.O. 13467, 73 FR 
38103 (June 30, 2008) as amended; and the National Security 
Adjudicative Guidelines, issued as SEAD 4, by the Director of National 
Intelligence on December 10, 2016, or successor directive.

0
4. Revise Sec.  710.2 to read as follows:


Sec.  710.2  Scope.

    (a) The procedures outlined in this part apply to determinations of 
eligibility for access authorization or eligibility to hold a sensitive 
position for:
    (1) Employees (including consultants) of, and applicants for 
employment with, contractors and agents of the DOE;
    (2) Access permittees of the DOE and their employees (including 
consultants) and applicants for employment;
    (3) Employees (including consultants) of, and applicants for 
employment with, the DOE; and
    (4) Other persons designated by the Secretary of Energy.
    (b) To the extent the procedures in this part apply to 
determinations of eligibility for access to classified information or 
special nuclear material, they shall also apply to determinations of 
eligibility to hold a sensitive position, except as specifically noted.


Sec.  710.3  [Removed and Reserved]

0
5. Remove and reserve Sec.  710.3.

0
6. Revise Sec.  710.4 to read as follows:


Sec.  710.4  Policy.

    (a) It is the policy of DOE to provide for the security of its 
programs in a manner consistent with traditional American concepts of 
justice and fairness. To this end, the Secretary has established 
procedures that will afford those individuals described in Sec.  710.2 
the opportunity for administrative review of questions concerning their 
eligibility for access authorization or eligibility to hold a sensitive 
position.
    (b) It is also the policy of DOE that none of the procedures 
established for determining eligibility for access authorization or 
eligibility to hold a sensitive position shall be used for an improper 
purpose, including any attempt to coerce, restrain, threaten, 
intimidate, or retaliate against individuals for exercising their 
rights under any statute, regulation or DOE directive. Any DOE officer 
or employee violating, or causing the violation of this policy, shall 
be subject to appropriate disciplinary action.

0
7. Amend Sec.  710.5 by:
0
a. Adding in alphabetical order the definition for ``Continuous 
vetting'';
0
b. Revising the definitions for ``Local Director of Security'' and 
``Manager''; and
0
c. Adding in alphabetical order the definition for ``Sensitive 
position''.
    The additions and revisions read as follows:


Sec.  710.5  Definitions.

* * * * *
    Continuous vetting means reviewing the background of an individual 
described in Sec.  710.2(a)(1) through (4) at any time to determine 
whether that individual continues to meet applicable requirements for 
access authorization or a sensitive position.
* * * * *
    Local Director of Security means the individual with primary 
responsibility for safeguards and security at the Idaho Operations 
Office; for the Office of Environmental Management (EM), the 
individual(s) designated in writing by the Senior Advisor, or delegee; 
for the Office of Science (SC), the individual designated in writing by 
the Deputy Director for Operations; for Naval Reactors, the 
individual(s) designated under the authority of the Director, Security 
Naval Nuclear Propulsion Program; for the National Nuclear Security 
Administration (NNSA), the individual(s) designated in writing by the 
Chief, Defense Nuclear Security; and for DOE Headquarters cases the 
Director, Office of Headquarters Personnel Security Operations.
    Manager means the senior Federal official at the Idaho, Richland 
(to include the Office of River Protection) Operations Offices; for the 
Office of Environmental Management, the individual(s) designated in 
writing by the Senior Advisor, or delegee; for the Office of Science 
(SC), the individual designated in writing by the Deputy Director for 
Operations; for Naval

[[Page 59596]]

Reactors, the individual designated under the authority of the 
Director, Security Naval Nuclear Propulsion Program; for the NNSA, the 
individual designated in writing by the NNSA Administrator or Deputy 
Administrator; and for DOE Headquarters cases, the Director, Office of 
Headquarters Security Vetting.
* * * * *
    Sensitive position means any position within or in support of a 
department or agency, the occupant of which could bring about, by 
virtue of the nature of the position, a material adverse effect on the 
national security, regardless of whether the occupant has access to 
classified information, and regardless of whether the occupant is an 
employee, a military service member, or a contractor. Sensitive 
positions for the purpose of this part only include individuals 
designated by DOE in non-critical sensitive, critical sensitive or 
special sensitive positions.
* * * * *

0
8. Amend Sec.  710.6 by:
0
a. Revising paragraph (a)(1); and
0
b. In paragraph (c), in the first sentence, removing the words ``his/
her'' and adding in their place the word ``their''.
    The revision reads as follows:


Sec.  710.6  Cooperation by the individual.

    (a)(1) It is the responsibility of the individual to provide full, 
frank, and truthful answers to DOE's relevant and material questions, 
and when requested, to furnish or authorize others to furnish 
information that the DOE deems pertinent to the individual's 
eligibility for access authorization. This obligation to cooperate 
applies when completing security forms, during the course of a 
personnel security background investigation, reinvestigation or 
continuous vetting, and at any stage of DOE's processing of the 
individual's access authorization request, including but not limited 
to, personnel security consultations, DOE-sponsored mental health 
evaluations, and other authorized DOE actions under this part. The 
individual may elect not to cooperate; however, such refusal may 
prevent DOE from reaching an affirmative finding required for granting 
or continuing the access authorization. In this event, for incumbents 
any access authorization then in effect may be administratively 
withdrawn or, for applicants, further processing may be 
administratively terminated.
* * * * *


Sec.  710.7  [Amended]

0
9. Amend Sec.  710.7, in paragraph (d), by removing the words ``reports 
of investigation'' and adding in their place the words ``investigative 
results report''.

0
10. Amend Sec.  710.8, in paragraph (a), by revising the first sentence 
to read as follows:


Sec.  710.8  Action on derogatory information.

    (a) If a question arises as to the individual's access 
authorization eligibility, the Local Director of Security shall 
authorize the conduct of a consultation with the individual, or other 
appropriate actions and, on the basis of the results of such 
consultation or actions, may authorize the granting of the individual's 
access authorization. * * *
* * * * *

0
11. Amend Sec.  710.9 by:
0
a. Revising paragraph (e); and
0
b. In paragraph (f), in the second sentence, removing the words ``his/
her'' and adding in their place the word ``their''.
    The revision reads as follows:


Sec.  710.9  Suspension of access authorization.

* * * * *
    (e) Written notification to the individual shall include 
notification that if the individual believes that the action to suspend 
their access authorization was taken as retaliation against the 
individual for having made a protected disclosure, as defined in 
Presidential Policy Directive 19, Protecting Whistleblowers with Access 
to Classified Information, or any successor directive issued under the 
authority of the President, the individual may submit a request for 
review of this matter directly to the DOE Office of the Inspector 
General. Such a request shall have no impact upon the continued 
processing of the individual's access authorization eligibility under 
this part. If the individual receives an adverse final agency 
determination in response to such request, the individual may submit an 
appeal of that decision to the Director of National Intelligence, in 
accordance with the Security Executive Agent Directive 9, Appellate 
Review of Retaliation Regarding Security Clearances and Access 
Determinations, or to the Inspector General of the Intelligence 
Community, in accordance with Intelligence Community Directive 120, 
Intelligence Community Whistleblower Protection.
* * * * *


Sec.  710.20  [Amended]

0
12. Amend Sec.  710.20 by removing the word ``interview'' and adding in 
its place the word ``consultation''.

0
13. Amend Sec.  710.21 by:
0
a. In paragraphs (b)(7) and (b)(12)(iii), removing the words ``his/
her'' and adding in their place the word ``their''; and
0
b. Revising paragraphs (c)(1) and (2).
    The revisions read as follows:


Sec.  710.21  Notice to the individual.

* * * * *
    (c) * * *
    (1) Include a copy of this part and SEAD 4, National Security 
Adjudicative Guidelines, or successor directive; and
    (2) Indicate that if the individual believes that the action to 
process the individual under this part was taken as retaliation against 
the individual for having made a protected disclosure, as defined in 
Presidential Policy Directive 19, Protecting Whistleblowers with Access 
to Classified Information, or any successor directive issued under the 
authority of the President, the individual may submit a request for 
review of this matter directly to the DOE Office of the Inspector 
General. Such a request shall have no impact upon the continued 
processing of the individual's access authorization eligibility under 
this part. If the individual receives an adverse final agency 
determination in response to such request, the individual may submit an 
appeal of that decision to the Director of National Intelligence, in 
accordance with the SEAD 9, Appellate Review of Retaliation Regarding 
Security Clearances and Access Determinations, or to the Inspector 
General of the Intelligence Community, in accordance with Intelligence 
Community Directive 120, Intelligence Community Whistleblower 
Protection.

0
14. Amend Sec.  710.22 by revising paragraph (c)(4) to read as follows:


Sec.  710.22  Initial decision process.

* * * * *
    (c) * * *
    (4) That if the written request for a review of the Manager's 
initial decision by the Appeal Panel is not filed within 30 calendar 
days of the individual's receipt of the Manager's letter, or by the 
date to which the Director has granted an extension, the Manager's 
initial decision in the case shall be final and not subject to further 
review or appeal.

0
15. Amend Sec.  710.25 by:
0
a. In paragraph (c), removing the words ``his/her'' and adding in their 
place the word ``their''; and
0
b. Revising paragraphs (e) and (f).

[[Page 59597]]

    The revisions read as follows:


Sec.  710.25  Appointment of Administrative Judge; prehearing 
conference; commencement of hearings.

* * * * *
    (e) The Administrative Judge shall determine the day, time, and 
place for the hearing and shall decide whether the hearing will be 
conducted via video teleconferencing. In the event the individual fails 
to appear at the time and place specified, without good cause shown, 
the record in the case shall be closed and returned to the Manager, who 
shall then make an initial determination regarding the eligibility of 
the individual for DOE access authorization in accordance with Sec.  
710.22(a)(3).
    (f) At least 7 calendar days prior to the date scheduled for the 
hearing, the Administrative Judge shall convene a prehearing conference 
for the purpose of discussing stipulations and exhibits, identifying 
witnesses, and disposing of other appropriate matters. The conference 
may be conducted by telephone, video teleconference, or other means as 
directed by the Administrative Judge.
* * * * *

0
16. Amend Sec.  710.26 by:
0
a. In paragraph (a), removing wherever they appear the words ``his/
her'' and adding in their place the word ``their''; and
0
b. Revising paragraph (d).
    The revision reads as follows:


Sec.  710.26  Conduct of hearings.

* * * * *
    (d) DOE Counsel shall assist the Administrative Judge in 
establishing a complete administrative hearing record in the proceeding 
and bringing out a full and true disclosure of all facts, both 
favorable and unfavorable, having a bearing on the issues before the 
Administrative Judge. The individual shall be afforded the opportunity 
of presenting testimonial, documentary, and physical evidence, 
including testimony by the individual in the individual's own behalf. 
All witnesses shall be subject to cross-examination, if possible.
* * * * *


Sec.  710.27  [Amended]

0
17. Amend Sec.  710.27, in paragraph (b), in the second sentence, by 
removing the word ``handicapped'' and adding in its place the word 
``prejudiced''.


Sec.  710.28  [Amended]

0
18. Amend Sec.  710.28, in paragraph (a)(4), by removing the words 
``his/her'' and adding in their place the word ``their''.


Sec.  710.29  [Amended]

0
19. Amend Sec.  710.29, in paragraph (c), in the first sentence, by 
removing the words ``his/her'' and adding in their place the word 
``their''.

0
20. Amend Sec.  710.31 by revising paragraphs (b)(4) through (6) to 
read as follows:


Sec.  710.31  Reconsideration of access eligibility.

* * * * *
    (b) * * *
    (4) If, pursuant to the provisions of paragraph (b)(2) of this 
section, the Manager determines the individual is eligible for access 
authorization, the Manager shall grant access authorization.
    (5) If, pursuant to the provisions of paragraph (b)(2) of this 
section, the Manager determines the individual remains ineligible for 
access authorization, the Manager shall so notify the Director in 
writing. If the Director concurs, the Director shall notify the 
individual in writing. This decision is final and not subject to review 
or appeal. If the Director does not concur, the Director shall confer 
with the Manager on further actions.
    (6) Determinations as to eligibility for access authorization 
pursuant to paragraph (b)(4) or (5) of this section may be based solely 
upon the mitigation of derogatory information which was relied upon in 
a final decision to deny or to revoke access authorization. If, 
pursuant to the procedures set forth in paragraph (b)(2) of this 
section, previously unconsidered derogatory information is identified, 
a determination as to eligibility for access authorization must be 
subject to a new Administrative Review proceeding.

Appendix A to Part 710 [Removed]

0
21. Remove appendix A.

[FR Doc. 2024-16136 Filed 7-22-24; 8:45 am]
BILLING CODE 6450-01-P