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Eligibility for Security Police Officer Positions in the Personnel Security Assurance Program
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[Federal Register: April 4, 2002 (Volume 67, Number 65)]
[Proposed Rules]
[Page 16061-16063]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap02-17]
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Proposed Rules
Federal Register
________________________________________________________________________
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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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
[[Page 16062]]
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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