Acquisition Regulation: Security Clause, 9071-9075 [E8-3012]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Proposed Rules]
[Pages 9071-9075]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3012]


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DEPARTMENT OF ENERGY

48 CFR Parts 904, 952 and 970

RIN 1991-AB71


Acquisition Regulation: Security Clause

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend the 
Department of Energy Acquisition Regulation (DEAR) to revise the 
security clause used in all contracts and subcontracts involving access 
authorizations to specifically require background checks and tests for 
the absence of any illegal drug, as defined in DOE regulations of 
uncleared personnel (employment applicants and current employees) who 
will require access authorizations. Background checks would not be 
required for applicants for DOE access authorization who possess a 
current access authorization from another Federal agency.

DATES: Written comments on the proposed rulemaking must be received on 
or before close of business March 20, 2008.

ADDRESSES: This proposed rule is available and comments may be 
submitted to the Federal Electronic Rulemaking Portal at https://
www.regulations.gov. Comments may also be submitted electronically to 
Richard.Langston@hq.doe.gov. Comments may be mailed to: Richard 
Langston, Procurement Policy Analyst; MA-61/Forrestal Building; U.S. 
Department of Energy; 1000 Independence Avenue, SW.; Washington, DC 
20585.

FOR FURTHER INFORMATION CONTACT: Richard Langston at 202-287-1339 or 
Richard.Langston@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Approval by the Office of the Secretary of Energy

I. Background

    Many DOE contractor and subcontractor employees require access 
authorizations for access to classified information (Restricted Data, 
Formerly Restricted Data, or National Security Information) or certain 
quantities of special nuclear material in order to perform official 
duties. Section 904.404 is being revised to add a requirement in 
paragraph (d)(1) that the security clause is required in any contract 
that will involve contractor employees' access to special nuclear 
material. That requirement reflects past DOE practice and is being 
added to make the instruction clear and complete. Section 952.204-2, 
Security requirements, is revised by changing the title of the section 
to ``Security'' and by revising its introductory text to conform to the 
more recent Federal Acquisition Regulation format. Some of the 
requirements at 970.2201-1-2 are appropriate to other types of 
contracts if access authorizations are required, so language at 
970.2201-1-2 is being restated in the security clause.

II. Section-by-Section Analysis

    The Department proposes to amend the DEAR as follows:
    Section 904.401 is amended to revise the definitions of classified 
information and Restricted Data.
    Section 904.404, Solicitation provision and contract clause, is 
amended by adding ``or access to special nuclear materials'' after 
``classified information'' at the end of the first sentence of 
paragraph (d)(1).
    Section 952.204-2, Security requirements, is amended by revising 
its title to ``Security''; by revising the definitions in paragraphs 
(c) through (g); by revising the title of paragraph (h) from ``Security 
clearances of personnel'' to ``Access authorizations for personnel'' 
and redesignating its text as paragraph (h)(1); by adding new 
paragraphs (h)(2) and (i); by redesignating existing paragraphs (i) and 
(j) as (j) and (k); and by adding new paragraphs (l) and (m). 
Paragraphs (h)(2), (i), and (i)(1) contain language similar to that 
found in management and operating contract policy guidance at 970.2201-
1-2(a)(1) and (2). The language in (h)(2) has been augmented by 
referencing the criteria at 10 CFR 710.8 that are used to grant or deny 
access authorizations, by adding a requirement that a candidate for a 
DOE access authorization must be tested to demonstrate the absence of 
any illegal drug, as defined in 10 CFR 707.4, and by directing 
contractors to select for employment only those whom they believe can 
pass the rigorous background investigation required for such positions. 
A new paragraph (h)(3) has been added making it clear that drug testing 
is applicable to all employees on an applicant, random or ``for cause'' 
basis. Paragraph (i), Criminal liability is amended to add ``special 
nuclear material, and other Government property'' to ``classified 
information'' as items the contractor must protect. Paragraph (j), 
Foreign Ownership, Control or Influence, is amended by moving the flow 
down to subcontracts requirement of (j)(4) to (l) and redesignating 
paragraph (j)(5) as (j)(4). New paragraph (k), Employment 
announcements, requires that contractors include a notice in vacancy 
announcements for positions requiring access authorizations that 
background checks and testing for the absence of any illegal drug, as 
defined in 10 CFR 707.4, will be performed, and that the Federal 
government may conduct a background investigation, subsequent 
reinvestigations, and, in the case of counterintelligence positions (as 
defined in 10 CFR 709.3), a

[[Page 9072]]

counterintelligence evaluation, which may include a polygraph 
examination. In addition to the subject matter from paragraph (j)(4), 
new paragraph (l), Flow down to subcontracts, addresses the flow down 
to subcontracts by incorporating the subject matter from the final 
sentence of 970.2201-1-2(a)(1)(ii).
    Section 970.2201-1-2, Policies, is revised at paragraph (a)(1)(ii). 
The first sentence is revised by changing ``personnel investigations'' 
to ``background checks'' in the first and second sentences; in the 
third sentence, changing ``pre-employment'' to ``background,'' 
``applicant's'' to ``uncleared employment applicant's or uncleared 
employee,'' and ``applicant'' to ``individual''; adding a new fourth 
sentence to require a test to demonstrate the absence of any illegal 
drug as defined in 10 CFR 707.4; in the sixth sentence, changing 
``applicant's'' to ``uncleared employment applicant's or uncleared 
employee''; in the seventh sentence, rewriting the sentence to address 
``employee'' rather than ``applicant''; in the eighth sentence, 
changing the first usage of ``applicant'' to ``uncleared employee'' and 
the second to ``employee''; and in the last sentence, changing ``may'' 
to ``shall'' in order to make it imperative that subcontractors perform 
background checks on subcontract employee applicants or employees if 
they will require access authorizations to perform their duties.

III. Procedural Requirements

A. Review Under Executive Order 12866

    This 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 proposed rule 
is not subject to review under the Executive Order by the Office of 
Information and Regulatory Affairs (OIRA) within the Office of 
Management and Budget.

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; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. With regard to the review required 
by section 3(a), 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 that 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, 
these regulations meet the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    This proposed rule has been reviewed under the Regulatory 
Flexibility Act, 5 U.S.C. 601 et seq., which requires preparation of an 
initial regulatory flexibility analysis for any rule that must be 
proposed for public comment and that is likely to have a significant 
economic impact on a substantial number of small entities. The proposed 
rule would not have a significant economic impact on small entities 
because it imposes no significant burdens. Any costs incurred by DOE 
contractors complying with the rule would be reimbursed under the 
contract.
    Accordingly, DOE certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis is required and none 
has been prepared.

D. Review Under the Paperwork Reduction Act

    This proposed rule contains no new information collection or 
recordkeeping requirements. Information collection or recordkeeping 
requirements mentioned in this proposed rule relative to the facility 
clearance and access authorization processes have been previously 
cleared under Office of Management and Budget (OMB) paperwork clearance 
package number 0704-0194 for facility clearances processed by the 
Department of Defense for Standard Form (SF) 283 or package number 
3206-0007 processed by the Office of Personnel Management for personnel 
access authorizations using SF 86.

E. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this proposed rule falls 
into a class of actions which would not individually or cumulatively 
have significant impact on the human environment, as determined by 
DOE's regulations (10 CFR Part 1021, Subpart D) implementing the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.). Specifically, this proposed rule is categorically excluded from 
NEPA review because the amendments to the DEAR would be strictly 
procedural (categorical exclusion A6). Therefore, this proposed rule 
does not require an environmental impact statement or environmental 
assessment pursuant to NEPA.

F. Review Under Executive Order 13132

    Executive Order 13132 (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 today's proposed 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 the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires a 
federal agency to perform a detailed assessment of costs and benefits 
of any rule imposing a federal mandate with costs to state, local or 
tribal governments, or to the private sector, of $100 million or more 
in any single year. This proposed rule 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

[[Page 9073]]

Act, 1999 (Pub. L. 105-277), requires federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well-being. This proposed rule will have no impact on family 
well being.

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

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

K. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
proposed rule.

List of Subjects in 48 CFR Parts 904, 952 and 970

    Government procurement.

    Issued in Washington, DC, on February 11, 2008.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Office of 
Management, Department of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply Management National Nuclear 
Security Administration.
    For the reasons set out in the preamble, DOE proposes to amend 
Chapter 9 of Title 48 of the Code of Federal Regulations as set forth 
below:

PART 904--ADMINISTRATIVE MATTERS

    1. The authority citations for parts 904 and 952 continue to read 
as follows:

    Authority: 42 U.S.C. 7101, et seq.; 41 U.S.C. 418(b); 50 U.S.C. 
2401, et seq.

    2. In 904.401, the definitions of Classified Information and 
Restricted Data are revised to read as follows:


904.401  Definitions.

* * * * *
    Classified Information means information that is classified as 
Restricted Data or Formerly Restricted Data under the Atomic Energy Act 
of 1954, or information determined to require protection against 
unauthorized disclosure under Executive Order 12958, Classified 
National Security Information, as amended, or prior executive orders, 
which is identified as National Security Information.
* * * * *
    Restricted Data means all data concerning design, manufacture, or 
utilization of atomic weapons; production of special nuclear material; 
or use of special nuclear material in the production of energy, but 
excluding data declassified or removed from the Restricted Data 
category pursuant to 42 U.S.C. 2162 [Section 142, as amended, of the 
Atomic Energy Act of 1954].


904.404  [Amended]

    3. Section 904.404, [DOE Coverage--Paragraph (d)] is amended by 
adding the words ``, access to special nuclear materials or the 
provision of protective services'' after the words ``classified 
information'' at the end of the first sentence of paragraph (d)(1).

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Section 952.204-2 is revised to read as follows:


952.204-2  Security.

    As prescribed in 904.404(d)(1), the following clause shall be 
included in contracts entered into under section 31 (research 
assistance, 42 U.S.C. 2051), or section 41 (ownership and operation of 
production facilities, 42 U.S.C. 2061) of the Atomic Energy Act of 
1954, and in other contracts and subcontracts which involve or are 
likely to involve classified information or special nuclear material.

Security (XXX 2007)

    (a) Responsibility. It is the Contractor's duty to protect all 
classified information, special nuclear material, and other DOE 
property. The Contractor shall, in accordance with DOE security 
regulations and requirements, be responsible for protecting all 
classified information and protecting against sabotage, espionage, 
loss or theft of the classified documents and material, including 
special nuclear material, in the Contractor's possession in 
connection with the performance of work under this contract. Except 
as otherwise expressly provided in this contract, the Contractor 
shall, upon completion or termination of this contract, transmit to 
DOE any classified matter or special nuclear material in the 
possession of the Contractor or any person under the Contractor's 
control in connection with performance of this contract. If 
retention by the Contractor of any classified matter is required 
after the completion or termination of the contract, the Contractor 
shall identify the items and classification levels and categories of 
material proposed for retention, the reasons for the retention, and 
the proposed period of retention. If the retention is approved by 
the Contracting Officer, the security provisions of the contract 
shall continue to be applicable to the matter retained. Special 
nuclear material shall not be retained after the completion or 
termination of the contract.
    (b) Regulations. The Contractor agrees to comply with all 
security regulations and contract requirements of DOE in effect on 
the date of award.
    (c) Definition of Classified Information. The term Classified 
Information means information that is classified as Restricted Data 
or Formerly Restricted Data under the Atomic Energy Act of 1954, or 
information determined to require protection against unauthorized 
disclosure under Executive Order 12958, Classified National Security 
Information, as amended, or prior executive orders, which is 
identified as National Security Information.
    (d) Definition of Restricted Data. The term Restricted Data 
means all data concerning design, manufacture, or utilization of 
atomic weapons; production of special nuclear material; or use of 
special nuclear material in the production of energy, but excluding 
data declassified or removed from the Restricted Data category 
pursuant to 42 U.S.C. 2162 [Section 142, as amended, of the Atomic 
Energy Act of 1954].
    (e) Definition of Formerly Restricted Data. The term ``Formerly 
Restricted Data'' means information removed from the Restricted

[[Page 9074]]

Data category based on a joint determination by DOE or its 
predecessor agencies and the Department of Defense that the 
information: (1) Relates primarily to the military utilization of 
atomic weapons; and (2) can be adequately protected as National 
Security Information. However, such information is subject to the 
same restrictions on transmission to other countries or regional 
defense organizations that apply to Restricted Data.
    (f) Definition of National Security Information. The term 
``National Security Information'' means information that has been 
determined, pursuant to Executive Order 12958, Classified National 
Security Information, as amended, or any predecessor order, to 
require protection against unauthorized disclosure, and that is 
marked to indicate its classified status when in documentary form.
    (g) Definition of special nuclear material. The term ``special 
nuclear material'' means: (1) plutonium, uranium enriched in the 
isotope 233 or in the isotope 235, and any other material which, 
pursuant to 42 U.S.C. 2071 [section 51 as amended, of the Atomic 
Energy Act of 1954] has been determined to be special nuclear 
material, but does not include source material; or (2) any material 
artificially enriched by any of the foregoing, but does not include 
source material.
    (h) Access authorizations of personnel. (1) The Contractor shall 
not permit any individual to have access to any classified 
information or special nuclear material, except in accordance with 
the Atomic Energy Act of 1954, and the DOE's regulations and 
contract requirements applicable to the particular level and 
category of classified information or particular category of special 
nuclear material to which access is required.
    (2) The job qualifications and suitability of employees or 
prospective employees must be considered by the Contractor prior to 
assignment to positions requiring access authorizations by careful 
personnel background checks. Background checks are not required for 
an applicant for DOE access authorization who possesses a current 
access authorization from DOE or another Federal agency. Such 
background checks must include, but are not limited to, as 
appropriate: A credit check; verification of high school diploma 
received within the last five years or degree/diploma granted by an 
institution of higher learning; contacts with listed personal 
references; contacts with listed employers for the last five years 
(excluding employment of less than 60 days' duration, part-time 
employments, and craft/union employments); and local law enforcement 
checks when such checks are not prohibited by state or local law or 
regulation, and when the individual resides in the jurisdiction 
where the Contractor is located. When a DOE access authorization 
will be required, the aforementioned background checks must be 
conducted and the uncleared applicant's or uncleared employee's job 
qualifications and suitability must be established before a request 
is made to the DOE to process the uncleared applicant or uncleared 
employee for an access authorization. In addition, each candidate 
for a DOE access authorization must be tested to demonstrate the 
absence of any illegal drug, as defined in 10 CFR 707.4. Evidence 
must be furnished to DOE with the uncleared applicant's or uncleared 
employee's security forms that specify: The results of the test for 
the absence of any illegal drug, as defined in 10 CFR 707.4, and, 
for the background checks, the date each check was conducted; the 
identity of the contact who provided the information; a synopsis of 
the information provided by each contact; and a statement that all 
relevant information available has been reviewed in accordance with 
the Contractor's personnel policies with favorable results. When 
hiring new employees for positions requiring access authorizations, 
the Contractor shall perform these background checks prior to 
submission of the request for DOE access authorization. If adverse 
information is found in the course of the background checks, the 
Contractor must assess the possible impact of such findings on the 
uncleared applicant's or uncleared employee's suitability for a 
position requiring an access authorization and act accordingly. 
Access authorizations are granted or denied based on criteria in 10 
CFR 710.8. DOE will not process candidates for a DOE access 
authorization unless their tests confirm the absence of any illegal 
drug. Contractors must propose personnel to work in positions 
requiring access authorizations only if they are confident that the 
individuals will pass the rigorous background review that DOE will 
conduct. When an uncleared applicant is hired specifically for a 
position that requires a DOE access authorization, the uncleared 
employee shall not be placed in that position prior to the access 
authorization being granted by DOE, unless an approval has been 
obtained from the head of the cognizant local security office. If an 
uncleared employee is placed in that position prior to an access 
authorization being granted by the DOE, the uncleared employee may 
not be afforded access to classified information or matter or 
special nuclear material (in categories requiring access 
authorization) until DOE notifies the employer that an access 
authorization has been granted.
    (3) All positions requiring access authorizations are deemed 
testing designated positions in accordance with 10 CFR part 707. All 
employees possessing access authorizations are subject to applicant, 
random or for cause testing for use of illegal drugs.
    (i) Criminal liability. It is understood that disclosure of any 
classified information relating to the work or services ordered 
hereunder to any person not entitled to receive it, or failure to 
protect any classified information, special nuclear material, or 
other Government property that may come to the Contractor or any 
person under the Contractor's control in connection with work under 
this contract, may subject the Contractor, its agents, employees, or 
Subcontractors to criminal liability under the laws of the United 
States (see the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.; 
18 U.S.C. 793 and 794).
    (j) Foreign Ownership, Control, or Influence. (1) The Contractor 
shall immediately provide the cognizant security office written 
notice of any change in the extent and nature of foreign ownership, 
control or influence over the Contractor which would affect any 
answer to the questions presented in the Standard Form (SF) 328, 
Certificate Pertaining to Foreign Interests, executed prior to award 
of this contract. In addition, any notice of changes in ownership or 
control which are required to be reported to the Securities and 
Exchange Commission, the Federal Trade Commission, or the Department 
of Justice, shall also be furnished concurrently to the Contracting 
Officer.
    (2) If a Contractor has changes involving foreign ownership, 
control, or influence, DOE must determine whether the changes will 
pose an undue risk to the common defense and security. In making 
this determination, DOE will consider proposals made by the 
Contractor to avoid or mitigate foreign influences.
    (3) If the cognizant security office at any time determines that 
the Contractor is, or is potentially, subject to foreign ownership, 
control, or influence, the Contractor shall comply with such 
instructions as the Contracting Officer shall provide in writing to 
protect any classified information or special nuclear material.
    (4) The Contracting Officer may terminate this contract for 
default either if the Contractor fails to meet obligations imposed 
by this clause or if the Contractor creates a foreign ownership, 
control, or influence situation in order to avoid performance or a 
termination for default. The Contracting Officer may terminate this 
contract for convenience if the Contractor becomes subject to 
foreign ownership, control, or influence and for reasons other than 
avoidance of performance of the contract, cannot, or chooses not to, 
avoid or mitigate the foreign ownership, control, or influence 
problem.
    (k) Employment announcements. When placing announcements seeking 
applicants for positions requiring access authorizations, the 
Contractor shall include in the written vacancy announcement, a 
notification to prospective applicants that background checks and 
tests for the absence of any illegal drug, as defined in 10 CFR 
707.4, will be conducted by the employer and a background 
investigation by the Federal government may be required for the 
required access authorization prior to employment, and that 
subsequent reinvestigations may be required. If the position is 
covered by the Counterintelligence Evaluation Program regulations at 
10 CFR part 709, the announcement should also alert applicants that 
successful completion of a counterintelligence evaluation may 
include a counterintelligence-scope polygraph examination.
    (l) Flow down to subcontracts. The Contractor agrees to insert 
terms that conform substantially to the language of this clause, 
including this paragraph, in all subcontracts under this contract 
that will require Subcontractor employees to possess access 
authorizations. Additionally, the Contractor must require such 
Subcontractors to have an existing DOD or DOE facility clearance or 
submit a completed SF 328, Certificate Pertaining to Foreign 
Interests, as required in

[[Page 9075]]

DEAR 952.204-73 and obtain a foreign ownership, control and 
influence determination and facility clearance prior to award of a 
subcontract. Information to be provided by a Subcontractor pursuant 
to this clause may be submitted directly to the Contracting Officer. 
For purposes of this clause, Subcontractor means any Subcontractor 
at any tier and the term ``Contracting Officer'' means the DOE 
Contracting Officer. When this clause is included in a subcontract, 
the term ``Contractor'' shall mean Subcontractor and the term 
``contract'' shall mean subcontract. (End of Clause)

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    5. The authority citation for Part 970 continues to read as 
follows:

    Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101 
et seq.; 41 U.S.C. 418b; 50 U.S.C. 2401 et seq.


970.0470-1  [Amended]

    6. Section 970.0470-1(b) is amended by revising both mentions of 
``Directives System'' to read ``Directives Program.''


970.2201-1-1  [Amended]

    7. Section 970.2201-1-1 is amended by removing the term 
``guidance'' and adding in its place ``requirements.''
    8. Section 970.2201-1-2, paragraphs (a)(1)(i) and (ii) are revised 
to read as follows:


970.2201-1-2  Policies.

    (a)(1) * * *
    (i) Management and operating contractors are expected to bring 
experienced, proven personnel from their private operations to staff 
key positions on the contract and to recruit other well-qualified 
personnel as needed. Such personnel should be employed and treated 
during employment without discrimination by reason of race, color, 
religion, sex, age, disability, or national origin. Contractors shall 
be required to take affirmative action to achieve these objectives.
    (ii) The job qualifications and suitability of prospective 
employees should be established by the contractor prior to employment 
by careful background checks. Such background checks should include, as 
appropriate: a credit check; verification of high school diploma 
received within the last five years or degree/diploma granted by an 
institution of higher learning; contacts with listed personal 
references; contacts with listed employers for the last five years 
(excluding employment of less than 60 days' duration, part-time 
employments, and craft/union employments); and local law enforcement 
checks when such checks are not prohibited by state or local law or 
regulation, and when the individual resides in the jurisdiction where 
the contractor is located. When a DOE access authorization will be 
required, the aforementioned background checks must be conducted and 
the uncleared employment applicant's or uncleared employee's job 
qualifications and suitability must be established before a request is 
made to the DOE to process the individual for an access authorization. 
In addition, each candidate for a DOE access authorization must be 
tested for the absence of any illegal drug as defined in 10 CFR part 
707.4. Evidence must be furnished to DOE with the uncleared employment 
applicant's or uncleared employee's security forms that specify: the 
results of the test for the absence of any illegal drug, as defined in 
10 CFR 707.4, and, for the background checks, the date each background 
check was conducted, the identity of the contact who provided the 
information, a synopsis of the information provided by each contact, 
and a statement that all relevant information available has been 
reviewed and favorably adjudicated in accordance with the contractor's 
personnel policies. When an uncleared applicant is hired specifically 
for a position which requires a DOE access authorization, the uncleared 
employee shall not be placed in that position prior to the access 
authorization being granted by DOE, unless approved by the head of the 
cognizant local security office. If an uncleared employee is placed in 
that position prior to access authorization being granted by the DOE, 
the uncleared employee may not be afforded access to classified 
information or matter, or to special nuclear materials (in categories 
requiring an access authorization) until DOE notifies the employer that 
an access authorization has been granted. Management and operating 
contractors and other contractors operating DOE facilities shall 
include the requirements set forth in this subsection in subcontracts 
(appropriately modified to identify the parties) wherein subcontract 
employees will be required to hold DOE access authorizations in order 
to perform on-site duties, such as protective force operations.
* * * * *
[FR Doc. E8-3012 Filed 2-15-08; 8:45 am]
BILLING CODE 6450-01-P