Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material, 22920-22937 [2016-08885]

Download as PDF 22920 Proposed Rules Federal Register Vol. 81, No. 75 Tuesday, April 19, 2016 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. DEPARTMENT OF ENERGY 10 CFR Part 710 [Docket No. DOE–HQ–2012–0001–0274] RIN 1992–AA36 Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material Department of Energy. Notice of proposed rulemaking. AGENCY: ACTION: The Department of Energy (DOE) proposes to amend its regulations which set forth the policies and procedures for resolving questions concerning eligibility for DOE access authorization. The proposed revisions would update and provide added clarity throughout the current rule, and streamline the process for resolving access authorization eligibility determinations. Additionally, DOE proposes to update references to DOE Offices and officials to reflect the current DOE organizational structure. DATES: Written comments on this proposed rulemaking must be received on or before close of business May 19, 2016. ADDRESSES: You may submit comments, identified by ‘‘Determining Eligibility for Access and RIN 1992–AA36,’’ by any of the following methods (comments by email are encouraged): • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Email to: OfficeofDepartmental PersonnelSecurity@hq.doe.gov. Include Determining Eligibility for Access and RIN 1992–AA36 in the subject line of the message. • Mail to: U.S. Department of Energy, Office of Departmental Personnel Security, AU–53, 1000 Independence Avenue SW., Washington, DC 20585. FOR FURTHER INFORMATION CONTACT: Mark R. Pekrul, Office of Departmental Personnel Security, (202) 586–4097, mark.pekrul@hq.doe.gov; or Christina Pak, Office of the General Counsel, (202) 586–4114, christina.pak@hq.doe.gov. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 SUPPLEMENTARY INFORMATION: I. Background II. Section-by-Section Analysis III. Procedural Analysis A. Review Under Executive Order 12866 and 13563 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 The Department of Energy is publishing this notice of proposed rulemaking (NOPR) in order to update and clarify DOE’s policies and procedures for the denial and revocation of access authorizations. 10 CFR part 710 has not been substantively updated since 2001 (66 FR 47062, Sept. 11, 2001). Since that time, as the Department has gained operational experience under the current rule, revisions to update and clarify provisions in the rule are appropriate. The proposed rule would: (1) Accord primacy to the national Adjudicative Standards when determining eligibility for access authorization; (2) clarify that DOE can, in exigent circumstances, suspend an access authorization without recourse to certain administrative procedures; (3) permit individuals subject to criminal proceedings to suspend access authorization revocation proceedings under this part, subject to certain conditions; (4) limit the ability of the Appeal Panel to consider new evidence on appeal of a decision by the Department’s Office of Hearings and Appeals or the Manager to deny or revoke access authorization; (5) introduce a one-year waiting period before an individual, previously the subject of denial or revocation of access authorization, may be reconsidered for access authorization; (6) add to part 710 the requirements of Presidential Policy Directive 19, which provides appeal rights to the Department’s Office of PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 Inspector General under certain circumstances; (7) revise, delete, and add definitions for certain terms used in the regulation; and (8) update references to DOE Offices and officials to reflect the current DOE organizational structure. Laws, regulations and directives which may apply to part 710 include, but are not limited to: The Atomic Energy Act of 1954; Executive Order 13467 (73 FR 38103, June 30, 2008; Executive Order 12968 (60 FR 40245, August 2, 1995, as amended); Executive Order 13526 (75 FR 707, January 5, 2010); Executive Order 10865 (25 FR 1583, February 24, 1960, as amended); Executive Order 10450 (18 FR 2489, April 27, 1954, as amended); Presidential Policy Directive 19 (October 10, 2012). II. Section-by-Section Analysis DOE proposes to amend 10 CFR part 710 as follows: The title of this part would be revised to delete the words ‘‘CRITERIA AND’’ to reflect the proposed deletion of the criteria in current § 710.8, and because the term ‘‘Procedures’’ adequately describes the content of the rule. Additionally, the heading, Subpart A, ‘‘General Criteria and Procedures for Determining Eligibility for Access to Classified Matter and Special Nuclear Material,’’ is proposed to be deleted. Previously, the entire body of this rule was denominated as Subpart A to Part 710. In this proposed revision, each existing undesignated subpart heading would be designated as an individual subpart, in accordance with the U.S. Government Printing Office’s Document Drafting Handbook. 1. The current heading ‘‘GENERAL PROVISIONS’’ located above current § 710.1 would be revised to add ‘‘SUBPART A—’’ at the beginning. 2. Proposed § 710.1 ‘‘Purpose’’ would delete references to the specific types of individuals to which this part applies since this information is set forth in § 710.2; and would update the applicable legal authorities. 3. Proposed § 710.2 ‘‘Scope’’ would clarify that determining eligibility for an individual’s access authorization would require application of the national Adjudicative Guidelines, and reference to ‘‘criteria’’ would be deleted. 4. Proposed § 710.3 ‘‘Reference’’ would delete the reference to the Atomic Energy Act and replace it with E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules a reference to the Adjudicative Guidelines. 5. Proposed § 710.4 ‘‘Policy’’ would replace the phrase ‘‘criteria for determining eligibility for access authorization and’’ with ‘‘procedures’’ in paragraph (a) to reflect the proposed deletion of the criteria in current § 710.8. Current § 710.4(c) would be renumbered § 710.32(b)(1). Current § 710.4(d) would be renumbered § 710.32(b)(2). Current paragraphs (e) and (f) would be deleted since the situations addressed in those paragraphs are already covered in the current rule. Current paragraph (g) would be renumbered § 710.32(c). 6. In proposed § 710.5 ‘‘Definitions’’ a number of new or revised definitions are proposed. In addition, the terms contained in this section would be reordered so that they are listed in alphabetical order; current § 710.5(b) would be deleted as unnecessary. The term ‘‘DOE Counsel’’ would be amended to delete the requirement that such an individual be subject to a favorably adjudicated background investigation. Instead, the requirement that such an individual must hold a DOE Q access authorization, the grant of which is predicated on a favorably adjudicated background investigation, would be added. The term ‘‘Administrative Judge’’ is proposed to be amended in the same fashion and for the same reasons as the definition of ‘‘DOE Counsel,’’ and also to delete the requirement that this person be a ‘‘senior management official.’’ The term ‘‘Director’’ would be added and defined as the Director, Office of Departmental Personnel Security, to reflect organizational changes within the DOE’s personnel security program. The terms ‘‘Local Director of Security’’ and ‘‘Manager’’ would be revised to reflect organizational changes throughout DOE. The term ‘‘national security information’’ would be deleted as it does not appear anywhere in this rule. 7. The current heading ‘‘CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL’’ located above current § 710.6 would be revised to add ‘‘SUBPART B—’’ at the beginning, and to delete ‘‘CRITERIA AND’’ to reflect the deletion of the criteria in proposed § 710.8. 8. Proposed § 710.6 ‘‘Cooperation by the individual.’’ (1) Proposed paragraph (a)(1) would revise the language for clarity but would not change it substantively. VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 (2) Proposed paragraph (a)(2) would update the reference to polygraph examinations to be consistent with the intent of 10 CFR part 709, and to update terms as in paragraph (a)(1), described above. (3) Proposed paragraph (b) would reflect current DOE organizational structures. (4) Proposed paragraph (c) would clarify the process by which an individual could appeal decisions taken by DOE under proposed paragraphs (a)(1) and (a)(2). 9. The proposed changes to § 710.7 ‘‘Application of the criteria’’ would remove references to the criteria and clarify that all determinations of eligibility for access authorization at DOE would be made in accordance with the national Adjudicative Guidelines. DOE has for several decades utilized the criteria currently in § 710.8 to determine eligibility for access authorization. When the national Adjudicative Guidelines were introduced in 1997, DOE began using them in conjunction with the criteria in § 710.8. The revision proposed today would make all access authorization determinations in reliance solely on the Adjudicative Guidelines. The current title ‘‘Application of the criteria’’ would be revised to replace ‘‘criteria’’ with ‘‘Adjudicative Guidelines.’’ Additionally, the current § 710.9(a) would be renumbered § 710.7(d) to clearly indicate how information obtained by DOE may be considered derogatory under the Adjudicative Guidelines and used to determine access authorization eligibility. The last sentence of the current § 710.7(a) would be moved to the beginning of proposed § 710.7(d) where it more logically fits. 10. Current § 710.8 ‘‘Criteria’’ would be removed in its entirety, since exclusive reliance on the national Adjudicative Guidelines for making access authorization eligibility determinations would render this section unnecessary. 11. The current § 710.9 ‘‘Action on derogatory information’’ would be renumbered § 710.8. (1) Current paragraph (a) would be moved to proposed § 710.7(d) as indicated in the discussion of proposed § 710.7. (2) Proposed paragraph (a)—currently paragraph (b)—would remove the specific reference to a DOE mental evaluation as an example of actions that can be taken to resolve derogatory information. Since a mental evaluation is just one of many actions DOE can take to resolve derogatory information, DOE proposes to delete the example to avoid PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 22921 any misperception that DOE is limited to this action. (3) Current paragraph (e) would be renumbered as paragraph (d) and would be revised to reflect changes in the DOE organizational structure. 12. Current § 710.10 ‘‘Suspension of access authorization’’ would be renumbered § 710.9. (1) Proposed paragraph (b) would clarify that the Department can take immediate action to suspend an individual’s access authorization, without taking actions to investigate derogatory information, when there are immediate threats to the national security or to the safety and security of a DOE facility or employee. An individual whose access authorization has been suspended under these circumstances would be entitled to due process protections as set forth in part 710 before the Department makes a final decision on the individual’s eligibility for access authorization. (2) The current paragraph (b) would be renumbered as paragraph (c). Proposed paragraph (c) would clarify the responsibilities of the Manager upon the recommendation of a Local Director of Security that an individual’s access authorization should be suspended. (3) Proposed paragraph (e) has been added to reflect the requirements of Presidential Policy Directive 19, and would provide that a Federal employee who believes action to suspend his or her access authorization was taken as retaliation for having made a protected disclosure of information may appeal the decision to the Department’s Office of the Inspector General. 13. The current heading, ‘‘ADMINISTRATIVE REVIEW,’’ located above current § 710.20, would be redesignated as Subpart C by adding, ‘‘SUBPART C—’’ at the beginning. 14. Section 710.20 ‘‘Purpose of administrative review’’ would remain unchanged except for an editorial revision to clarify that the procedures in proposed Subpart C ‘‘govern’’ and not just ‘‘establish methods for’’ the conduct of administrative review proceedings under this part. 15. Proposed § 710.21 ‘‘Notice to the individual’’ (1) Proposed paragraph (b)(7) would clarify that the Administrative Judge has the option of conducting administrative review hearings via video teleconferencing. The use of video teleconferencing for this purpose has been piloted with successful results. Additionally, proposed paragraph (b)(7) would include information currently contained in § 710.34, ‘‘Attorney representation,’’ which is proposed to be deleted. The current § 710.34 E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 22922 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules addresses the responsibility of the individual to provide DOE with notice of representation by an attorney, so the substance of § 710.34 would fit better in proposed paragraph (b)(7) since it already addresses the individual’s right to attorney representation. (2) Proposed paragraph (b)(8) would clarify that in the event that an individual fails to file a timely written request for a hearing before an Administrative Judge, the Manager shall issue a final decision to revoke or deny an individual’s access authorization. (3) Current paragraphs (c)(1) and (c)(3) would be renumbered as paragraphs (b)(10) and (b)(11), respectively, for better flow. (4) Proposed new paragraphs (b)(12)(i) through (iii) would address the rights of individuals who, at the time they receive a notification letter pursuant to proposed § 710.21, are the subject of criminal proceedings for a felony offense or for an offense which is punishable by more than a year in prison. The proposed addition would clarify that individuals in that situation have the right to decide whether to continue with or withdraw from the Administrative Review process. Under the current rule, the discretion to continue with the Administrative Review process resides with DOE. Under the proposed revision, the individual concerned would decide to either (1) proceed with Administrative Review, requiring him/her to participate fully in the process, or (2) withdraw from the Administrative Review process, resulting in the administrative withdrawal of the individual’s access authorization. Once the individual’s criminal law matter concludes, a request for access authorization could be resubmitted. (5) Proposed new paragraph (c)(2), embodying the requirements of Presidential Policy Directive 19, would be added to provide that a Federal employee who believes action to deny or revoke access authorization under the Administrative Review process was taken as retaliation for having made a protected disclosure of information may appeal the decision to the Department’s Office of the Inspector General. 16. Proposed § 710.22 ‘‘Initial Decision Process’’ would clarify, in paragraph (c)(4), that if the individual does not exercise his/her right to appeal the initial decision of a Manager to deny or revoke access authorization within 30 calendar days of that decision, the Manager’s initial decision would become final action not subject to further review or appeal. 17. Proposed § 710.25 ‘‘Appointment of Administrative Judge; prehearing VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 conference; commencement of hearings’’ would clarify the authority of the Administrative Judge to conduct hearings via video teleconferencing and shorten the time limit for the Administrative Judge to commence a hearing, from 90 days to 60 days from the date the individual’s request for hearing is received by the Office of Hearings and Appeals. This proposed change reflects the DOE Office of Hearings and Appeals’ current internal procedures for commencing a hearing. 18. Proposed § 710.27 ‘‘Administrative Judge’s decision’’ would indicate that the Administrative Judge shall render a decision as to the granting or restoring of an individual’s access authorization within 30 calendar days from the date of receipt of the hearing transcript. This proposed change reflects the DOE Office of Hearings and Appeals’ current internal procedures for issuing a decision. 19. Proposed § 710.28 ‘‘Action on the Administrative Judge’s decision’’ would clarify that an Administrative Judge’s decision shall constitute final action not subject to review or further appeal if a written request for a review of the decision by the Appeal Panel is not filed within a timely manner with the Director. Additionally, proposed paragraph (c) would address the process by which the Department may appeal a decision by the Administrative Judge to grant or to continue an individual’s access authorization, to comport with the process in current paragraph (b) which addresses how the individual may appeal a decision by the Administrative Judge to deny or revoke access authorization. 20. Proposed § 710.29 ‘‘Final appeal process’’ would reflect, in paragraph (e), that an appeal decision would be based solely upon information in the administrative record at the time of the Manager’s decision or the Administrative Judge’s initial decision. Consequently, current paragraphs (h), (i) and (j) would be deleted in their entirety. Paragraphs (a) through (d) would be revised to reflect the current Departmental organization and to more clearly describe the process by which an Appeal Panel is convened. Paragraph (f) would be revised to clarify that the Appeal Panel’s decision is not subject to further review or appeal. 21. Current § 710.30 ‘‘New evidence’’ would be deleted to reflect that an appeal decision would be based solely upon information in the administrative record at the time of the Manager’s decision or the Administrative Judge’s initial decision. 22. Proposed § 710.30 ‘‘Action by the Secretary,’’ currently § 710.31 and PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 renumbered § 710.30 in the proposed rule, would state that the Secretary’s responsibilities could be delegated in accordance with Executive Orders 12968 and 10865. Also, references to current § 710.29(h) and (i) would be deleted since those sections are proposed to be deleted. 23. Proposed § 710.31 ‘‘Reconsideration of Access Eligibility.’’ This proposed section, which would be renumbered from § 710.32, would provide for a minimum of one year between a final decision to deny or revoke access authorization and the time when an individual may apply for reconsideration. Currently, part 710 contains no time limit and many individuals seek reconsideration within days of receiving a final decision denying or revoking the individual’s access authorization. Further, individuals have been permitted to file a request for reconsideration repeatedly, even after previous reconsideration requests have been denied. A one-year time limit would convey clear expectations to the individual as to when a reconsideration request could be accepted and would reduce the undue burden on the Department of considering multiple close-in-time appeals. In addition, paragraph (d) would more clearly describe the reconsideration process. 24. The current heading, ‘‘TERMINATIONS,’’ located above current § 710.33 would be redesignated as Subpart D by adding, ‘‘SUBPART D—’’ at the beginning. 25. Proposed § 710.32 ‘‘Terminations.’’ This proposed section, would be renumbered from § 710.33. Proposed § 710.32(a), currently § 710.33, would clarify that if the procedures of this part are terminated after an unfavorable initial agency decision has been rendered, any subsequent requests for access authorization for an individual would be processed as a review of the decision by the Appeal Panel, unless a minimum of one year had elapsed. Proposed § 710.32(b)(1), currently § 710.4(c), would indicate that the type of criminal proceedings for which DOE may take action to terminate processing an access authorization application include felony offenses and offenses punishable by one year of imprisonment or longer. Currently, this threshold is six months; this proposed change to one year would be consistent with the one-year time frame in proposed § 710.21. Proposed § 710.32(b)(2) and § 710.32(c), would be renumbered from current § 710.4(d) and (g), respectively. 26. Current § 710.34 ‘‘Notice to individual’’ would be deleted. The E:\FR\FM\19APP1.SGM 19APP1 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules substance of current § 710.34 would be added to proposed § 710.21. 27. Proposed § 710.33 ‘‘Time frames,’’ currently § 710.35, would be renumbered as § 710.33. 28. Proposed § 710.34 ‘‘Acting Officials,’’ currently § 710.36, would reflect organizational changes within the Department and permit the Deputy Associate Under Secretary for Environment, Health, Safety and Security greater flexibility to delegate his/her responsibilities under part 710. Currently, these responsibilities can only be exercised by persons in security-related Senior Executive Service positions. The proposed change would permit the Deputy Associate Under Secretary for Environment, Health, Safety and Security to delegate his/her authorities under part 710 to persons in senior security-related positions. It is expected that only persons in GS–15 or Senior Executive Service positions would meet this requirement. This proposed change would enhance the Department’s ability to effectively manage the Administrative Review process prescribed by part 710. APPENDICES The national Adjudicative Guidelines would be Appendix A. III. Procedural Requirements asabaliauskas on DSK3SPTVN1PROD with PROPOSALS A. Review Under Executive Orders 12866 and 13563 The regulatory action proposed today 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 within the Office of Management and Budget. DOE has also reviewed the proposed regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits. 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), 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 22923 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 regulation meet 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. As required by Executive Order 13272, ‘‘Proper Consideration of Small Entities in Agency Rulemaking,’’ (67 FR 53461, August 16, 2002), DOE published procedures and policies 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 Web site at http:// www.gc.doe.gov. This proposed rule would amend procedures that apply to the determination of eligibility of individuals for access to classified information and access to special nuclear material. The proposed rule applies to individuals, and would not apply to ‘‘small entities,’’ as that term is defined in the Regulatory Flexibility Act. As a result, if adopted, the proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis is required. D. Review Under the Paperwork Reduction Act This proposed rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. E:\FR\FM\19APP1.SGM 19APP1 22924 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules 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 existing rule are 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 this proposed 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 Executive Order 13132. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS G. Review Under the Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) generally 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. This rulemaking does not impose a Federal mandate on State, local or tribal governments or on the private sector. H. Review Under the Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277), requires Federal agencies to issue a Family Policymaking Assessment for any rule or policy that may affect family well being. The proposed rule, if adopted, VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 will have no impact on family wellbeing. 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 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 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 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 this proposed rule 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 10 CFR Part 710 Administrative practice and procedure, Classified information, PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 Government contracts, Government employees, nuclear energy. Issued in Washington, DC, on March 28, 2016. Elizabeth Sherwood-Randall, Deputy Secretary. For the reasons set out in the preamble, DOE is proposing to revise 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 Subpart A—General Provisions Sec. 710.1 Purpose. 710.2 Scope. 710.3 Reference. 710.4 Policy. 710.5 Definitions. Subpart B—Eligibility for Access to Classified Matter or Special Nuclear Material 710.6 Cooperation by the individual. 710.7 Application of the adjudicative guidelines. 710.8 Action on derogatory information. 710.9 Suspension of access authorization. Subpart C—Administrative Review 710.20 Purpose of administrative review. 710.21 Notice to the individual. 710.22 Initial decision process. 710.23 Extensions of time by the manager. 710.24 Appointment of DOE Counsel. 710.25 Appointment of Administrative Judge; prehearing conference; commencement of hearings. 710.26 Conduct of hearings. 710.27 Administrative Judge’s decision. 710.28 Action on the Administrative Judge’s decision. 710.29 Final appeal process. 710.30 Action by the Secretary. 710.31 Reconsideration of access eligibility. Subpart D—Miscellaneous 710.32 Terminations. 710.33 Time frames. 710.34 Acting officials. Appendix A—Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (December 30, 2005) Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h–l; 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; E.O. 13526, 3 CFR 2010 Comp., pp. 298–327 (or successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391. Subpart A—General Provisions § 710.1 Purpose. (a) This part establishes the procedures for determining the eligibility of individuals described in E:\FR\FM\19APP1.SGM 19APP1 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules § 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 Executive Order 13526 (Classified National Security Information). (b) This part implements: Executive Order 12968, 60 FR 40245 (August 2, 1995), as amended; Executive Order 13526, 75 FR 707 (January 5, 2010); Executive Order 10865, 25 FR 1583 (February 24, 1960), as amended; Executive Order 10450, 18 FR 2489 (April 27, 1954), as amended; and the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information approved by the President (the ‘‘Adjudicative Guidelines’’; see Appendix A of this part). § 710.2 Scope. The procedures outlined in this rule require the application of the Adjudicative Guidelines (see § 710.7) in determining eligibility for access authorization for: (a) Employees (including consultants) of, and applicants for employment with, contractors and agents of the DOE; (b) Access permittees of the DOE and their employees (including consultants) and applicants for employment; (c) Employees (including consultants) of, and applicants for employment with, the DOE; and (d) Other persons designated by the Secretary of Energy. § 710.3 Reference. The Adjudicative Guidelines are set forth in Appendix A to this part. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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 § 710.2 the opportunity for administrative review of questions concerning their eligibility for access authorization. (b) It is also the policy of DOE that none of the procedures established for determining eligibility for access authorization 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. VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 § 710.5 Definitions. (a) As used in this part: Access authorization means an administrative determination that an individual is eligible for access to classified matter or is eligible for access to, or control over, special nuclear material. Administrative Judge means a DOE attorney appointed by the Director, Office of Hearings and Appeals, pursuant to § 710.25 of this part. An Administrative Judge shall be a U.S. citizen and shall hold a Q access authorization. Classified matter means the material of thought or expression that is classified pursuant to statute or Executive Order. Director means the Director, DOE Office of Departmental Personnel Security. DOE Counsel means a DOE attorney assigned to represent DOE in proceedings under this part. DOE Counsel shall be a U.S. citizen and shall hold a Q access authorization. Local Director of Security means the individual with primary responsibility for safeguards and security at the Chicago, Idaho, Oak Ridge, Richland, and Savannah River Operations Offices; for Naval Reactors, the individual(s) designated under the authority of the Director of the Naval Nuclear Propulsion Program; for the National Nuclear Security Administration (NNSA), the individual 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 Chicago, Idaho, Oak Ridge, Richland, or Savannah River Operations Offices; for Naval Reactors, the individual designated under the authority of the Director of the 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 Operations. Secretary means the Secretary of Energy, as provided by section 201 of the Department of Energy Organization Act. Special nuclear material means plutonium, uranium enriched in the isotope 233, or in the isotope 235, and any other material which, pursuant to the provisions of section 51 of the Atomic Energy Act of 1954, has been determined to be special nuclear material, but does not include source material; or any material artificially PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 22925 enriched by any of the foregoing, not including source material. (b) Reserved. Subpart B—Eligibility for Access to Classified Matter or Special Nuclear Material § 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 or reinvestigation, and at any stage of DOE’s processing of the individual’s access authorization request, including but not limited to, personnel security interviews, DOEsponsored mental health evaluations, and other authorized DOE investigative activities 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 access authorization. In this event, any access authorization then in effect may be administratively withdrawn or, for applicants, further processing may be administratively terminated. (2) It is the responsibility of an individual subject to 10 CFR 709.3(d) to consent to and take a polygraph examination required by part 709. A refusal to consent to or take such an examination may prevent DOE from reaching an affirmative finding required for continuing access authorization. In this event, any access authorization then in effect may be administratively withdrawn. (b) If the individual believes that the provisions of paragraph (a) of this section have been inappropriately applied, the individual may file a written appeal of the action with the Director within 30 calendar days of the date the individual was notified of the action. (c) Upon receipt of the written appeal, the Director shall conduct an inquiry as to the circumstances involved in the action and shall, within 30 calendar days of receipt of the written appeal, notify the individual, in writing, of his/ her decision. If the Director determines that the action was inappropriate, the Director shall notify the Manager that access authorization must be reinstated or, for applicants, that the individual must continue to be processed for access authorization. If the Director determines E:\FR\FM\19APP1.SGM 19APP1 22926 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules the action was appropriate, the Director shall notify the individual of this fact in writing. The Director’s decision is final and not subject to further review or appeal. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 710.7 Application of the Adjudicative Guidelines. (a) The decision on an access authorization request is a comprehensive, commonsense judgment, made after consideration of all relevant information, favorable and unfavorable, as to whether the granting or continuation of access authorization will not endanger the common defense and security and is clearly consistent with the national interest. Any doubt as to an individual’s access authorization eligibility shall be resolved in favor of the national security. (b) All such determinations shall be based upon application of the Adjudicative Guidelines, or any successor national standard issued under the authority of the President. (c) Each Adjudicative Guideline sets forth a series of concerns that may create a doubt regarding an individual’s eligibility for access authorization. In resolving these concerns, all DOE officials involved in the decisionmaking process shall consider: The nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the potential for pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence; and other relevant and material factors. (d) If the reports of investigation of an individual or other reliable information tend to establish the validity and significance of one or more areas of concern as set forth in the Adjudicative Guidelines, such information shall be regarded as derogatory and create a question as to the individual’s access authorization eligibility. Absent any derogatory information, a favorable determination will be made as to access authorization eligibility. § 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 an interview with the individual, or other appropriate actions and, on the basis of the results of such interview or actions, VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 may authorize the granting of the individual’s access authorization. If, in the opinion of the Local Director of Security, the question as to the individual’s access authorization eligibility has not been favorably resolved, the Local Director of Security shall submit the matter to the Manager with a recommendation that authority be obtained to process the individual’s case under administrative review procedures set forth in this part. (b) If the Manager agrees that unresolved derogatory information is present and that appropriate attempts to resolve such derogatory information have been unsuccessful, the Manager shall notify the Director of the proposal to conduct an administrative review proceeding, accompanied by an explanation of the security concerns and a duplicate Personnel Security File. If the Manager believes that the derogatory information has been favorably resolved, the Manager shall direct that access authorization be granted for the individual. The Manager may also direct the Local Director of Security to obtain additional information prior to deciding whether to grant the individual access authorization or to submit a request for authority to conduct an administrative review proceeding. A decision in the matter shall be rendered by the Manager within 10 calendar days of its receipt. (c) Upon receipt of the Manager’s notification, the Director shall review the matter and confer with the Manager on: (1) The institution of administrative review proceedings set forth in §§ 710.20 through 710.30; (2) The granting of access authorization; or (3) Other actions as the Director deems appropriate. (d) The Director shall act pursuant to one of these options within 30 calendar days of receipt of the Manager’s notification unless an extension is granted by the Deputy Associate Under Secretary for Environment, Health, Safety and Security. § 710.9 Suspension of access authorization. (a) If derogatory information is received, the Local Director of Security shall authorize action(s), to be taken on an expedited basis, to resolve the question pursuant to § 710.8(a). If the question as to the individual’s continued access authorization eligibility is not resolved in favor of the individual, the Local Director of Security shall submit the matter to the Manager with the recommendation that the individual’s access authorization be suspended pending the final PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 determination resulting from the procedures set forth in this part. (b) If the information received is determined to represent an immediate threat to national security or to the safety or security of a DOE facility or employee, or is determined to be so serious in nature that action(s) to resolve the matter as set forth in § 710.8(b) are not practical or advisable, the Local Director of Security shall immediately submit the matter to the Manager with a recommendation that the individual’s access authorization be suspended pending the final determination resulting from the procedures set forth in this part. The Manager shall either authorize the immediate suspension of access authorization, or shall direct the Local Director of Security to take action(s) as set forth in § 710.8(b), in an expedited manner, to resolve the matter. (c) The Manager shall, within two working days of receipt of the recommendation from the Local Director of Security to suspend the individual’s DOE access authorization: (1) Approve the suspension of access authorization; or (2) Direct the continuation of access authorization, or (3) Take or direct other such action(s) as the Manager deems appropriate. (d) Upon suspension of an individual’s access authorization pursuant to paragraph (c)(1) of this section, the individual, the individual’s employer, any other DOE office or program having an access authorization interest in the individual, and, if known, any other government agency where the individual holds an access authorization, security clearance, or access approval, or to which the DOE has certified the individual’s DOE access authorization, shall be notified immediately in writing. The appropriate DOE database for tracking access authorizations and related actions shall also be updated. Notification to the individual shall reflect, in general terms, the reason(s) why the suspension has been affected. Pending final determination of the individual’s eligibility for access authorization from the operation of the procedures set forth in this part, the individual shall not be afforded access to classified matter, special nuclear material, or unescorted access to security areas that require the individual to possess a DOE access authorization. (e) Written notification to the individual shall include, if the individual is a Federal employee, notification that if the individual believes that the action to suspend his/ her access authorization was taken as E:\FR\FM\19APP1.SGM 19APP1 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules 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 appeal this matter directly to the DOE Office of the Inspector General. Such an appeal shall have no impact upon the continued processing of the individual’s access authorization eligibility under this part. (f) Following the decision to suspend an individual’s DOE access authorization pursuant to paragraph (c)(1) of this section, the Manager shall immediately notify the Director in writing of the action and the reason(s) therefor. In addition, the Manager, within 10 calendar days of the date of suspension (unless an extension of time is approved by the Director), shall notify the Director in writing of his/her proposal to conduct an administrative review proceeding, accompanied by an explanation of its basis and a duplicate Personnel Security File. (g) Upon receipt of the Manager’s notification, the Director shall review the matter and confer with the Manager on: (1) The institution of administrative review procedures set forth in §§ 710.20 through 710.30; or (2) The reinstatement of access authorization; or (3) Other actions as the Director deems appropriate. (h) The Director shall act pursuant to one of these options within 30 calendar days of the receipt of the Manager’s notification unless an extension is granted by the Deputy Associate Under Secretary for Environment, Health, Safety and Security. Subpart C—Administrative Review § 710.20 Review. Purpose of Administrative asabaliauskas on DSK3SPTVN1PROD with PROPOSALS These procedures govern the conduct of the administrative review of questions concerning an individual’s eligibility for access authorization when it is determined that such questions cannot be favorably resolved by interview or other action. § 710.21 Notice to the individual. (a) Unless an extension is authorized in writing by the Director, within 30 calendar days of receipt of authority to institute administrative review procedures, the Manager shall prepare and deliver to the individual a notification letter approved by the local Office of Chief Counsel, or the Office of the General Counsel for Headquarters VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 cases. Where practicable, the letter shall be delivered to the individual in person. (b) The letter shall state: (1) That reliable information in the possession of DOE has created a substantial doubt concerning the individual’s eligibility for access authorization. (2) The information which creates a substantial doubt regarding the individual’s access authorization eligibility (which shall be as comprehensive and detailed as the national security permits) and why that information creates such doubt. (3) That the individual has the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways: (i) By the Manager, without a hearing, on the basis of the existing information in the case; or (ii) By personal appearance before an Administrative Judge (a ‘‘hearing’’). (4) That, if the individual desires a hearing, the individual must, within 20 calendar days of the date of receipt of the notification letter, make a written request for a hearing to the Manager from whom the letter was received. (5) That the individual may also file with the Manager the individual’s written answer to the reported information which raises the question of the individual’s eligibility for access authorization, and that, if the individual requests a hearing without filing a written answer, the request shall be deemed a general denial of all of the reported information. (6) That, if the individual so requests, a hearing shall be scheduled before an Administrative Judge, with due regard for the convenience and necessity of the parties or their representatives, for the purpose of affording the individual an opportunity of supporting his eligibility for access authorization. The Administrative Judge shall decide whether the hearing will be conducted via video teleconferencing. (7) That, if a hearing is requested, the individual will have the right to appear personally before an Administrative Judge or, at the discretion of the Administrative Judge, via video teleconferencing; to present evidence in his/her own behalf, through witnesses, or by documents, or both; and, subject to the limitations set forth in § 710.26(g), to be present during the entire hearing and be accompanied, represented, and advised by counsel or other representative of the individual’s choosing and at the individual’s own expense at every stage of the proceedings. Such representative or counsel, if applicable, shall be identified in writing to the PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 22927 Administrative Judge and DOE Counsel and authorized by the individual to receive all correspondence, transcripts and other documents pertaining to the proceedings under this part. (8) That the individual’s failure to file a timely written request for a hearing before an Administrative Judge in accordance with paragraph (b)(4) of this section, unless time deadlines are extended for good cause, shall be considered as a relinquishment by the individual of the right to a hearing provided in this part, and that in such event a final decision to deny or revoke the individual’s access authorization shall be made by the Manager. (9) That in any proceedings under this subpart DOE Counsel will participate on behalf of and representing DOE and that any statements made by the individual to DOE Counsel may be used in subsequent proceedings; (10) The individual’s access authorization status until further notice; (11) The name and telephone number of the designated DOE official to contact for any further information desired concerning the proceedings, including an explanation of the individual’s rights under the Freedom of Information Act and Privacy Act; (12) If applicable, that if the individual is currently the subject of criminal charges for a felony offense or an offense punishable by imprisonment of one year or more, the individual must elect either to continue with the Administrative Review process and have the substantial doubt regarding eligibility for access authorization resolved by the Manager or by a hearing, or to withdraw from the Administrative Review process. (i) If the individual elects to continue with the Administrative Review process a determination as to the individual’s access authorization shall be made by the Manager or by an Administrative Judge via a hearing. The individual will be expected to participate fully in the process. Any refusal to cooperate, answer all questions, or provide requested information may prevent DOE from reaching an affirmative finding required for granting or continuing access authorization. (ii) If the individual elects to withdraw from the Administrative Review process, the individual’s access authorization shall be administratively withdrawn. Such action shall be taken in accordance with applicable procedures set forth in pertinent Departmental directives. Any future requests for access authorization for the individual must be accompanied by documentary evidence of resolution of the criminal charges. E:\FR\FM\19APP1.SGM 19APP1 22928 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules (iii) The individual must, within 20 calendar days of receipt of the notification letter, indicate in writing his/her decision to continue or to withdraw from the Administrative Review process. Such notification must be made to the Manager from whom the notification letter was received. (c) The notification letter referenced in paragraph (b) of this section shall also: (1) Include a copy of this part, and (2) For Federal employees only, 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 appeal this matter directly to the DOE Office of the Inspector General. Such an appeal shall have no impact upon the continued processing of the individual’s access authorization eligibility under this part. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 710.22 Initial decision process. (a) The Manager shall make an initial decision as to the individual’s access authorization eligibility based on the existing information in the case if: (1) The individual fails to respond to the notification letter by filing a timely written request for a hearing before an Administrative Judge or fails to respond to the notification letter after requesting an extension of time to do so; (2) The individual’s response to the notification letter does not request a hearing before an Administrative Judge; or (3) The Administrative Judge refers the individual’s case to the Manager in accordance with § 710.25(e) or § 710.26(b). (b) Unless an extension of time is granted by the Director, the Manager’s initial decision as to the individual’s access authorization eligibility shall be made within 15 calendar days of the date of receipt of the information in paragraph (a) of this section. The Manager shall either grant or deny, or reinstate or revoke, the individual’s access authorization. (c) A letter reflecting the Manager’s initial decision shall be signed by the Manager and delivered to the individual within 15 calendar days of the date of the Manager’s decision unless an extension of time is granted by the Director. If the Manager’s initial decision is unfavorable to the individual, the individual shall be advised: VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 (1) Of the Manager’s unfavorable decision and the reason(s) therefor; (2) That within 30 calendar days from the date of receipt of the letter, the individual may file a written request for a review of the Manager’s initial decision, through the Director, to the DOE Headquarters Appeal Panel (Appeal Panel); (3) That the Director may, for good cause shown, at the written request of the individual, extend the time for filing a written request for a review of the case by the Appeal Panel; and (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, the Manager’s initial decision in the case shall be final and not subject to further review or appeal. § 710.23 Extensions of time by the manager. The Manager may, for good cause shown, at the written request of the individual, extend the time for filing a written request for a hearing, and/or the time for filing a written answer to the matters contained in the notification letter. The Manager shall notify the Director, in writing, when such extensions have been approved. § 710.24 Appointment of DOE Counsel. (a) Upon receipt from the individual of a written request for a hearing, a DOE attorney shall forthwith be assigned by the Manager to act as DOE Counsel. (b) DOE Counsel is authorized to consult directly with the individual if he/she is not represented by counsel, or with the individual’s counsel or other representative if so represented, to clarify issues and reach stipulations with respect to testimony and contents of documents and physical evidence. Such stipulations shall be binding upon the individual and the DOE Counsel for the purposes of this part. § 710.25 Appointment of Administrative Judge; prehearing conference; commencement of hearings. (a) Upon receipt of a request for a hearing, the Manager shall in a timely manner transmit that request to the Office of Hearings and Appeals, and identify the DOE Counsel. The Manager shall at the same time transmit a copy of the notification letter and the individual’s response to the Office of Hearings and Appeals. (b) Upon receipt of the hearing request from the Manager, the Director, Office of Hearings and Appeals, shall appoint, as soon as practicable, an Administrative Judge. PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 (c) Immediately upon appointment, the Administrative Judge shall notify the individual and DOE Counsel of his/ her identity and the address to which all further correspondence should be sent. (d) The Administrative Judge shall have all powers necessary to regulate the conduct of proceedings under this part, including, but not limited to, establishing a list of persons to receive service of papers, issuing subpoenas for witnesses to attend the hearing or for the production of specific documents or physical evidence, administering oaths and affirmations, ruling upon motions, receiving evidence, regulating the course of the hearing, disposing of procedural requests or similar matters, and taking other actions consistent with the regulations in this part. Requests for subpoenas shall be liberally granted except where the Administrative Judge finds that the issuance of subpoenas would result in evidence or testimony that is repetitious, incompetent, irrelevant, or immaterial to the issues in the case. The Administrative Judge may take sworn testimony, sequester witnesses, and control the dissemination or reproduction of any record or testimony taken pursuant to this part, including correspondence, or other relevant records or physical evidence including, but not limited to, information retained in computerized or other automated systems in possession of the subpoenaed person. (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. Hearings will normally be held at or near the relevant DOE facility, unless the Administrative Judge determines that another location would be more appropriate. Normally the location for the hearing will be selected for the convenience of all participants. 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 § 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 will usually be conducted by telephone. (g) Hearings shall commence within 60 calendar days from the date the individual’s request for a hearing is E:\FR\FM\19APP1.SGM 19APP1 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules received by the Office of Hearings and Appeals. Any extension of the hearing date past 60 calendar days from the date the request for a hearing is received by the Office of Hearings and Appeals shall be decided by the Director, Office of Hearings and Appeals. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 710.26 Conduct of hearings. (a) In all hearings conducted under this part, the individual shall have the right to be represented by a person of his/her own choosing, at the individual’s own expense. The individual is responsible for producing witnesses in his/her own behalf, including requesting the issuance of subpoenas, if necessary, or presenting testimonial, documentary, or physical evidence before the Administrative Judge to support the individual’s defense to the derogatory information contained in the notification letter. With the exception of procedural or scheduling matters, the Administrative Judge is prohibited from initiating or otherwise engaging in ex parte discussions about the case during the pendency of proceedings under this part. (b) Unless the Administrative Judge finds good cause for deferring issuance of a decision, in the event that the individual unduly delays the hearing, such as by failure to meet deadlines set by the Administrative Judge, the record shall be closed, and an initial decision shall be made by the Manager on the basis of the record in the case per § 710.22(a)(3). (c) Hearings shall be open only to DOE Counsel, duly authorized representatives of DOE, the individual and the individual’s counsel or other representatives, and such other persons as may be authorized by the Administrative Judge. Unless otherwise ordered by the Administrative Judge, witnesses shall testify in the presence of the individual but not in the presence of other witnesses. (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. The proponent of a witness shall conduct the direct examination of that witness. All witnesses shall be subject to crossexamination, except as provided in § 710.26(l). Whenever reasonably VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 possible, testimony shall be given in person. (e) The Administrative Judge may ask the witnesses any questions which the Administrative Judge deems appropriate to assure the fullest possible disclosure of relevant and material facts. (f) During the course of the hearing, the Administrative Judge shall rule on all objections raised. (g) In the event it appears during the course of the hearing that classified matter may be disclosed, it shall be the duty of the Administrative Judge to assure that disclosure is not made to persons who are not authorized to receive it, and take other appropriate measures. (h) Formal rules of evidence shall not apply, but the Federal Rules of Evidence may be used as a guide for procedures and principles designed to assure production of the most probative evidence available. The Administrative Judge shall admit into evidence any matters, either oral or written, which are material, relevant, and competent in determining issues involved, including the testimony of responsible persons concerning the integrity of the individual. In making such determinations, the utmost latitude shall be permitted with respect to relevancy, materiality, and competency. The Administrative Judge may also exclude evidence which is incompetent, immaterial, irrelevant, or unduly repetitious. Every reasonable effort shall be made to obtain the best evidence available. Subject to §§ 710.26(l), 710.26(m), 710.26(n) and 710.26(o), hearsay evidence may, at the discretion of the Administrative Judge and for good cause show, be admitted without strict adherence to technical rules of admissibility and shall be accorded such weight as the Administrative Judge deems appropriate. (i) Testimony of the individual and witnesses shall be given under oath or affirmation. Attention of the individual and each witness shall be directed to 18 U.S.C. 1001 and 18 U.S.C. 1621. (j) The Administrative Judge shall endeavor to obtain all the facts that are reasonably available in order to arrive at a decision. If, prior to or during the proceedings, in the opinion of the Administrative Judge, the derogatory information in the notification letter is not sufficient to address all matters into which inquiry should be directed, the Administrative Judge may recommend to the Manager concerned that, in order to give more adequate notice to the individual, the notification letter should be amended. Any amendment shall be made with the concurrence of the local Office of Chief Counsel or the Office of PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 22929 the General Counsel in Headquarters cases. If, in the opinion of the Administrative Judge, the circumstances of such amendment may involve undue hardship to the individual because of limited time to respond to the new derogatory information in the notification letter, an appropriate adjournment shall be granted upon the request of the individual. (k) A written or oral statement of a person relating to the characterization in the notification letter of any organization or person other than the individual may be received and considered by the Administrative Judge without affording the individual an opportunity to cross-examine the person making the statement on matters relating to the characterization of such organization or person, provided the individual is given notice that such a statement has been received and may be considered by the Administrative Judge, and is informed of the contents of the statement, provided such notice is not prohibited by paragraph (g) of this section. (l) Any oral or written statement adverse to the individual relating to a controverted issue may be received and considered by the Administrative Judge without affording an opportunity for cross-examination in either of the following circumstances: (1) The head of the agency supplying the statement certifies that the person who furnished the information is a confidential informant who has been engaged in obtaining intelligence information for the Government and that disclosure of the informant’s identity would be substantially harmful to the national interest; (2) The Secretary or the Secretary’s special designee for that particular purpose has preliminarily determined, after considering information furnished by the investigative agency as to the reliability of the person and the accuracy of the statement concerned, that: (i) The statement concerned appears to be reliable and material; and (ii) Failure of the Administrative Judge to receive and consider such statement would, in view of the access sought to classified matter or special nuclear material, be substantially harmful to the national security and that the person who furnished the information cannot appear to testify: (A) Due to death, severe illness, or similar cause, in which case the identity of the person and the information to be considered shall be made available to the individual, or E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 22930 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules (B) Due to some other specified cause determined by the Secretary to be good and sufficient. (m) Whenever procedures under paragraph (l) of this section are used: (1) The individual shall be given a summary or description of the information which shall be as comprehensive and detailed as the national interest permits, and (2) Appropriate consideration shall be accorded to the fact that the individual did not have an opportunity to crossexamine such person(s). (n) Records compiled in the regular course of business, or other evidence other than investigative reports obtained by DOE, may be received and considered by the Administrative Judge subject to rebuttal without authenticating witnesses, provided that such information has been furnished to DOE by an investigative agency pursuant to its responsibilities in connection with assisting the Secretary to safeguard classified matter or special nuclear material. (o) Records compiled in the regular course of business, or other evidence other than investigative reports, relating to a controverted issue which, because they are classified, may not be inspected by the individual, may be received and considered by the Administrative Judge, provided that: (1) The Secretary or the Secretary’s special designee for that particular purpose has made a preliminary determination that such evidence appears to be material; (2) The Secretary or the Secretary’s special designee for that particular purpose has made a determination that failure to receive and consider such evidence would, in view of the access sought to classified matter or special nuclear material, be substantially harmful to the national security; and (3) To the extent that national security permits, a summary or description of such evidence is made available to the individual. In every such case, information as to the authenticity and accuracy of such evidence furnished by the investigative agency shall be considered. (p) The Administrative Judge may request the Local Director of Security to arrange for additional investigation on any points which are material to the deliberations of the Administrative Judge and which the Administrative Judge believes need further investigation or clarification. In this event, the Administrative Judge shall set forth in writing those issues upon which more evidence is requested, identifying where possible persons or sources from which the evidence should be sought. VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 The Local Director of Security shall make every effort through appropriate sources to obtain additional information upon the matters indicated by the Administrative Judge. (q) A written transcript of the entire hearing shall be made and, except for portions containing classified matter, a copy of such transcript shall be furnished to the individual without cost. (r) Whenever information is made a part of the record under the exceptions authorized by paragraphs (l) or (o) of this section, the record shall contain certificates evidencing that the determinations required therein have been made. § 710.27 Administrative Judge’s decision. (a) The Administrative Judge shall carefully consider the entire record of the proceeding and shall render a decision, within 30 calendar days of the receipt of the hearing transcript, as to whether granting or restoring the individual’s access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. In resolving a question concerning the eligibility of an individual for access authorization under these procedures, the Administrative Judge shall consider the factors stated in § 710.7(c) to determine whether the findings will be favorable or unfavorable. (b) In reaching the findings, the Administrative Judge shall consider the demeanor of the witnesses who have testified at the hearing, the probability or likelihood of the truth of their testimony, their credibility, and the authenticity and accuracy of documentary evidence, or lack of evidence on any material points in issue. If the individual is, or may be, handicapped by the non-disclosure to the individual of undisclosed information or by lack of opportunity to cross-examine confidential informants, the Administrative Judge shall take that fact into consideration. The possible adverse impact of the loss of the individual’s access authorization upon the DOE program in which the individual works shall not be considered by the Administrative Judge. (c) The Administrative Judge shall make specific findings based upon the record as to the validity of each instance of derogatory information contained in the notification letter and the significance which the Administrative Judge attaches to it. These findings shall be supported fully by a statement of reasons which constitute the basis for such findings. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 (d) The Administrative Judge’s decision shall be based on the Administrative Judge’s findings of fact. If, after considering all of the factors set forth in § 710.7(c) in light of the Adjudicative Guidelines, the Administrative Judge is of the opinion that it will not endanger the common defense and security and will be clearly consistent with the national interest to grant or reinstate access authorization for the individual, the Administrative Judge shall render a favorable decision; otherwise, the Administrative Judge shall render an unfavorable decision. Within 15 calendar days of the Administrative Judge’s written decision, the Administrative Judge shall provide copies of the decision and the administrative record to the Manager and the Director. § 710.28 Action on the Administrative Judge’s decision. (a) Within 10 calendar days of receipt of the decision and the administrative record, unless an extension of time is granted by the Director, the Manager shall: (1) Notify the individual in writing of the Administrative Judge’s decision; (2) Advise the individual in writing of the appeal procedures available to the individual in paragraph (b) of this section if the decision is unfavorable to the individual; (3) Advise the individual in writing of the appeal procedures available to the Manager and the Director in paragraph (c) of this section if the decision is favorable to the individual; and (4) Provide the individual and/or his/ her counsel or other representative a copy of the Administrative Judge’s decision and the administrative record. (b) If the Administrative Judge’s decision is unfavorable to the individual: (1) The individual may file with the Director a written request for further review of the decision by the Appeal Panel along with a statement required by paragraph (e) of this section within 30 calendar days of the individual’s receipt of the Manager’s notice; (2) The Director may, for good cause shown, extend the time for filing a request for further review of the decision by the Appeal Panel at the written request of the individual, provided the request for an extension of time is filed by the individual within 30 calendar days of receipt of the Manager’s notice; (3) The Administrative Judge’s decision shall be final and not subject to review or appeal if the individual does not: E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules (i) File a written request for a review of the decision by the Appeal Panel or for an extension of time to file a written request for review of the decision by the Appeal Panel in accordance with paragraphs (b)(1) or (b)(2) of this section, or (ii) File a written request for review of the decision by the Appeal Panel after having been granted an extension of time to do so. (c) If the Administrative Judge’s decision is favorable to the individual: (1) The Manager, with the concurrence of the Director, shall grant or reinstate the individual’s access authorization within 30 calendar days of the Administrative Judge’s decision becoming final, or (2) The Manager or the Director may file a written request with the Deputy Associate Under Secretary for Environment, Health, Safety and Security for review of the decision by the Appeal Panel, along with statement required by paragraph (e) of this section, within 30 calendar days of the individual’s receipt of the Manager’s notice. (3) The Deputy Associate Under Secretary for Environment, Health, Safety and Security may, for good cause shown, extend the time for filing a request for review of the decision by the Appeal Panel at the request of the Manager or Director, provided the request for an extension of time is filed by the Manager or Director within 30 calendar days of the receipt of the Manager’s notice; (4) The Administrative Judge’s decision shall constitute final action, and not be subject to review or appeal, if the Manager or Director does not: (i) File a written request for review of the decision by the Appeal Panel or for an extension of time to file a written request for review of the decision by the Appeal Panel in accordance with paragraphs (c)(2) or (c)(3) of this section, or (ii) File a written request for a review of the decision by the Appeal Panel after having been granted an extension of time to do so. (d) A copy of any request for review of the individual’s case by the Appeal Panel filed by the Manager or the Director shall be provided to the individual by the Manager. (e) The party filing a request for review by the Appeal Panel shall include with the request a statement identifying the issues upon which the appeal is based. A copy of the request and statement shall be served on the other party, who may file a response with the Appeal Panel within 20 VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 calendar days of receipt of the statement. § 710.29 Final appeal process. (a) The Appeal Panel shall be convened by the Deputy Associate Under Secretary for Environment, Health, Safety and Security to review and render a final decision in access authorization eligibility cases referred by the individual, the Manager, or the Director in accordance with §§ 710.22 or 710.28. (b) The Appeal Panel shall consist of three members, each of whom shall be a DOE Headquarters employee, a United States citizen, and hold a DOE Q access authorization. The Deputy Associate Under Secretary for Environment, Health, Safety and Security shall serve as a permanent member of the Appeal Panel and as the Appeal Panel Chair. The second member of the Appeal Panel shall be a DOE attorney designated by the General Counsel. The head of the DOE Headquarters element which has cognizance over the individual whose access authorization eligibility is being considered may designate an employee to act as the third member on the Appeal Panel; otherwise, the third member shall be designated by the Chair. Only one member of the Appeal Panel shall be from the security field. (c) In filing a written request for a review by the Appeal Panel in accordance with §§ 710.22 and 710.28, the individual, or his/her counsel or other representative, shall identify the issues upon which the appeal is based. The written request, and any response, shall be made a part of the administrative record. The Director shall provide staff support to the Appeal Panel as requested by the Chair. (d) Within 15 calendar days of the receipt of the request for review of a case by the Appeal Panel, the Chair shall arrange for the Appeal Panel members to convene and review the administrative record or provide a copy of the administrative record to the Appeal Panel members for their independent review. (e) The Appeal Panel shall consider only that evidence and information in the administrative record at the time of the Manager’s or the Administrative Judge’s initial decision. (f) Within 45 calendar days of receipt of the administrative record, the Appeal Panel shall render a final decision in the case. If a majority of the Appeal Panel members determine that it will not endanger the common defense and security and will be clearly consistent with the national interest, the Chair shall grant or reinstate the individual’s access authorization; otherwise, the PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 22931 Chair shall deny or revoke the individual’s access authorization. The Appeal Panel’s written decision shall be made a part of the administrative record and is not subject to further review or appeal. (g) The Chair, through the Director, shall inform the individual in writing, as well as the individual’s counsel or other representative, of the Appeal Panel’s final decision. A copy of the correspondence shall also be provided to the other panel members and the Manager. § 710.30 Action by the Secretary. (a) Whenever an individual has not been afforded an opportunity to crossexamine witnesses who have furnished information adverse to the individual under the provisions of §§ 710.26(l) or (o), the Secretary may issue a final decision to deny or revoke access authorization for the individual after personally reviewing the administrative record and any additional material provided by the Chair. The Secretary’s authority may, in accordance with applicable provisions of Executive Order 12968, be delegated to the Deputy Secretary where the effected individual is a Federal employee. The Secretary’s authority, in accordance with applicable provisions of Executive Order 10865, may not be delegated where the effected individual is a contractor employee. This authority may be exercised only when the Secretary determines that the circumstances described in § 710.26(l) or (o) are present, and such determination shall be final and not subject to review or appeal. (b) Whenever the Secretary issues a final decision as to an individual’s access authorization eligibility, the individual and other concerned parties shall be notified in writing by the Chair of that decision and of the Secretary’s findings with respect to each instance of derogatory information contained in the notification letter and each substantial issue identified in the statement in support of the request for review to the extent allowed by the national security. (c) Nothing contained in these procedures shall be deemed to limit or affect the responsibility and powers of the Secretary to issue subpoenas or to deny or revoke access to classified matter or special nuclear material. § 710.31 Reconsideration of access eligibility. (a) If, pursuant to the procedures set forth in §§ 710.20 through 710.30 the Manager, Administrative Judge, Appeal Panel, or the Secretary has made a decision granting or reinstating an individual’s access authorization, E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 22932 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules eligibility shall be reconsidered as a new administrative review under the procedures set forth in this part when previously unconsidered derogatory information is identified, or the individual violates a commitment upon which the DOE previously relied to favorably resolve an issue of access authorization eligibility. (b) If, pursuant to the procedures set forth in §§ 710.20 through 710.31, the Manager, Administrative Judge, Appeal Panel, or the Secretary has made a decision denying or revoking the individual’s access authorization, eligibility may be reconsidered only when the individual so requests in writing, when there is a bona fide offer of employment requiring access authorization, and when there is either material and relevant new evidence which the individual and the individual’s representatives were without fault in failing to present earlier, or convincing evidence of rehabilitation or reformation. (1) A request for reconsideration shall be accepted when a minimum of one year has elapsed since the date of the Manager’s, Administrative Judge’s, Appeal Panel’s or Secretary’s final decision, or of a previous denial of reconsideration. Requests must be submitted in writing to the Deputy Associate Under Secretary for Environment, Health, Safety and Security, and must include an affidavit setting forth in detail the new evidence or evidence of rehabilitation or reformation. (2) If the Deputy Associate Under Secretary for Environment, Health, Safety and Security approves the request for reconsideration of an individual’s access authorization eligibility, he/she shall so notify the individual, and shall direct the Manager to take appropriate actions to determine whether the individual is eligible for access authorization. (3) If the Deputy Associate Under Secretary for Environment, Health, Safety and Security denies the request for reconsideration of an individual’s access authorization eligibility, he/she shall so notify the individual in writing. Such a denial is final and not subject to review or appeal. (4) If, pursuant to the provisions of § 710.31(2), the Manager determines the individual is eligible for access authorization, the Manager shall grant access authorization. (5) If, pursuant to the provisions of § 710.31(2), 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 VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 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 paragraphs (f) or (g) 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 (d) 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. Subpart D—Miscellaneous § 710.32 Terminations. (a) If the individual is no longer an applicant for access authorization or no longer requires access authorization, the procedures of this part shall be terminated without a final decision as to the individual’s access authorization eligibility, unless a final decision has been rendered prior to the DOE being notified of the change in the individual’s pending access authorization status. Where the procedures of this part have been terminated pursuant to this paragraph after an unfavorable initial agency decision as to the individual’s access authorization eligibility has been rendered, any subsequent request for access authorization for the individual will be processed as a request for a review of the initial agency decision by the Appeal Panel and a final agency decision will be rendered pursuant to § 710.29, unless a minimum of one year has elapsed since the date of the initial agency decision. (b) With regard to applicants (individuals for whom DOE has not yet approved access authorization), DOE may administratively terminate processing an application for access authorization under the following circumstances: (1) If the applicant is currently the subject of criminal proceedings for a felony offense or an offense that is punishable by a term of imprisonment of one year or longer, or is awaiting or serving a form of probation, suspended or deferred sentencing, or parole. Once all judicial proceedings on the criminal charges have been finally resolved, and the term (if any) of imprisonment, probation, or parole has been completed, DOE processing of a request for access authorization shall resume upon receipt by DOE of a written PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 request therefor, provided that the individual has a bona fide offer of employment requiring access authorization. (2) If sufficient information about the individual’s background cannot be obtained to meet the investigative scope and extent requirements for the access authorization requested. (c) If an individual believes that the provisions of paragraph (b) of this section have been inappropriately applied, a written appeal may be filed with the Director within 30 calendar days of the date the individual was notified of the action. The Director shall act on the written appeal as described in § 710.6(c). § 710.33 Time frames. Statements of time established for processing aspects of a case under this part are the agency’s desired time frames in implementing the procedures set forth in this part. However, failure to meet the time frames shall have no impact upon the final disposition of an access authorization by a Manager, Administrative Judge, the Appeal Panel, or the Secretary, and shall confer no procedural or substantive rights upon an individual whose access authorization eligibility is being considered. § 710.34 Acting officials. Except for the Secretary, the responsibilities and authorities conferred in this part may be exercised by persons who have been designated in writing as acting for, or in the temporary capacity of, the following DOE positions: The Local Director of Security; the Manager; the Director, or the General Counsel. The responsibilities and authorities of the Deputy Associate Under Secretary for Environment, Health, Safety and Security may be exercised by persons in senior security-related positions within the Office of Environment, Health, Safety and Security who have been designated in writing as acting for, or in the temporary capacity of, the Deputy Associate Under Secretary for Environment, Health, Safety and Security, with the approval of the Associate Under Secretary for Environment, Health, Safety and Security. Appendix A—Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (December 30, 2005) 1. Introduction. The following adjudicative guidelines are established for all U.S. government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules grantees and their employees and other individuals who require access to classified information. They apply to persons being considered for initial or continued eligibility for access to classified information, to include sensitive compartmented information and special access programs, and are to be used by government departments and agencies in all final clearance determinations. Government departments and agencies may also choose to apply these guidelines to analogous situations regarding persons being considered for access to other types of protected information. Decisions regarding eligibility for access to classified information take into account factors that could cause a conflict of interest and place a person in the position of having to choose between his or her commitment to the United States, including the commitment to protect classified information, and any other compelling loyalty. Access decisions also take into account a person’s reliability, trustworthiness and ability to protect classified information. No coercive policing could replace the self-discipline and integrity of the person entrusted with the nation’s secrets as the most effective means of protecting them. When a person’s life history shows evidence of unreliability or untrustworthiness, questions arise whether the person can be relied on and trusted to exercise the responsibility necessary for working in a secure environment where protecting classified information is paramount. 2. The Adjudicative Process. (a) The adjudicative process is an examination of a sufficient period of a person’s life to make an affirmative determination that the person is an acceptable security risk. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudication process is the careful weighing of a number of variables known as the whole-person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. In evaluating the relevance of an individual’s conduct, the adjudicator should consider the following factors: (1) The nature, extent, and seriousness of the conduct; (2) The circumstances surrounding the conduct, to include knowledgeable participation; (3) The frequency and recency of the conduct; (4) The individual’s age and maturity at the time of the conduct; (5) The extent to which participation is voluntary; (6) The presence or absence of rehabilitation and other permanent behavioral changes; (7) The motivation for the conduct; (8) The potential for pressure, coercion, exploitation, or duress; and (9) The likelihood of continuation or recurrence. (b) Each case must be judged on its own merits, and final determination remains the responsibility of the specific department or VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 agency. Any doubt concerning personnel being considered for access to classified information will be resolved in favor of the national security. (c) The ability to develop specific thresholds for action under these guidelines is limited by the nature and complexity of human behavior. The ultimate determination of whether the granting or continuing of eligibility for a security clearance is clearly consistent with the interests of national security must be an overall common sense judgment based upon careful consideration of the following guidelines, each of which is to be evaluated in the context of the whole person. (1) GUIDELINE A: Allegiance to the United States; (2) GUIDELINE B: Foreign Influence; (3) GUIDELINE C: Foreign Preference; (4) GUIDELINE D: Sexual Behavior; (5) GUIDELINE E: Personal Conduct; (6) GUIDELINE F: Financial Considerations; (7) GUIDELINE G: Alcohol Consumption; (8) GUIDELINE H: Drug Involvement; (9) GUIDELINE I: Psychological Conditions; (10) GUIDELINE J: Criminal Conduct; (11) GUIDELINE K: Handling Protected Information; (12) GUIDELINE L: Outside Activities; (13) GUIDELINE M: Use of Information Technology Systems. (d) Although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior. Notwithstanding the whole-person concept, pursuit of further investigation may be terminated by an appropriate adjudicative agency in the face of reliable, significant, disqualifying, adverse information. (e) When information of security concern becomes known about an individual who is currently eligible for access to classified information, the adjudicator should consider whether the person: (1) Voluntarily reported the information; (2) Was truthful and complete in responding to questions; (3) Sought assistance and followed professional guidance, where appropriate; (4) Resolved or appears likely to favorably resolve the security concern: (5) Has demonstrated positive changes in behavior and employment; (6) Should have his or her access temporarily suspended pending final adjudication of the information. (f) If after evaluating information of security concern, the adjudicator decides that the information is not serious enough to warrant a recommendation of disapproval or revocation of the security clearance, it may be appropriate to recommend approval with a warning that future incidents of a similar nature may result in revocation of access. GUIDELINE A: ALLEGIANCE TO THE UNITED STATES 3. The Concern. An individual must be of unquestioned allegiance to the United States. PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 22933 The willingness to safeguard classified information is in doubt if there is any reason to suspect an individual’s allegiance to the United States. 4. Conditions that could raise a security concern and may be disqualifying include: (a) Involvement in, support of, training to commit, or advocacy of any act of sabotage, espionage, treason, terrorism, or sedition against the United States of America; (b) Association or sympathy with persons who are attempting to commit, or who are committing, any of the above acts; (c) Association or sympathy with persons or organizations that advocate, threaten, or use force or violence, or use any other illegal or unconstitutional means, in an effort to: (1) Overthrow or influence the government of the United States or any state or local government; (2) Prevent Federal, state, or local government personnel from performing their official duties; (3) Gain retribution for perceived wrongs caused by the Federal, state, or local government; (4) Prevent others from exercising their rights under the Constitution or laws of the United States or of any state. 5. Conditions that could mitigate security concerns include: (a) The individual was unaware of the unlawful aims of the individual or organization and severed ties upon learning of these; (b) The individual’s involvement was only with the lawful or humanitarian aspects of such an organization; (c) Involvement in the above activities occurred for only a short period of time and was attributable to curiosity or academic interest; (d) The involvement or association with such activities occurred under such unusual circumstances, or so much times has elapsed, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or loyalty. GUIDELINE B: FOREIGN INFLUENCE 6. The Concern. Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercioon by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism. 7. Conditions that could raise a security concern and may be disqualifying include: (a) Contact with a foreign family member, business or professional associate, friend, or other person who is a citizen of or resident in a foreign country if that contact creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or coercion; E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 22934 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules (b) Connections to a foreign person, group, government, or country that create a potential conflict of interest between the individual’s obligation to protect sensitive information or technology and the individual’s desire to help a foreign person, group, or country by providing that information; (c) Counterintelligence information, that may be classified, indicates that the individual’s access to protected information may involve unacceptable risk to national security; (d) Sharing living quarters with a person or persons, regardless of citizenship status, if that relationship creates a heightened risk of foreign inducement, manipulation, pressure, or coercion; (e) A substantial business, financial, or property interest in a foreign country, or in any foreign-owned or foreign-operated business, which could subject the individual to heightened risk of foreign influence or exploitation; (f) Failure to report, when required, association with a foreign national; (g) Unauthorized association with a suspected or known agent, associate, or employee of a foreign intelligence service; (h) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, inducement, manipulation, pressure, or coercion; (i) Conduct, especially while traveling outside the U.S., which may make the individual vulnerable to exploitation, pressure, or coercion by a foreign person, group, government, or country. 8. Conditions that could mitigate security concerns include: (a) The nature of the relationships with foreign persons, the country in which these persons are located, or the positions or activities of those persons in that country are such that it is unlikely the individual will be placed in a position of having to choose between the interests of a foreign individual, group, organization, or government and the interests of the U.S.; (b) There is no conflict of interest, either because the individual’s sense of loyalty or obligation to the foreign person, group, government, or country is so minimal, or the individual has such deep and longstanding relationships and loyalties in the U.S., that the individual can be expected to resolve any conflict of interest in favor of the U.S. interest; (c) Contact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence or exploitation; (d) The foreign contacts and activities are on U.S. Government business or are approved by the cognizant security authority; (e) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons, groups, or organizations from a foreign country; (f) The value or routine nature of the foreign business, financial, or property interests is such that they are unlikely to result in a conflict and could not be used effectively to influence, manipulate, or pressure the individual. VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 GUIDELINE C: FOREIGN PREFERENCE 9. The Concern. When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States. 10. Conditions that could raise a security concern and may be disqualifying include: (a) Exercise of any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen or through the foreign citizenship of a family member. This includes but is not limited to: (1) Possession of a current foreign passport; (2) Military service or a willingness to bear arms for a foreign country; (3) Accepting educational, medical, retirement, social welfare, or other such benefits from a foreign country; (4) Residence in a foreign country to meet citizenship requirements; (5) Using foreign citizenship to protect financial or business interests in another country; (6) Seeking or holding political office in a foreign country; (7) Voting in a foreign election; (b) Action to acquire or obtain recognition of a foreign citizenship by an American citizen; (c) Performing or attempting to perform duties, or otherwise acting, so as to serve the interests of a foreign person, group, organization, or government in conflict with the national security interest; (d) Any statement or action that shows allegiance to a country other than the United States: For example, declaration of intent to renounce United States citizenship; renunciation of United States citizenship. 11. Conditions that could mitigate security concerns include: (a) Dual citizenship is based solely on parents’ citizenship or birth in a foreign country; (b) The individual has expressed a willingness to renounce dual citizenship; (c) Exercise of the rights, privileges, or obligations of foreign citizenship occurred before the individual became a U.S. citizen or when the individual was a minor; (d) Use of a foreign passport is approved by the cognizant security authority; (e) The passport has been destroyed, surrendered to the cognizant security authority, or otherwise invalidated; (f) The vote in a foreign election was encouraged by the United States Government. GUIDELINE D: SEXUAL BEHAVIOR 12. The Concern. Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in the Guideline may be raised solely on the basis of the sexual orientation of the individual. 13. Conditions that could raise a security concern and may be disqualifying include: PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 (a) Sexual behavior of a criminal nature, whether or not the individual has been prosecuted; (b) A pattern of compulsive, selfdestructive, or high-risk sexual behavior that the person is unable to stop or that may be symptomatic of a personality disorder; (c) Sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress; (d) Sexual behavior of a public nature and/ or that which reflects lack of discretion or judgment. 14. Conditions that could mitigate security concerns include: (a) The behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature; (b) The sexual behavior happened so long ago, so infrequently, or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (c) The behavior no longer serves as a basis for coercion, exploitation, or duress; (d) The sexual behavior is strictly private, consensual, and discreet. GUIDELINE E: PERSONAL CONDUCT 15. The Concern. Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process. The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility: (a) Refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation; (b) Refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination. 16. Conditions that could raise a security concern and may be disqualifying also include: (a) Deliberate omission, concealment, or falsification of relevant facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities; (b) Deliberately providing false or misleading information concerning relevant facts to an employer, investigator, security official, competent medical authority, or other official government representative; (c) Credible adverse information in several adjudicative issue areas that is not sufficient E:\FR\FM\19APP1.SGM 19APP1 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules for an adverse determination under any other single guideline, but which, when considered as a whole, supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information; (d) Credible adverse information that is not explicitly covered under any other guideline and may not be sufficient by itself for an adverse determination, but which, when combined with all available information supports a whole-person assessment of questionable judgment, untrustworthiness, unreliability, lack of candor, unwillingness to comply with rules and regulations, or other characteristics indicating that the person may not properly safeguard protected information. This includes but is not limited to consideration of: (1) Untrustworthy or unreliable behavior to include breach of client confidentiality, release of proprietary information, unauthorized release of sensitive corporate or other government protected information; (2) Disruptive, violent, or other inappropriate behavior in the workplace; (3) A pattern of dishonesty or rule violations; (4) Evidence of significant misuse of Government or other employer’s time or resources; (e) Personal conduct or concealment of information about one’s conduct, that creates a vulnerability to exploitation, manipulation, or duress, such as: (1) Engaging in activities which, if known, may affect the person’s personal, professional, or community standing, or (2) While in another country, engaging in any activity that is illegal in that country or that is legal in that country but illegal in the United States and may serve as a basis for exploitation or pressure by the foreign security or intelligence service or other group; (f) Violation of a written or recorded commitment made by the individual to the employer as a condition of employment; (g) Association with persons involved in criminal activity. 17. Conditions that could mitigate security concerns include: (a) The individual made prompt, good-faith efforts to correct the omission, concealment, or falsification before being confronted with the facts; (b) The refusal or failure to cooperate, omission, or concealment was caused or significantly contributed to by improper or inadequate advice of authorized personnel or legal counsel advising or instructing the individual specifically concerning the security clearance process. Upon being made aware of the requirement to cooperate or provide the information, the individual cooperated fully and truthfully; (c) The offense is so minor, or so much time has passed, or the behavior is so infrequent, or it happened under such unique circumstances that it is unlikely to recur and does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 (d) The individual has acknowledged the behavior and obtained counseling to change the behavior or taken other positive steps to alleviate the stressors, circumstances, or factors that caused untrustworthy, unreliable, or other inappropriate behavior, and such behavior is unlikely to recur; (e) The individual has taken positive steps to reduce or eliminate vulnerability to exploitation, manipulation, or duress; (f) Association with persons involved in criminal activities has ceased or occurs under circumstances that do not cast doubt upon the individual’s reliability, trustworthiness, judgment, or willingness to comply with rules and regulations. GUIDELINE F: FINANCIAL CONSIDERATIONS 18. The Concern. Failure or inability to live within one’s means, satisfy debts, and meet financial obligations may indicate poor selfcontrol, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts. 19. Conditions that could raise a security concern and may be disqualifying include: (a) Inability or unwillingness to satisfy debts; (b) Indebtedness caused by frivolous or irresponsible spending and the absence of any evidence of willingness or intent to pay the debt or establish a realistic plan to pay the debt. (c) A history of not meeting financial obligations; (d) Deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust; (e) Consistent spending beyond one’s means, which may be indicated by excessive indebtedness, significant negative cash flow, high debt-to-income ratio, and/or other financial analysis; (f) Financial problems that are linked to drug abuse, alcoholism, gambling problems, or other issues of security concern. (g) Failure to file annual Federal, state, or local income tax returns as required or the fraudulent filing of the same; (h) Unexplained affluence, as shown by a lifestyle or standard of living, increase in net worth, or money transfers that cannot be explained by subject’s known legal sources of income; (i) Compulsive or addictive gambling as indicated by an unsuccessful attempt to stop gambling, ‘‘chasing losses’’ (i.e. increasing the bets or returning another day in an effort to get even), concealment of gambling losses, borrowing money to fund gambling or pay gambling debts, family conflict or other problems caused by gambling. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 22935 20. Conditions that could mitigate security concerns include: (a) The behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) The conditions that resulted in the financial problem were largely beyond the person’s control (e.g. loss of employment, a business downturn, unexpected medical emergency, or a death, divorce or separation), and the individual acted responsibly under the circumstances; (c) The person has received or is receiving counseling for the problem and/or there are clear indications that the problem is being resolved or is under control; (d) The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts; (e) The individual has a reasonable basis to dispute the legitimacy of the past-due debt which is the cause of the problem and provides documented proof to substantiate the basis of the dispute or provides evidence of actions to resolve the issue; (f) The affluence resulted from a legal source of income. GUIDELINE G: ALCOHOL CONSUMPTION 21. The Concern. Excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness. 22. Conditions that could raise a security concern and may be disqualifying include: (a) Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, disturbing the peace, or other incidents of concern, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (b) Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (c) Habitual or binge consumption of alcohol to the point of impaired judgment, regardless of whether the individual is diagnosed as an alcohol abuser or alcohol dependent; (d) Diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence; (e) Evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program; (f) Relapse after diagnosis of alcohol abuse or dependence and completion of an alcohol rehabilitation program; (g) Failure to follow any court order regarding alcohol education, evaluation, treatment, or abstinence. 23. Conditions that could mitigate security concerns include: (a) So much time has passed, or the behavior was so infrequent, or it happened E:\FR\FM\19APP1.SGM 19APP1 22936 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) The individual acknowledges his or her alcoholism or issues of alcohol abuse, provides evidence of actions taken to overcome this problem, and has established a pattern of abstinence (if alcohol dependent) or responsible use (if an alcohol abuser); (c) The individual is a current employee who is participating in a counseling or treatment program, has no history of previous treatment and relapse, and is making satisfactory progress; (d) The individual has successfully completed inpatient or outpatient counseling or rehabilitation along with any required aftercare, has demonstrated a clear and established pattern of modified consumption or abstinence in accordance with treatment recommendations, such as participation in meetings of Alcoholics Anonymous or a similar organization and has received a favorable prognosis by a duly qualified medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program. GUIDELINE H: DRUG INVOLVEMENT 24. The Concern. Use of an illegal drug or misuse of a prescription drug can raise questions about an individual’s reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations. (a) Drugs are defined as mood and behavior altering substances, and include: (1) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens), and (2) Inhalants and other similar substances (b) Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction. 25. Conditions that could raise a security concern and may be disqualifying include: (a) Any drug abuse (see above definition); (b) Testing positive for illegal drug use; (c) Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution; or possession of drug paraphernalia; (d) Diagnosis by a duly qualified medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence; (e) Evaluation of drug abuse or drug dependence by a licensed clinical social worker who is a staff member of a recognized drug treatment program; (f) Failure to successfully complete a drug treatment program prescribed by a duly qualified medical professional; (g) Any illegal drug use after being granted a security clearance; (h) Expressed intent to continue illegal drug use, or failure to clearly and convincingly commit to discontinue drug use. 26. Conditions that could mitigate security concerns include: VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 (a) The behavior happened so long ago, was so infrequent, or happened under such circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) A demonstrated intent not to abuse any drugs in the future, such as: (1) Dissociation from drug-using associates and contacts; (2) Changing or avoiding the environment where drugs were used; (3) An appropriate period of abstinence; (4) A signed statement of intent with automatic revocation of clearance for any violation; (c) Abuse of prescription drugs was after a severe or prolonged illness during which these drugs were prescribed, and abuse has since ended; (d) Satisfactory completion of a prescribed drug treatment program, including but not limited to rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a duly qualified medical professional. GUIDELINE I: PSYCHOLOGICAL CONDITIONS 27. The Concern. Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling. 28. Conditions that could raise a security concern and may be disqualifying include: (a) Behavior that casts doubt on an individual’s judgment, reliability, or trustworthiness that is not covered under any other guideline, including but not limited to emotionally unstable, irresponsible, dysfunctional, violent, paranoid, or bizarre behavior; (b) An opinion by a duly qualified mental health professional that the individual has a condition not covered under any other guideline that may impair judgment, reliability, or trustworthiness; (c) The individual has failed to follow treatment advice related to a diagnosed emotional, mental, or personality condition, e.g. failure to take prescribed medication. 29. Conditions that could mitigate security concerns include: (a) The identified condition is readily controllable with treatment, and the individual has demonstrated ongoing and consistent compliance with the treatment plan; (b) The individual has voluntarily entered a counseling or treatment program for a condition that is amenable to treatment, and the individual is currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health professional; PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 (c) Recent opinion by a duly qualified mental health professional employed by, or acceptable to and approved by the U.S. Government that an individual’s previous condition is under control or in remission, and has a low probability of recurrence or exacerbation; (d) The past emotional instability was a temporary condition (e.g., one caused by a death, illness, or marital breakup), the situation has been resolved, and the individual no longer shows indications of emotional instability; (e) There is no indication of a current problem. GUIDELINE J: CRIMINAL CONDUCT 30. The Concern. Criminal activity creates doubt about a person’s judgment, reliability and trustworthiness. By its very nature, it calls into question a person’s ability or willingness to comply with laws, rules and regulations. 31. Conditions that could raise a security concern and may be disqualifying include: (a) A single serious crime or multiple lesser offenses; (b) Discharge or dismissal from the Armed Forces under dishonorable conditions; (c) Allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted; (d) Individual is currently on parole or probation; (e) Violation of parole or probation, or failure to complete a court-mandated rehabilitation program. 32. Conditions that could mitigate security concerns include: (a) So much time has elapsed since the criminal behavior happened, or it happened under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; (b) The person was pressured or coerced into committing the act and those pressures are no longer present in the person’s life; (c) Evidence that the person did not commit the offense; (d) There is evidence of successful rehabilitation; including but not limited to the passage of time without recurrence of criminal activity, remorse or restitution, job training or higher education, good employment record, or constructive community involvement. GUIDELINE K: HANDLING PROTECTED INFORMATION 33. The Concern. Deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern. 34. Conditions that could raise a security concern and may be disqualifying include: (a) Deliberate or negligent disclosure of classified or other protected information to unauthorized persons, including but not limited to personal or business contacts, to the media, or to persons present at seminars, meetings, or conferences; E:\FR\FM\19APP1.SGM 19APP1 Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS (b) Collecting or storing classified or other protected information in any unauthorized location; (c) Loading, drafting, editing, modifying, storing, transmitting, or otherwise handling classified reports, data, or other information on any unapproved equipment including but not limited to any typewriter, word processor, or computer hardware, software, drive, system, gameboard, handheld, ‘‘palm’’ or pocket device or other adjunct equipment; (d) Inappropriate efforts to obtain or view classified or other protected information outside one’s need to know; (e) Copying classified or other protected information in a manner designed to conceal or remove classification or other document control markings; (f) Viewing or downloading information from a secure system when the information is beyond the individual’s need to know; (g) Any failure to comply with rules for the protection of classified or other sensitive information; (h) Negligence or lax security habits that persist despite counseling by management; (i) Failure to comply with rules or regulations that results in damage to the National Security, regardless of whether it was deliberate or negligent. 35. Conditions that could mitigate security concerns include: (a) So much time has elapsed since the behavior, or it happened so infrequently or under such unusual circumstances that it is unlikely to recur or does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment; (b) The individual responded favorably to counseling or remedial security training and now demonstrates a positive attitude toward the discharge of security responsibilities; (c) The security violations were due to improper or inadequate training. GUIDELINE L: OUTSIDE ACTIVITIES 36. The Concern. Involvement in certain types of outside employment or activities is of security concern if it poses a conflict of interest with an individual’s security responsibilities and could create an increased risk of unauthorized disclosure of classified information. 37. Conditions that could raise a security concern and may be disqualifying include: (a) Any employment or service, whether compensated or volunteer, with: (1) The government of a foreign country; (2) Any foreign national, organization, or other entity; (3) A representative of any foreign interest; (4) Any foreign, domestic, or international organization or person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology; (b) Failure to report or fully disclose an outside activity when this is required. 38. Conditions that could mitigate security concerns include: (a) Evaluation of the outside employment or activity by the appropriate security or counterintelligence office indicates that it does not pose a conflict with an individual’s security responsibilities or with the national security interests of the United States; VerDate Sep<11>2014 17:42 Apr 18, 2016 Jkt 238001 (b) The individual terminates the employment or discontinued the activity upon being notified that it was in conflict with his or her security responsibilities. GUIDELINE M: USE OF INFORMATION TECHNOLOGY SYSTEMS 39. The Concern. Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual’s reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information. Information Technology Systems include all related computer hardware, software, firmware, and data used for the communication, transmission, processing, manipulation, storage, or protection of information. 40. Conditions that could raise a security concern and may be disqualifying include: (a) Illegal or unauthorized entry into any information technology system or component thereof; (b) Illegal or unauthorized modification, destruction, manipulation or denial of access to information, software, firmware, or hardware in an information technology system; (c) Use of any information technology system to gain unauthorized access to another system or to a compartmented area within the same system; (d) Downloading, storing, or transmitting classified information on or to any unauthorized software, hardware, or information technology system; (e) Unauthorized use of a government or other information technology system; (f) Introduction, removal, or duplication of hardware, firmware, software, or media to or from any information technology system without authorization, when prohibited by rules, procedures, guidelines or regulations. (g) Negligence or lax security habits in handling information technology that persist despite counseling by management; (h) Any misuse of information technology, whether deliberate or negligent, that results in damage to the national security. 41. Conditions that could mitigate security concerns include: (a) So much time has elapsed since the behavior happened, or it happened under such unusual circumstances, that it is unlikely to recur or does not cast doubt on the individual’s reliability, trustworthiness, or good judgment; (b) The misuse was minor and done only in the interest of organizational efficiency and effectiveness, such as letting another person use one’s password or computer when no other timely alternative was readily available; (c) The conduct was unintentional or inadvertent and was followed by a prompt, good-faith effort to correct the situation and by notification of supervisor. [FR Doc. 2016–08885 Filed 4–18–16; 8:45 am] BILLING CODE 6450–01–P PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 22937 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG–2016–0048] RIN 1625–AA08 Special Local Regulation, Jacksonville Grand Prix of the Seas; St. Johns River, Jacksonville, FL Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: The Coast Guard proposes to establish a temporary special local regulation on the waters of the St. Johns River near downtown Jacksonville, FL during the 3rd Annual Jacksonville Grand Prix of the Seas, a series of highspeed boat races. This action is necessary to provide for the safety of life on the navigable waters during the event. This special local regulation will be enforced daily on June 3rd and 4th from 9 a.m. to 5 p.m. This proposed rulemaking would prohibit persons and vessels from being in the regulated area unless authorized by the Captain of the Port (COTP) Jacksonville or a designated representative. We invite your comments on this proposed rulemaking. DATES: Comments and related material must be received by the Coast Guard on or before May 19, 2016. ADDRESSES: You may submit comments identified by docket number USCG– 2016–0048 using the Federal eRulemaking Portal at http:// www.regulations.gov. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments. SUMMARY: If you have questions about this proposed rulemaking, call or email Lieutenant, Allan Storm, Sector Jacksonville, Waterways Management Division, U.S. Coast Guard; telephone (904) 714–7616, email Allan.H.Storm@uscg.mil. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis On January 6, 2016, Powerboat P1– USA, LLC notified the Coast Guard that E:\FR\FM\19APP1.SGM 19APP1

Agencies

[Federal Register Volume 81, Number 75 (Tuesday, April 19, 2016)]
[Proposed Rules]
[Pages 22920-22937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08885]


========================================================================
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.

========================================================================


Federal Register / Vol. 81, No. 75 / Tuesday, April 19, 2016 / 
Proposed Rules

[[Page 22920]]



DEPARTMENT OF ENERGY

10 CFR Part 710

[Docket No. DOE-HQ-2012-0001-0274]
RIN 1992-AA36


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

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Energy (DOE) proposes to amend its 
regulations which set forth the policies and procedures for resolving 
questions concerning eligibility for DOE access authorization. The 
proposed revisions would update and provide added clarity throughout 
the current rule, and streamline the process for resolving access 
authorization eligibility determinations. Additionally, DOE proposes to 
update references to DOE Offices and officials to reflect the current 
DOE organizational structure.

DATES: Written comments on this proposed rulemaking must be received on 
or before close of business May 19, 2016.

ADDRESSES: You may submit comments, identified by ``Determining 
Eligibility for Access and RIN 1992-AA36,'' by any of the following 
methods (comments by email are encouraged):
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email to: 
OfficeofDepartmentalPersonnelSecurity@hq.doe.gov. Include Determining 
Eligibility for Access and RIN 1992-AA36 in the subject line of the 
message.
     Mail to: U.S. Department of Energy, Office of Departmental 
Personnel Security, AU-53, 1000 Independence Avenue SW., Washington, DC 
20585.

FOR FURTHER INFORMATION CONTACT: Mark R. Pekrul, Office of Departmental 
Personnel Security, (202) 586-4097, mark.pekrul@hq.doe.gov; or 
Christina Pak, Office of the General Counsel, (202) 586-4114, 
christina.pak@hq.doe.gov.

SUPPLEMENTARY INFORMATION:

I. Background
II. Section-by-Section Analysis
III. Procedural Analysis
    A. Review Under Executive Order 12866 and 13563
    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

    The Department of Energy is publishing this notice of proposed 
rulemaking (NOPR) in order to update and clarify DOE's policies and 
procedures for the denial and revocation of access authorizations.
    10 CFR part 710 has not been substantively updated since 2001 (66 
FR 47062, Sept. 11, 2001). Since that time, as the Department has 
gained operational experience under the current rule, revisions to 
update and clarify provisions in the rule are appropriate. The proposed 
rule would: (1) Accord primacy to the national Adjudicative Standards 
when determining eligibility for access authorization; (2) clarify that 
DOE can, in exigent circumstances, suspend an access authorization 
without recourse to certain administrative procedures; (3) permit 
individuals subject to criminal proceedings to suspend access 
authorization revocation proceedings under this part, subject to 
certain conditions; (4) limit the ability of the Appeal Panel to 
consider new evidence on appeal of a decision by the Department's 
Office of Hearings and Appeals or the Manager to deny or revoke access 
authorization; (5) introduce a one-year waiting period before an 
individual, previously the subject of denial or revocation of access 
authorization, may be reconsidered for access authorization; (6) add to 
part 710 the requirements of Presidential Policy Directive 19, which 
provides appeal rights to the Department's Office of Inspector General 
under certain circumstances; (7) revise, delete, and add definitions 
for certain terms used in the regulation; and (8) update references to 
DOE Offices and officials to reflect the current DOE organizational 
structure.
    Laws, regulations and directives which may apply to part 710 
include, but are not limited to: The Atomic Energy Act of 1954; 
Executive Order 13467 (73 FR 38103, June 30, 2008; Executive Order 
12968 (60 FR 40245, August 2, 1995, as amended); Executive Order 13526 
(75 FR 707, January 5, 2010); Executive Order 10865 (25 FR 1583, 
February 24, 1960, as amended); Executive Order 10450 (18 FR 2489, 
April 27, 1954, as amended); Presidential Policy Directive 19 (October 
10, 2012).

II. Section-by-Section Analysis

    DOE proposes to amend 10 CFR part 710 as follows:
    The title of this part would be revised to delete the words 
``CRITERIA AND'' to reflect the proposed deletion of the criteria in 
current Sec.  710.8, and because the term ``Procedures'' adequately 
describes the content of the rule. Additionally, the heading, Subpart 
A, ``General Criteria and Procedures for Determining Eligibility for 
Access to Classified Matter and Special Nuclear Material,'' is proposed 
to be deleted. Previously, the entire body of this rule was denominated 
as Subpart A to Part 710. In this proposed revision, each existing 
undesignated subpart heading would be designated as an individual 
subpart, in accordance with the U.S. Government Printing Office's 
Document Drafting Handbook.
    1. The current heading ``GENERAL PROVISIONS'' located above current 
Sec.  710.1 would be revised to add ``SUBPART A--'' at the beginning.
    2. Proposed Sec.  710.1 ``Purpose'' would delete references to the 
specific types of individuals to which this part applies since this 
information is set forth in Sec.  710.2; and would update the 
applicable legal authorities.
    3. Proposed Sec.  710.2 ``Scope'' would clarify that determining 
eligibility for an individual's access authorization would require 
application of the national Adjudicative Guidelines, and reference to 
``criteria'' would be deleted.
    4. Proposed Sec.  710.3 ``Reference'' would delete the reference to 
the Atomic Energy Act and replace it with

[[Page 22921]]

a reference to the Adjudicative Guidelines.
    5. Proposed Sec.  710.4 ``Policy'' would replace the phrase 
``criteria for determining eligibility for access authorization and'' 
with ``procedures'' in paragraph (a) to reflect the proposed deletion 
of the criteria in current Sec.  710.8. Current Sec.  710.4(c) would be 
renumbered Sec.  710.32(b)(1). Current Sec.  710.4(d) would be 
renumbered Sec.  710.32(b)(2). Current paragraphs (e) and (f) would be 
deleted since the situations addressed in those paragraphs are already 
covered in the current rule. Current paragraph (g) would be renumbered 
Sec.  710.32(c).
    6. In proposed Sec.  710.5 ``Definitions'' a number of new or 
revised definitions are proposed. In addition, the terms contained in 
this section would be re-ordered so that they are listed in 
alphabetical order; current Sec.  710.5(b) would be deleted as 
unnecessary.
    The term ``DOE Counsel'' would be amended to delete the requirement 
that such an individual be subject to a favorably adjudicated 
background investigation. Instead, the requirement that such an 
individual must hold a DOE Q access authorization, the grant of which 
is predicated on a favorably adjudicated background investigation, 
would be added.
    The term ``Administrative Judge'' is proposed to be amended in the 
same fashion and for the same reasons as the definition of ``DOE 
Counsel,'' and also to delete the requirement that this person be a 
``senior management official.''
    The term ``Director'' would be added and defined as the Director, 
Office of Departmental Personnel Security, to reflect organizational 
changes within the DOE's personnel security program.
    The terms ``Local Director of Security'' and ``Manager'' would be 
revised to reflect organizational changes throughout DOE.
    The term ``national security information'' would be deleted as it 
does not appear anywhere in this rule.
    7. The current heading ``CRITERIA AND PROCEDURES FOR DETERMINING 
ELIGIBILITY FOR ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR 
MATERIAL'' located above current Sec.  710.6 would be revised to add 
``SUBPART B--'' at the beginning, and to delete ``CRITERIA AND'' to 
reflect the deletion of the criteria in proposed Sec.  710.8.
    8. Proposed Sec.  710.6 ``Cooperation by the individual.''
    (1) Proposed paragraph (a)(1) would revise the language for clarity 
but would not change it substantively.
    (2) Proposed paragraph (a)(2) would update the reference to 
polygraph examinations to be consistent with the intent of 10 CFR part 
709, and to update terms as in paragraph (a)(1), described above.
    (3) Proposed paragraph (b) would reflect current DOE organizational 
structures.
    (4) Proposed paragraph (c) would clarify the process by which an 
individual could appeal decisions taken by DOE under proposed 
paragraphs (a)(1) and (a)(2).
    9. The proposed changes to Sec.  710.7 ``Application of the 
criteria'' would remove references to the criteria and clarify that all 
determinations of eligibility for access authorization at DOE would be 
made in accordance with the national Adjudicative Guidelines. DOE has 
for several decades utilized the criteria currently in Sec.  710.8 to 
determine eligibility for access authorization. When the national 
Adjudicative Guidelines were introduced in 1997, DOE began using them 
in conjunction with the criteria in Sec.  710.8. The revision proposed 
today would make all access authorization determinations in reliance 
solely on the Adjudicative Guidelines. The current title ``Application 
of the criteria'' would be revised to replace ``criteria'' with 
``Adjudicative Guidelines.'' Additionally, the current Sec.  710.9(a) 
would be renumbered Sec.  710.7(d) to clearly indicate how information 
obtained by DOE may be considered derogatory under the Adjudicative 
Guidelines and used to determine access authorization eligibility. The 
last sentence of the current Sec.  710.7(a) would be moved to the 
beginning of proposed Sec.  710.7(d) where it more logically fits.
    10. Current Sec.  710.8 ``Criteria'' would be removed in its 
entirety, since exclusive reliance on the national Adjudicative 
Guidelines for making access authorization eligibility determinations 
would render this section unnecessary.
    11. The current Sec.  710.9 ``Action on derogatory information'' 
would be renumbered Sec.  710.8.
    (1) Current paragraph (a) would be moved to proposed Sec.  710.7(d) 
as indicated in the discussion of proposed Sec.  710.7.
    (2) Proposed paragraph (a)--currently paragraph (b)--would remove 
the specific reference to a DOE mental evaluation as an example of 
actions that can be taken to resolve derogatory information. Since a 
mental evaluation is just one of many actions DOE can take to resolve 
derogatory information, DOE proposes to delete the example to avoid any 
misperception that DOE is limited to this action.
    (3) Current paragraph (e) would be renumbered as paragraph (d) and 
would be revised to reflect changes in the DOE organizational 
structure.
    12. Current Sec.  710.10 ``Suspension of access authorization'' 
would be renumbered Sec.  710.9.
    (1) Proposed paragraph (b) would clarify that the Department can 
take immediate action to suspend an individual's access authorization, 
without taking actions to investigate derogatory information, when 
there are immediate threats to the national security or to the safety 
and security of a DOE facility or employee. An individual whose access 
authorization has been suspended under these circumstances would be 
entitled to due process protections as set forth in part 710 before the 
Department makes a final decision on the individual's eligibility for 
access authorization.
    (2) The current paragraph (b) would be renumbered as paragraph (c). 
Proposed paragraph (c) would clarify the responsibilities of the 
Manager upon the recommendation of a Local Director of Security that an 
individual's access authorization should be suspended.
    (3) Proposed paragraph (e) has been added to reflect the 
requirements of Presidential Policy Directive 19, and would provide 
that a Federal employee who believes action to suspend his or her 
access authorization was taken as retaliation for having made a 
protected disclosure of information may appeal the decision to the 
Department's Office of the Inspector General.
    13. The current heading, ``ADMINISTRATIVE REVIEW,'' located above 
current Sec.  710.20, would be redesignated as Subpart C by adding, 
``SUBPART C--'' at the beginning.
    14. Section 710.20 ``Purpose of administrative review'' would 
remain unchanged except for an editorial revision to clarify that the 
procedures in proposed Subpart C ``govern'' and not just ``establish 
methods for'' the conduct of administrative review proceedings under 
this part.
    15. Proposed Sec.  710.21 ``Notice to the individual''
    (1) Proposed paragraph (b)(7) would clarify that the Administrative 
Judge has the option of conducting administrative review hearings via 
video teleconferencing. The use of video teleconferencing for this 
purpose has been piloted with successful results. Additionally, 
proposed paragraph (b)(7) would include information currently contained 
in Sec.  710.34, ``Attorney representation,'' which is proposed to be 
deleted. The current Sec.  710.34

[[Page 22922]]

addresses the responsibility of the individual to provide DOE with 
notice of representation by an attorney, so the substance of Sec.  
710.34 would fit better in proposed paragraph (b)(7) since it already 
addresses the individual's right to attorney representation.
    (2) Proposed paragraph (b)(8) would clarify that in the event that 
an individual fails to file a timely written request for a hearing 
before an Administrative Judge, the Manager shall issue a final 
decision to revoke or deny an individual's access authorization.
    (3) Current paragraphs (c)(1) and (c)(3) would be renumbered as 
paragraphs (b)(10) and (b)(11), respectively, for better flow.
    (4) Proposed new paragraphs (b)(12)(i) through (iii) would address 
the rights of individuals who, at the time they receive a notification 
letter pursuant to proposed Sec.  710.21, are the subject of criminal 
proceedings for a felony offense or for an offense which is punishable 
by more than a year in prison. The proposed addition would clarify that 
individuals in that situation have the right to decide whether to 
continue with or withdraw from the Administrative Review process. Under 
the current rule, the discretion to continue with the Administrative 
Review process resides with DOE. Under the proposed revision, the 
individual concerned would decide to either (1) proceed with 
Administrative Review, requiring him/her to participate fully in the 
process, or (2) withdraw from the Administrative Review process, 
resulting in the administrative withdrawal of the individual's access 
authorization. Once the individual's criminal law matter concludes, a 
request for access authorization could be resubmitted.
    (5) Proposed new paragraph (c)(2), embodying the requirements of 
Presidential Policy Directive 19, would be added to provide that a 
Federal employee who believes action to deny or revoke access 
authorization under the Administrative Review process was taken as 
retaliation for having made a protected disclosure of information may 
appeal the decision to the Department's Office of the Inspector 
General.
    16. Proposed Sec.  710.22 ``Initial Decision Process'' would 
clarify, in paragraph (c)(4), that if the individual does not exercise 
his/her right to appeal the initial decision of a Manager to deny or 
revoke access authorization within 30 calendar days of that decision, 
the Manager's initial decision would become final action not subject to 
further review or appeal.
    17. Proposed Sec.  710.25 ``Appointment of Administrative Judge; 
prehearing conference; commencement of hearings'' would clarify the 
authority of the Administrative Judge to conduct hearings via video 
teleconferencing and shorten the time limit for the Administrative 
Judge to commence a hearing, from 90 days to 60 days from the date the 
individual's request for hearing is received by the Office of Hearings 
and Appeals. This proposed change reflects the DOE Office of Hearings 
and Appeals' current internal procedures for commencing a hearing.
    18. Proposed Sec.  710.27 ``Administrative Judge's decision'' would 
indicate that the Administrative Judge shall render a decision as to 
the granting or restoring of an individual's access authorization 
within 30 calendar days from the date of receipt of the hearing 
transcript. This proposed change reflects the DOE Office of Hearings 
and Appeals' current internal procedures for issuing a decision.
    19. Proposed Sec.  710.28 ``Action on the Administrative Judge's 
decision'' would clarify that an Administrative Judge's decision shall 
constitute final action not subject to review or further appeal if a 
written request for a review of the decision by the Appeal Panel is not 
filed within a timely manner with the Director. Additionally, proposed 
paragraph (c) would address the process by which the Department may 
appeal a decision by the Administrative Judge to grant or to continue 
an individual's access authorization, to comport with the process in 
current paragraph (b) which addresses how the individual may appeal a 
decision by the Administrative Judge to deny or revoke access 
authorization.
    20. Proposed Sec.  710.29 ``Final appeal process'' would reflect, 
in paragraph (e), that an appeal decision would be based solely upon 
information in the administrative record at the time of the Manager's 
decision or the Administrative Judge's initial decision. Consequently, 
current paragraphs (h), (i) and (j) would be deleted in their entirety. 
Paragraphs (a) through (d) would be revised to reflect the current 
Departmental organization and to more clearly describe the process by 
which an Appeal Panel is convened. Paragraph (f) would be revised to 
clarify that the Appeal Panel's decision is not subject to further 
review or appeal.
    21. Current Sec.  710.30 ``New evidence'' would be deleted to 
reflect that an appeal decision would be based solely upon information 
in the administrative record at the time of the Manager's decision or 
the Administrative Judge's initial decision.
    22. Proposed Sec.  710.30 ``Action by the Secretary,'' currently 
Sec.  710.31 and renumbered Sec.  710.30 in the proposed rule, would 
state that the Secretary's responsibilities could be delegated in 
accordance with Executive Orders 12968 and 10865. Also, references to 
current Sec.  710.29(h) and (i) would be deleted since those sections 
are proposed to be deleted.
    23. Proposed Sec.  710.31 ``Reconsideration of Access 
Eligibility.'' This proposed section, which would be renumbered from 
Sec.  710.32, would provide for a minimum of one year between a final 
decision to deny or revoke access authorization and the time when an 
individual may apply for reconsideration. Currently, part 710 contains 
no time limit and many individuals seek reconsideration within days of 
receiving a final decision denying or revoking the individual's access 
authorization. Further, individuals have been permitted to file a 
request for reconsideration repeatedly, even after previous 
reconsideration requests have been denied. A one-year time limit would 
convey clear expectations to the individual as to when a 
reconsideration request could be accepted and would reduce the undue 
burden on the Department of considering multiple close-in-time appeals. 
In addition, paragraph (d) would more clearly describe the 
reconsideration process.
    24. The current heading, ``TERMINATIONS,'' located above current 
Sec.  710.33 would be redesignated as Subpart D by adding, ``SUBPART 
D--'' at the beginning.
    25. Proposed Sec.  710.32 ``Terminations.'' This proposed section, 
would be renumbered from Sec.  710.33. Proposed Sec.  710.32(a), 
currently Sec.  710.33, would clarify that if the procedures of this 
part are terminated after an unfavorable initial agency decision has 
been rendered, any subsequent requests for access authorization for an 
individual would be processed as a review of the decision by the Appeal 
Panel, unless a minimum of one year had elapsed. Proposed Sec.  
710.32(b)(1), currently Sec.  710.4(c), would indicate that the type of 
criminal proceedings for which DOE may take action to terminate 
processing an access authorization application include felony offenses 
and offenses punishable by one year of imprisonment or longer. 
Currently, this threshold is six months; this proposed change to one 
year would be consistent with the one-year time frame in proposed Sec.  
710.21. Proposed Sec.  710.32(b)(2) and Sec.  710.32(c), would be 
renumbered from current Sec.  710.4(d) and (g), respectively.
    26. Current Sec.  710.34 ``Notice to individual'' would be deleted. 
The

[[Page 22923]]

substance of current Sec.  710.34 would be added to proposed Sec.  
710.21.
    27. Proposed Sec.  710.33 ``Time frames,'' currently Sec.  710.35, 
would be renumbered as Sec.  710.33.
    28. Proposed Sec.  710.34 ``Acting Officials,'' currently Sec.  
710.36, would reflect organizational changes within the Department and 
permit the Deputy Associate Under Secretary for Environment, Health, 
Safety and Security greater flexibility to delegate his/her 
responsibilities under part 710. Currently, these responsibilities can 
only be exercised by persons in security-related Senior Executive 
Service positions. The proposed change would permit the Deputy 
Associate Under Secretary for Environment, Health, Safety and Security 
to delegate his/her authorities under part 710 to persons in senior 
security-related positions. It is expected that only persons in GS-15 
or Senior Executive Service positions would meet this requirement. This 
proposed change would enhance the Department's ability to effectively 
manage the Administrative Review process prescribed by part 710.
APPENDICES
    The national Adjudicative Guidelines would be Appendix A.

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

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

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), 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 regulation meet 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. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' (67 FR 53461, August 16, 2002), DOE published 
procedures and policies 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 Web site at http://www.gc.doe.gov.
    This proposed rule would amend procedures that apply to the 
determination of eligibility of individuals for access to classified 
information and access to special nuclear material. The proposed rule 
applies to individuals, and would not apply to ``small entities,'' as 
that term is defined in the Regulatory Flexibility Act. As a result, if 
adopted, the proposed rule would not have a significant economic impact 
on a substantial number of small entities.
    Accordingly, DOE certifies that the proposed rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore, no regulatory flexibility analysis is required.

D. Review Under the Paperwork Reduction Act

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

[[Page 22924]]

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 existing rule are 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 this proposed 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 Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
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. This rulemaking does not impose a Federal mandate on State, 
local or tribal governments or on the private sector.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rule or policy that may affect 
family well being. The proposed rule, if adopted, will have no impact 
on family well-being. 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 
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 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 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 this proposed rule 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 10 CFR Part 710

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

    Issued in Washington, DC, on March 28, 2016.
 Elizabeth Sherwood-Randall,
Deputy Secretary.

    For the reasons set out in the preamble, DOE is proposing to revise 
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

Subpart A--General Provisions
Sec.
710.1 Purpose.
710.2 Scope.
710.3 Reference.
710.4 Policy.
710.5 Definitions.
Subpart B--Eligibility for Access to Classified Matter or Special 
Nuclear Material
710.6 Cooperation by the individual.
710.7 Application of the adjudicative guidelines.
710.8 Action on derogatory information.
710.9 Suspension of access authorization.
Subpart C--Administrative Review
710.20 Purpose of administrative review.
710.21 Notice to the individual.
710.22 Initial decision process.
710.23 Extensions of time by the manager.
710.24 Appointment of DOE Counsel.
710.25 Appointment of Administrative Judge; prehearing conference; 
commencement of hearings.
710.26 Conduct of hearings.
710.27 Administrative Judge's decision.
710.28 Action on the Administrative Judge's decision.
710.29 Final appeal process.
710.30 Action by the Secretary.
710.31 Reconsideration of access eligibility.
Subpart D--Miscellaneous
710.32 Terminations.
710.33 Time frames.
710.34 Acting officials.

Appendix A--Adjudicative Guidelines for Determining Eligibility for 
Access to Classified Information (December 30, 2005)

    Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-l; 
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; E.O. 13526, 3 CFR 2010 Comp., pp. 298-327 (or 
successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391.

Subpart A--General Provisions


Sec.  710.1  Purpose.

    (a) This part establishes the procedures for determining the 
eligibility of individuals described in

[[Page 22925]]

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 Executive Order 13526 
(Classified National Security Information).
    (b) This part implements: Executive Order 12968, 60 FR 40245 
(August 2, 1995), as amended; Executive Order 13526, 75 FR 707 (January 
5, 2010); Executive Order 10865, 25 FR 1583 (February 24, 1960), as 
amended; Executive Order 10450, 18 FR 2489 (April 27, 1954), as 
amended; and the Adjudicative Guidelines for Determining Eligibility 
for Access to Classified Information approved by the President (the 
``Adjudicative Guidelines''; see Appendix A of this part).


Sec.  710.2  Scope.

    The procedures outlined in this rule require the application of the 
Adjudicative Guidelines (see Sec.  710.7) in determining eligibility 
for access authorization for:
    (a) Employees (including consultants) of, and applicants for 
employment with, contractors and agents of the DOE;
    (b) Access permittees of the DOE and their employees (including 
consultants) and applicants for employment;
    (c) Employees (including consultants) of, and applicants for 
employment with, the DOE; and
    (d) Other persons designated by the Secretary of Energy.


Sec.  710.3  Reference.

    The Adjudicative Guidelines are set forth in Appendix A to this 
part.


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.
    (b) It is also the policy of DOE that none of the procedures 
established for determining eligibility for access authorization 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.


Sec.  710.5  Definitions.

    (a) As used in this part:
    Access authorization means an administrative determination that an 
individual is eligible for access to classified matter or is eligible 
for access to, or control over, special nuclear material.
    Administrative Judge means a DOE attorney appointed by the 
Director, Office of Hearings and Appeals, pursuant to Sec.  710.25 of 
this part. An Administrative Judge shall be a U.S. citizen and shall 
hold a Q access authorization.
    Classified matter means the material of thought or expression that 
is classified pursuant to statute or Executive Order.
    Director means the Director, DOE Office of Departmental Personnel 
Security.
    DOE Counsel means a DOE attorney assigned to represent DOE in 
proceedings under this part. DOE Counsel shall be a U.S. citizen and 
shall hold a Q access authorization.
    Local Director of Security means the individual with primary 
responsibility for safeguards and security at the Chicago, Idaho, Oak 
Ridge, Richland, and Savannah River Operations Offices; for Naval 
Reactors, the individual(s) designated under the authority of the 
Director of the Naval Nuclear Propulsion Program; for the National 
Nuclear Security Administration (NNSA), the individual 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 Chicago, Idaho, 
Oak Ridge, Richland, or Savannah River Operations Offices; for Naval 
Reactors, the individual designated under the authority of the Director 
of the 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 Operations.
    Secretary means the Secretary of Energy, as provided by section 201 
of the Department of Energy Organization Act.
    Special nuclear material means plutonium, uranium enriched in the 
isotope 233, or in the isotope 235, and any other material which, 
pursuant to the provisions of section 51 of the Atomic Energy Act of 
1954, has been determined to be special nuclear material, but does not 
include source material; or any material artificially enriched by any 
of the foregoing, not including source material.
    (b) Reserved.

Subpart B--Eligibility for Access to Classified Matter or Special 
Nuclear Material


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 or reinvestigation, and at 
any stage of DOE's processing of the individual's access authorization 
request, including but not limited to, personnel security interviews, 
DOE-sponsored mental health evaluations, and other authorized DOE 
investigative activities 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 access 
authorization. In this event, any access authorization then in effect 
may be administratively withdrawn or, for applicants, further 
processing may be administratively terminated.
    (2) It is the responsibility of an individual subject to 10 CFR 
709.3(d) to consent to and take a polygraph examination required by 
part 709. A refusal to consent to or take such an examination may 
prevent DOE from reaching an affirmative finding required for 
continuing access authorization. In this event, any access 
authorization then in effect may be administratively withdrawn.
    (b) If the individual believes that the provisions of paragraph (a) 
of this section have been inappropriately applied, the individual may 
file a written appeal of the action with the Director within 30 
calendar days of the date the individual was notified of the action.
    (c) Upon receipt of the written appeal, the Director shall conduct 
an inquiry as to the circumstances involved in the action and shall, 
within 30 calendar days of receipt of the written appeal, notify the 
individual, in writing, of his/her decision. If the Director determines 
that the action was inappropriate, the Director shall notify the 
Manager that access authorization must be reinstated or, for 
applicants, that the individual must continue to be processed for 
access authorization. If the Director determines

[[Page 22926]]

the action was appropriate, the Director shall notify the individual of 
this fact in writing. The Director's decision is final and not subject 
to further review or appeal.


Sec.  710.7  Application of the Adjudicative Guidelines.

    (a) The decision on an access authorization request is a 
comprehensive, commonsense judgment, made after consideration of all 
relevant information, favorable and unfavorable, as to whether the 
granting or continuation of access authorization will not endanger the 
common defense and security and is clearly consistent with the national 
interest. Any doubt as to an individual's access authorization 
eligibility shall be resolved in favor of the national security.
    (b) All such determinations shall be based upon application of the 
Adjudicative Guidelines, or any successor national standard issued 
under the authority of the President.
    (c) Each Adjudicative Guideline sets forth a series of concerns 
that may create a doubt regarding an individual's eligibility for 
access authorization. In resolving these concerns, all DOE officials 
involved in the decision-making process shall consider: The nature, 
extent, and seriousness of the conduct; the circumstances surrounding 
the conduct, to include knowledgeable participation; the frequency and 
recency of the conduct; the age and maturity of the individual at the 
time of the conduct; the voluntariness of participation; the absence or 
presence of rehabilitation or reformation and other pertinent 
behavioral changes; the motivation for the conduct; the potential for 
pressure, coercion, exploitation, or duress; the likelihood of 
continuation or recurrence; and other relevant and material factors.
    (d) If the reports of investigation of an individual or other 
reliable information tend to establish the validity and significance of 
one or more areas of concern as set forth in the Adjudicative 
Guidelines, such information shall be regarded as derogatory and create 
a question as to the individual's access authorization eligibility. 
Absent any derogatory information, a favorable determination will be 
made as to access authorization eligibility.


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 an interview with the individual, or other 
appropriate actions and, on the basis of the results of such interview 
or actions, may authorize the granting of the individual's access 
authorization. If, in the opinion of the Local Director of Security, 
the question as to the individual's access authorization eligibility 
has not been favorably resolved, the Local Director of Security shall 
submit the matter to the Manager with a recommendation that authority 
be obtained to process the individual's case under administrative 
review procedures set forth in this part.
    (b) If the Manager agrees that unresolved derogatory information is 
present and that appropriate attempts to resolve such derogatory 
information have been unsuccessful, the Manager shall notify the 
Director of the proposal to conduct an administrative review 
proceeding, accompanied by an explanation of the security concerns and 
a duplicate Personnel Security File. If the Manager believes that the 
derogatory information has been favorably resolved, the Manager shall 
direct that access authorization be granted for the individual. The 
Manager may also direct the Local Director of Security to obtain 
additional information prior to deciding whether to grant the 
individual access authorization or to submit a request for authority to 
conduct an administrative review proceeding. A decision in the matter 
shall be rendered by the Manager within 10 calendar days of its 
receipt.
    (c) Upon receipt of the Manager's notification, the Director shall 
review the matter and confer with the Manager on:
    (1) The institution of administrative review proceedings set forth 
in Sec. Sec.  710.20 through 710.30;
    (2) The granting of access authorization; or
    (3) Other actions as the Director deems appropriate.
    (d) The Director shall act pursuant to one of these options within 
30 calendar days of receipt of the Manager's notification unless an 
extension is granted by the Deputy Associate Under Secretary for 
Environment, Health, Safety and Security.


Sec.  710.9  Suspension of access authorization.

    (a) If derogatory information is received, the Local Director of 
Security shall authorize action(s), to be taken on an expedited basis, 
to resolve the question pursuant to Sec.  710.8(a). If the question as 
to the individual's continued access authorization eligibility is not 
resolved in favor of the individual, the Local Director of Security 
shall submit the matter to the Manager with the recommendation that the 
individual's access authorization be suspended pending the final 
determination resulting from the procedures set forth in this part.
    (b) If the information received is determined to represent an 
immediate threat to national security or to the safety or security of a 
DOE facility or employee, or is determined to be so serious in nature 
that action(s) to resolve the matter as set forth in Sec.  710.8(b) are 
not practical or advisable, the Local Director of Security shall 
immediately submit the matter to the Manager with a recommendation that 
the individual's access authorization be suspended pending the final 
determination resulting from the procedures set forth in this part. The 
Manager shall either authorize the immediate suspension of access 
authorization, or shall direct the Local Director of Security to take 
action(s) as set forth in Sec.  710.8(b), in an expedited manner, to 
resolve the matter.
    (c) The Manager shall, within two working days of receipt of the 
recommendation from the Local Director of Security to suspend the 
individual's DOE access authorization:
    (1) Approve the suspension of access authorization; or
    (2) Direct the continuation of access authorization, or
    (3) Take or direct other such action(s) as the Manager deems 
appropriate.
    (d) Upon suspension of an individual's access authorization 
pursuant to paragraph (c)(1) of this section, the individual, the 
individual's employer, any other DOE office or program having an access 
authorization interest in the individual, and, if known, any other 
government agency where the individual holds an access authorization, 
security clearance, or access approval, or to which the DOE has 
certified the individual's DOE access authorization, shall be notified 
immediately in writing. The appropriate DOE database for tracking 
access authorizations and related actions shall also be updated. 
Notification to the individual shall reflect, in general terms, the 
reason(s) why the suspension has been affected. Pending final 
determination of the individual's eligibility for access authorization 
from the operation of the procedures set forth in this part, the 
individual shall not be afforded access to classified matter, special 
nuclear material, or unescorted access to security areas that require 
the individual to possess a DOE access authorization.
    (e) Written notification to the individual shall include, if the 
individual is a Federal employee, notification that if the individual 
believes that the action to suspend his/her access authorization was 
taken as

[[Page 22927]]

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 appeal this matter directly to the DOE Office of the Inspector 
General. Such an appeal shall have no impact upon the continued 
processing of the individual's access authorization eligibility under 
this part.
    (f) Following the decision to suspend an individual's DOE access 
authorization pursuant to paragraph (c)(1) of this section, the Manager 
shall immediately notify the Director in writing of the action and the 
reason(s) therefor. In addition, the Manager, within 10 calendar days 
of the date of suspension (unless an extension of time is approved by 
the Director), shall notify the Director in writing of his/her proposal 
to conduct an administrative review proceeding, accompanied by an 
explanation of its basis and a duplicate Personnel Security File.
    (g) Upon receipt of the Manager's notification, the Director shall 
review the matter and confer with the Manager on:
    (1) The institution of administrative review procedures set forth 
in Sec. Sec.  710.20 through 710.30; or
    (2) The reinstatement of access authorization; or
    (3) Other actions as the Director deems appropriate.
    (h) The Director shall act pursuant to one of these options within 
30 calendar days of the receipt of the Manager's notification unless an 
extension is granted by the Deputy Associate Under Secretary for 
Environment, Health, Safety and Security.

Subpart C--Administrative Review


Sec.  710.20  Purpose of Administrative Review.

    These procedures govern the conduct of the administrative review of 
questions concerning an individual's eligibility for access 
authorization when it is determined that such questions cannot be 
favorably resolved by interview or other action.


Sec.  710.21  Notice to the individual.

    (a) Unless an extension is authorized in writing by the Director, 
within 30 calendar days of receipt of authority to institute 
administrative review procedures, the Manager shall prepare and deliver 
to the individual a notification letter approved by the local Office of 
Chief Counsel, or the Office of the General Counsel for Headquarters 
cases. Where practicable, the letter shall be delivered to the 
individual in person.
    (b) The letter shall state:
    (1) That reliable information in the possession of DOE has created 
a substantial doubt concerning the individual's eligibility for access 
authorization.
    (2) The information which creates a substantial doubt regarding the 
individual's access authorization eligibility (which shall be as 
comprehensive and detailed as the national security permits) and why 
that information creates such doubt.
    (3) That the individual has the option to have the substantial 
doubt regarding eligibility for access authorization resolved in one of 
two ways:
    (i) By the Manager, without a hearing, on the basis of the existing 
information in the case; or
    (ii) By personal appearance before an Administrative Judge (a 
``hearing'').
    (4) That, if the individual desires a hearing, the individual must, 
within 20 calendar days of the date of receipt of the notification 
letter, make a written request for a hearing to the Manager from whom 
the letter was received.
    (5) That the individual may also file with the Manager the 
individual's written answer to the reported information which raises 
the question of the individual's eligibility for access authorization, 
and that, if the individual requests a hearing without filing a written 
answer, the request shall be deemed a general denial of all of the 
reported information.
    (6) That, if the individual so requests, a hearing shall be 
scheduled before an Administrative Judge, with due regard for the 
convenience and necessity of the parties or their representatives, for 
the purpose of affording the individual an opportunity of supporting 
his eligibility for access authorization. The Administrative Judge 
shall decide whether the hearing will be conducted via video 
teleconferencing.
    (7) That, if a hearing is requested, the individual will have the 
right to appear personally before an Administrative Judge or, at the 
discretion of the Administrative Judge, via video teleconferencing; to 
present evidence in his/her own behalf, through witnesses, or by 
documents, or both; and, subject to the limitations set forth in Sec.  
710.26(g), to be present during the entire hearing and be accompanied, 
represented, and advised by counsel or other representative of the 
individual's choosing and at the individual's own expense at every 
stage of the proceedings. Such representative or counsel, if 
applicable, shall be identified in writing to the Administrative Judge 
and DOE Counsel and authorized by the individual to receive all 
correspondence, transcripts and other documents pertaining to the 
proceedings under this part.
    (8) That the individual's failure to file a timely written request 
for a hearing before an Administrative Judge in accordance with 
paragraph (b)(4) of this section, unless time deadlines are extended 
for good cause, shall be considered as a relinquishment by the 
individual of the right to a hearing provided in this part, and that in 
such event a final decision to deny or revoke the individual's access 
authorization shall be made by the Manager.
    (9) That in any proceedings under this subpart DOE Counsel will 
participate on behalf of and representing DOE and that any statements 
made by the individual to DOE Counsel may be used in subsequent 
proceedings;
    (10) The individual's access authorization status until further 
notice;
    (11) The name and telephone number of the designated DOE official 
to contact for any further information desired concerning the 
proceedings, including an explanation of the individual's rights under 
the Freedom of Information Act and Privacy Act;
    (12) If applicable, that if the individual is currently the subject 
of criminal charges for a felony offense or an offense punishable by 
imprisonment of one year or more, the individual must elect either to 
continue with the Administrative Review process and have the 
substantial doubt regarding eligibility for access authorization 
resolved by the Manager or by a hearing, or to withdraw from the 
Administrative Review process.
    (i) If the individual elects to continue with the Administrative 
Review process a determination as to the individual's access 
authorization shall be made by the Manager or by an Administrative 
Judge via a hearing. The individual will be expected to participate 
fully in the process. Any refusal to cooperate, answer all questions, 
or provide requested information may prevent DOE from reaching an 
affirmative finding required for granting or continuing access 
authorization.
    (ii) If the individual elects to withdraw from the Administrative 
Review process, the individual's access authorization shall be 
administratively withdrawn. Such action shall be taken in accordance 
with applicable procedures set forth in pertinent Departmental 
directives. Any future requests for access authorization for the 
individual must be accompanied by documentary evidence of resolution of 
the criminal charges.

[[Page 22928]]

    (iii) The individual must, within 20 calendar days of receipt of 
the notification letter, indicate in writing his/her decision to 
continue or to withdraw from the Administrative Review process. Such 
notification must be made to the Manager from whom the notification 
letter was received.
    (c) The notification letter referenced in paragraph (b) of this 
section shall also:
    (1) Include a copy of this part, and
    (2) For Federal employees only, 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 appeal this matter directly to the DOE Office of the Inspector 
General. Such an appeal shall have no impact upon the continued 
processing of the individual's access authorization eligibility under 
this part.


Sec.  710.22  Initial decision process.

    (a) The Manager shall make an initial decision as to the 
individual's access authorization eligibility based on the existing 
information in the case if:
    (1) The individual fails to respond to the notification letter by 
filing a timely written request for a hearing before an Administrative 
Judge or fails to respond to the notification letter after requesting 
an extension of time to do so;
    (2) The individual's response to the notification letter does not 
request a hearing before an Administrative Judge; or
    (3) The Administrative Judge refers the individual's case to the 
Manager in accordance with Sec.  710.25(e) or Sec.  710.26(b).
    (b) Unless an extension of time is granted by the Director, the 
Manager's initial decision as to the individual's access authorization 
eligibility shall be made within 15 calendar days of the date of 
receipt of the information in paragraph (a) of this section. The 
Manager shall either grant or deny, or reinstate or revoke, the 
individual's access authorization.
    (c) A letter reflecting the Manager's initial decision shall be 
signed by the Manager and delivered to the individual within 15 
calendar days of the date of the Manager's decision unless an extension 
of time is granted by the Director. If the Manager's initial decision 
is unfavorable to the individual, the individual shall be advised:
    (1) Of the Manager's unfavorable decision and the reason(s) 
therefor;
    (2) That within 30 calendar days from the date of receipt of the 
letter, the individual may file a written request for a review of the 
Manager's initial decision, through the Director, to the DOE 
Headquarters Appeal Panel (Appeal Panel);
    (3) That the Director may, for good cause shown, at the written 
request of the individual, extend the time for filing a written request 
for a review of the case by the Appeal Panel; and
    (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, the Manager's 
initial decision in the case shall be final and not subject to further 
review or appeal.


Sec.  710.23  Extensions of time by the manager.

    The Manager may, for good cause shown, at the written request of 
the individual, extend the time for filing a written request for a 
hearing, and/or the time for filing a written answer to the matters 
contained in the notification letter. The Manager shall notify the 
Director, in writing, when such extensions have been approved.


Sec.  710.24  Appointment of DOE Counsel.

    (a) Upon receipt from the individual of a written request for a 
hearing, a DOE attorney shall forthwith be assigned by the Manager to 
act as DOE Counsel.
    (b) DOE Counsel is authorized to consult directly with the 
individual if he/she is not represented by counsel, or with the 
individual's counsel or other representative if so represented, to 
clarify issues and reach stipulations with respect to testimony and 
contents of documents and physical evidence. Such stipulations shall be 
binding upon the individual and the DOE Counsel for the purposes of 
this part.


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

    (a) Upon receipt of a request for a hearing, the Manager shall in a 
timely manner transmit that request to the Office of Hearings and 
Appeals, and identify the DOE Counsel. The Manager shall at the same 
time transmit a copy of the notification letter and the individual's 
response to the Office of Hearings and Appeals.
    (b) Upon receipt of the hearing request from the Manager, the 
Director, Office of Hearings and Appeals, shall appoint, as soon as 
practicable, an Administrative Judge.
    (c) Immediately upon appointment, the Administrative Judge shall 
notify the individual and DOE Counsel of his/her identity and the 
address to which all further correspondence should be sent.
    (d) The Administrative Judge shall have all powers necessary to 
regulate the conduct of proceedings under this part, including, but not 
limited to, establishing a list of persons to receive service of 
papers, issuing subpoenas for witnesses to attend the hearing or for 
the production of specific documents or physical evidence, 
administering oaths and affirmations, ruling upon motions, receiving 
evidence, regulating the course of the hearing, disposing of procedural 
requests or similar matters, and taking other actions consistent with 
the regulations in this part. Requests for subpoenas shall be liberally 
granted except where the Administrative Judge finds that the issuance 
of subpoenas would result in evidence or testimony that is repetitious, 
incompetent, irrelevant, or immaterial to the issues in the case. The 
Administrative Judge may take sworn testimony, sequester witnesses, and 
control the dissemination or reproduction of any record or testimony 
taken pursuant to this part, including correspondence, or other 
relevant records or physical evidence including, but not limited to, 
information retained in computerized or other automated systems in 
possession of the subpoenaed person.
    (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. Hearings will normally be held at 
or near the relevant DOE facility, unless the Administrative Judge 
determines that another location would be more appropriate. Normally 
the location for the hearing will be selected for the convenience of 
all participants. 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 
will usually be conducted by telephone.
    (g) Hearings shall commence within 60 calendar days from the date 
the individual's request for a hearing is

[[Page 22929]]

received by the Office of Hearings and Appeals. Any extension of the 
hearing date past 60 calendar days from the date the request for a 
hearing is received by the Office of Hearings and Appeals shall be 
decided by the Director, Office of Hearings and Appeals.


Sec.  710.26  Conduct of hearings.

    (a) In all hearings conducted under this part, the individual shall 
have the right to be represented by a person of his/her own choosing, 
at the individual's own expense. The individual is responsible for 
producing witnesses in his/her own behalf, including requesting the 
issuance of subpoenas, if necessary, or presenting testimonial, 
documentary, or physical evidence before the Administrative Judge to 
support the individual's defense to the derogatory information 
contained in the notification letter. With the exception of procedural 
or scheduling matters, the Administrative Judge is prohibited from 
initiating or otherwise engaging in ex parte discussions about the case 
during the pendency of proceedings under this part.
    (b) Unless the Administrative Judge finds good cause for deferring 
issuance of a decision, in the event that the individual unduly delays 
the hearing, such as by failure to meet deadlines set by the 
Administrative Judge, the record shall be closed, and an initial 
decision shall be made by the Manager on the basis of the record in the 
case per Sec.  710.22(a)(3).
    (c) Hearings shall be open only to DOE Counsel, duly authorized 
representatives of DOE, the individual and the individual's counsel or 
other representatives, and such other persons as may be authorized by 
the Administrative Judge. Unless otherwise ordered by the 
Administrative Judge, witnesses shall testify in the presence of the 
individual but not in the presence of other witnesses.
    (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. 
The proponent of a witness shall conduct the direct examination of that 
witness. All witnesses shall be subject to cross-examination, except as 
provided in Sec.  710.26(l). Whenever reasonably possible, testimony 
shall be given in person.
    (e) The Administrative Judge may ask the witnesses any questions 
which the Administrative Judge deems appropriate to assure the fullest 
possible disclosure of relevant and material facts.
    (f) During the course of the hearing, the Administrative Judge 
shall rule on all objections raised.
    (g) In the event it appears during the course of the hearing that 
classified matter may be disclosed, it shall be the duty of the 
Administrative Judge to assure that disclosure is not made to persons 
who are not authorized to receive it, and take other appropriate 
measures.
    (h) Formal rules of evidence shall not apply, but the Federal Rules 
of Evidence may be used as a guide for procedures and principles 
designed to assure production of the most probative evidence available. 
The Administrative Judge shall admit into evidence any matters, either 
oral or written, which are material, relevant, and competent in 
determining issues involved, including the testimony of responsible 
persons concerning the integrity of the individual. In making such 
determinations, the utmost latitude shall be permitted with respect to 
relevancy, materiality, and competency. The Administrative Judge may 
also exclude evidence which is incompetent, immaterial, irrelevant, or 
unduly repetitious. Every reasonable effort shall be made to obtain the 
best evidence available. Subject to Sec. Sec.  710.26(l), 710.26(m), 
710.26(n) and 710.26(o), hearsay evidence may, at the discretion of the 
Administrative Judge and for good cause show, be admitted without 
strict adherence to technical rules of admissibility and shall be 
accorded such weight as the Administrative Judge deems appropriate.
    (i) Testimony of the individual and witnesses shall be given under 
oath or affirmation. Attention of the individual and each witness shall 
be directed to 18 U.S.C. 1001 and 18 U.S.C. 1621.
    (j) The Administrative Judge shall endeavor to obtain all the facts 
that are reasonably available in order to arrive at a decision. If, 
prior to or during the proceedings, in the opinion of the 
Administrative Judge, the derogatory information in the notification 
letter is not sufficient to address all matters into which inquiry 
should be directed, the Administrative Judge may recommend to the 
Manager concerned that, in order to give more adequate notice to the 
individual, the notification letter should be amended. Any amendment 
shall be made with the concurrence of the local Office of Chief Counsel 
or the Office of the General Counsel in Headquarters cases. If, in the 
opinion of the Administrative Judge, the circumstances of such 
amendment may involve undue hardship to the individual because of 
limited time to respond to the new derogatory information in the 
notification letter, an appropriate adjournment shall be granted upon 
the request of the individual.
    (k) A written or oral statement of a person relating to the 
characterization in the notification letter of any organization or 
person other than the individual may be received and considered by the 
Administrative Judge without affording the individual an opportunity to 
cross-examine the person making the statement on matters relating to 
the characterization of such organization or person, provided the 
individual is given notice that such a statement has been received and 
may be considered by the Administrative Judge, and is informed of the 
contents of the statement, provided such notice is not prohibited by 
paragraph (g) of this section.
    (l) Any oral or written statement adverse to the individual 
relating to a controverted issue may be received and considered by the 
Administrative Judge without affording an opportunity for cross-
examination in either of the following circumstances:
    (1) The head of the agency supplying the statement certifies that 
the person who furnished the information is a confidential informant 
who has been engaged in obtaining intelligence information for the 
Government and that disclosure of the informant's identity would be 
substantially harmful to the national interest;
    (2) The Secretary or the Secretary's special designee for that 
particular purpose has preliminarily determined, after considering 
information furnished by the investigative agency as to the reliability 
of the person and the accuracy of the statement concerned, that:
    (i) The statement concerned appears to be reliable and material; 
and
    (ii) Failure of the Administrative Judge to receive and consider 
such statement would, in view of the access sought to classified matter 
or special nuclear material, be substantially harmful to the national 
security and that the person who furnished the information cannot 
appear to testify:
    (A) Due to death, severe illness, or similar cause, in which case 
the identity of the person and the information to be considered shall 
be made available to the individual, or

[[Page 22930]]

    (B) Due to some other specified cause determined by the Secretary 
to be good and sufficient.
    (m) Whenever procedures under paragraph (l) of this section are 
used:
    (1) The individual shall be given a summary or description of the 
information which shall be as comprehensive and detailed as the 
national interest permits, and
    (2) Appropriate consideration shall be accorded to the fact that 
the individual did not have an opportunity to cross-examine such 
person(s).
    (n) Records compiled in the regular course of business, or other 
evidence other than investigative reports obtained by DOE, may be 
received and considered by the Administrative Judge subject to rebuttal 
without authenticating witnesses, provided that such information has 
been furnished to DOE by an investigative agency pursuant to its 
responsibilities in connection with assisting the Secretary to 
safeguard classified matter or special nuclear material.
    (o) Records compiled in the regular course of business, or other 
evidence other than investigative reports, relating to a controverted 
issue which, because they are classified, may not be inspected by the 
individual, may be received and considered by the Administrative Judge, 
provided that:
    (1) The Secretary or the Secretary's special designee for that 
particular purpose has made a preliminary determination that such 
evidence appears to be material;
    (2) The Secretary or the Secretary's special designee for that 
particular purpose has made a determination that failure to receive and 
consider such evidence would, in view of the access sought to 
classified matter or special nuclear material, be substantially harmful 
to the national security; and
    (3) To the extent that national security permits, a summary or 
description of such evidence is made available to the individual. In 
every such case, information as to the authenticity and accuracy of 
such evidence furnished by the investigative agency shall be 
considered.
    (p) The Administrative Judge may request the Local Director of 
Security to arrange for additional investigation on any points which 
are material to the deliberations of the Administrative Judge and which 
the Administrative Judge believes need further investigation or 
clarification. In this event, the Administrative Judge shall set forth 
in writing those issues upon which more evidence is requested, 
identifying where possible persons or sources from which the evidence 
should be sought. The Local Director of Security shall make every 
effort through appropriate sources to obtain additional information 
upon the matters indicated by the Administrative Judge.
    (q) A written transcript of the entire hearing shall be made and, 
except for portions containing classified matter, a copy of such 
transcript shall be furnished to the individual without cost.
    (r) Whenever information is made a part of the record under the 
exceptions authorized by paragraphs (l) or (o) of this section, the 
record shall contain certificates evidencing that the determinations 
required therein have been made.


Sec.  710.27  Administrative Judge's decision.

    (a) The Administrative Judge shall carefully consider the entire 
record of the proceeding and shall render a decision, within 30 
calendar days of the receipt of the hearing transcript, as to whether 
granting or restoring the individual's access authorization would not 
endanger the common defense and security and would be clearly 
consistent with the national interest. In resolving a question 
concerning the eligibility of an individual for access authorization 
under these procedures, the Administrative Judge shall consider the 
factors stated in Sec.  710.7(c) to determine whether the findings will 
be favorable or unfavorable.
    (b) In reaching the findings, the Administrative Judge shall 
consider the demeanor of the witnesses who have testified at the 
hearing, the probability or likelihood of the truth of their testimony, 
their credibility, and the authenticity and accuracy of documentary 
evidence, or lack of evidence on any material points in issue. If the 
individual is, or may be, handicapped by the non-disclosure to the 
individual of undisclosed information or by lack of opportunity to 
cross-examine confidential informants, the Administrative Judge shall 
take that fact into consideration. The possible adverse impact of the 
loss of the individual's access authorization upon the DOE program in 
which the individual works shall not be considered by the 
Administrative Judge.
    (c) The Administrative Judge shall make specific findings based 
upon the record as to the validity of each instance of derogatory 
information contained in the notification letter and the significance 
which the Administrative Judge attaches to it. These findings shall be 
supported fully by a statement of reasons which constitute the basis 
for such findings.
    (d) The Administrative Judge's decision shall be based on the 
Administrative Judge's findings of fact. If, after considering all of 
the factors set forth in Sec.  710.7(c) in light of the Adjudicative 
Guidelines, the Administrative Judge is of the opinion that it will not 
endanger the common defense and security and will be clearly consistent 
with the national interest to grant or reinstate access authorization 
for the individual, the Administrative Judge shall render a favorable 
decision; otherwise, the Administrative Judge shall render an 
unfavorable decision. Within 15 calendar days of the Administrative 
Judge's written decision, the Administrative Judge shall provide copies 
of the decision and the administrative record to the Manager and the 
Director.


Sec.  710.28  Action on the Administrative Judge's decision.

    (a) Within 10 calendar days of receipt of the decision and the 
administrative record, unless an extension of time is granted by the 
Director, the Manager shall:
    (1) Notify the individual in writing of the Administrative Judge's 
decision;
    (2) Advise the individual in writing of the appeal procedures 
available to the individual in paragraph (b) of this section if the 
decision is unfavorable to the individual;
    (3) Advise the individual in writing of the appeal procedures 
available to the Manager and the Director in paragraph (c) of this 
section if the decision is favorable to the individual; and
    (4) Provide the individual and/or his/her counsel or other 
representative a copy of the Administrative Judge's decision and the 
administrative record.
    (b) If the Administrative Judge's decision is unfavorable to the 
individual:
    (1) The individual may file with the Director a written request for 
further review of the decision by the Appeal Panel along with a 
statement required by paragraph (e) of this section within 30 calendar 
days of the individual's receipt of the Manager's notice;
    (2) The Director may, for good cause shown, extend the time for 
filing a request for further review of the decision by the Appeal Panel 
at the written request of the individual, provided the request for an 
extension of time is filed by the individual within 30 calendar days of 
receipt of the Manager's notice;
    (3) The Administrative Judge's decision shall be final and not 
subject to review or appeal if the individual does not:

[[Page 22931]]

    (i) File a written request for a review of the decision by the 
Appeal Panel or for an extension of time to file a written request for 
review of the decision by the Appeal Panel in accordance with 
paragraphs (b)(1) or (b)(2) of this section, or
    (ii) File a written request for review of the decision by the 
Appeal Panel after having been granted an extension of time to do so.
    (c) If the Administrative Judge's decision is favorable to the 
individual:
    (1) The Manager, with the concurrence of the Director, shall grant 
or reinstate the individual's access authorization within 30 calendar 
days of the Administrative Judge's decision becoming final, or
    (2) The Manager or the Director may file a written request with the 
Deputy Associate Under Secretary for Environment, Health, Safety and 
Security for review of the decision by the Appeal Panel, along with 
statement required by paragraph (e) of this section, within 30 calendar 
days of the individual's receipt of the Manager's notice.
    (3) The Deputy Associate Under Secretary for Environment, Health, 
Safety and Security may, for good cause shown, extend the time for 
filing a request for review of the decision by the Appeal Panel at the 
request of the Manager or Director, provided the request for an 
extension of time is filed by the Manager or Director within 30 
calendar days of the receipt of the Manager's notice;
    (4) The Administrative Judge's decision shall constitute final 
action, and not be subject to review or appeal, if the Manager or 
Director does not:
    (i) File a written request for review of the decision by the Appeal 
Panel or for an extension of time to file a written request for review 
of the decision by the Appeal Panel in accordance with paragraphs 
(c)(2) or (c)(3) of this section, or
    (ii) File a written request for a review of the decision by the 
Appeal Panel after having been granted an extension of time to do so.
    (d) A copy of any request for review of the individual's case by 
the Appeal Panel filed by the Manager or the Director shall be provided 
to the individual by the Manager.
    (e) The party filing a request for review by the Appeal Panel shall 
include with the request a statement identifying the issues upon which 
the appeal is based. A copy of the request and statement shall be 
served on the other party, who may file a response with the Appeal 
Panel within 20 calendar days of receipt of the statement.


Sec.  710.29  Final appeal process.

    (a) The Appeal Panel shall be convened by the Deputy Associate 
Under Secretary for Environment, Health, Safety and Security to review 
and render a final decision in access authorization eligibility cases 
referred by the individual, the Manager, or the Director in accordance 
with Sec. Sec.  710.22 or 710.28.
    (b) The Appeal Panel shall consist of three members, each of whom 
shall be a DOE Headquarters employee, a United States citizen, and hold 
a DOE Q access authorization. The Deputy Associate Under Secretary for 
Environment, Health, Safety and Security shall serve as a permanent 
member of the Appeal Panel and as the Appeal Panel Chair. The second 
member of the Appeal Panel shall be a DOE attorney designated by the 
General Counsel. The head of the DOE Headquarters element which has 
cognizance over the individual whose access authorization eligibility 
is being considered may designate an employee to act as the third 
member on the Appeal Panel; otherwise, the third member shall be 
designated by the Chair. Only one member of the Appeal Panel shall be 
from the security field.
    (c) In filing a written request for a review by the Appeal Panel in 
accordance with Sec. Sec.  710.22 and 710.28, the individual, or his/
her counsel or other representative, shall identify the issues upon 
which the appeal is based. The written request, and any response, shall 
be made a part of the administrative record. The Director shall provide 
staff support to the Appeal Panel as requested by the Chair.
    (d) Within 15 calendar days of the receipt of the request for 
review of a case by the Appeal Panel, the Chair shall arrange for the 
Appeal Panel members to convene and review the administrative record or 
provide a copy of the administrative record to the Appeal Panel members 
for their independent review.
    (e) The Appeal Panel shall consider only that evidence and 
information in the administrative record at the time of the Manager's 
or the Administrative Judge's initial decision.
    (f) Within 45 calendar days of receipt of the administrative 
record, the Appeal Panel shall render a final decision in the case. If 
a majority of the Appeal Panel members determine that it will not 
endanger the common defense and security and will be clearly consistent 
with the national interest, the Chair shall grant or reinstate the 
individual's access authorization; otherwise, the Chair shall deny or 
revoke the individual's access authorization. The Appeal Panel's 
written decision shall be made a part of the administrative record and 
is not subject to further review or appeal.
    (g) The Chair, through the Director, shall inform the individual in 
writing, as well as the individual's counsel or other representative, 
of the Appeal Panel's final decision. A copy of the correspondence 
shall also be provided to the other panel members and the Manager.


Sec.  710.30  Action by the Secretary.

    (a) Whenever an individual has not been afforded an opportunity to 
cross-examine witnesses who have furnished information adverse to the 
individual under the provisions of Sec. Sec.  710.26(l) or (o), the 
Secretary may issue a final decision to deny or revoke access 
authorization for the individual after personally reviewing the 
administrative record and any additional material provided by the 
Chair. The Secretary's authority may, in accordance with applicable 
provisions of Executive Order 12968, be delegated to the Deputy 
Secretary where the effected individual is a Federal employee. The 
Secretary's authority, in accordance with applicable provisions of 
Executive Order 10865, may not be delegated where the effected 
individual is a contractor employee. This authority may be exercised 
only when the Secretary determines that the circumstances described in 
Sec.  710.26(l) or (o) are present, and such determination shall be 
final and not subject to review or appeal.
    (b) Whenever the Secretary issues a final decision as to an 
individual's access authorization eligibility, the individual and other 
concerned parties shall be notified in writing by the Chair of that 
decision and of the Secretary's findings with respect to each instance 
of derogatory information contained in the notification letter and each 
substantial issue identified in the statement in support of the request 
for review to the extent allowed by the national security.
    (c) Nothing contained in these procedures shall be deemed to limit 
or affect the responsibility and powers of the Secretary to issue 
subpoenas or to deny or revoke access to classified matter or special 
nuclear material.


Sec.  710.31  Reconsideration of access eligibility.

    (a) If, pursuant to the procedures set forth in Sec. Sec.  710.20 
through 710.30 the Manager, Administrative Judge, Appeal Panel, or the 
Secretary has made a decision granting or reinstating an individual's 
access authorization,

[[Page 22932]]

eligibility shall be reconsidered as a new administrative review under 
the procedures set forth in this part when previously unconsidered 
derogatory information is identified, or the individual violates a 
commitment upon which the DOE previously relied to favorably resolve an 
issue of access authorization eligibility.
    (b) If, pursuant to the procedures set forth in Sec. Sec.  710.20 
through 710.31, the Manager, Administrative Judge, Appeal Panel, or the 
Secretary has made a decision denying or revoking the individual's 
access authorization, eligibility may be reconsidered only when the 
individual so requests in writing, when there is a bona fide offer of 
employment requiring access authorization, and when there is either 
material and relevant new evidence which the individual and the 
individual's representatives were without fault in failing to present 
earlier, or convincing evidence of rehabilitation or reformation.
    (1) A request for reconsideration shall be accepted when a minimum 
of one year has elapsed since the date of the Manager's, Administrative 
Judge's, Appeal Panel's or Secretary's final decision, or of a previous 
denial of reconsideration. Requests must be submitted in writing to the 
Deputy Associate Under Secretary for Environment, Health, Safety and 
Security, and must include an affidavit setting forth in detail the new 
evidence or evidence of rehabilitation or reformation.
    (2) If the Deputy Associate Under Secretary for Environment, 
Health, Safety and Security approves the request for reconsideration of 
an individual's access authorization eligibility, he/she shall so 
notify the individual, and shall direct the Manager to take appropriate 
actions to determine whether the individual is eligible for access 
authorization.
    (3) If the Deputy Associate Under Secretary for Environment, 
Health, Safety and Security denies the request for reconsideration of 
an individual's access authorization eligibility, he/she shall so 
notify the individual in writing. Such a denial is final and not 
subject to review or appeal.
    (4) If, pursuant to the provisions of Sec.  710.31(2), the Manager 
determines the individual is eligible for access authorization, the 
Manager shall grant access authorization.
    (5) If, pursuant to the provisions of Sec.  710.31(2), 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 paragraphs (f) or (g) 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 (d) 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.

Subpart D--Miscellaneous


Sec.  710.32  Terminations.

    (a) If the individual is no longer an applicant for access 
authorization or no longer requires access authorization, the 
procedures of this part shall be terminated without a final decision as 
to the individual's access authorization eligibility, unless a final 
decision has been rendered prior to the DOE being notified of the 
change in the individual's pending access authorization status. Where 
the procedures of this part have been terminated pursuant to this 
paragraph after an unfavorable initial agency decision as to the 
individual's access authorization eligibility has been rendered, any 
subsequent request for access authorization for the individual will be 
processed as a request for a review of the initial agency decision by 
the Appeal Panel and a final agency decision will be rendered pursuant 
to Sec.  710.29, unless a minimum of one year has elapsed since the 
date of the initial agency decision.
    (b) With regard to applicants (individuals for whom DOE has not yet 
approved access authorization), DOE may administratively terminate 
processing an application for access authorization under the following 
circumstances:
    (1) If the applicant is currently the subject of criminal 
proceedings for a felony offense or an offense that is punishable by a 
term of imprisonment of one year or longer, or is awaiting or serving a 
form of probation, suspended or deferred sentencing, or parole. Once 
all judicial proceedings on the criminal charges have been finally 
resolved, and the term (if any) of imprisonment, probation, or parole 
has been completed, DOE processing of a request for access 
authorization shall resume upon receipt by DOE of a written request 
therefor, provided that the individual has a bona fide offer of 
employment requiring access authorization.
    (2) If sufficient information about the individual's background 
cannot be obtained to meet the investigative scope and extent 
requirements for the access authorization requested.
    (c) If an individual believes that the provisions of paragraph (b) 
of this section have been inappropriately applied, a written appeal may 
be filed with the Director within 30 calendar days of the date the 
individual was notified of the action. The Director shall act on the 
written appeal as described in Sec.  710.6(c).


Sec.  710.33  Time frames.

    Statements of time established for processing aspects of a case 
under this part are the agency's desired time frames in implementing 
the procedures set forth in this part. However, failure to meet the 
time frames shall have no impact upon the final disposition of an 
access authorization by a Manager, Administrative Judge, the Appeal 
Panel, or the Secretary, and shall confer no procedural or substantive 
rights upon an individual whose access authorization eligibility is 
being considered.


Sec.  710.34  Acting officials.

    Except for the Secretary, the responsibilities and authorities 
conferred in this part may be exercised by persons who have been 
designated in writing as acting for, or in the temporary capacity of, 
the following DOE positions: The Local Director of Security; the 
Manager; the Director, or the General Counsel. The responsibilities and 
authorities of the Deputy Associate Under Secretary for Environment, 
Health, Safety and Security may be exercised by persons in senior 
security-related positions within the Office of Environment, Health, 
Safety and Security who have been designated in writing as acting for, 
or in the temporary capacity of, the Deputy Associate Under Secretary 
for Environment, Health, Safety and Security, with the approval of the 
Associate Under Secretary for Environment, Health, Safety and Security.

Appendix A--Adjudicative Guidelines for Determining Eligibility for 
Access to Classified Information (December 30, 2005)

    1. Introduction. The following adjudicative guidelines are 
established for all U.S. government civilian and military personnel, 
consultants, contractors, employees of contractors, licensees, 
certificate holders or

[[Page 22933]]

grantees and their employees and other individuals who require 
access to classified information. They apply to persons being 
considered for initial or continued eligibility for access to 
classified information, to include sensitive compartmented 
information and special access programs, and are to be used by 
government departments and agencies in all final clearance 
determinations. Government departments and agencies may also choose 
to apply these guidelines to analogous situations regarding persons 
being considered for access to other types of protected information.
    Decisions regarding eligibility for access to classified 
information take into account factors that could cause a conflict of 
interest and place a person in the position of having to choose 
between his or her commitment to the United States, including the 
commitment to protect classified information, and any other 
compelling loyalty. Access decisions also take into account a 
person's reliability, trustworthiness and ability to protect 
classified information. No coercive policing could replace the self-
discipline and integrity of the person entrusted with the nation's 
secrets as the most effective means of protecting them. When a 
person's life history shows evidence of unreliability or 
untrustworthiness, questions arise whether the person can be relied 
on and trusted to exercise the responsibility necessary for working 
in a secure environment where protecting classified information is 
paramount.
    2. The Adjudicative Process.
    (a) The adjudicative process is an examination of a sufficient 
period of a person's life to make an affirmative determination that 
the person is an acceptable security risk. Eligibility for access to 
classified information is predicated upon the individual meeting 
these personnel security guidelines. The adjudication process is the 
careful weighing of a number of variables known as the whole-person 
concept. Available, reliable information about the person, past and 
present, favorable and unfavorable, should be considered in reaching 
a determination. In evaluating the relevance of an individual's 
conduct, the adjudicator should consider the following factors:
    (1) The nature, extent, and seriousness of the conduct;
    (2) The circumstances surrounding the conduct, to include 
knowledgeable participation;
    (3) The frequency and recency of the conduct;
    (4) The individual's age and maturity at the time of the 
conduct;
    (5) The extent to which participation is voluntary;
    (6) The presence or absence of rehabilitation and other 
permanent behavioral changes;
    (7) The motivation for the conduct;
    (8) The potential for pressure, coercion, exploitation, or 
duress; and
    (9) The likelihood of continuation or recurrence.
    (b) Each case must be judged on its own merits, and final 
determination remains the responsibility of the specific department 
or agency. Any doubt concerning personnel being considered for 
access to classified information will be resolved in favor of the 
national security.
    (c) The ability to develop specific thresholds for action under 
these guidelines is limited by the nature and complexity of human 
behavior. The ultimate determination of whether the granting or 
continuing of eligibility for a security clearance is clearly 
consistent with the interests of national security must be an 
overall common sense judgment based upon careful consideration of 
the following guidelines, each of which is to be evaluated in the 
context of the whole person.
    (1) GUIDELINE A: Allegiance to the United States;
    (2) GUIDELINE B: Foreign Influence;
    (3) GUIDELINE C: Foreign Preference;
    (4) GUIDELINE D: Sexual Behavior;
    (5) GUIDELINE E: Personal Conduct;
    (6) GUIDELINE F: Financial Considerations;
    (7) GUIDELINE G: Alcohol Consumption;
    (8) GUIDELINE H: Drug Involvement;
    (9) GUIDELINE I: Psychological Conditions;
    (10) GUIDELINE J: Criminal Conduct;
    (11) GUIDELINE K: Handling Protected Information;
    (12) GUIDELINE L: Outside Activities;
    (13) GUIDELINE M: Use of Information Technology Systems.
    (d) Although adverse information concerning a single criterion 
may not be sufficient for an unfavorable determination, the 
individual may be disqualified if available information reflects a 
recent or recurring pattern of questionable judgment, 
irresponsibility, or emotionally unstable behavior. Notwithstanding 
the whole-person concept, pursuit of further investigation may be 
terminated by an appropriate adjudicative agency in the face of 
reliable, significant, disqualifying, adverse information.
    (e) When information of security concern becomes known about an 
individual who is currently eligible for access to classified 
information, the adjudicator should consider whether the person:
    (1) Voluntarily reported the information;
    (2) Was truthful and complete in responding to questions;
    (3) Sought assistance and followed professional guidance, where 
appropriate;
    (4) Resolved or appears likely to favorably resolve the security 
concern:
    (5) Has demonstrated positive changes in behavior and 
employment;
    (6) Should have his or her access temporarily suspended pending 
final adjudication of the information.
    (f) If after evaluating information of security concern, the 
adjudicator decides that the information is not serious enough to 
warrant a recommendation of disapproval or revocation of the 
security clearance, it may be appropriate to recommend approval with 
a warning that future incidents of a similar nature may result in 
revocation of access.

GUIDELINE A: ALLEGIANCE TO THE UNITED STATES

    3. The Concern. An individual must be of unquestioned allegiance 
to the United States. The willingness to safeguard classified 
information is in doubt if there is any reason to suspect an 
individual's allegiance to the United States.
    4. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Involvement in, support of, training to commit, or advocacy 
of any act of sabotage, espionage, treason, terrorism, or sedition 
against the United States of America;
    (b) Association or sympathy with persons who are attempting to 
commit, or who are committing, any of the above acts;
    (c) Association or sympathy with persons or organizations that 
advocate, threaten, or use force or violence, or use any other 
illegal or unconstitutional means, in an effort to:
    (1) Overthrow or influence the government of the United States 
or any state or local government;
    (2) Prevent Federal, state, or local government personnel from 
performing their official duties;
    (3) Gain retribution for perceived wrongs caused by the Federal, 
state, or local government;
    (4) Prevent others from exercising their rights under the 
Constitution or laws of the United States or of any state.
    5. Conditions that could mitigate security concerns include:
    (a) The individual was unaware of the unlawful aims of the 
individual or organization and severed ties upon learning of these;
    (b) The individual's involvement was only with the lawful or 
humanitarian aspects of such an organization;
    (c) Involvement in the above activities occurred for only a 
short period of time and was attributable to curiosity or academic 
interest;
    (d) The involvement or association with such activities occurred 
under such unusual circumstances, or so much times has elapsed, that 
it is unlikely to recur and does not cast doubt on the individual's 
current reliability, trustworthiness, or loyalty.

GUIDELINE B: FOREIGN INFLUENCE

    6. The Concern. Foreign contacts and interests may be a security 
concern if the individual has divided loyalties or foreign financial 
interests, may be manipulated or induced to help a foreign person, 
group, organization, or government in a way that is not in U.S. 
interests, or is vulnerable to pressure or coercioon by any foreign 
interest. Adjudication under this Guideline can and should consider 
the identity of the foreign country in which the foreign contact or 
financial interest is located, including, but not limited to, such 
considerations as whether the foreign country is known to target 
United States citizens to obtain protected information and/or is 
associated with a risk of terrorism.
    7. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Contact with a foreign family member, business or 
professional associate, friend, or other person who is a citizen of 
or resident in a foreign country if that contact creates a 
heightened risk of foreign exploitation, inducement, manipulation, 
pressure, or coercion;

[[Page 22934]]

    (b) Connections to a foreign person, group, government, or 
country that create a potential conflict of interest between the 
individual's obligation to protect sensitive information or 
technology and the individual's desire to help a foreign person, 
group, or country by providing that information;
    (c) Counterintelligence information, that may be classified, 
indicates that the individual's access to protected information may 
involve unacceptable risk to national security;
    (d) Sharing living quarters with a person or persons, regardless 
of citizenship status, if that relationship creates a heightened 
risk of foreign inducement, manipulation, pressure, or coercion;
    (e) A substantial business, financial, or property interest in a 
foreign country, or in any foreign-owned or foreign-operated 
business, which could subject the individual to heightened risk of 
foreign influence or exploitation;
    (f) Failure to report, when required, association with a foreign 
national;
    (g) Unauthorized association with a suspected or known agent, 
associate, or employee of a foreign intelligence service;
    (h) Indications that representatives or nationals from a foreign 
country are acting to increase the vulnerability of the individual 
to possible future exploitation, inducement, manipulation, pressure, 
or coercion;
    (i) Conduct, especially while traveling outside the U.S., which 
may make the individual vulnerable to exploitation, pressure, or 
coercion by a foreign person, group, government, or country.
    8. Conditions that could mitigate security concerns include:
    (a) The nature of the relationships with foreign persons, the 
country in which these persons are located, or the positions or 
activities of those persons in that country are such that it is 
unlikely the individual will be placed in a position of having to 
choose between the interests of a foreign individual, group, 
organization, or government and the interests of the U.S.;
    (b) There is no conflict of interest, either because the 
individual's sense of loyalty or obligation to the foreign person, 
group, government, or country is so minimal, or the individual has 
such deep and longstanding relationships and loyalties in the U.S., 
that the individual can be expected to resolve any conflict of 
interest in favor of the U.S. interest;
    (c) Contact or communication with foreign citizens is so casual 
and infrequent that there is little likelihood that it could create 
a risk for foreign influence or exploitation;
    (d) The foreign contacts and activities are on U.S. Government 
business or are approved by the cognizant security authority;
    (e) The individual has promptly complied with existing agency 
requirements regarding the reporting of contacts, requests, or 
threats from persons, groups, or organizations from a foreign 
country;
    (f) The value or routine nature of the foreign business, 
financial, or property interests is such that they are unlikely to 
result in a conflict and could not be used effectively to influence, 
manipulate, or pressure the individual.

GUIDELINE C: FOREIGN PREFERENCE

    9. The Concern. When an individual acts in such a way as to 
indicate a preference for a foreign country over the United States, 
then he or she may be prone to provide information or make decisions 
that are harmful to the interests of the United States.
    10. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Exercise of any right, privilege or obligation of foreign 
citizenship after becoming a U.S. citizen or through the foreign 
citizenship of a family member. This includes but is not limited to:
    (1) Possession of a current foreign passport;
    (2) Military service or a willingness to bear arms for a foreign 
country;
    (3) Accepting educational, medical, retirement, social welfare, 
or other such benefits from a foreign country;
    (4) Residence in a foreign country to meet citizenship 
requirements;
    (5) Using foreign citizenship to protect financial or business 
interests in another country;
    (6) Seeking or holding political office in a foreign country;
    (7) Voting in a foreign election;
    (b) Action to acquire or obtain recognition of a foreign 
citizenship by an American citizen;
    (c) Performing or attempting to perform duties, or otherwise 
acting, so as to serve the interests of a foreign person, group, 
organization, or government in conflict with the national security 
interest;
    (d) Any statement or action that shows allegiance to a country 
other than the United States: For example, declaration of intent to 
renounce United States citizenship; renunciation of United States 
citizenship.
    11. Conditions that could mitigate security concerns include:
    (a) Dual citizenship is based solely on parents' citizenship or 
birth in a foreign country;
    (b) The individual has expressed a willingness to renounce dual 
citizenship;
    (c) Exercise of the rights, privileges, or obligations of 
foreign citizenship occurred before the individual became a U.S. 
citizen or when the individual was a minor;
    (d) Use of a foreign passport is approved by the cognizant 
security authority;
    (e) The passport has been destroyed, surrendered to the 
cognizant security authority, or otherwise invalidated;
    (f) The vote in a foreign election was encouraged by the United 
States Government.

GUIDELINE D: SEXUAL BEHAVIOR

    12. The Concern. Sexual behavior that involves a criminal 
offense, indicates a personality or emotional disorder, reflects 
lack of judgment or discretion, or which may subject the individual 
to undue influence or coercion, exploitation, or duress can raise 
questions about an individual's reliability, trustworthiness and 
ability to protect classified information. No adverse inference 
concerning the standards in the Guideline may be raised solely on 
the basis of the sexual orientation of the individual.
    13. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Sexual behavior of a criminal nature, whether or not the 
individual has been prosecuted;
    (b) A pattern of compulsive, self-destructive, or high-risk 
sexual behavior that the person is unable to stop or that may be 
symptomatic of a personality disorder;
    (c) Sexual behavior that causes an individual to be vulnerable 
to coercion, exploitation, or duress;
    (d) Sexual behavior of a public nature and/or that which 
reflects lack of discretion or judgment.
    14. Conditions that could mitigate security concerns include:
    (a) The behavior occurred prior to or during adolescence and 
there is no evidence of subsequent conduct of a similar nature;
    (b) The sexual behavior happened so long ago, so infrequently, 
or under such unusual circumstances, that it is unlikely to recur 
and does not cast doubt on the individual's current reliability, 
trustworthiness, or good judgment;
    (c) The behavior no longer serves as a basis for coercion, 
exploitation, or duress;
    (d) The sexual behavior is strictly private, consensual, and 
discreet.

GUIDELINE E: PERSONAL CONDUCT

    15. The Concern. Conduct involving questionable judgment, lack 
of candor, dishonesty, or unwillingness to comply with rules and 
regulations can raise questions about an individual's reliability, 
trustworthiness and ability to protect classified information. Of 
special interest is any failure to provide truthful and candid 
answers during the security clearance process or any other failure 
to cooperate with the security clearance process.
    The following will normally result in an unfavorable clearance 
action or administrative termination of further processing for 
clearance eligibility:
    (a) Refusal, or failure without reasonable cause, to undergo or 
cooperate with security processing, including but not limited to 
meeting with a security investigator for subject interview, 
completing security forms or releases, and cooperation with medical 
or psychological evaluation;
    (b) Refusal to provide full, frank and truthful answers to 
lawful questions of investigators, security officials, or other 
official representatives in connection with a personnel security or 
trustworthiness determination.
    16. Conditions that could raise a security concern and may be 
disqualifying also include:
    (a) Deliberate omission, concealment, or falsification of 
relevant facts from any personnel security questionnaire, personal 
history statement, or similar form used to conduct investigations, 
determine employment qualifications, award benefits or status, 
determine security clearance eligibility or trustworthiness, or 
award fiduciary responsibilities;
    (b) Deliberately providing false or misleading information 
concerning relevant facts to an employer, investigator, security 
official, competent medical authority, or other official government 
representative;
    (c) Credible adverse information in several adjudicative issue 
areas that is not sufficient

[[Page 22935]]

for an adverse determination under any other single guideline, but 
which, when considered as a whole, supports a whole-person 
assessment of questionable judgment, untrustworthiness, 
unreliability, lack of candor, unwillingness to comply with rules 
and regulations, or other characteristics indicating that the person 
may not properly safeguard protected information;
    (d) Credible adverse information that is not explicitly covered 
under any other guideline and may not be sufficient by itself for an 
adverse determination, but which, when combined with all available 
information supports a whole-person assessment of questionable 
judgment, untrustworthiness, unreliability, lack of candor, 
unwillingness to comply with rules and regulations, or other 
characteristics indicating that the person may not properly 
safeguard protected information. This includes but is not limited to 
consideration of:
    (1) Untrustworthy or unreliable behavior to include breach of 
client confidentiality, release of proprietary information, 
unauthorized release of sensitive corporate or other government 
protected information;
    (2) Disruptive, violent, or other inappropriate behavior in the 
workplace;
    (3) A pattern of dishonesty or rule violations;
    (4) Evidence of significant misuse of Government or other 
employer's time or resources;
    (e) Personal conduct or concealment of information about one's 
conduct, that creates a vulnerability to exploitation, manipulation, 
or duress, such as:
    (1) Engaging in activities which, if known, may affect the 
person's personal, professional, or community standing, or
    (2) While in another country, engaging in any activity that is 
illegal in that country or that is legal in that country but illegal 
in the United States and may serve as a basis for exploitation or 
pressure by the foreign security or intelligence service or other 
group;
    (f) Violation of a written or recorded commitment made by the 
individual to the employer as a condition of employment;
    (g) Association with persons involved in criminal activity.
    17. Conditions that could mitigate security concerns include:
    (a) The individual made prompt, good-faith efforts to correct 
the omission, concealment, or falsification before being confronted 
with the facts;
    (b) The refusal or failure to cooperate, omission, or 
concealment was caused or significantly contributed to by improper 
or inadequate advice of authorized personnel or legal counsel 
advising or instructing the individual specifically concerning the 
security clearance process. Upon being made aware of the requirement 
to cooperate or provide the information, the individual cooperated 
fully and truthfully;
    (c) The offense is so minor, or so much time has passed, or the 
behavior is so infrequent, or it happened under such unique 
circumstances that it is unlikely to recur and does not cast doubt 
on the individual's reliability, trustworthiness, or good judgment;
    (d) The individual has acknowledged the behavior and obtained 
counseling to change the behavior or taken other positive steps to 
alleviate the stressors, circumstances, or factors that caused 
untrustworthy, unreliable, or other inappropriate behavior, and such 
behavior is unlikely to recur;
    (e) The individual has taken positive steps to reduce or 
eliminate vulnerability to exploitation, manipulation, or duress;
    (f) Association with persons involved in criminal activities has 
ceased or occurs under circumstances that do not cast doubt upon the 
individual's reliability, trustworthiness, judgment, or willingness 
to comply with rules and regulations.

GUIDELINE F: FINANCIAL CONSIDERATIONS

    18. The Concern. Failure or inability to live within one's 
means, satisfy debts, and meet financial obligations may indicate 
poor self-control, lack of judgment, or unwillingness to abide by 
rules and regulations, all of which can raise questions about an 
individual's reliability, trustworthiness and ability to protect 
classified information. An individual who is financially 
overextended is at risk of having to engage in illegal acts to 
generate funds. Compulsive gambling is a concern as it may lead to 
financial crimes including espionage. Affluence that cannot be 
explained by known sources of income is also a security concern. It 
may indicate proceeds from financially profitable criminal acts.
    19. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Inability or unwillingness to satisfy debts;
    (b) Indebtedness caused by frivolous or irresponsible spending 
and the absence of any evidence of willingness or intent to pay the 
debt or establish a realistic plan to pay the debt.
    (c) A history of not meeting financial obligations;
    (d) Deceptive or illegal financial practices such as 
embezzlement, employee theft, check fraud, income tax evasion, 
expense account fraud, filing deceptive loan statements, and other 
intentional financial breaches of trust;
    (e) Consistent spending beyond one's means, which may be 
indicated by excessive indebtedness, significant negative cash flow, 
high debt-to-income ratio, and/or other financial analysis;
    (f) Financial problems that are linked to drug abuse, 
alcoholism, gambling problems, or other issues of security concern.
    (g) Failure to file annual Federal, state, or local income tax 
returns as required or the fraudulent filing of the same;
    (h) Unexplained affluence, as shown by a lifestyle or standard 
of living, increase in net worth, or money transfers that cannot be 
explained by subject's known legal sources of income;
    (i) Compulsive or addictive gambling as indicated by an 
unsuccessful attempt to stop gambling, ``chasing losses'' (i.e. 
increasing the bets or returning another day in an effort to get 
even), concealment of gambling losses, borrowing money to fund 
gambling or pay gambling debts, family conflict or other problems 
caused by gambling.
    20. Conditions that could mitigate security concerns include:
    (a) The behavior happened so long ago, was so infrequent, or 
occurred under such circumstances that it is unlikely to recur and 
does not cast doubt on the individual's current reliability, 
trustworthiness, or good judgment;
    (b) The conditions that resulted in the financial problem were 
largely beyond the person's control (e.g. loss of employment, a 
business downturn, unexpected medical emergency, or a death, divorce 
or separation), and the individual acted responsibly under the 
circumstances;
    (c) The person has received or is receiving counseling for the 
problem and/or there are clear indications that the problem is being 
resolved or is under control;
    (d) The individual initiated a good-faith effort to repay 
overdue creditors or otherwise resolve debts;
    (e) The individual has a reasonable basis to dispute the 
legitimacy of the past-due debt which is the cause of the problem 
and provides documented proof to substantiate the basis of the 
dispute or provides evidence of actions to resolve the issue;
    (f) The affluence resulted from a legal source of income.

GUIDELINE G: ALCOHOL CONSUMPTION

    21. The Concern. Excessive alcohol consumption often leads to 
the exercise of questionable judgment or the failure to control 
impulses, and can raise questions about an individual's reliability 
and trustworthiness.
    22. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Alcohol-related incidents away from work, such as driving 
while under the influence, fighting, child or spouse abuse, 
disturbing the peace, or other incidents of concern, regardless of 
whether the individual is diagnosed as an alcohol abuser or alcohol 
dependent;
    (b) Alcohol-related incidents at work, such as reporting for 
work or duty in an intoxicated or impaired condition, or drinking on 
the job, regardless of whether the individual is diagnosed as an 
alcohol abuser or alcohol dependent;
    (c) Habitual or binge consumption of alcohol to the point of 
impaired judgment, regardless of whether the individual is diagnosed 
as an alcohol abuser or alcohol dependent;
    (d) Diagnosis by a duly qualified medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of alcohol abuse 
or alcohol dependence;
    (e) Evaluation of alcohol abuse or alcohol dependence by a 
licensed clinical social worker who is a staff member of a 
recognized alcohol treatment program;
    (f) Relapse after diagnosis of alcohol abuse or dependence and 
completion of an alcohol rehabilitation program;
    (g) Failure to follow any court order regarding alcohol 
education, evaluation, treatment, or abstinence.
    23. Conditions that could mitigate security concerns include:
    (a) So much time has passed, or the behavior was so infrequent, 
or it happened

[[Page 22936]]

under such unusual circumstances that it is unlikely to recur or 
does not cast doubt on the individual's current reliability, 
trustworthiness, or good judgment;
    (b) The individual acknowledges his or her alcoholism or issues 
of alcohol abuse, provides evidence of actions taken to overcome 
this problem, and has established a pattern of abstinence (if 
alcohol dependent) or responsible use (if an alcohol abuser);
    (c) The individual is a current employee who is participating in 
a counseling or treatment program, has no history of previous 
treatment and relapse, and is making satisfactory progress;
    (d) The individual has successfully completed inpatient or 
outpatient counseling or rehabilitation along with any required 
aftercare, has demonstrated a clear and established pattern of 
modified consumption or abstinence in accordance with treatment 
recommendations, such as participation in meetings of Alcoholics 
Anonymous or a similar organization and has received a favorable 
prognosis by a duly qualified medical professional or a licensed 
clinical social worker who is a staff member of a recognized alcohol 
treatment program.

GUIDELINE H: DRUG INVOLVEMENT

    24. The Concern. Use of an illegal drug or misuse of a 
prescription drug can raise questions about an individual's 
reliability and trustworthiness, both because it may impair judgment 
and because it raises questions about a person's ability or 
willingness to comply with laws, rules, and regulations.
    (a) Drugs are defined as mood and behavior altering substances, 
and include:
    (1) Drugs, materials, and other chemical compounds identified 
and listed in the Controlled Substances Act of 1970, as amended 
(e.g., marijuana or cannabis, depressants, narcotics, stimulants, 
and hallucinogens), and
    (2) Inhalants and other similar substances
    (b) Drug abuse is the illegal use of a drug or use of a legal 
drug in a manner that deviates from approved medical direction.
    25. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Any drug abuse (see above definition);
    (b) Testing positive for illegal drug use;
    (c) Illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution; or possession of drug 
paraphernalia;
    (d) Diagnosis by a duly qualified medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of drug abuse or 
drug dependence;
    (e) Evaluation of drug abuse or drug dependence by a licensed 
clinical social worker who is a staff member of a recognized drug 
treatment program;
    (f) Failure to successfully complete a drug treatment program 
prescribed by a duly qualified medical professional;
    (g) Any illegal drug use after being granted a security 
clearance;
    (h) Expressed intent to continue illegal drug use, or failure to 
clearly and convincingly commit to discontinue drug use.
    26. Conditions that could mitigate security concerns include:
    (a) The behavior happened so long ago, was so infrequent, or 
happened under such circumstances that it is unlikely to recur or 
does not cast doubt on the individual's current reliability, 
trustworthiness, or good judgment;
    (b) A demonstrated intent not to abuse any drugs in the future, 
such as:
    (1) Dissociation from drug-using associates and contacts;
    (2) Changing or avoiding the environment where drugs were used;
    (3) An appropriate period of abstinence;
    (4) A signed statement of intent with automatic revocation of 
clearance for any violation;
    (c) Abuse of prescription drugs was after a severe or prolonged 
illness during which these drugs were prescribed, and abuse has 
since ended;
    (d) Satisfactory completion of a prescribed drug treatment 
program, including but not limited to rehabilitation and aftercare 
requirements, without recurrence of abuse, and a favorable prognosis 
by a duly qualified medical professional.

GUIDELINE I: PSYCHOLOGICAL CONDITIONS

    27. The Concern. Certain emotional, mental, and personality 
conditions can impair judgment, reliability, or trustworthiness. A 
formal diagnosis of a disorder is not required for there to be a 
concern under this guideline. A duly qualified mental health 
professional (e.g., clinical psychologist or psychiatrist) employed 
by, or acceptable to and approved by the U.S. Government, should be 
consulted when evaluating potentially disqualifying and mitigating 
information under this guideline. No negative inference concerning 
the standards in this Guideline may be raised solely on the basis of 
seeking mental health counseling.
    28. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Behavior that casts doubt on an individual's judgment, 
reliability, or trustworthiness that is not covered under any other 
guideline, including but not limited to emotionally unstable, 
irresponsible, dysfunctional, violent, paranoid, or bizarre 
behavior;
    (b) An opinion by a duly qualified mental health professional 
that the individual has a condition not covered under any other 
guideline that may impair judgment, reliability, or trustworthiness;
    (c) The individual has failed to follow treatment advice related 
to a diagnosed emotional, mental, or personality condition, e.g. 
failure to take prescribed medication.
    29. Conditions that could mitigate security concerns include:
    (a) The identified condition is readily controllable with 
treatment, and the individual has demonstrated ongoing and 
consistent compliance with the treatment plan;
    (b) The individual has voluntarily entered a counseling or 
treatment program for a condition that is amenable to treatment, and 
the individual is currently receiving counseling or treatment with a 
favorable prognosis by a duly qualified mental health professional;
    (c) Recent opinion by a duly qualified mental health 
professional employed by, or acceptable to and approved by the U.S. 
Government that an individual's previous condition is under control 
or in remission, and has a low probability of recurrence or 
exacerbation;
    (d) The past emotional instability was a temporary condition 
(e.g., one caused by a death, illness, or marital breakup), the 
situation has been resolved, and the individual no longer shows 
indications of emotional instability;
    (e) There is no indication of a current problem.

GUIDELINE J: CRIMINAL CONDUCT

    30. The Concern. Criminal activity creates doubt about a 
person's judgment, reliability and trustworthiness. By its very 
nature, it calls into question a person's ability or willingness to 
comply with laws, rules and regulations.
    31. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) A single serious crime or multiple lesser offenses;
    (b) Discharge or dismissal from the Armed Forces under 
dishonorable conditions;
    (c) Allegation or admission of criminal conduct, regardless of 
whether the person was formally charged, formally prosecuted or 
convicted;
    (d) Individual is currently on parole or probation;
    (e) Violation of parole or probation, or failure to complete a 
court-mandated rehabilitation program.
    32. Conditions that could mitigate security concerns include:
    (a) So much time has elapsed since the criminal behavior 
happened, or it happened under such unusual circumstances that it is 
unlikely to recur or does not cast doubt on the individual's 
reliability, trustworthiness, or good judgment;
    (b) The person was pressured or coerced into committing the act 
and those pressures are no longer present in the person's life;
    (c) Evidence that the person did not commit the offense;
    (d) There is evidence of successful rehabilitation; including 
but not limited to the passage of time without recurrence of 
criminal activity, remorse or restitution, job training or higher 
education, good employment record, or constructive community 
involvement.

GUIDELINE K: HANDLING PROTECTED INFORMATION

    33. The Concern. Deliberate or negligent failure to comply with 
rules and regulations for protecting classified or other sensitive 
information raises doubt about an individual's trustworthiness, 
judgment, reliability, or willingness and ability to safeguard such 
information, and is a serious security concern.
    34. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Deliberate or negligent disclosure of classified or other 
protected information to unauthorized persons, including but not 
limited to personal or business contacts, to the media, or to 
persons present at seminars, meetings, or conferences;

[[Page 22937]]

    (b) Collecting or storing classified or other protected 
information in any unauthorized location;
    (c) Loading, drafting, editing, modifying, storing, 
transmitting, or otherwise handling classified reports, data, or 
other information on any unapproved equipment including but not 
limited to any typewriter, word processor, or computer hardware, 
software, drive, system, gameboard, handheld, ``palm'' or pocket 
device or other adjunct equipment;
    (d) Inappropriate efforts to obtain or view classified or other 
protected information outside one's need to know;
    (e) Copying classified or other protected information in a 
manner designed to conceal or remove classification or other 
document control markings;
    (f) Viewing or downloading information from a secure system when 
the information is beyond the individual's need to know;
    (g) Any failure to comply with rules for the protection of 
classified or other sensitive information;
    (h) Negligence or lax security habits that persist despite 
counseling by management;
    (i) Failure to comply with rules or regulations that results in 
damage to the National Security, regardless of whether it was 
deliberate or negligent.
    35. Conditions that could mitigate security concerns include:
    (a) So much time has elapsed since the behavior, or it happened 
so infrequently or under such unusual circumstances that it is 
unlikely to recur or does not cast doubt on the individual's current 
reliability, trustworthiness, or good judgment;
    (b) The individual responded favorably to counseling or remedial 
security training and now demonstrates a positive attitude toward 
the discharge of security responsibilities;
    (c) The security violations were due to improper or inadequate 
training.

GUIDELINE L: OUTSIDE ACTIVITIES

    36. The Concern. Involvement in certain types of outside 
employment or activities is of security concern if it poses a 
conflict of interest with an individual's security responsibilities 
and could create an increased risk of unauthorized disclosure of 
classified information.
    37. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Any employment or service, whether compensated or volunteer, 
with:
    (1) The government of a foreign country;
    (2) Any foreign national, organization, or other entity;
    (3) A representative of any foreign interest;
    (4) Any foreign, domestic, or international organization or 
person engaged in analysis, discussion, or publication of material 
on intelligence, defense, foreign affairs, or protected technology;
    (b) Failure to report or fully disclose an outside activity when 
this is required.
    38. Conditions that could mitigate security concerns include:
    (a) Evaluation of the outside employment or activity by the 
appropriate security or counterintelligence office indicates that it 
does not pose a conflict with an individual's security 
responsibilities or with the national security interests of the 
United States;
    (b) The individual terminates the employment or discontinued the 
activity upon being notified that it was in conflict with his or her 
security responsibilities.

GUIDELINE M: USE OF INFORMATION TECHNOLOGY SYSTEMS

    39. The Concern. Noncompliance with rules, procedures, 
guidelines or regulations pertaining to information technology 
systems may raise security concerns about an individual's 
reliability and trustworthiness, calling into question the 
willingness or ability to properly protect sensitive systems, 
networks, and information. Information Technology Systems include 
all related computer hardware, software, firmware, and data used for 
the communication, transmission, processing, manipulation, storage, 
or protection of information.
    40. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Illegal or unauthorized entry into any information 
technology system or component thereof;
    (b) Illegal or unauthorized modification, destruction, 
manipulation or denial of access to information, software, firmware, 
or hardware in an information technology system;
    (c) Use of any information technology system to gain 
unauthorized access to another system or to a compartmented area 
within the same system;
    (d) Downloading, storing, or transmitting classified information 
on or to any unauthorized software, hardware, or information 
technology system;
    (e) Unauthorized use of a government or other information 
technology system;
    (f) Introduction, removal, or duplication of hardware, firmware, 
software, or media to or from any information technology system 
without authorization, when prohibited by rules, procedures, 
guidelines or regulations.
    (g) Negligence or lax security habits in handling information 
technology that persist despite counseling by management;
    (h) Any misuse of information technology, whether deliberate or 
negligent, that results in damage to the national security.
    41. Conditions that could mitigate security concerns include:
    (a) So much time has elapsed since the behavior happened, or it 
happened under such unusual circumstances, that it is unlikely to 
recur or does not cast doubt on the individual's reliability, 
trustworthiness, or good judgment;
    (b) The misuse was minor and done only in the interest of 
organizational efficiency and effectiveness, such as letting another 
person use one's password or computer when no other timely 
alternative was readily available;
    (c) The conduct was unintentional or inadvertent and was 
followed by a prompt, good-faith effort to correct the situation and 
by notification of supervisor.

[FR Doc. 2016-08885 Filed 4-18-16; 8:45 am]
 BILLING CODE 6450-01-P