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

<RULE> DEPARTMENT OF ENERGY <CFR>10 CFR Part 710</CFR> <DEPDOC>[EHSS-RM-20-PACNM]</DEPDOC> <RIN>RIN 1992-AA64</RIN> <SUBJECT>Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Health, Safety, and Security, Department of Energy. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Energy (DOE) publishes a final rule to amend its regulations, which set forth the policies and procedures for resolving questions concerning eligibility for DOE access authorizations. The final rule expands the scope of the rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; updates and adds clarity, including by deleting obsolete references throughout the rule for consistency with national policies and DOE practices; and updates references to DOE officials and offices. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective August 22, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Tracy L. Kindle, U.S. Department of Energy, Office of Departmental Personnel Security, (202) 586-3249, <E T="03">officeofdepartmentalpersonnelsecurity@hq.doe.gov,</E> or Christina Pak, Office of the General Counsel, (202) 586-4114, <E T="03">christina.pak@hq.doe.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Introduction and Background</FP> <FP SOURCE="FP-2">II. Summary of Final Rule</FP> <FP SOURCE="FP-2">III. Section-by-Section Analysis</FP> <FP SOURCE="FP-2">IV. Regulatory Review</FP> <FP SOURCE="FP-2">V. Congressional Notification</FP> <FP SOURCE="FP-2">VI. Approval by the Office of the Secretary of Energy</FP> </EXTRACT> <HD SOURCE="HD1">I. Introduction and Background</HD> DOE is publishing this final rule to update and clarify DOE's policies and procedures for determining eligibility for access authorizations. The current rule implements the requirement in Executive Order (E.O.) 12968, <E T="03">Access to Classified Information,</E> that agencies promulgate regulations to provide review proceedings to individuals whose eligibility for access to classified information is denied or revoked. The current rule has not been substantively updated since 2016 (81 FR 71331, Oct. 17, 2016). Since then, as various Executive orders, Security Executive Agent Directives, and the Federal Personnel Vetting Core Doctrine were issued and amended, DOE has gained additional implementation experience under the current rule, so proposed revisions to update and clarify provisions in the rule became appropriate. On January 31, 2024, DOE published a notice of proposed rulemaking (NOPR) to propose the updating of part 710 (89 FR 6025). The NOPR proposed amending the existing rule to: (1) expand the scope of the current rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; (2) incorporate requirements of Security Executive Agent Directive (SEAD) 9, <E T="03">Appellate Review of Retaliation Regarding Security Clearances and Access Determinations,</E> which provides appeal rights to both Federal and contractor employees; (3) update hearing procedures to more accurately reflect current practices; (4) update references to DOE offices and officials to reflect new titles and organizational names; (5) remove appendix A, SEAD 4, <E T="03">National Security Adjudicative Guidelines</E> (June 8, 2017); (6) revise and add definitions for certain terms; and (7) make minor updates to improve clarity and delete obsolete references. DOE had a 30-day comment period inviting public comments on the proposed regulatory changes, and no public comments were received. <HD SOURCE="HD1">II. Summary of Final Rule</HD> As described, DOE's revisions to the existing rule are identical to those proposed in the NOPR. The final rule: (1) expands the scope of the current rule to include individuals applying for or in positions requiring eligibility to hold a sensitive position; (2) incorporates requirements of Security Executive Agent Directive (SEAD) 9, <E T="03">Appellate Review of Retaliation Regarding Security Clearances and Access Determinations,</E> which provides appeal rights to both Federal and contractor employees; (3) updates hearing procedures to more accurately reflect current practices; (4) updates references to DOE offices and officials to reflect new titles and organizational names; (5) removes appendix A, SEAD 4, <E T="03">National Security Adjudicative Guidelines</E> (June 8, 2017); (6) revises and adds definitions for certain terms; and (7) makes minor updates to improve clarity and delete obsolete references. <HD SOURCE="HD1">III. Section-By-Section Analysis</HD> DOE amends title 10 of the Code of Federal Regulations (CFR) part 710 as follows: 1. The part heading of this part is amended to add, “OR ELIGIBILITY TO HOLD A SENSITIVE POSITION” at the end to reflect the expanded scope of the rule, as explained in paragraph 4. 2. The authority section of this part is amended to add a reference to E.O. 13467. Context for this change is explained in paragraph 4. 3. In § 710.1, “Purpose,” § 710.1(a) is amended to add at the end “or eligibility to hold a sensitive position pursuant to Executive Order 13467 (Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information),” to reflect the change to the scope of the rule, as explained in paragraph 4. Section 710.1(b) is amended to add after the citation for E.O. 10865, “Executive Order 13467, 73 FR 38103 (June 30, 2008) as amended” and to add “or successor directive” after the reference to SEAD 4. 4. In § 710.2 “Scope,” a new paragraph is added to make the provisions of the rule applicable to an individual's eligibility to hold a sensitive position. This change clarifies that, except when specifically noted, any provision that applies to determinations of eligibility for access to classified information or special nuclear matter also applies to determinations of eligibility to hold a sensitive position. Conforming changes are also made in § 710.2. In 2017, E.O. 13467, Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information, was amended by E.O. 13764 to make the provisions of E.O. 12968 that apply to eligibility for access to classified information to also apply to eligibility to hold a sensitive position regardless of whether or not that sensitive position requires access to classified information. The term “sensitive position” is defined in E.O. 13467, as amended, to mean any position within or in support of a Federal department or agency, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on national security regardless of whether the occupant has access to classified information and regardless of whether the occupant is an employee, military service member, or contractor. The scope of 10 CFR part 710 applied only to individuals who require eligibility for access to classified information and special nuclear materials and did not address individuals who require eligibility to hold a sensitive position where an access authorization is not a requirement of the position. Expanding the applicability of this rule to individuals applying for or in positions requiring eligibility to hold a sensitive position, who do not require an access authorization, brings DOE into compliance with E.O. 13467, as amended. 5. Existing § 710.3, “Reference,” is deleted in its entirety because appendix A, SEAD 4, <E T="03">National Security Adjudicative Guidelines</E> (June 8, 2017), is removed as explained in paragraph 22. 6. In § 710.4, “Policy,” § 710.4(a) is amended to add at the end “or eligibility to hold a sensitive position,” and § 710.4(b) is amended to add “or eligibility to hold a sensitive position” after “access authorization” to reflect the change to § 710.2 “Scope.” 7. In § 710.5, “Definitions,” there are a number of new or amended definitions. The term “Continuous Vetting” is added to reflect recent national policies under Trusted Workforce (TW) 2.0, as explained in paragraph 8. The term “Local Director of Security” is amended by removing the references to “Chicago” and “Oak Ridge,” and adding “for the Office of Science (SC), the individual designated in writing by the Deputy Director for Operations,” removing the references to Richland and Savannah River and adding “for the Office of Environmental Management (EM), the individual(s) designated in writing by the Senior Advisor, or delegee, adding an “s” after “individual” in the reference to the National Nuclear Security Administration, and adding “Security” in the title of the Naval Nuclear Propulsion Program. These changes reflect new titles and organization name changes since the last changes to this rule. The term “Manager” is amended by removing the references to the Chicago Operations Office, the Oak Ridge Operations Office, and the “Director, Office of Headquarters Security Operations”. “Manager” is changed by adding “(to include the Office of River Protection)” in the reference to “Richland,” adding “for the Office of Environmental Management (EM), the individuals(s) designated in writing by the Senior Advisor, or delegee, adding “for the Office of Science (SC), the individual designated in writing by the Deputy Director for Operations,” adding “Security” in the title of the Naval Nuclear Propulsion Program, and adding “Director, Office of Headquarters Security Vetting” in place of “Director, Office of Headquarters Security Oper ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 49k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━