Human Reliability Program: Technical Amendments

AGENCY:

Department of Energy.

ACTION:

Final rule; technical amendment.

SUMMARY:

The Department of Energy (DOE) is amending its Human Reliability Program (HRP) regulations to eliminate references to obsolete provisions and to update part 712 to reflect organizational changes within the DOE. Today's regulatory amendments do not alter substantive rights or obligations under current law.

DATES:

Effective Date: This rule is effective on September 12, 2013.

FOR FURTHER INFORMATION CONTACT:

Regina G. Cano, Office of Security, Office of Health, Safety and Security, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; Regina.Cano@hq.doe.gov; 301-903-3473.

SUPPLEMENTARY INFORMATION:

I. Introduction

DOE's HRP, is designed to ensure that individuals who occupy positions affording unescorted access to certain nuclear materials, nuclear explosive devices, programs, and facilities where (among other activities) nuclear explosives are tested produced, disassembled and transported, meet the highest standards of reliability, as well as physical and mental suitability, through a system of continuous evaluation of those individuals. The purpose of this continuous evaluation is to identify, in a timely manner, individuals whose judgment may be impaired by physical or mental/personality disorders; the use of illegal drugs or the abuse of legal drugs or other substances; the abuse of alcohol; or any other condition or circumstance that may represent a reliability, safety, or security concern.

A. Accelerated Access Authorization Program

The HRP requires that all individuals who work in positions affording unescorted access to certain materials, facilities, and program be certified as meeting the highest standards of reliability and physical and mental/personality suitability before such access may be granted. As promulgated in 2004 (69 FR 3213; January 23, 2004), the part 712 rule requires in § 712.11(a)(1) that each individual applying for or in an HRP position must have a DOE “Q” access authorization based on a background investigation, “except for security police officers who have been granted an interim “Q” through the Accelerated Access Authorization Program (AAAP).” The AAAP is defined in the current rule as “the DOE program for granting interim access to classified matter and special nuclear material based on a drug test, a National Agency Check, a psychological assessment, a counterintelligence-scope polygraph examination in accordance with 10 CFR part 709, and a review of the applicant's completed “Questionnaire for National Security Positions” (Standard Form 86).”

In 2007, however, the Chief Health, Safety and Security Officer directed the termination of the AAAP as no longer necessary to meet DOE's access authorization needs. This elimination of the AAAP from the process for granting interim access authorizations was formalized on July 21, 2011 by DOE Order 472.2, Personnel Security. DOE is amending the part 712 rule now to eliminate any reference to the obsolete AAAP.

B. Questionnaire for National Security Positions (QNSP), Part 2

One of the four components of the annual HRP recertification process involves a review of an HRP incumbent's personnel security file by the DOE office responsible for the “Q” access authorization held by that individual. As part of this review, the current HRP rule requires the annual submission of the “SF-86, OMB Control No. 3206-0007, Questionnaire for National Security Positions [QNSP], Part 2” (emphasis added) by each HRP incumbent. Under the current rule, the submission of the QNSP Part 2 (1995 QNSP) requires an HRP incumbent to report sensitive personal information the DOE deems relevant for determining continued eligibility for a “Q” access authorization.

In July 2008, however, OPM revised the QNSP, both structurally and substantively, and the new QNSP (2008 QNSP) was issued a new OMB control number. Specifically, in addition to eliminating the former two-part structure of the 1995 version, the 2008 QNSP differs from the 1995 version as to what is reportable. Based on these substantive differences and the change to the OMB control number, DOE no longer collects information from the public using the version of the QNSP referenced in the current rule. Therefore, DOE is amending the rule to eliminate the requirement for submission of the SF-86, OMB Control No. 3206-0007, QNSP Part 2.

C. Internal Agency Responsibilities

DOE is amending part 712 to reflect recent organizational changes within DOE. Under current regulations, the Director, Office of Policy, within the Office of Health, Safety and Security (HSS) is responsible for HRP policy. The Chief Health, Safety and Security Officer has transferred the responsibility for HRP policy to the Director, Office of Security within HSS. Therefore, this amendment replaces all references to the former “Director, Office of Policy” with “Director, Office of Security, or designee.”

In addition, the definition of “Manager” in the current rule does not reflect recent changes within DOE's organizational structure. Part 712 defines “Manager” to mean “the Manager of the Chicago, Idaho, Oak Ridge, Richland, and Savannah River Operations Offices; Manager of the Pittsburgh Naval Reactors Office and the Schenectady Naval Reactors Office; Site Office Managers for Livermore, Los Alamos, Sandia, Y-12, Nevada, Pantex, Kansas City, and Savannah River; Director of the Service Center, Albuquerque; Assistant Deputy Administrator for the Office of Secure Transportation, Albuquerque; and for the Washington, DC area, the Deputy Chief for Operations, Office of HSS.” At this time, the Managers of the Chicago Operations Office; the Pittsburgh and Schenectady Naval Reactors Offices; Site Office Managers for the National Nuclear Security Administration (NNSA) Savannah River, Y-12 and Pantex sites; the Director of the NNSA Service Center; and the Deputy Chief for Operations no longer have HRP management responsibilities under part 712 or the named offices have been eliminated as a result of reorganization. In addition, a number of site-level DOE or NNSA line-management officials have been assigned HRP “Manager” authorities, but are not listed in the definition of “Manager.”

DOE has decided to substitute the following definition of “Manager” for the current listing in § 712.3: “Manager means the senior Federal line manager at a departmental site or Federal office with HRP-designated positions.” This revised definition in no way changes the actual HRP authorities of the senior Federal line management officials, who otherwise would be listed if the current paradigm were continued. On the other hand, such a functional definition should eliminate the need in future for technical amendments that merely reflect changed nomenclature or the removal of any HRP responsibilities at a site or within a program management office.

II. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

Today's regulatory action has been determined not to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the OMB Office of Information and Regulatory Affairs.

DOE has also reviewed this rule 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 today's rule 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 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 to ensure that the potential impacts of its draft rules on small entities are properly considered during the rulemaking process (68 FR 7990, February 19, 2003), and has made them available on the Office of the General Counsel's Web site: http://www.gc.doe.gov.

The regulatory changes in this notice of final rulemaking are technical amendments to remove references to a program that no longer exists and to a form that is no longer in use, and to conform references to position descriptions that relate solely to internal agency organization, management or personnel, and as such, are not subject to the requirement for a general notice of proposed rulemaking under the Administrative Procedure Act (5 U.S.C. 553). Consequently, this rulemaking is exempt from the requirements of the Regulatory Flexibility Act.

C. Review Under the Paperwork Reduction Act

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

D. Review Under the National Environmental Policy Act

DOE has concluded that promulgation of this rule falls into a class of actions that would not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, this rule amends existing regulations without changing the environmental effect of the regulations being amended, and, therefore, is covered under the Categorical Exclusion in paragraph A5 of Appendix A to subpart D, 10 CFR part 1021. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

E. Review Under Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined today's rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

F. 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 Federal 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. 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 final rule meets the relevant standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector. DOE has determined that today's regulatory action 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 that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

I. 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 guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

J. Review Under Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to 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. Today's regulatory action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Administrative Procedure Act

The regulatory changes in this notice of final rulemaking consist of technical amendments to remove references a program that no longer exists and to a form that is no longer in use, and to conform references to position descriptions that relate solely to internal agency organization, management or personnel. As such, pursuant to 5 U.S.C. 553(a)(2), this rule is not subject to the rulemaking requirements of the Administrative Procedure Act, including the requirements to provide prior notice and an opportunity for public comment and a 30-day delay in effective date.

L. Congressional Notification

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 712

• Administrative practice and procedure
• Alcohol abuse
• Classified information
• Drug abuse
• Government contracts
• Government employees
• Health
• Occupational safety and health
• Radiation protection
• Security measures

For the reasons set forth in the preamble, DOE amends part 712 of chapter III, title 10, Code of Federal Regulations, as set forth below:

PART 712—HUMAN RELIABILITY PROGRAM

1. The authority citation for part 712 continues to read as follows:

Authority: 42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-5815; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O. 10450, 3 CFR 1949-1953 Comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as amended; 3 CFR Chap. IV.

2. Section 712.3 is amended by:

a. Removing the definition of “ Accelerated Access Authorization Program.”

b. Revising the definition of “ Manager” to read as follows:

3. Revise § 712.11(a)(1) and (2) to read as follows:

4. Sections 712.12(e) and 712.12(f)(1) are amended by removing “Policy” after “Office of” and adding in its place “Security, or designee.”