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.

Proposed Rules Federal Register

6025 

Vol. 89, No. 21 

Wednesday, January 31, 2024 

DEPARTMENT OF ENERGY 

10 CFR Part 710 

[EHSS–RM–20–PACNM] 

RIN 1992–AA64 

Procedures for Determining Eligibility 

for Access to Classified Matter or 

Special Nuclear Material 

AGENCY: Office of Health, Safety, and 

Security. 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 

authorizations. The proposed revisions 

would: expand the scope of the current 

rule to include individuals applying for 

or in positions requiring eligibility to 

hold a sensitive position; update and 

add clarity, including by deleting 

obsolete references, throughout the rule 

for consistency with national policies 

and DOE practices; and update 

references to DOE officials and offices. 

DATES: Written comments on this 

proposed rule must be received on or 

before March 1, 2024. 

ADDRESSES: You may submit comments, 

identified by ‘‘Determining Eligibility 

for Access and RIN 1992–AA64,’’ by any 

of the following methods (comments by 

email are encouraged): 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email to: OfficeofDepartmental

PersonnelSecurity@hq.doe.gov. Include 

Determining Eligibility for Access and 

RIN 1992–AA64 in the subject line of 

the message. 

• Mail to: U.S. Department of Energy, 

Office of Departmental Personnel 

Security, EHSS–53, 1000 Independence 

Avenue SW, Washington, DC 20585. 

FOR FURTHER INFORMATION CONTACT: 

Tracy L. Kindle, U.S. Department of 

Energy, Office of Departmental 

Personnel Security, (202) 586–3249, 

officeofdepartmentalpersonnelsecurity@

hq.doe.gov, or Christina Pak, Office of 

the General Counsel, (202) 586–4114, 

christina.pak@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background and Summary 

II. Section-by-Section Description of 

Proposed Changes 

III. Regulatory Review 

I. Background and Summary 

DOE is publishing this notice of 

proposed rulemaking in order 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, Access to 

Classified Information, 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 national policies were issued 

and amended and DOE has gained 

additional implementation experience 

under the current rule, so proposed 

revisions to update and clarify 

provisions in the rule are appropriate. 

The proposed revisions would: (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, Appellate 

Review of Retaliation Regarding 

Security Clearances and Access 

Determinations, 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, National 

Security Adjudicative Guidelines (June 

8, 2017); (6) revise and add definitions 

for certain terms; and (7) make minor 

updates to improve clarity and delete 

obsolete references. 

II. Section-by-Section Description of 

Proposed Changes 

DOE proposes to amend title 10 Code 

of Federal Regulation (CFR) part 710 as 

follows: 

1. The title of this part would be 

amended to add, ‘‘OR ELIGIBILITY TO 

HOLD A SENSITIVE POSITION’’ at the 

end to reflect the proposed expansion of 

the scope of the rule, as explained in 

paragraph 4. 

2. The authority section of this part 

would be amended to add a reference to 

E.O. 13467. Context for this proposed 

change is explained in paragraph 4. 

3. In proposed § 710.1, ‘‘Purpose,’’ 

§ 710.1(a) would be 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 proposed 

change to the scope of the rule, as 

explained below in paragraph 4. Section 

710.1(b) would be 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 proposed § 710.2 ‘‘Scope,’’ a new 

paragraph would be added to make the 

provisions of the rule applicable to an 

individual’s eligibility to hold a 

sensitive position. This proposed 

change would clarify that, except when 

specifically noted, any provision that 

applies to determinations of eligibility 

for access to classified information or 

special nuclear matter would also apply 

to determinations of eligibility to hold a 

sensitive position. Conforming changes 

are also proposed to be 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 


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the occupant is an employee, military 

service member, or contractor. 

The current scope of 10 CFR part 710 

applies only to individuals who require 

eligibility for access to classified 

information and special nuclear 

materials and does 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, would bring 

DOE into compliance with E.O. 13467, 

as amended. 

5. Existing § 710.3, ‘‘Reference,’’ 

would be deleted in its entirety because 

appendix A, SEAD 4, National Security 

Adjudicative Guidelines (June 8, 2017), 

is proposed for removal as explained 

below in paragraph 22. 

6. In § 710.4, ‘‘Policy,’’ § 710.4(a) 

would be amended to add at the end ‘‘or 

eligibility to hold a sensitive position,’’ 

and § 710.4(b) would be amended to add 

‘‘or eligibility to hold a sensitive 

position’’ after ‘‘access authorization’’ to 

reflect the proposed change to § 710.2 

‘‘Scope.’’ 

7. In § 710.5, ‘‘Definitions,’’ a number 

of new or amended definitions are 

proposed. 

The term ‘‘Continuous Vetting’’ 

would be added to reflect recent 

national policies under Trusted 

Workforce (TW) 2.0, as explained in 

paragraph 8. 

The term ‘‘Local Director of Security’’ 

would be 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 

would reflect new titles and 

organization name changes since the 

last changes to this rule. 

The term ‘‘Manager’’ would be 

amended by removing the references to 

the Chicago Operations Office, the Oak 

Ridge Operations Office, and the 

‘‘Director, Office of Headquarters 

Security Operations’’. ‘‘Manager’’ would 

be 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 Operations’’. These proposed 

changes would reflect new titles and 

organization name changes since the 

last change to this rule. 

The term ‘‘Sensitive Position’’ would 

be added to reflect the expansion of the 

scope of the rule to apply to individuals 

applying for or in sensitive positions, 

consistent with E.O. 13467, as amended, 

as explained in paragraph 4. 

8. In § 710.6, ‘‘Cooperation by the 

individual,’’ § 710.6(a)(1) would be 

amended to add ‘‘continuous vetting’’ 

after ‘‘reinvestigation.’’ The Director of 

National Intelligence and the Director of 

the Office of Personnel Management, 

pursuant to their responsibilities as 

Executive Agents under E.O. 13467, as 

amended, launched the ‘‘Trusted 

Workforce 2.0’’ initiative to transform 

Federal personnel vetting programs. 

One of the changes included a transition 

from traditional periodic 

reinvestigations to government-wide 

continuous vetting. Paragraph (a)(1) 

would also delete ‘‘interviews’’ and add 

in its place ‘‘consultations’’ for 

consistency with current DOE 

terminology. It would also delete 

‘‘investigative activities’’ and add in its 

place ‘‘actions’’ for consistency with 

current DOE terminology. The last 

sentence of paragraph (a)(1) would also 

be amended to add the language ‘‘for 

incumbents’’ before ‘‘any access 

authorization then in effect may be 

administratively withdrawn’’ to clarify 

that the term ‘‘administratively 

withdrawn’’ applies to incumbents 

while ‘‘administratively terminated’’ 

applies to applicants. Paragraph (c) 

would be amended to delete the words 

‘‘his/her’’ and add in their place the 

word ‘‘their’’ for consistency with other 

DOE policies. 

9. Section 710.7(d) would be amended 

to delete ‘‘reports of investigation’’ and 

add in its place ‘‘investigative results 

report’’ for consistency with DOE and 

other Federal agency practices. 

10. Section 710.8(a) would be 

amended by removing references to an 

‘‘interview’’ wherever it occurs and 

adding, in their place references to a 

‘‘consultation’’ for consistency with 

current DOE terminology. 

11. Section 710.9(e) would be 

amended to reflect the requirements in 

SEAD 9, Appellate Review of Retaliation 

Regarding Security Clearances and 

Access Determinations. In 2022, the 

Director of National Intelligence issued 

SEAD 9, which established an appellate 

review process for employees who seek 

to appeal an adverse final agency 

determination with respect to alleged 

retaliatory action(s) taken by an 

employing agency affecting the 

employees’ security clearance or access 

determination as a result of protected 

disclosures. SEAD 9 clarified that the 

agency review and appeal rights were 

available to both federal and contractor 

employees. Therefore, paragraph (e) 

would be amended to remove the 

words, ‘‘if the individual is a Federal 

employee,’’ and add language to address 

the appeal rights under SEAD 9. 

Paragraphs (e) and (f) would be 

amended to delete the words, ‘‘his/her,’’ 

and add in their place the word ‘‘their’’ 

for consistency with other DOE policies. 

12. Section 710.20 would be amended 

to remove the word ‘‘interview’’ and 

add in its place the word ‘‘consultation’’ 

for consistency with current DOE 

terminology. 

13. Section 710.21 would be amended 

to delete from it the words ‘‘his/her’’ 

and add in their place the word ‘‘their’’ 

for consistency with other DOE policies. 

Paragraph (c)(1) would be amended to 

add a requirement for the Manager to 

provide a copy of SEAD 4 or successor 

directive as part of the notification 

letter. Since Appendix A, which 

currently contains SEAD 4, is proposed 

for removal, this proposed amendment 

would ensure that an individual going 

through administrative review under 

this part will receive a copy of the 

applicable adjudicative standards. 

Paragraph (c)(2) would be amended to 

remove the words, ‘‘For Federal 

employees only’’, and add language to 

reflect the requirements in SEAD 9, 

Appellate Review of Retaliation 

Regarding Security Clearances and 

Access Determinations, which extended 

appeal rights beyond Federal employees 

to include Federal contractors, as 

detailed in the explanation of proposed 

changes to § 710.9(e), in paragraph 11. 

14. Proposed § 710.22(c)(4) would be 

amended to clarify that the 30 days 

provided to the individual for 

requesting review of the Manager’s 

initial decision is subject to any 

extensions granted by the Director 

under paragraph (c)(3). 

15. Proposed § 710.25(c) would be 

amended to delete the words ‘‘his/her’’ 

and add in their place the words ‘‘their’’ 

for consistency with other DOE policies. 

Paragraph (e) would be amended to 

delete language stating that hearings 

will normally be held at or near a DOE 


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facility unless determined otherwise by 

the Administrative Judge and also to 

delete that the hearing location will be 

selected for all the participants’ 

convenience. Paragraph (f) would be 

amended to add language to clarify that 

conferences may be conducted by 

telephone, video teleconference, or 

other means as directed by the 

Administrative Judge. These changes to 

paragraphs (e) and (f) are proposed in 

order to conform to current agency 

practice. 

16. Proposed § 710.26(a) would be 

amended to delete the words ‘‘his/her’’ 

and add in their place the words ‘‘their’’ 

for consistency with other DOE policies. 

Paragraph (d) would be amended to 

delete language that requires the 

proponent of a witness to conduct the 

direct examination of their witness. This 

change is proposed because if an 

individual is represented by counsel, 

the individual’s counsel will often 

conduct the direct examination of the 

individual’s witnesses. However, when 

the individual is not represented by 

counsel, the individual may choose to 

allow DOE counsel to conduct the direct 

examination of the individual’s 

witnesses. This proposed change would 

align the regulation with current DOE 

practices, which provides the individual 

with flexibility in the conduct of direct 

examinations. In addition, the language 

currently in § 710.26(d), ‘‘[w]henever 

reasonably possible, testimony shall be 

given in person,’’ would be deleted to 

reflect the current practice that 

testimony is normally given live via 

video teleconference and not in-person. 

17. Proposed § 710.27(b) would be 

amended to delete the word 

‘‘handicapped’’ and add in its place the 

word ‘‘prejudiced’’ to reflect updated 

terminology. 

18. Proposed § 710.28(a)(4) would be 

amended to delete the words ‘‘his/her’’ 

and add in their place the words ‘‘their’’ 

for consistency with other DOE policies. 

19. Proposed § 710.29(c) would be 

amended to delete the words ‘‘his/her’’ 

and add in their place the word ‘‘their’’ 

to reflect updated terminology for 

consistency with other DOE policies. 

20. In § 710.31, paragraphs (b)(4), 

(b)(5), and (b)(6) would be amended to 

correct typographical errors made in the 

last substantive revision to this 

regulation. Specifically, paragraphs 

(b)(4) and (b)(5) would be amended to 

delete the language ‘‘provisions of 

§ 710.31(2)’’ and add, in their place, 

‘‘provisions of § 710.31(b)(2)’’ since 

§ 710.31(2) does not exist in the current 

rule and the correct reference should 

have been to paragraph (b)(2), which 

describes the actions to be taken 

depending on whether a reconsideration 

request is approved. Paragraph (b)(6) 

would be amended to delete the 

language ‘‘paragraphs (f) or (g)’’ and 

add, in their place, ‘‘paragraphs (b)(4) or 

(b)(5)’’. There are no paragraphs (f) and 

(g) in the current § 710.31 and paragraph 

(b)(6) should have referenced 

§§ 710.31(b)(4) and 710.31(b)(5), which 

describe the actions to be taken based 

on whether an individual is found to be 

eligible for access authorization. 

Paragraph (b)(6) would also be amended 

to delete the language ‘‘set forth in 

paragraph (d)’’ and add, in its place, 

‘‘set forth in paragraph (b)(2)’’ for the 

same reason explained previously. This 

change is proposed because there is no 

§ 710.31(d) in the current rule. The 

correct reference should have been 

§ 710.31(b)(2). 

21. Appendix A to Part 710—SEAD 4, 

National Security Adjudicative 

Guidelines (June 8, 2017) would be 

deleted in its entirety. On October 17, 

2016, DOE removed its adjudicative 

criteria from the regulation in order to 

rely solely on the national security 

adjudicative guidelines (81 FR 71331). 

As part of that rule, DOE added the 

entire text of the national security 

adjudicative guidelines to the regulation 

as appendix A. The intent behind 

adding appendix A was to provide the 

maximum transparency and notice to 

the public as to the applicable 

adjudicative criteria in determining 

eligibility for access to classified 

information. On December 4, 2017, this 

regulation was updated to include the 

latest version of the national security 

adjudicative guidelines, SEAD 4, which 

was issued by the Director of National 

Intelligence. Future updates to the 

National Security Adjudicative 

Guidelines are likely and DOE believes 

retaining appendix A, which may not 

reflect the latest updated version due to 

the time it takes to amend a regulation, 

may cause confusion to the public as to 

which version of the guidelines applies 

to their eligibility determination. 

Therefore, DOE proposes to remove 

appendix A, SEAD 4, National Security 

Adjudicative Guidelines (June 8, 2017), 

and require that a copy of the applicable 

guidelines be provided to individuals as 

part of the notification letter, as 

proposed in § 710.21(c)(1). 

III. Regulatory Review 

A. Executive Orders 12866, 13563, and 

14094 

This proposed regulatory action has 

been determined not to be a ‘‘significant 

regulatory action’’ under E.O. 12866, 

Regulatory Planning and Review, 58 FR 

51735 (October 4, 1993) as 

supplemented and reaffirmed by E.O. 

13563, ‘‘Improving Regulation and 

Regulatory Review,’’ 76 FR 3821 (Jan. 

21, 2011) and amended by E.O. 14094, 

‘‘Modernizing Regulatory Review’’, 88 

FR 21879 (April 11, 2023). Accordingly, 

this proposed rule is not subject to 

review under the E.O. by the Office of 

Information and Regulatory Affairs 

(OIRA) within the Office of Management 

and Budget (OMB). 

B. Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of E.O. 

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 

E.O. 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 E.O. 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 meets the relevant 

standards of E.O. 12988. 

C. 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 

E.O. 13272, ‘‘Proper Consideration of 

Small Entities in Agency Rulemaking,’’ 

(67 FR 53461, August 16, 2002), DOE 

published procedures and policies on 


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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 website at 

www.gc.doe.gov. 

DOE has reviewed this proposed rule 

under the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. The 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. In addition, as stated previously, 

DOE has no discretion in adopting the 

national policies; it is the national 

policies themselves that impose any 

impact on affected individuals. 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, and DOE has not 

prepared a regulatory flexibility analysis 

for this rulemaking. DOE’s certification 

and supporting statement of factual 

basis will be provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration for review 

under 5 U.S.C. 605(b). 

D. 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. National Environmental Policy Act 

DOE has determined that this 

proposed rule is covered under the 

Categorial Exclusion found in DOE’s 

National Environmental Policy Act 

regulations at paragraph A5 of appendix 

A to subpart D, 10 CFR part 1021, which 

applies to a rulemaking that amends an 

existing rule or regulation and that does 

not change the environmental effect of 

the rule or regulation being amended. 

Accordingly, neither an environmental 

assessment nor an environmental 

impact statement is required. 

F. Executive Order 13132 

E.O. 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. 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 E.O. 13132. 

G. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4) generally 

requires Federal agencies to examine 

closely the impacts of regulatory actions 

on State, local, and tribal governments. 

Subsection 101(5) of title I of that law 

defines a Federal intergovernmental 

mandate to include any regulation that 

would impose upon State, local, or 

tribal governments an enforceable duty, 

except a condition of Federal assistance 

or a duty arising from participating in a 

voluntary federal program. Title II of 

that law requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and Tribal 

governments, in the aggregate, or to the 

private sector, other than to the extent 

such actions merely incorporate 

requirements specifically set forth in a 

statute. Section 202 of that title requires 

a Federal agency to perform a detailed 

assessment of the anticipated costs and 

benefits of any rule that includes a 

Federal mandate which may result in 

costs to State, local, or Tribal 

governments, or to the private sector, of 

$100 million or more in any one year 

(adjusted annually for inflation). 2 

U.S.C. 1532(a) and (b). Section 204 of 

that title requires each agency that 

proposes a rule containing a significant 

Federal intergovernmental mandate to 

develop an effective process for 

obtaining meaningful and timely input 

from elected officers of State, local, and 

tribal governments. 2 U.S.C. 1534. The 

proposed rule would expand the scope 

of the current rule with respect to 

individuals covered, make updates and 

clarifications for consistency with 

national polices and DOE practices, 

update references to DOE officials and 

offices, and make minor updates to 

improve clarity and delete obsolete 

references. The proposed rule would not 

result in the expenditure by State, local 

or tribal governments in the aggregate, 

or by the private sector, of $100 million 

or more in any one year. Accordingly, 

no assessment or analysis is required 

under the Unfunded Mandates Reform 

Act of 1995. 

H. 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 

proposed rule that may affect family 

well-being. This proposed 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. Executive Order 13211 

E.O. 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, OMB, 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 E.O. 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 regulatory action would not have a 

significant adverse effect on the supply, 

distribution, or use of energy and is 

therefore not a significant energy action. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

J. 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 


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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 Secretary of Energy has approved 

issuance of this notice of proposed 

rulemaking. 

List of Subjects in 10 CFR Part 710 

Administrative practice and 

procedure, Classified information, 

Government contracts, Government 

employees, Nuclear energy. 

Signing Authority 

This document of the Department of 

Energy was signed on January 24, 2024, 

by Jennifer Granholm, Secretary of 

Energy. That document with the original 

signature and date is maintained by 

DOE. For administrative purposes only, 

and in compliance with requirements of 

the Office of the Federal Register, the 

undersigned DOE Federal Register 

Liaison Officer has been authorized to 

sign and submit the document in 

electronic format for publication, as an 

official document of the Department of 

Energy. This administrative process in 

no way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Signed in Washington, DC on January 26, 

2024. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons set out in the 

preamble, DOE proposes to amend 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 

OR ELIGIBILTY TO HOLD A SENSITIVE 

POSITION 

■ 1. The authority citation for part 710 

is revised to read as follows: 

Authority: 42 U.S.C. 2165, 2201, 5815, 

7101, et seq., 7383h–l; 50 U.S.C. 2401 et seq.; 

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; E.O. 13467, 3 CFR 2008 Comp., p. 196. 

■ 2. Revise the part 710 heading to read 

as set forth above. 

■ 3. Revise § 710.1 to read as follows: 

§ 710.1 Purpose. 

(a) This part establishes the 

procedures for determining the 

eligibility of individuals described in 

§ 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 E.O. 13526 (Classified 

National Security Information), or 

eligibility to hold a sensitive position 

pursuant to E.O. 13467 (Reforming 

Processes Related to Suitability for 

Government Employment, Fitness for 

Contractor Employees, and Eligibility 

for Access to Classified National 

Security Information). 

(b) This part implements: E.O. 12968, 

60 FR 40245 (August 2, 1995), as 

amended; E.O. 13526, 75 FR 707 

(January 5, 2010) as amended; E.O. 

10865, 25 FR 1583 (February 24, 1960), 

as amended; E.O. 13467, 73 FR 38103 

(June 30, 2008) as amended; and the 

National Security Adjudicative 

Guidelines, issued as SEAD 4, by the 

Director of National Intelligence on 

December 10, 2016, or successor 

directive. 

■ 4. Revise § 710.2 to read as follows: 

§ 710.2 Scope. 

(a) The procedures outlined in this 

rule apply to determinations of 

eligibility for access authorization or 

eligibility to hold a sensitive position 

for: 

(1) Employees (including consultants) 

of, and applicants for employment with, 

contractors and agents of the DOE; 

(2) Access permittees of the DOE and 

their employees (including consultants) 

and applicants for employment; 

(3) Employees (including consultants) 

of, and applicants for employment with, 

the DOE; and 

(4) Other persons designated by the 

Secretary of Energy. 

(b) To the extent the procedures in 

this rule apply to determinations of 

eligibility for access to classified 

information or special nuclear material, 

they shall also apply to determinations 

of eligibility to hold a sensitive position, 

except as specifically noted. 

§ 710.3 [Removed and Reserved] 

■ 5. Remove and reserve § 710.3. 

■ 6. Revise § 710.4 to read as follows: 

§ 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 or 

eligibility to hold a sensitive position. 

(b) It is also the policy of DOE that 

none of the procedures established for 

determining eligibility for access 

authorization or eligibility to hold a 

sensitive position 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. 

■ 7. Amend § 710.5 by: 

■ a. Adding in alphabetical order the 

definition for ‘‘Continuous vetting’’; 

■ b. Revising the definitions for ‘‘Local 

Director of Security’’ and ‘‘Manager’’; 

and 

■ c. Adding in alphabetical order the 

definition for ‘‘Sensitive position’’. 

The additions and revisions read as 

follows: 

§ 710.5 Definitions. 

* * * * * 

Continuous vetting means reviewing 

the background of an individual 

described in § 710.2(a)(1) through (4) of 

this part at any time to determine 

whether that individual continues to 

meet applicable requirements for access 

authorization or a sensitive position. 

* * * * * 

Local Director of Security means the 

individual with primary responsibility 

for safeguards and security at the Idaho 

Operations Office; for the Office of 

Environmental Management (EM), the 

individual(s) designated in writing by 

the Senior Advisor, or delegee; for the 

Office of Science (SC), the individual 

designated in writing by the Deputy 

Director for Operations; for Naval 

Reactors, the individual(s) designated 

under the authority of the Director, 

Security Naval Nuclear Propulsion 

Program; for the National Nuclear 

Security Administration (NNSA), the 

individual(s) 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 Idaho, Richland (to 

include the Office of River Protection) 

Operations Offices; for the Office of 

Environmental Management, the 

individual(s) designated in writing by 

the Senior Advisor, or delegee; for the 

Office of Science (SC), the individual 

designated in writing by the Deputy 

Director for Operations; for Naval 

Reactors, the individual designated 


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6030 Federal Register / Vol. 89, No. 21 / Wednesday, January 31, 2024 / Proposed Rules 

under the authority of the Director, 

Security 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 Vetting. 

* * * * * 

Sensitive position means any position 

within or in support of a department or 

agency, the occupant of which could 

bring about, by virtue of the nature of 

the position, a material adverse effect on 

the national security, regardless of 

whether the occupant has access to 

classified information, and regardless of 

whether the occupant is an employee, a 

military service member, or a contractor. 

Sensitive positions for the purpose of 

this part only include individuals 

designated by DOE in non-critical 

sensitive, critical sensitive or special 

sensitive positions. 

* * * * * 

■ 8. Amend § 710.6 by: 

■ a. Revising paragraph (a)(1); and 

■ b. Removing in paragraph (c), in the 

first sentence the words ‘‘his/her’’ and 

adding in their place the word ‘‘their’’. 

The revision reads as follows: 

§ 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, reinvestigation or 

continuous vetting, and at any stage of 

DOE’s processing of the individual’s 

access authorization request, including 

but not limited to, personnel security 

consultations, DOE-sponsored mental 

health evaluations, and other authorized 

DOE actions 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 the 

access authorization. In this event, for 

incumbents any access authorization 

then in effect may be administratively 

withdrawn or, for applicants, further 

processing may be administratively 

terminated. 

* * * * * 

§ 710.7 [Amended] 

■ 9. Amend § 710.7 paragraph (d) by 

removing the words ‘‘reports of 

investigation’’ and adding, in their 

place, the words ‘‘investigative results 

report’’. 

■ 10. Amend § 710.8 paragraph (a) by 

revising the first sentence to read as 

follows: 

§ 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 a 

consultation with the individual, or 

other appropriate actions and, on the 

basis of the results of such consultation 

or actions, may authorize the granting of 

the individual’s access authorization. 

* * * 

* * * * * 

■ 11. Amend § 710.9 by: 

■ a. Revising paragraph (e); and 

■ b. Removing in paragraph (f), in the 

second sentence the words ‘‘his/her’’ 

and adding in their place the word 

‘‘their’’. 

The revision reads as follows: 

§ 710.9 Suspension of access 

authorization. 

* * * * * 

(e) Written notification to the 

individual shall include notification 

that if the individual believes that the 

action to suspend their access 

authorization 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 submit a request for 

review of this matter directly to the DOE 

Office of the Inspector General. Such a 

request shall have no impact upon the 

continued processing of the individual’s 

access authorization eligibility under 

this part. If the individual receives an 

adverse final agency determination in 

response to such request, the individual 

may submit an appeal of that decision 

to the Director of National Intelligence, 

in accordance with the Security 

Executive Agent Directive 9, Appellate 

Review of Retaliation Regarding 

Security Clearances and Access 

Determinations, or to the Inspector 

General of the Intelligence Community, 

in accordance with Intelligence 

Community Directive 120, Intelligence 

Community Whistleblower Protection. 

* * * * * 

§ 710.20 [Amended] 

■ 12. Amend § 710.20 by removing the 

word ‘‘interview’’ and adding in its 

place ‘‘consultation’’. 

■ 13. Amend § 710.21 by: 

■ a. Removing in paragraphs (b)(7) and 

(b)(12)(iii) the words ‘‘his/her’’ and 

adding in their place the word ‘‘their’’; 

and 

■ b. Revising paragraphs (c)(1) and (2). 

The revisions read as follows: 

§ 710.21 Notice to the individual. 

* * * * * 

(c) * * * 

(1) Include a copy of this part and 

SEAD 4, National Security Adjudicative 

Guidelines, or successor directive; and 

(2) 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 submit a request for 

review of this matter directly to the DOE 

Office of the Inspector General. Such a 

request shall have no impact upon the 

continued processing of the individual’s 

access authorization eligibility under 

this part. If the individual receives an 

adverse final agency determination in 

response to such request, the individual 

may submit an appeal of that decision 

to the Director of National Intelligence, 

in accordance with the SEAD 9, 

Appellate Review of Retaliation 

Regarding Security Clearances and 

Access Determinations, or to the 

Inspector General of the Intelligence 

Community, in accordance with 

Intelligence Community Directive 120, 

Intelligence Community Whistleblower 

Protection. 

■ 14. Amend § 710.22 by revising 

paragraph (c)(4) to reads as follows: 

§ 710.22 Initial decision process. 

* * * * * 

(c) * * * 

(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, or by the 

date to which the Director has granted 

an extension, the Manager’s initial 

decision in the case shall be final and 

not subject to further review or appeal. 

■ 15. Amend § 710.25 by: 

■ a. Removing in paragraph (c) the 

words ‘‘his/her’’ and adding in their 

place the word ‘‘their’’; and 

■ b. Revising paragraphs (e) and (f). 

The revisions read as follows: 

§ 710.25 Appointment of Administrative 

Judge; prehearing conference; 

commencement of hearings. 

* * * * * 


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Federal Register / Vol. 89, No. 21 / Wednesday, January 31, 2024 / Proposed Rules 6031 

(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. 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 may be conducted by 

telephone, video teleconference, or 

other means as directed by the 

Administrative Judge. 

* * * * * 

■ 16. Amend § 710.26 by: 

■ a. Removing in paragraph (a) 

wherever it appears the words ‘‘his/her’’ 

and adding in their place the word 

‘‘their’’; and 

■ b. Revising paragraph (d). 

The revision reads as follows: 

§ 710.26 Conduct of hearings. 

* * * * * 

(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. All witnesses 

shall be subject to cross-examination, if 

possible. 

* * * * * 

§ 710.27 [Amended] 

■ 17. Amend § 710.27 paragraph (b), in 

the second sentence by removing the 

word ‘‘handicapped’’ and adding in its 

place, the word ‘‘prejudiced’’. 

§ 710.28 [Amended] 

■ 18. Amend § 710.28 in paragraph 

(a)(4) by removing the words ‘‘his/her’’ 

and adding in their place the word 

‘‘their’’. 

§ 710.29 [Amended] 

■ 19. Amend § 710.29 paragraph (c), in 

the first sentence by removing the words 

‘‘his/her’’ and adding in their place the 

word ‘‘their’’. 

■ 20. Amend § 710.31 by revising 

paragraphs (b)(4), (5), and (6) to read as 

follows: 

§ 710.31 Reconsideration of access 

eligibility. 

* * * * * 

(b) * * * 

(4) If, pursuant to the provisions of 

paragraph (b)(2) of this section, the 

Manager determines the individual is 

eligible for access authorization, the 

Manager shall grant access 

authorization. 

(5) If, pursuant to the provisions of 

paragraph (b)(2) of this section, 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 (b)(4) or (5) 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 (b)(2) 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. 

Appendix A to Part 710 [Removed] 

■ 21. Appendix A to part 710 is 

removed. 

[FR Doc. 2024–01874 Filed 1–30–24; 8:45 am] 

BILLING CODE 6450–01–P 

CONSUMER FINANCIAL PROTECTION 

BUREAU 

12 CFR Part 1042 

[Docket No. CFPB–2024–0003] 

RIN 3170–AB16 

Fees for Instantaneously Declined 

Transactions 

AGENCY: Consumer Financial Protection 

Bureau. 

ACTION: Proposed rule; request for 

public comment. 

SUMMARY: The Consumer Financial 

Protection Bureau (CFPB) is proposing 

to prohibit covered financial institutions 

from charging fees, such as 

nonsufficient funds fees, when 

consumers initiate payment transactions 

that are instantaneously declined. 

Charging such fees would constitute an 

abusive practice under the Consumer 

Financial Protection Act’s prohibition 

on unfair, deceptive, or abusive acts or 

practices. 

DATES: Comments must be received on 

or before March 25, 2024. 

ADDRESSES: You may submit comments, 

identified by Docket No. CFPB–2024– 

0003 or RIN 3170–AB16, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. A 

brief summary of this document will be 

available at https://

www.regulations.gov/docket/CFPB2024-0003. 

• Email: 2024-NPRM-NSF@cfpb.gov. 

Include Docket No. CFPB–2024–0003 or 

RIN 3170–AB16 in the subject line of 

the message. 

• Mail/Hand Delivery/Courier: 

Comment Intake—2024 NPRM Fees for 

Instantaneously Declined Transactions, 

c/o Legal Division Docket Manager, 

Consumer Financial Protection Bureau, 

1700 G Street NW, Washington, DC 

20552. 

Instructions: The CFPB encourages 

the early submission of comments. All 

submissions should include the agency 

name and docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. Commenters are 

encouraged to submit comments 

electronically. In general, all comments 

received will be posted without change 

to https://www.regulations.gov. 

All submissions, including 

attachments and other supporting 

materials, will become part of the public 

record and subject to public disclosure. 

Proprietary information or sensitive 

personal information, such as account 

numbers or Social Security numbers, or 

names of other individuals, should not 

be included. Submissions will not be 

edited to remove any identifying or 

contact information. 

FOR FURTHER INFORMATION CONTACT: 

Pavitra Bacon, Joseph Devlin, Lawrence 

Lee, or Michael G. Silver, Senior 

Counsels, Office of Regulations, at 202– 

435–7700 or https://reginquiries.

consumerfinance.gov/. If you require 

this document in an alternative 

electronic format, please contact CFPB_

Accessibility@cfpb.gov. 

SUPPLEMENTARY INFORMATION: 


lotter on DSK11XQN23PROD with PROPOSALS1