[Federal Register Volume 74, Number 94 (Monday, May 18, 2009)]
[Rules and Regulations]
[Pages 23120-23127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11522]
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DEPARTMENT OF ENERGY
48 CFR Parts 904, 952 and 970
RIN 1991-AB71
Acquisition Regulation: Security Clause
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending the Department of
Energy Acquisition Regulation (DEAR) to revise the security clause used
in all contracts and subcontracts involving access authorizations to
specifically require background reviews, and tests for the absence of
any illegal drug, as defined in DOE regulations of uncleared personnel
(employment applicants and current employees), who will require access
authorizations. Background reviews would not be required for applicants
for DOE access authorization who possess a current access authorization
from another Federal agency.
DATES: Effective Date: June 17, 2009.
FOR FURTHER INFORMATION CONTACT: Richard Langston at 202-287-1339 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Comments and Responses
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under Executive Order 13132
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 13211
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under the Small Business Regulatory Enforcement
Fairness Act of 1996
L. Approval by the Office of the Secretary of Energy
I. Background
Many DOE contractor and subcontractor employees require access
authorizations for access to classified information (restricted data,
formerly restricted data, or national security information) or certain
quantities of special nuclear material in order to perform official
duties. On February 19, 2008, DOE published a notice of proposed
rulemaking to revise the Department of Energy Acquistion (DEAR)
regulations to require the security clause used in certain contracts
and subcontracts to specifically require contractors and subcontractors
to conduct background checks and tests for illegal drugs of uncleared
applicants and employees who will require DOE access authorizations (73
FR 9071). Under the proposed rule, the background check included the
[[Page 23121]]
collection and review by the contractor of items such as credit checks,
and contacts with personal references and certain past employers. It
then required contractors to assess the ``job qualifications and
suitability'' of uncleared applicants and employees before assigning
them to positions requiring an access authorization and before
requesting that DOE process the individual for an access authorization.
A contractor would determine ``suitability'' by assessing the possible
impact of ``adverse information'' found in the background check and
deciding whether it is ``confident'' that an individual would pass the
rigorous background investigation conducted by DOE for a position
requiring an access authorization. A contractor's assessment of the
information would be guided by the criteria set forth in 10 CFR 710.8,
used by the federal government to assess an individual's eligibility
for an access authorization.
After considering public comments, DOE today revises several
sections of the proposed rule, including amending Section 952.204-
2(h)(2) to eliminate the requirement that a contractor consider the
criteria in 10 CFR 710.8 in determining whether to select an individual
for a position requiring an access authorization. In particular, the
requirement that a contractor determine an applicant's ``suitability''
for an access authorization has been removed. Rather, a contractor must
conduct a background check (now defined in the final rule as a
``review'' or ``background review'') of such individuals prior to
selection, evaluate the individual based on its own processes and
consistent with applicable law, and then send specified information set
out in the rule to DOE.
Other changes to the proposed rule include revising Section 904.404
to add a requirement in paragraph (d)(1) that the security clause is
required in any contract that will involve contractor employees' access
to special nuclear material. That requirement reflects past DOE
practice and is being added to make the instruction clear and complete.
Section 952.204-2, Security, is revised by changing the title of the
section to ``Security'' and by revising its introductory text to
conform to the more recent Federal Acquisition Regulation format. As a
matter of administrative convenience, in addition to the provisions
regarding the review of employees and applicants, the rule includes
provisions implementing certain technical changes to the format of the
DEAR provisions at issue here. Some of the requirements at 970.2201-1-
2, are appropriate to other types of contracts if access authorizations
are required, so language at 970.2201-1-2 is being restated in the
security clause.
II. Comments and Responses
Comments were received from three organizations, two of which were
from DOE National Laboratories and another from an aircraft
manufacturer.
The first DOE National Laboratory offered 4 comments.
Comment 1.
This comment regards the contract clause entitled Security at
952.204-2, specifically (2) Job Qualifications and Suitability.
This section directs contractors to assess the possible impact of
adverse information found during the course of a background check
relative to the individual's suitability for a position requiring an
access authorization and act accordingly. Criteria cited following this
statement are the access authorization criteria found in 10 CFR 710.8,
however criteria referenced earlier in the section cites background
checks are being used to determine employment suitability in accordance
with the contractor's personnel policies.
It is unclear as to what is required to be determined, suitability
for employment or suitability for an access authorization. Suitability
for an access authorization in accordance with 10 CFR 710.8 is an
adjudicative decision rendered by a federal employee who has been
designated and trained to perform this function. Is it expected that
the contractor, after assessing the impacts of adverse information in
accordance with 10 CFR 710.8, refuse to submit an individual for an
access authorization even though the individual has been determined
eligible for employment in accordance with the contractor's personnel
policies?
Under what adjudicative authority is this determination authorized?
Response 1.
DOE is revising Section 952.204-2(h)(2) to eliminate: (1) the
requirement that a contractor apply the criteria at 10 CFR 710.8 in
determining whether to select an uncleared applicant or uncleared
employee for a position requiring an access authorization; and (2) any
requirement that a contractor determine the ``suitability'' of an
individual for an access authorization. The rule has been revised to
clarify that it only requires a contractor to collect information and
conduct a review of an uncleared applicant or uncleared employee, prior
to selecting an individual for a position requiring an access
authorization, to evaluate that individual pursuant to the contractor's
personnel policies and applicable law, and then to send to the head of
the cognizant local DOE Security Office the information set out in the
regulation at Section 952.204-2(h)(2)(vi) for selected individuals.
Under this rule, a decision as to whether an individual is eligible for
an access authorization remains a DOE or Federal security decision.
Comment 2.
For individuals under contract who require an access authorization
or small companies where the company owners are the employees, are
background checks required? Who renders the determination? What
suitability is being determined and under what criteria--employment or
access authorization?
Response 2.
An individual's status as an employee, manager or owner has no
bearing on DOE's determination as to whether to grant the individual an
access authorization.
Comment 3.
This comment regards paragraph (j) Foreign Ownership, Control or
Influence (FOCI) of the Security clause.
DOE facility clearance requirements as promulgated in DOE M 470.4-
1, Chg. 1, require processing of facility clearances for circumstances
that do not involve access authorizations (i.e., Cat IV SNM, possession
of hazardous materials that present radiological/toxicological/
biological sabotage threats and possession of DOE property greater than
five million dollars in value). Foreign Ownership, Control or Influence
requirements only apply when access authorizations are required. The
comment recommends that this paragraph's applicability be qualified.
Response 3.
Generally, only contracts involving restricted data or national
security information or access to special nuclear material and thus
requiring access authorizations would require use of the Security
clause. DOE M 470.4-1, Chg. 1, at paragraph 5.b.2., requires Foreign
Ownership, Control or Influence coverage in any contract containing the
Security clause. DOE does not believe any further applicability
guidance is necessary. In the situation where a Foreign Ownership,
Control or Influence determination and a facility clearance are
required, but access authorizations will not be required for the
employees of the contractor, the pre-employment review and drug tests
that are described in the security clause are not required since these
requirements are only applicable to positions requiring access
authorizations.
Comment 4.
This comment relates to paragraph (l), Flow down to subcontracts,
of the security clause.
[[Page 23122]]
Given the applicability of the facility clearance requirements,
flow down to only those contracts that require access authorizations
appears to be inconsistent. In addition, the criteria relative to
employment eligibility identified in Part 970 apply to DOE management
and operating (M&O) contractors. What criteria are to be used for
contractors who are not M&O contractors?
Response 4.
This rule does not specify criteria that a DOE M&O or a non-M&O
contractor must use in assessing the eligibility for employment of an
individual that the contractor is considering for a position requiring
an access authorization. Nor is the rule limited to M&O contractors.
Rather, it incorporates changes to both Parts 952 and 970. Paragraph
(l) of the security clause at 952.204-2 correctly states that the rule
is applicable to all contracts and subcontracts which involve
restricted data, national security information, or special nuclear
material.
Facility clearances are the subject of a separate clause at
952.204-73 and involve the assessment of a facility, not the assessment
of individuals for access to restricted data, national security
information, or possession of special nuclear material, which is the
subject of this rulemaking. Moreover, a facility clearance may be
required for reasons other than restricted data, national security
information, or possession of special nuclear material. For example, a
facility clearance may be required where a contractor has possession of
unusually valuable Government property. Not all individual contractor
employees at a facility that hold a facility clearance are required to
have access authorizations. Only the individual contractor employees at
such facilities who require access to restricted data, national
security information, or possession of special nuclear material at
sites with facility clearances need access authorizations.
The second DOE National Laboratory offered 1 comment.
Comment 5.
Paragraph (h)(2) of the proposed security clause amendment contains
the following statement:
``Contractors must propose personnel to work in positions requiring
access authorizations only if they are confident that the individuals
will pass the rigorous background review that DOE will conduct.''
DOE's rigorous background review is based on criteria found at 10
CFR 710.8. Those criteria include references to a person's likely place
of origin (e), illness or mental condition (h), alcohol dependence (j),
bankruptcy--pattern of financial irresponsibility (l), among others.
While the proposed rule represents an understandable aspiration, the
proposed rule places contractors in an untenable position. Contractors
would be required to violate anti-discrimination laws, the Americans
with Disabilities Act, and the bankruptcy laws, among others. This
situation is not one contractors relish. The Government alone is
traditionally authorized to make decisions involving trade-offs between
the Government's legitimate goals of treating its citizens fairly and
its national security interests. If a contractor refused to hire or
retain an individual for one of the reasons above, the contractor would
open the door to litigation; litigation that would not arise if the
Government exercises its inherent functions.
DOE Response 5.
DOE has removed all references to the criteria found at 10 CFR
710.8, and will, under this rule, require contractors to comply with
all laws, regulations, and Executive Orders in processing an
individual's information and in considering whether to select an
individual for a position requiring an access authorization.
The aircraft manufacturer offered 7 comments.
Comment 6.
The reviewer noted that the proposed Security clause at page 9073
was dated 2007 and suggested that it should be changed.
Response 6.
DOE agrees and the rule will specify the correct month and year of
the clause's effective date in this final rule.
Comment 7.
Subparagraph (a) of the proposed security clause contains
references to the terms ``classified information,'' ``classified
documents,'' ``classified matter,'' and ``classified materials,'' which
are confusing. We believe that the terms ``classified matter'' at lines
16 and 21, ``material'' at line 25, and ``matter'' at line 30 of the
clause should all be revised to the terms ``classified documents'' or
``classified articles.''
Response 7.
DOE has made clarifying changes in response to this comment. DOE is
revising the second sentence to read ``The Contractor shall, in
accordance with DOE security regulations and requirements, be
responsible for protecting all classified information and all
classified matter (including documents, material and special nuclear
material), which is in the contractor's possession in connection with
the performance of work under this contract, against sabotage,
espionage, loss or theft.'' Additionally, DOE is changing ``material''
to ``matter'' where it is used in the fourth sentence, and is changing
``matter'' in the fifth sentence to ``classified matter.'' The two uses
of ``classified matter'' in the third and fourth sentences are correct
because classified matter can be any combination of classified
documents or other classified material.
Comment 8.
Under the terms of subparagraph (h)(2) of the proposed security
clause, the contractor is responsible for conducting the background
investigation and forwarding the results to DOE. This would seem risky
because it necessitates two investigations, one by the contractor and
another by DOE to verify what the contractor submitted. Also, at
subparagraph (h)(2), DOE should revise ``afforded access to classified
information or matter'' to ``afforded access to classified information,
classified documents, or classified articles.''
Response 8.
The rule has been revised to clarify that the review required by
the security clause is for the purpose of gathering information to be
considered by the contractor before selecting an individual for a
position that requires a DOE access authorization. It is not the
equivalent of the background investigation that will be conducted by
the federal government prior to the granting or denial of an access
authorization request. With respect to the suggested language change,
DOE believes the proposed language--``afforded access to classified
information or matter''--is technically correct, and therefore, is not
adopting the suggestion.
Comment 9.
At subparagraph (h)(3)(i) of the proposed clause, revise the term
``classified information'' in lines 5 and 6 to ``classified information
and classified documents.''
Response 9.
The Department does not adopt this recommendation because it would
be inappropriate for this prohibition to apply only when both
classified information and classified documents are disclosed to the
same, unauthorized person. The term ``classified information'' is
inclusive in that documents, parts, audible conversation, matter in
cyber (electronic) or other form, etc. all become classified on the
basis of their containing, revealing, or embodying classified
information.
Comment 10.
At subparagraph (j) ``Foreign Ownership, Control or Influence,''
failure to satisfy the requirements of the clause is grounds for
termination for default per paragraph (j)(4). We believe
[[Page 23123]]
what is intended is default for failure to comply with subparagraph
(j)(1). We believe the term ``this clause'' should be revised to read
paragraph (j)(1).
Response 10.
DOE does not wish to limit its right to terminate to just paragraph
(j)(1).
Comment 11.
Subparagraph (k), ``Employment announcements'' requires a
contractor to include a detailed notification in a written vacancy
announcement. Failing to follow this requirement explicitly should not
be a justification for the contracting officer to terminate the
contractor for default. The requirement should be clarified as to
whether it applies to internal announcements as well.
Response 11.
DOE will determine the appropriate remedy for failure to comply
with the requirements for notice about reviews and drug testing
requirements in vacancy announcements on a case-by-case basis. This
final rule does not cover language included in an announcement that is
internal to the contractor's workplace.
Comment 12.
The reviewer suggests that subparagraph (k) be revised to require
that applicants be told that a background check, drug testing, etc.,
will be required rather than requiring contractors to include this
detail in the vacancy announcement. The reviewer questions the benefit
from including the detail in the vacancy announcement and is concerned
it simply announces to the world that the employer does classified work
for the United States Government.
Response 12.
DOE is retaining the requirement that advance notice be given to
potential applicants as part of the written vacancy announcement. This
ensures that all applicants are given the same advance notification of
the requirements before time and effort are expended by the applicant
and employee.
III. Procedural Requirements.
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a significant
regulatory action under Executive Order 12866, Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Accordingly, this final rule is
not subject to review under the Executive Order by the Office of
Information and Regulatory Affairs (OIRA) within the Office of
Management and Budget.
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
Civil Justice Reform (61 FR 4729, February 7, 1996), imposes on
executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; (3) provide a clear legal standard
for affected conduct rather than a general standard; and (4) promote
simplification and burden reduction. With regard to the review required
by section 3(a), section 3(b) of Executive Order 12988 specifically
requires that executive agencies make every reasonable effort to ensure
that the regulation: (1) Clearly specifies the preemptive effect, if
any; (2) clearly specifies any effect on existing Federal law or
regulation; (3) provides a clear legal standard for affected conduct
while promoting simplification and burden reduction; (4) specifies the
retroactive effect, if any; (5) adequately defines key terms; and (6)
addresses other important issues affecting clarity and general
draftsmanship under any guidelines issued by the Attorney General.
Section 3(c) of Executive Order 12988 requires executive agencies to
review regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met or that it is
unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
these regulations meet the relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
This rule has been reviewed under the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., which requires preparation of an initial regulatory
flexibility analysis for any rule that must be proposed for public
comment and that is likely to have a significant economic impact on a
substantial number of small entities. The rule would not have a
significant economic impact on small entities because it imposes no
significant burdens. Any costs incurred by DOE contractors complying
with the rule would be reimbursed under the contract.
Accordingly, DOE certifies that this rule would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis is required and none
has been prepared.
D. Review Under the Paperwork Reduction Act
This final rule contains no new information collection or
recordkeeping requirements. Information collection or recordkeeping
requirements mentioned in this rule relative to the facility clearance
and access authorization processes have been previously cleared under
Office of Management and Budget (OMB) paperwork clearance package
number 0704-0194 for facility clearances processed by the Department of
Defense for Standard Form (SF) 283, or package number 3206-0007
processed by the Office of Personnel Management for personnel access
authorizations using SF 86.
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this 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 rule is categorically excluded from NEPA review
because the amendments to the DEAR would be strictly procedural
(categorical exclusion A6). Therefore, this rule does not require an
environmental impact statement or environmental assessment pursuant to
NEPA.
F. Review Under Executive Order 13132
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt state law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the states and carefully assess the
necessity for such actions. DOE has examined today's rule and has
determined that it does not preempt state law and does not have a
substantial direct effect on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
G. Review Under the Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires a
federal agency to perform a detailed assessment of costs and benefits
of any rule imposing a federal mandate with costs to state, local or
tribal governments, or to the private sector, of $100 million or more
in any single year. This rule does not impose a federal
[[Page 23124]]
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. This rule will have no impact on family well being.
I. Review Under Executive Order 13211
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001), requires federal agencies to prepare and submit to the
Office of Information and Regulatory Affairs (OIRA), OMB, a Statement
of Energy Effects for any significant energy action. A ``significant
energy action'' is defined as any action by an agency that promulgates
or is expected to lead to promulgation of a final rule, and that: (1)
Is a significant regulatory action under Executive Order 12866, or any
successor order; (2) is likely to have a significant adverse effect on
the supply, distribution, or use of energy; or (3) is designated by the
Administrator of OIRA as a significant energy action. For any
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
Today's rule is not a significant energy action. Accordingly, DOE
has not prepared a Statement of Energy Effects.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001, 44
U.S.C. 3516 note, provides for agencies to review most disseminations
of information to the public under implementing guidelines established
by each agency pursuant to general guidelines issued by OMB. OMB's
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's
guidelines were published at 67 FR 62446 (October 7, 2002). DOE has
reviewed today's notice under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under the Small Business Regulatory Enforcement Fairness Act
of 1996
As required by 5 U.S.C. 801, the Department will report to Congress
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(3).
L. Approval by the Office of the Secretary of Energy.
The Office of the Secretary of Energy has approved issuance of this
final rule.
List of Subjects in 48 CFR Parts 904, 952 and 970
Government procurement.
Issued in Washington, DC, on May 13, 2009.
Edward R. Simpson,
Director, Office of Procurement and Assistance Management, Office of
Management, Department of Energy.
David O. Boyd,
Director, Office of Acquisition and Supply Management, National Nuclear
Security Administration.
0
For the reasons set out in the preamble, DOE amends Chapter 9 of Title
48 of the Code of Federal Regulations as set forth below:
PART 904--ADMINISTRATIVE MATTERS
0
1. The authority citations for parts 904 and 952 continue to read as
follows:
Authority: 42 U.S.C. 7101, et seq.; 41 U.S.C. 418(b); 50 U.S.C.
2401, et seq.
0
2. In section 904.401, add in alphabetical order, new definitions for
``applicant'' and ``review or background review'' and revise the
definitions of ``classified information'' and ``restricted data'' to
read as follows:
904.401 Definitions.
* * * * *
Applicant means an individual who has submitted an expression of
interest in employment; who is under consideration by the contractor
for employment in a particular position; and who has not removed
himself or herself from further consideration or otherwise indicated
that he or she is no longer interested in the position.
Classified information means information that is classified as
restricted data or formerly restricted data under the Atomic Energy Act
of 1954, or information determined to require protection against
unauthorized disclosure under Executive Order 12958, Classified
National Security Information, as amended, or prior executive orders,
which is identified as national security information.
* * * * *
Restricted data means all data concerning design, manufacture, or
utilization of atomic weapons; production of special nuclear material;
or use of special nuclear material in the production of energy, but
excluding data declassified or removed from the restricted data
category pursuant to Section 142, as amended, of the Atomic Energy Act
of 1954 (42 U.S.C. 2162).
* * * * *
Review or background review means a Contractor's assessment of the
background of an uncleared applicant or uncleared employee for a
position requiring a DOE access authorization prior to selecting that
individual for such a position.
904.404 [Amended]
0
3. Section 904.404 is amended by adding the words ``, access to special
nuclear materials or the provision of protective services'' after the
words ``classified information'' at the end of the first sentence of
paragraph (d)(1).
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Section 952.204-2 is revised to read as follows:
952.204-2 Security.
As prescribed in 904.404(d)(1), the following clause shall be
included in contracts entered into under section 31 (research
assistance, 42 U.S.C. 2051), or section 41 (ownership and operation of
production facilities, 42 U.S.C. 2061) of the Atomic Energy Act of
1954, and in other contracts and subcontracts which involve or are
likely to involve classified information or special nuclear material.
SECURITY (JUNE 2009)
(a) Responsibility. It is the Contractor's duty to protect all
classified information, special nuclear material, and other DOE
property. The Contractor shall, in accordance with DOE security
regulations and requirements, be responsible for protecting all
classified information and all classified matter (including
documents, material and special nuclear material) which are in the
Contractor's possession in connection with the performance of work
under this contract against sabotage, espionage, loss or theft.
Except as otherwise expressly provided in this contract, the
Contractor shall, upon completion or termination of this contract,
transmit to DOE any classified matter or special nuclear material in
the possession of the Contractor or any person under the
Contractor's control in connection with performance of this
contract. If retention by
[[Page 23125]]
the Contractor of any classified matter is required after the
completion or termination of the contract, the Contractor shall
identify the items and classification levels and categories of
matter proposed for retention, the reasons for the retention, and
the proposed period of retention. If the retention is approved by
the Contracting Officer, the security provisions of the contract
shall continue to be applicable to the classified matter retained.
Special nuclear material shall not be retained after the completion
or termination of the contract.
(b) Regulations. The Contractor agrees to comply with all
security regulations and contract requirements of DOE in effect on
the date of award.
(c) Definition of Classified Information. The term Classified
Information means information that is classified as Restricted Data
or Formerly Restricted Data under the Atomic Energy Act of 1954, or
information determined to require protection against unauthorized
disclosure under Executive Order 12958, Classified National Security
Information, as amended, or prior executive orders, which is
identified as National Security Information.
(d) Definition of Restricted Data. The term Restricted Data
means all data concerning design, manufacture, or utilization of
atomic weapons; production of special nuclear material; or use of
special nuclear material in the production of energy, but excluding
data declassified or removed from the Restricted Data category
pursuant to 42 U.S.C. 2162 [Section 142, as amended, of the Atomic
Energy Act of 1954].
(e) Definition of Formerly Restricted Data. The term ''Formerly
Restricted Data'' means information removed from the Restricted Data
category based on a joint determination by DOE or its predecessor
agencies and the Department of Defense that the information: (1)
Relates primarily to the military utilization of atomic weapons; and
(2) can be adequately protected as National Security Information.
However, such information is subject to the same restrictions on
transmission to other countries or regional defense organizations
that apply to Restricted Data.
(f) Definition of National Security Information. The term
``National Security Information'' means information that has been
determined, pursuant to Executive Order 12958, Classified National
Security Information, as amended, or any predecessor order, to
require protection against unauthorized disclosure, and that is
marked to indicate its classified status when in documentary form.
(g) Definition of Special Nuclear Material. The term ``special
nuclear material'' means: (1) Plutonium, uranium enriched in the
isotope 233 or in the isotope 235, and any other material which,
pursuant to 42 U.S.C. 2071 [section 51 as amended, of the Atomic
Energy Act of 1954] has been determined to be special nuclear
material, but does not include source material; or (2) any material
artificially enriched by any of the foregoing, but does not include
source material.
(h) Access authorizations of personnel. (1) The Contractor shall
not permit any individual to have access to any classified
information or special nuclear material, except in accordance with
the Atomic Energy Act of 1954, and the DOE's regulations and
contract requirements applicable to the particular level and
category of classified information or particular category of special
nuclear material to which access is required.
(2) The Contractor must conduct a thorough review, as defined at
48 CFR 904.401, of an uncleared applicant or uncleared employee, and
must test the individual for illegal drugs, prior to selecting the
individual for a position requiring a DOE access authorization.
(i) A review must: Verify an uncleared applicant's or uncleared
employee's educational background, including any high school diploma
obtained within the past five years, and degrees or diplomas granted
by an institution of higher learning; contact listed employers for
the last three years and listed personal references; conduct local
law enforcement checks when such checks are not prohibited by state
or local law or regulation and when the uncleared applicant or
uncleared employee resides in the jurisdiction where the Contractor
is located; and conduct a credit check and other checks as
appropriate.
(ii) Contractor reviews are not required for an applicant for
DOE access authorization who possesses a current access
authorization from DOE or another Federal agency, or whose access
authorization may be reapproved without a federal background
investigation pursuant to Executive Order 12968, Access to
Classified Information (August 4, 1995), Sections 3.3(c) and (d).
(iii) In collecting and using this information to make a
determination as to whether it is appropriate to select an uncleared
applicant or uncleared employee to a position requiring an access
authorization, the Contractor must comply with all applicable laws,
regulations, and Executive Orders, including those: (A) Governing
the processing and privacy of an individual's information, such as
the Fair Credit Reporting Act, Americans with Disabilities Act
(ADA), and Health Insurance Portability and Accountability Act; and
(B) prohibiting discrimination in employment, such as under the ADA,
Title VII and the Age Discrimination in Employment Act, including
with respect to pre- and post-offer of employment disability related
questioning.
(iv) In addition to a review, each candidate for a DOE access
authorization must be tested to demonstrate the absence of any
illegal drug, as defined in 10 CFR Part 707.4. All positions
requiring access authorizations are deemed testing designated
positions in accordance with 10 CFR Part 707. All employees
possessing access authorizations are subject to applicant, random or
for cause testing for use of illegal drugs. DOE will not process
candidates for a DOE access authorization unless their tests confirm
the absence from their system of any illegal drug.
(v) When an uncleared applicant or uncleared employee receives
an offer of employment for a position that requires a DOE access
authorization, the Contractor shall not place that individual in
such a position prior to the individual's receipt of a DOE access
authorization, unless an approval has been obtained from the head of
the cognizant local security office. If the individual is hired and
placed in the position prior to receiving an access authorization,
the uncleared employee may not be afforded access to classified
information or matter or special nuclear material (in categories
requiring access authorization) until an access authorization has
been granted.
(vi) The Contractor must furnish to the head of the cognizant
local DOE Security Office, in writing, the following information
concerning each uncleared applicant or uncleared employee who is
selected for a position requiring an access authorization:
(A) The date(s) each Review was conducted;
(B) Each entity that provided information concerning the
individual;
(C) A certification that the review was conducted in accordance
with all applicable laws, regulations, and Executive Orders,
including those governing the processing and privacy of an
individual's information collected during the review;
(D) A certification that all information collected during the
review was reviewed and evaluated in accordance with the
Contractor's personnel policies; and
(E) The results of the test for illegal drugs.
(i) Criminal liability. It is understood that disclosure of any
classified information relating to the work or services ordered
hereunder to any person not entitled to receive it, or failure to
protect any classified information, special nuclear material, or
other Government property that may come to the Contractor or any
person under the Contractor's control in connection with work under
this contract, may subject the Contractor, its agents, employees, or
Subcontractors to criminal liability under the laws of the United
States (see the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.;
18 U.S.C. 793 and 794).
(j) Foreign Ownership, Control, or Influence. (1) The Contractor
shall immediately provide the cognizant security office written
notice of any change in the extent and nature of foreign ownership,
control or influence over the Contractor which would affect any
answer to the questions presented in the Standard Form (SF) 328,
Certificate Pertaining to Foreign Interests, executed prior to award
of this contract. In addition, any notice of changes in ownership or
control which are required to be reported to the Securities and
Exchange Commission, the Federal Trade Commission, or the Department
of Justice, shall also be furnished concurrently to the Contracting
Officer.
(2) If a Contractor has changes involving foreign ownership,
control, or influence, DOE must determine whether the changes will
pose an undue risk to the common defense and security. In making
this determination, DOE will consider proposals made by the
Contractor to avoid or mitigate foreign influences.
(3) If the cognizant security office at any time determines that
the Contractor is, or is potentially, subject to foreign ownership,
control, or influence, the Contractor shall comply with such
instructions as the Contracting Officer shall provide in writing
[[Page 23126]]
to protect any classified information or special nuclear material.
(4) The Contracting Officer may terminate this contract for
default either if the Contractor fails to meet obligations imposed
by this clause or if the Contractor creates a foreign ownership,
control, or influence situation in order to avoid performance or a
termination for default. The Contracting Officer may terminate this
contract for convenience if the Contractor becomes subject to
foreign ownership, control, or influence and for reasons other than
avoidance of performance of the contract, cannot, or chooses not to,
avoid or mitigate the foreign ownership, control, or influence
problem.
(k) Employment announcements. When placing announcements seeking
applicants for positions requiring access authorizations, the
Contractor shall include in the written vacancy announcement, a
notification to prospective applicants that reviews, and tests for
the absence of any illegal drug as defined in 10 CFR 707.4, will be
conducted by the employer and a background investigation by the
Federal government may be required to obtain an access authorization
prior to employment, and that subsequent reinvestigations may be
required. If the position is covered by the Counterintelligence
Evaluation Program regulations at 10 CFR Part 709, the announcement
should also alert applicants that successful completion of a
counterintelligence evaluation may include a counterintelligence-
scope polygraph examination.
(l) Flow down to subcontracts. The Contractor agrees to insert
terms that conform substantially to the language of this clause,
including this paragraph, in all subcontracts under its contract
that will require Subcontractor employees to possess access
authorizations. Additionally, the Contractor must require such
Subcontractors to have an existing DOD or DOE facility clearance or
submit a completed SF 328, Certificate Pertaining to Foreign
Interests, as required in DEAR 952.204-73 and obtain a foreign
ownership, control and influence determination and facility
clearance prior to award of a subcontract. Information to be
provided by a Subcontractor pursuant to this clause may be submitted
directly to the Contracting Officer. For purposes of this clause,
Subcontractor means any Subcontractor at any tier and the term
``Contracting Officer'' means the DOE Contracting Officer. When this
clause is included in a subcontract, the term ``Contractor'' shall
mean Subcontractor and the term ``contract'' shall mean subcontract.
(End of Clause)
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
0
5. The authority citation for part 970 continues to read as follows:
Authority: 42 U.S.C. 2201, 2282a, 2282b, 2282c; 42 U.S.C. 7101
et seq.; 41 U.S.C. 418b; 50 U.S.C. 2401 et seq.
970.0470-1 [Amended]
0
6. Section 970.0470-1(b) is amended by revising both mentions of
``Directives System'' to read ``Directives Program.''
970.2201-1 [Amended]
0
7. Section 970.2201-1-1 is amended by removing the term ``guidance''
and adding in its place ``requirements.''
0
8. In section 970.2201-1-2, paragraphs (a)(1)(i), (ii) and (iii) are
revised and paragraphs (a)(1)(iv), (v) and (vi) are added to read as
follows:
970.2201-1-2 Policies.
(a)(1) * * *
(i) Management and operating contractors are expected to bring
experienced, proven personnel from their private operations to staff
key positions on the contract and to recruit other well-qualified
personnel as needed. Such personnel should be employed and treated
during employment without discrimination by reason of race, color,
religion, sex, age, disability, or national origin. Contractors shall
be required to take affirmative action to achieve these objectives.
(ii) The Contractor must conduct a thorough review, as defined at
48 CFR 904.401, of an uncleared applicant's or uncleared employee's
background, and test the individual for illegal drugs, as part of its
determination to select that individual for a position requiring a DOE
access authorization.
(A) A review must: Verify an uncleared applicant's or uncleared
employee's educational background, including any high school diploma
obtained within the past five years, and degrees or diplomas granted by
an institution of higher learning; contact listed employers for the
last three years and listed personal references; conduct local law
enforcement checks when such checks are not prohibited by state or
local law or regulation and when the uncleared applicant or uncleared
employee resides in the jurisdiction where the contractor is located;
and conduct a credit check and other checks as appropriate.
(B) Contractor reviews are not required for an applicant for DOE
access authorization who possesses a current access authorization from
DOE or another federal agency, or whose access authorization may be
reapproved without a federal background investigation pursuant to
Executive Order 12968, Access to Classified Information (August 4,
1995), Sections 3.3(c) and (d).
(C) In collecting and using this information to make a
determination as to whether it is appropriate to select an uncleared
applicant or uncleared employee for a position requiring an access
authorization, the contractor must comply with all applicable laws,
regulations, and Executive Orders, including those:
(1) Governing the processing and privacy of an individual's
information by employers, such as the Fair Credit Reporting Act,
Americans with Disabilities Act (ADA), and Health Insurance Portability
and Accountability Act; and
(2) Prohibiting discrimination in employment, such as under the
ADA, Title VII and the Age Discrimination in Employment Act, including
with respect to pre- and post-offer of employment disability related
questioning.
(iii) In addition to a review, each candidate for a DOE access
authorization must be tested to demonstrate the absence of any illegal
drug, as defined in 10 CFR Part 707.4. All positions requiring access
authorizations are deemed testing designated positions in accordance
with 10 CFR Part 707. All employees possessing access authorizations
are subject to applicant, random or for cause testing for use of
illegal drugs. DOE will not process candidates for a DOE access
authorization unless their tests confirm the absence of any illegal
drug.
(iv) When an uncleared applicant or uncleared employee is hired
specifically for a position that requires a DOE access authorization,
the contractor shall not place that individual in that position prior
to the access authorization being granted by DOE, unless an approval
has been obtained from the contracting officer, acting in consultation
for these purposes with the head of the cognizant local security
office. If an uncleared employee is placed in that position prior to an
access authorization being granted by the contracting officer, the
uncleared employee may not be afforded access to classified information
or matter or special nuclear material (in categories requiring access
authorization) until the contracting officer notifies the employer that
an access authorization has been granted.
(v)(A) The contractor must furnish to the head of the cognizant
local DOE Security Office, in writing, the following information
concerning each uncleared applicant or uncleared employee who is
selected for a position requiring an access authorization:
(1) The date(s) each review was conducted;
[[Page 23127]]
(2) Each entity contacted that provided information concerning the
individual;
(3) A certification that the review was conducted in accordance
with all applicable laws, regulations, and Executive Orders, including
those governing the processing and privacy of an individual's
information collected during the review;
(4) A certification that all information collected during the
review was reviewed and evaluated in accordance with the contractor's
personnel policies; and
(5) The results of the test for illegal drugs.
When a DOE access authorization will be required, the
aforementioned review must be conducted and the required information
forwarded to DOE before a request is made to DOE to process the
individual for an access authorization.
(vi) Management and operating contractors and other contractors
operating DOE facilities shall include the requirements set forth in
this subsection in subcontracts (appropriately modified to identify the
parties) wherein subcontract employees will be required to hold DOE
access authorizations in order to perform on-site duties, such as
protective force operations.
* * * * *
[FR Doc. E9-11522 Filed 5-15-09; 8:45 am]
BILLING CODE 6450-01-P