[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 71689-71691]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29234]


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DEPARTMENT OF ENERGY

10 CFR Part 710

RIN 1992-AA36


Criteria and Procedures for Determining Eligibility for Access to 
Classified Matter or Special Nuclear Material: Technical Amendments

AGENCY: Office of the General Counsel, Department of Energy (DOE).

ACTION: Final rule.

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SUMMARY: DOE is amending its regulations at 10 CFR part 710, which sets 
forth the policies and procedures for resolving questions concerning 
eligibility for DOE access authorization, to revise a provision 
concerning designation of an acting official and to update the 
official's title. Specifically, the duties assigned to the Principal 
Deputy for Mission Support Operations (formerly, the Deputy Chief for 
Operations), Office of Health, Safety and Security, may now be 
exercised by a person or persons designated in writing as acting for, 
or in the temporary capacity of, that official. Currently, the part 710 
regulations state that this official's duties may be exercised by 
another individual only in the official's absence. Today's final rule 
also revises one title: ``Principal Deputy for Mission Support 
Operations'' replaces ``Deputy Chief for Operations''.

DATES: Effective Date: This rule is effective on December 4, 2012.

FOR FURTHER INFORMATION CONTACT: Christina Pak, Office of the General 
Counsel, GC-52, 1000 Independence Avenue SW., Washington, DC 20585; 
Christina.Pak@hq.doe.gov; 202-586-4114; Mark R. Pekrul, Office of 
Departmental Personnel Security, 1000 Independence Avenue SW., 
Washington, DC 20585; Mark.Pekrul@hq.doe.gov; 202-586-3249.

SUPPLEMENTARY INFORMATION:

I. Introduction

    10 CFR part 710 sets forth the policies and procedures for 
resolving questions concerning eligibility for DOE access 
authorization. Various DOE officials are assigned specific duties in 
this process. Currently, section 710.36 provides that each of the named 
officials, with the exception of the Secretary of Energy and the Deputy 
Chief for Operations, Office of Health, Safety and Security, may 
designate his or her duties to other DOE officials without restriction.
    Since the part 710 rule was last amended in 2001, experience has 
demonstrated that conditioning the Deputy Chief for Operations' ability 
to delegate his part 710 functions solely on occasions when he is 
absent from the office is unduly restrictive, unnecessary, and 
administratively inefficient. In order to enhance the Department's 
ability to effectively manage the Administrative Review process 
prescribed by part 710, the Deputy Chief of Operations should be 
accorded greater flexibility in delegating his assigned 
responsibilities under the rule. In those cases where duties of the 
Deputy Chief of Operations are delegated pursuant to this amendment, 
they will continue to be exercised by a DOE employee in a security-
related Senior Executive Service position within the Office of Health, 
Safety and Security, as approved by the Chief Health, Safety and 
Security Officer. In addition, DOE would update part 710 to reflect 
organizational changes within the Office of Health, Safety and Security 
by replacing ``Deputy Chief for Operations'' wherever it appears in the 
rule with ``Principal Deputy Chief for Mission Support Operations''.
    The regulatory amendments in this final rule do not alter 
substantive rights or obligations under current law.

II. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    Today's regulatory action has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB). DOE has also reviewed this regulation 
pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 
3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and 
explicitly reaffirms the principles, structures, and definitions 
governing regulatory review established in

[[Page 71690]]

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

B. Administrative Procedure Act

    The regulatory amendments in this notice of final rulemaking 
reflect a transfer of function that relates solely to internal agency 
organization, management or personnel. As such, pursuant to 5 U.S.C. 
553(a)(2), this rule is not subject to the rulemaking requirements of 
the Administrative Procedure Act, including the requirements to provide 
prior notice and an opportunity for public comment and a 30-day delay 
in effective date.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies to ensure that the potential impacts of its 
draft rules on small entities are properly considered during the 
rulemaking process (68 FR 7990, February 19, 2003), and has made them 
available on the Office of General Counsel's Web site: http://www.gc.doe.gov. As this rule of agency organization, management and 
personnel is not subject to the requirement to provide prior notice and 
an opportunity for public comment under 5 U.S.C. 553 or any other law, 
this rule is not subject to the analytical requirements of the 
Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

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

E. Review Under the National Environmental Policy Act

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

F. Review Under Executive Order 13132

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

G. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this final rule meets the relevant standards of 
Executive Order 12988.

[[Page 71691]]

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to assess the effects of a Federal 
regulatory action on State, local, and tribal governments, and the 
private sector. DOE has determined that today's regulatory action does 
not impose a Federal mandate on State, local or tribal governments or 
on the private sector.

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

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

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 guidelines established by each 
agency pursuant to general guideline 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 rule under the OMB and DOE guidelines and has concluded that it 
is consistent with applicable policies in those guidelines.

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
Today's regulatory action is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule. The report will state 
that it has been determined that the rule is not a ``major rule'' as 
defined by 5 U.S.C. 801(2).

M. Approval by the Office of the Secretary of Energy

    The Office of the Secretary of Energy has approved issuance of this 
rule.

List of Subjects in 10 CFR Part 710

    Administrative practice and procedure, Classified information, 
Government contracts, Government employees, Nuclear materials.

    Issued in Washington, DC, on November 26, 2012.
Gregory H. Woods,
General Counsel.

    For the reasons stated in the preamble, DOE amends part 710 of 
chapter III, title 10, Code of Federal Regulations, as set forth below:

PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILTY FOR 
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL

0
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. 10450, 3 CFR 1949-1953 comp., p. 936, 
as amended; E.O. 10865, 3 CFR 1959-1963 comp., p. 398, as amended, 3 
CFR Chap. IV; E.O. 13526, 3 CFR 2010 Comp., pp. 298-327 (or 
successor orders); E.O. 12968, 3 CFR 1995 Comp., p. 391.


Sec. Sec.  710.9, 710.10, 710.28, 710.29, 710.30, 710.31, and 710.32   
[Amended]

0
2. Sections 710.9(e); 710.10(f); 710.28(c)(2); 710.29(a), (b), (c), 
(d), (f), (g), (h), (i) ; 710.30(b)(2); 710.31(a), (b), (d); and 
710.32(c) are amended by removing the words ``Deputy Chief for 
Operations'' and adding, in their place, the words ``Principal Deputy 
Chief for Mission Support Operations'' wherever they appear.

0
3. Section 710.36 is revised to read as follows:


Sec.  710.36  Acting officials.

    Except for the Secretary, the responsibilities and authorities 
conferred in this subpart may be exercised by persons who have been 
designated in writing as acting for, or in the temporary capacity of, 
the following DOE positions: The Local Director of Security; the 
Manager; the Director, Office of Personnel Security, DOE Headquarters; 
or the General Counsel. The responsibilities and authorities of the 
Principal Deputy Chief for Mission Support Operations, Office of 
Health, Safety and Security, may be exercised by persons in security-
related Senior Executive Service positions within the Office of Health, 
Safety and Security who have been designated in writing as acting for, 
or in the temporary capacity of, the Principal Deputy Chief for Mission 
Support Operations, with the approval of the Chief Health, Safety and 
Security Officer.

[FR Doc. 2012-29234 Filed 12-3-12; 8:45 am]
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