[Federal Register: February 19, 2008 (Volume 73, Number 33)]
[Proposed Rules]
[Page 9071-9075]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19fe08-19]
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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: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) is proposing to amend 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 checks 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 checks would not be
required for applicants for DOE access authorization who possess a
current access authorization from another Federal agency.
DATES: Written comments on the proposed rulemaking must be received on
or before close of business March 20, 2008.
ADDRESSES: This proposed rule is available and comments may be
submitted to the Federal Electronic Rulemaking Portal at http://www.regulations.gov.
Comments may also be submitted electronically to Richard.Langston@hq.doe.gov. Comments may be mailed to: Richard
Langston, Procurement Policy Analyst; MA-61/Forrestal Building; U.S.
Department of Energy; 1000 Independence Avenue, SW.; Washington, DC
20585.
FOR FURTHER INFORMATION CONTACT: Richard Langston at 202-287-1339 or
Richard.Langston@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
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. 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. Section 904.404 is being revised 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 requirements, 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. 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. Section-by-Section Analysis
The Department proposes to amend the DEAR as follows:
Section 904.401 is amended to revise the definitions of classified
information and Restricted Data.
Section 904.404, Solicitation provision and contract clause, is
amended by adding ``or access to special nuclear materials'' after
``classified information'' at the end of the first sentence of
paragraph (d)(1).
Section 952.204-2, Security requirements, is amended by revising
its title to ``Security''; by revising the definitions in paragraphs
(c) through (g); by revising the title of paragraph (h) from ``Security
clearances of personnel'' to ``Access authorizations for personnel''
and redesignating its text as paragraph (h)(1); by adding new
paragraphs (h)(2) and (i); by redesignating existing paragraphs (i) and
(j) as (j) and (k); and by adding new paragraphs (l) and (m).
Paragraphs (h)(2), (i), and (i)(1) contain language similar to that
found in management and operating contract policy guidance at 970.2201-
1-2(a)(1) and (2). The language in (h)(2) has been augmented by
referencing the criteria at 10 CFR 710.8 that are used to grant or deny
access authorizations, by adding a requirement that a candidate for a
DOE access authorization must be tested to demonstrate the absence of
any illegal drug, as defined in 10 CFR 707.4, and by directing
contractors to select for employment only those whom they believe can
pass the rigorous background investigation required for such positions.
A new paragraph (h)(3) has been added making it clear that drug testing
is applicable to all employees on an applicant, random or ``for cause''
basis. Paragraph (i), Criminal liability is amended to add ``special
nuclear material, and other Government property'' to ``classified
information'' as items the contractor must protect. Paragraph (j),
Foreign Ownership, Control or Influence, is amended by moving the flow
down to subcontracts requirement of (j)(4) to (l) and redesignating
paragraph (j)(5) as (j)(4). New paragraph (k), Employment
announcements, requires that contractors include a notice in vacancy
announcements for positions requiring access authorizations that
background checks and testing for the absence of any illegal drug, as
defined in 10 CFR 707.4, will be performed, and that the Federal
government may conduct a background investigation, subsequent
reinvestigations, and, in the case of counterintelligence positions (as
defined in 10 CFR 709.3), a
[[Page 9072]]
counterintelligence evaluation, which may include a polygraph
examination. In addition to the subject matter from paragraph (j)(4),
new paragraph (l), Flow down to subcontracts, addresses the flow down
to subcontracts by incorporating the subject matter from the final
sentence of 970.2201-1-2(a)(1)(ii).
Section 970.2201-1-2, Policies, is revised at paragraph (a)(1)(ii).
The first sentence is revised by changing ``personnel investigations''
to ``background checks'' in the first and second sentences; in the
third sentence, changing ``pre-employment'' to ``background,''
``applicant's'' to ``uncleared employment applicant's or uncleared
employee,'' and ``applicant'' to ``individual''; adding a new fourth
sentence to require a test to demonstrate the absence of any illegal
drug as defined in 10 CFR 707.4; in the sixth sentence, changing
``applicant's'' to ``uncleared employment applicant's or uncleared
employee''; in the seventh sentence, rewriting the sentence to address
``employee'' rather than ``applicant''; in the eighth sentence,
changing the first usage of ``applicant'' to ``uncleared employee'' and
the second to ``employee''; and in the last sentence, changing ``may''
to ``shall'' in order to make it imperative that subcontractors perform
background checks on subcontract employee applicants or employees if
they will require access authorizations to perform their duties.
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 proposed 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 proposed 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 proposed
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 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 none
has been prepared.
D. Review Under the Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements. Information collection or recordkeeping
requirements mentioned in this proposed 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 proposed 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 proposed rule is categorically excluded from
NEPA review because the amendments to the DEAR would be strictly
procedural (categorical exclusion A6). Therefore, this proposed 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 proposed 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 proposed rule does not impose a federal
mandate on state, local or tribal governments or on the private sector.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
[[Page 9073]]
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 proposed 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; 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
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 proposed 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. Approval by the Office of the Secretary of Energy
The Office of the Secretary of Energy has approved issuance of this
proposed rule.
List of Subjects in 48 CFR Parts 904, 952 and 970
Government procurement.
Issued in Washington, DC, on February 11, 2008.
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.
For the reasons set out in the preamble, DOE proposes to amend
Chapter 9 of Title 48 of the Code of Federal Regulations as set forth
below:
PART 904--ADMINISTRATIVE MATTERS
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.
2. In 904.401, the definitions of Classified Information and
Restricted Data are revised to read as follows:
904.401 Definitions.
* * * * *
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 42 U.S.C. 2162 [Section 142, as amended, of the
Atomic Energy Act of 1954].
904.404 [Amended]
3. Section 904.404, [DOE Coverage--Paragraph (d)] 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
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 (XXX 2007)
(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 protecting against sabotage, espionage,
loss or theft of the classified documents and material, including
special nuclear material, in the Contractor's possession in
connection with the performance of work under this contract. 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 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
material 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 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
[[Page 9074]]
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 job qualifications and suitability of employees or
prospective employees must be considered by the Contractor prior to
assignment to positions requiring access authorizations by careful
personnel background checks. Background checks are not required for
an applicant for DOE access authorization who possesses a current
access authorization from DOE or another Federal agency. Such
background checks must include, but are not limited to, as
appropriate: A credit check; verification of high school diploma
received within the last five years or degree/diploma granted by an
institution of higher learning; contacts with listed personal
references; contacts with listed employers for the last five years
(excluding employment of less than 60 days' duration, part-time
employments, and craft/union employments); and local law enforcement
checks when such checks are not prohibited by state or local law or
regulation, and when the individual resides in the jurisdiction
where the Contractor is located. When a DOE access authorization
will be required, the aforementioned background checks must be
conducted and the uncleared applicant's or uncleared employee's job
qualifications and suitability must be established before a request
is made to the DOE to process the uncleared applicant or uncleared
employee for an access authorization. In addition, each candidate
for a DOE access authorization must be tested to demonstrate the
absence of any illegal drug, as defined in 10 CFR 707.4. Evidence
must be furnished to DOE with the uncleared applicant's or uncleared
employee's security forms that specify: The results of the test for
the absence of any illegal drug, as defined in 10 CFR 707.4, and,
for the background checks, the date each check was conducted; the
identity of the contact who provided the information; a synopsis of
the information provided by each contact; and a statement that all
relevant information available has been reviewed in accordance with
the Contractor's personnel policies with favorable results. When
hiring new employees for positions requiring access authorizations,
the Contractor shall perform these background checks prior to
submission of the request for DOE access authorization. If adverse
information is found in the course of the background checks, the
Contractor must assess the possible impact of such findings on the
uncleared applicant's or uncleared employee's suitability for a
position requiring an access authorization and act accordingly.
Access authorizations are granted or denied based on criteria in 10
CFR 710.8. DOE will not process candidates for a DOE access
authorization unless their tests confirm the absence of any illegal
drug. 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. When an uncleared applicant is hired specifically for a
position that requires a DOE access authorization, the uncleared
employee shall not be placed in that position prior to the access
authorization being granted by DOE, unless an approval has been
obtained from 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 DOE, the uncleared employee may
not be afforded access to classified information or matter or
special nuclear material (in categories requiring access
authorization) until DOE notifies the employer that an access
authorization has been granted.
(3) 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.
(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 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 background checks 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 for the
required 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 this 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
[[Page 9075]]
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
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]
6. Section 970.0470-1(b) is amended by revising both mentions of
``Directives System'' to read ``Directives Program.''
970.2201-1-1 [Amended]
7. Section 970.2201-1-1 is amended by removing the term
``guidance'' and adding in its place ``requirements.''
8. Section 970.2201-1-2, paragraphs (a)(1)(i) and (ii) are revised
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 job qualifications and suitability of prospective
employees should be established by the contractor prior to employment
by careful background checks. Such background checks should include, as
appropriate: a credit check; verification of high school diploma
received within the last five years or degree/diploma granted by an
institution of higher learning; contacts with listed personal
references; contacts with listed employers for the last five years
(excluding employment of less than 60 days' duration, part-time
employments, and craft/union employments); and local law enforcement
checks when such checks are not prohibited by state or local law or
regulation, and when the individual resides in the jurisdiction where
the contractor is located. When a DOE access authorization will be
required, the aforementioned background checks must be conducted and
the uncleared employment applicant's or uncleared employee's job
qualifications and suitability must be established before a request is
made to the DOE to process the individual for an access authorization.
In addition, each candidate for a DOE access authorization must be
tested for the absence of any illegal drug as defined in 10 CFR part
707.4. Evidence must be furnished to DOE with the uncleared employment
applicant's or uncleared employee's security forms that specify: the
results of the test for the absence of any illegal drug, as defined in
10 CFR 707.4, and, for the background checks, the date each background
check was conducted, the identity of the contact who provided the
information, a synopsis of the information provided by each contact,
and a statement that all relevant information available has been
reviewed and favorably adjudicated in accordance with the contractor's
personnel policies. When an uncleared applicant is hired specifically
for a position which requires a DOE access authorization, the uncleared
employee shall not be placed in that position prior to the access
authorization being granted by DOE, unless approved by the head of the
cognizant local security office. If an uncleared employee is placed in
that position prior to access authorization being granted by the DOE,
the uncleared employee may not be afforded access to classified
information or matter, or to special nuclear materials (in categories
requiring an access authorization) until DOE notifies the employer that
an access authorization has been granted. 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. E8-3012 Filed 2-15-08; 8:45 am]
BILLING CODE 6450-01-P