B-248926 May 29, 1992

B-248926: May 29, 1992

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This question is important because Congress recently enacted legislation demonstrating concern over the cost of security investigations. DOE could cut costs if it were permitted to switch to DIS. The AEC was required (except in certain limited cases) to obtain an investigation and report by the Federal Bureau of Investigation (FBI) before employing an individual. [2] In 1952. Subsection (b) of section 145 reads in part as follows: "Except as authorized by the Commission or the General Manager upon a determination by the Commission or General Manager that such action is clearly consistent with the national interest. No individual shall be employed by the Commission nor shall the Commission permit any individual to have access to Restricted Data until the Civil Service Commission shall have made an investigation and report to the Commission on the character.

B-248926 May 29, 1992

DOE may not use a background investigation performed by agencies other than the Office of Personnel Management as a basis for issuing a security clearance to an employee in its nuclear energy areas. 42 U.S.C. Sec. 2065 gives the Commissioner of the Atomic Energy Commission, (now the Secretary of Energy) flexibility in deciding what standards must be met for security clearances to be issued and in some other matters, but it requires that clearances be issued only on the basis of a report from the Civil Service Commission (now OPM). The statute allows no option to use another contractor, such as the Defense Investigative Service, to perform background investigations, even though it may be less expensive to do so.

To: Special Assistant to the General Counsel -- Martin J. Fitzgerald

FROM: Senior Attorney, RCED -- Margie Armen

SUBJ: Security Clearances at DOE

RCED evaluator Dave Brack requested our views on the Department of Energy's (DOE) order requiring the exclusive use of the Office of Personnel Management's (OPM) services for conducting background investigations for employee security clearances. This question is important because Congress recently enacted legislation demonstrating concern over the cost of security investigations. Since OPM reportedly charges twice as much as the Defense Investigative Service (DIS) to conduct background investigations, DOE could cut costs if it were permitted to switch to DIS.

From the beginning, Congress recognized the special national security concerns pertaining to the work of the Atomic Energy Commission. [1] In the original 1946 Atomic Energy Act, the AEC was required (except in certain limited cases) to obtain an investigation and report by the Federal Bureau of Investigation (FBI) before employing an individual. [2] In 1952, Congress shifted that investigative responsibility to the Civil Service Commission, but retained a role for the FBI to investigate individuals selected to fill certain highly important or sensitive positions. [3]

Later, Congress restated AEC's personnel security requirements in section 145 of the Atomic Energy Act of l954. [4] As enacted in 1954, subsection (b) of section 145 reads in part as follows:

"Except as authorized by the Commission or the General Manager upon a determination by the Commission or General Manager that such action is clearly consistent with the national interest, no individual shall be employed by the Commission nor shall the Commission permit any individual to have access to Restricted Data until the Civil Service Commission shall have made an investigation and report to the Commission on the character, associations, and loyalty of such individual, and the Commission shall have determined that permitting such person to have access to Restricted Data will not endanger the common defense and security."

Subsection 145 (e) retained the requirement that investigations and reports for highly important and sensitive positions be made by the FBI. The AEC was also required to set written standards for the type and scope of Civil Service Commission investigation necessary to insure maintenance of appropriate security levels for various jobs.

In 1961, Congress further amended the statute by adding a new subsection (c) to section 145, which provided:

"In lieu of the investigation and report to be made by the Civil Service Commission pursuant to subsection b of this section, the Commission may accept an investigation and report on the character, associations, and loyalty of an individual made by another Government agency which conducts personnel security investigations, provided that a security clearance has been granted to such individual by another Government agency based on such investigation and report." [5]

This allows AEC to accept the results of a security investigation previously conducted on an individual by another federal agency. This latter provision enables the AEC to share Restricted Data with "need to know" employees in other federal agencies whose security clearances were not based on investigation by the CSC but by some other Federal agency. It also permits AEC to rely on security investigations conducted by agencies other than the CSC for the direct employment of an individual, provided that a security clearance has been granted to such individual by another government agency. Subsections (b) and (c) of section 145 of the 1954 Act have been unchanged since the 1961 amendments.

As described above, the statute vests DOE with considerable discretion concerning security clearances for employees. In short, DOE can employ a person without an OPM background investigation where: (1) there has been a waiver, (2) where the position is one designated for FBI investigative responsibility, or (3) where the person already has a clearance from another agency based on an investigation and report conducted by another agency and acceptable to DOE. Notwithstanding that broad discretion, the statute does not allow DOE unilaterally to select an agent other than OPM to perform required security investigations for other persons.

It must be observed that these statutory provisions, inherited from AEC by DOE, relate to employees whose positions and duties derive from the functions performed by the AEC, i.e., those which are related to nuclear energy, nuclear weapons production, nuclear research, etc. Moreover, the Secretary of Energy was granted general appointment authority in legislation creating the Department of Energy. See 42 U.S.C. Sec. 7231. Some DOE employees whose duties do not derive from the former AEC may require security clearances.

In this connection, we must consider the Executive Order which establishes general guidelines for OPM's participation in the conduct of personnel security investigations.

President Eisenhower organized the current personnel security program for the federal government when he signed Executive Order 10450 on April 27, 1953. That Order, with some amendments, is still in effect today. It requires that the suitability of certain potential government employees be verified by an investigation of the individual's loyalty, reliability, trustworthiness and character. With regard to who would conduct security investigations, the original 1953 order provided:

"The investigation of persons entering or employed in the competitive service shall primarily be the responsibility of the Civil Service Commission, except in cases in which the head of a department or agency assumes that responsibility pursuant to law or by agreement with the Commission. * * * * ." [Emphasis added.]

It also stated:

"The investigation of persons (including consultants, however employed), entering employment of or employed by the Government other than in the competitive service shall primarily be the responsibility of the employing department or agency. * * * *."

Ex. Ord. 10450, 18 Fed. Reg. 2489, sections 8 (b) and (c). The reference to the Civil Service Commission (CSC) has been changed to "the Office of Personnel Management." Otherwise, these sections, the pertinent parts of which have been quoted, remain unchanged since 1953.

The Executive Order gives OPM authority to delegate to other federal agencies the task of performing security investigations of persons whose duties do not derive from the former AEC. Accordingly, if OPM agreed to approve DIS or another agency as the investigating body for these employees, we believe that DOE could use the agreed-on source for security investigations.

As a secondary question, Mr. Brack also asked whether the recently enacted provision prohibiting duplication of security investigations by DOE, was permanent or temporary. National Defense Authorization Act of 1991, Pub. L. No. 101-510, 3104(d). The provision in question prohibits the duplication of security investigations, and it is permanent.

A general rule regarding construction of annual authorization and appropriations acts is that, absent a clear expression of permanence, material contained therein - even material of general applicability -- is effective only for one year. Because this provision was contained in an annual authorization act, Mr. Brack was concerned that its effect might also be limited to the effective period of the authorization itself -- i.e., one year.

While the provision lacked express words of futurity, it was apparent from the context that permanent application was intended. The provision was one of three subparagraphs in section 3104(d). The other two, unlike the one in question, were both prefaced "In fiscal year 1992...." As further evidence of permanence, the provision has in fact been codified to the U. S. Code in title 42 at section 7273b. Finally, a nearly identical provision was contained in the same act regarding DOD security clearances, and that provision was enacted as an amendment to title 10 of the U.S. Code. This procedure was necessary to insure permanence because title 10 is positive law. The parallel between the DOD and DOE provisions provides final assurance that section 3104(d) was permanent in its application.

1. The Atomic Energy Commission (AEC) was abolished in 1974. Pub. L. No 93-438, 88 Stat. 1233. Some of its functions transferred to the Nuclear Regulatory Commission and others to the Energy Research and Development Administration (ERDA). In 1977, ERDA was absorbed into the newly created Department of Energy. 42 U.S.C. Sec. 7151a.

2. Pub. L. No. 79-585, 60 Stat. 755, section 10(b)(5)(B) (ii).

3. Pub. L. No. 82-298, 66 Stat. 43.

4. Pub. L. No. 83-703, 68 Stat. 919.

5. Pub. L. No. 87-206, 75 Stat. 476.