[Code of Federal Regulations]
[Title 10, Volume 4]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR710.26]
[Page 297-299]
TITLE 10--ENERGY
CHAPTER III--DEPARTMENT OF ENERGY
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL--Table of Contents
Subpart A--General Criteria and Procedures for Determining Eligibility
for Access to Classified Matter or Special Nuclear Material
Sec. 710.26 Conduct of hearings.
(a) In all hearings conducted under this subpart, the individual
shall have the right to be represented by a person of his own choosing.
The individual is responsible for producing witnesses in his own behalf,
including requesting the issuance of subpoenas, if necessary, or
presenting other proof before the Hearing Officer to support his defense
to the allegations contained in the notification letter. With the
exception of procedural or scheduling matters, the Hearing Officer is
prohibited from initiating or otherwise engaging in ex parte discussions
about the case during the pendency of proceedings under this part.
(b) Unless the Hearing Officer finds good cause for granting a
waiver of this paragraph or granting an extension of time, in the event
that the individual unduly delays the hearing, such as by failure to
meet deadlines set by the Hearing Officer, the record shall be closed,
and a final decision shall be made by the Manager on the basis of the
record in the case.
(c) Hearings shall be open only to DOE Counsel, duly authorized
representatives of the staff of DOE, the individual and his counsel or
other representatives, and such other persons as may be authorized by
the Hearing Officer. Unless otherwise ordered by the Hearing Officer,
witnesses shall testify in the presence of the individual but not in the
presence of other witnesses.
(d) DOE Counsel shall assist the Hearing Officer in establishing a
complete administrative hearing record in the proceeding and bringing
out a full and true disclosure of all facts, both favorable and
unfavorable, having a bearing on the issues before the Hearing Officer.
The individual shall be afforded the opportunity of presenting evidence,
including testimony by the individual
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in the individual's own behalf. The proponent of a witness shall conduct
the direct examination of that witness. All witnesses shall be subject
to cross- examination, if possible. Whenever reasonably possible,
testimony shall be given in person.
(e) The Hearing Officer may ask the witnesses any questions which
the Hearing Officer deems appropriate to assure the fullest possible
disclosure of relevant and material facts.
(f) During the course of the hearing, the Hearing Officer shall rule
on all questions presented to the Hearing Officer for the Hearing
Officer's determination.
(g) In the event it appears during the course of the hearing that
Restricted Data or national security information may be disclosed, it
shall be the duty of the Hearing Officer to assure that disclosure is
not made to persons who are not authorized to receive it.
(h) Formal rules of evidence shall not apply, but the Federal Rules
of Evidence may be used as a guide for procedures and principles
designed to assure production of the most probative evidence available.
The Hearing Officer shall admit into evidence any matters, either oral
or written, which are material, relevant, and competent in determining
issues involved, including the testimony of responsible persons
concerning the integrity of the individual. In making such
determinations, the utmost latitude shall be permitted with respect to
relevancy, materiality, and competency. The Hearing Officer may also
exclude evidence which is incompetent, immaterial, irrelevant, or unduly
repetitious. Every reasonable effort shall be made to obtain the best
evidence available. Subject to Secs. 710.26(1), 710.26(m), 710.(n),
710.26(o), hearsay evidence may in the discretion of the Hearing Officer
and for good cause shown be admitted without strict adherence to
technical rules of admissibility and shall be accorded such weight as
the circumstances warrant.
(i) Testimony of the individual and witnesses shall be given under
oath or affirmation. Attention of the individual and each witness shall
be directed to 18 U.S.C. 1001 and 18 U.S.C. 1621.
(j) The Hearing Officer shall endeavor to obtain all the facts that
are reasonably available in order to arrive at findings. If, prior to or
during the proceedings, in the opinion of the Hearing Officer, the
allegations in the notification letter are not sufficient to cover all
matters into which inquiry should be directed, the Hearing Officer shall
recommend to the Operations Office Manager concerned that, in order to
give more adequate notice to the individual, the notification letter
should be amended. Any amendment shall be made with the concurrence of
the local Office of Chief Counsel or the Office of General Counsel in
Headquarters cases. If, in the opinion of the Hearing Officer, the
circumstances of such amendment may involve undue hardships to the
individual because of limited time to answer the new allegations in the
notification letter, an appropriate adjournment shall be granted upon
the request of the individual.
(k) A written or oral statement of a person relating to the
characterization in the notification letter of any organization or
person other than the individual may be received and considered by the
Hearing Officer without affording the individual an opportunity to
cross-examine the person making the statement on matters relating to the
characterization of such organization or person, provided the individual
is given notice that it has been received and may be considered by the
Hearing Officer, and is informed of its contents provided such is not
prohibited by paragraph (g) of this section.
(l) Any oral or written statement adverse to the individual relating
to a controverted issue may be received and considered by the Hearing
Officer without affording an opportunity for cross-examination in either
of the following circumstances:
(1) The head of the agency supplying the statement certifies that
the person who furnished the information is a confidential informant who
has been engaged in obtaining intelligence information for the
Government and that disclosure of the informant's identity would be
substantially harmful to the national interest;
(2) The Secretary or his special designee for that particular
purpose has
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preliminarily determined, after considering information furnished by the
investigative agency as to the reliability of the person and the
accuracy of the statement concerned, that:
(i) The statement concerned appears to be reliable and material; and
(ii) Failure of the Hearing Officer to receive and consider such
statement would, in view of the access sought to Restricted Data,
national security information, or special nuclear material, be
substantially harmful to the national security and that the person who
furnished the information cannot appear to testify
(A) Due to death, severe illness, or similar cause, in which case
the identity of the person and the information to be considered shall be
made available to the individual, or
(B) Due to some other specified cause determined by the head of the
agency to be good and sufficient.
(m) Whenever procedures under paragraph (l) of this section are
used:
(1) The individual shall be given a summary or description of the
information which shall be as comprehensive and detailed as the national
interest permits, and
(2) Appropriate consideration shall be accorded to the fact that the
individual did not have an opportunity to cross-examine such person(s).
(n) Records compiled in the regular course of business, or other
physical evidence other than investigative reports obtained by DOE, may
be received and considered subject to rebuttal without authenticating
witnesses provided that such information has been furnished to DOE by an
investigative agency pursuant to its responsibilities in connection with
assisting the Secretary to safeguard Restricted Data, national security
information, or special nuclear material.
(o) Records compiled in the regular course of business, or other
physical evidence other than investigative reports, relating to a
controverted issue which, because they are classified, may not be
inspected by the individual, may be received and considered provided
that:
(1) The Secretary or his special designee for that particular
purpose has made a preliminary determination that such physical evidence
appears to be material;
(2) The Secretary or his special designee for that particular
purpose has made a determination that failure to receive and consider
such physical evidence would, in view of the access sought to Restricted
Data, national security information, or special nuclear material sought,
be substantially harmful to the national security; and
(3) To the extent that national security permits, a summary or
description of such physical evidence is made available to the
individual. In every such case, information as to the authenticity and
accuracy of such physical evidence furnished by the investigative agency
shall be considered.
(p) The Hearing Officer may request the Local Director of Security
to arrange for additional investigation on any points which are material
to the deliberations of the Hearing Officer and which the Hearing
Officer believes need further investigation or clarification. In this
event, the Hearing Officer shall set forth in writing those issues upon
which more evidence is requested, identifying where possible persons or
sources from which the evidence should be sought. The Local Director of
Security shall make every effort through appropriate sources to obtain
additional information upon the matters indicated by the Hearing
Officer.
(q) A written transcript of the entire proceedings shall be made
and, except for portions containing Restricted Data or national security
information, a copy of such transcript shall be furnished the individual
without cost.
(r) Whenever information is made a part of the record under the
exceptions authorized by paragraphs (l) or (o) of this section, the
record shall contain certificates evidencing that the determinations
required therein have been made.