[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: 10CFR710.29]

[Page 301-302]
 
                            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. 710.29  Final appeal process.

    (a) The Appeal Panel shall be convened by the Director, Office of 
Security Affairs, to review and render a final decision in an access 
authorization eligibility case referred by the individual, the Manager, 
or the Director, Office of Safeguards and Security, in accordance with 
Secs. 710.22, 710.28, and 710.32.
    (b) The Appeal Panel shall consist of three members, each of whom 
shall be a DOE Headquarters employee, a United States citizen, and hold 
a DOE Q access authorization. The Director, Office of Security Affairs, 
shall serve as a permanent member of the Appeal Panel and as the Appeal 
Panel Chairman. The second member of the Appeal Panel shall be a DOE 
attorney designated by the General Counsel. The head of the DOE 
Headquarters element who has cognizance over the individual whose access 
authorization eligibility is being considered may designate an employee 
to act as the third member on the Appeal Panel; otherwise, the third 
member will be designated by the Chairman. Only one member of the Appeal 
Panel shall be from the security field.
    (c) In filing a written request for a review by the Appeal Panel in 
accordance with Secs. 710.22 and 710.28, the individual, or the counsel 
or representative, shall identify the relevant issues and may also 
submit any relevant material in support of the individual. The 
individual's written request and supportive material shall be made a 
part of the administrative record. The Director, Office of Safeguards 
and Security, shall provide staff support to the Appeal Panel as 
requested by the Director, Office of Security Affairs.
    (d) Within 15 calendar days from the date of receipt of a request 
for a review of a case by the Appeal Panel, the Director, Office of 
Security Affairs, shall:
    (1) Request the General Counsel to designate an attorney who shall 
serve as an Appeal Panel member;
    (2) Either request the head of the cognizant DOE element to 
designate, or himself designate, an employee from outside the security 
field who shall serve as the third member of the Appeal Panel; and
    (3) Arrange for the Appeal Panel members to convene to review the 
administrative record or provide a copy of the administrative record to 
the other Appeal Panel members for their independent review.
    (e) The Appeal Panel may initiate an investigation of any statement 
or material contained in the request for an Appeal Panel review and use 
any relevant facts obtained by such investigation in the conduct of the 
final decision process. The Appeal Panel may solicit and accept 
submissions from either the individual or DOE officials that are 
relevant to the final decision process and may establish appropriate 
time frames to allow for such submissions. The Appeal Panel may also 
consider any other source of information that will advance the final 
decision process, provided

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that both parties are afforded an opportunity to respond to all third 
party submissions. All information obtained by the Appeal Panel under 
this section shall be made a part of the administrative record.
    (f) Within 45 work days of the closing of the administrative record, 
the Appeal Panel shall render a final written decision in the case 
predicated upon an evaluation of the administrative record, findings as 
to each of the allegations contained in the notification letter, and any 
new evidence that may have been submitted pursuant to Sec. 710.30. If a 
majority of the Appeal Panel members determine that it will not endanger 
the common defense and security and will be clearly consistent with the 
national interest, the Director, Office of Security Affairs, shall grant 
or reinstate access authorization for the individual; otherwise, the 
Director, Office of Security Affairs, shall deny or revoke access 
authorization for the individual. The Appeal Panel written decision 
shall be made a part of the administrative record.
    (g) The Director, Office of Security Affairs, through the Director, 
Office of Safeguards and Security, shall inform in writing the 
individual involved and counsel or representative of the Appeal Panel's 
final decision. A copy of the correspondence shall also be provided to 
the other panel members and the Manager.
    (h) If, upon receipt of a written request for a review of the 
individual's case by the Appeal Panel, the Director, Office of Security 
Affairs, is aware or subsequently becomes aware of information that the 
individual is the subject of an unresolved inquiry or investigation of a 
matter that could reasonably be expected to affect the individual's DOE 
access authorization eligibility, the Director may defer action by the 
Appeal Panel on the request until the inquiry or investigation is 
completed and its results available for review by the Appeal Panel. In 
such instances, the Director, Office of Security Affairs, shall:
    (1) Obtain written approval from the Secretary to defer review of 
the individual's case by the Appeal Panel for an initial interval not to 
exceed 90 calendar days;
    (2) Advise the individual and appropriate DOE officials in writing 
of the initial deferral and the reason(s) therefor;
    (3) Request that the individual's employment status not be affected 
during the initial and any subsequent deferral interval, except at the 
written request of the individual;
    (4) Obtain written approval from the Secretary to extend the 
deferral for each subsequent 90 calendar day interval and advise in 
writing all concerned parties of the Secretary's approval;
    (5) Inform in writing all concerned parties when the inquiry or 
investigation has been completed and the results made available to the 
Appeal Panel.
    (i) If, upon receipt of a written request for review of an 
individual's case by the Appeal Panel, the Director, Office of Security 
Affairs, is aware or subsequently becomes aware of information that 
adversely affects the individual's DOE access authorization eligibility 
and that cannot for national security reasons be disclosed in the 
proceedings before a DOE Hearing Officer, the Director may refer the 
information and the administrative record to the Secretary for the final 
decision as to the individual's DOE access authorization eligibility. In 
such instances, the Director, Office of Security Affairs, shall notify 
in writing all concerned parties that the individual's case has been 
provided to the Secretary for a final decision in accordance with 
Sec. 710.31.
    (j) Upon the recommendation of the Appeal Panel, the Secretary may 
exercise the appeal authority of the Appeal Panel. If the Secretary 
exercises the appeal authority, then the decision of the Secretary is 
final.

[66 FR 47065, Sept. 11, 2001]

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