[At this time there
is no official integrated version of the Part 710 regulations that became
effective September 11, 2001. While we believe that this document is accurate, it
is not from an official source, having been produced for the convenience of
readers by Commerce Clearing House for the Federal Energy Guidelines.]
Subpart A-General Criteria and
Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material
General Provisions
Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material
Sec. 710.6
Cooperation by the individual.
Sec. 710.7
Application of the criteria.
Sec. 710.9
Action on derogatory information.
Sec. 710.10
Suspension of access authorization.
Administrative Review
Sec.
710.20 Purpose of administrative review.
Sec.
710.21 Notice to the individual.
Sec. 710.22
Initial decision process.
Sec.
710.23 Extensions of time by the Manager.
Sec. 710.24 Appointment of DOE Counsel.
Sec. 710.25
Appointment of Hearing Officer; prehearing conference; commencement of
hearings.
Sec.
710.26 Conduct of Hearings.
Sec.
710.27 Hearing Officer's decision.
Sec. 710.28 Action on the Hearing Officer's decision.
Sec.
710.29 Final appeal process.
Sec.
710.31 Action by the Secretary.
Sec.
710.32 Reconsideration of access eligibility.
Sec.
710.34 Attorney representation.
General Provisions
(a) This
subpart establishes the criteria, procedures, and methods for resolving
questions concerning the eligibility of individuals who are employed by, or
applicants for employment with, Department of Energy (DOE) contractors, agents,
and access permittees, individuals who are DOE employees or applicants for DOE
employment, and other persons designated by the Secretary of Energy, for access
to Restricted Data or special nuclear material, pursuant to the Atomic Energy
Act of 1954, as amended, or for access to national security information.
(b) This
subpart is published to implement Executive Order 12968, 60 FR 40245 (August 7,
1995); Executive Order 12356, 47 FR 14874 (April 2, 1982); Executive Order
10865, 25 FR 1583 (February 24, 1960), as amended; and Executive Order 10450,
18 FR 2489 (April 27, 1954), as amended.
The
criteria and procedures outlined in this subpart shall be used in those cases
in which there are questions of eligibility for DOE access authorization
involving:
(a) Employees
(including consultants) of, and applicants for employment with, contractors and
agents of the DOE;
(b)
Access permittees of the DOE and their employees (including consultants) and
applicants for employment;
(c)
Employees (including consultants) of, and applicants for employment with, the
DOE; and
(d)
Other persons designated by the Secretary of Energy.
The
pertinent sections of the Atomic Energy Act of 1954, as amended, relative to
this regulation are set forth in Appendix A to this Subpart.
(a) It
is the policy of DOE to provide for the security of its programs in a manner
consistent with traditional American concepts of justice and fairness. To this
end, the Secretary has established criteria for determining eligibility for
access authorization and procedures that will afford those individuals
described in '710.2 the opportunity for administrative review of questions
concerning their eligibility for access authorization.
(b) It
is also the policy of DOE that none of the procedures established by DOE for
determining eligibility for access authorization shall be used for an improper
purpose, including any attempt to coerce, restrain, threaten, intimidate, or
retaliate against individuals for exercising their rights under any statute,
regulation or DOE directive. Any DOE officer or employee violating, or causing
the violation of this policy, shall be subject to appropriate disciplinary
action.
(c) If
the individual is currently awaiting trial, or has been convicted of a crime
punishable by imprisonment of six (6) months or longer, or is awaiting or
serving a form of preprosecution probation, suspended or deferred sentencing,
court ordered probation, or parole in conjunction with an arrest or criminal charges
initiated against the individual for a crime that is punishable by imprisonment
of six (6) months or longer, DOE may suspend processing an application for
access authorization until such time as the criminal prosecution, suspended
sentence, deferred sentencing, probation, or parole has been completed.
(d) DOE
may suspend processing an application for access authorization if sufficient
information about the individual's background cannot be obtained to meet the
investigative scope and extent requirements for the access authorization
requested.
(e) DOE
may suspend processing an application for access authorization until such time
as a question regarding an individual's national allegiance is resolved. For
example, if an individual is exercising rights of citizenship conferred by a
country other than the United States, DOE will be concerned with whether
granting access authorization to that individual constitutes an unacceptable
national security risk.
(f) DOE may
suspend processing an application for access authorization whenever an
individual fails to fulfill the responsibilities described in '710.6.
(g) If
an individual believes that the provisions of paragraph (c), (d), or (e) of
this section have been inappropriately applied, a written appeal may be filed
with the Director, Office of Safeguards and Security, DOE Headquarters, within
30 calendar days of the date the individual was notified of the action. The
Director, Office of Safeguards and Security, shall act on the written appeal as
described in section 710.6(c).
(a) As
used in this subpart:
Access
authorization
means an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special
nuclear material.
Classified
Matter
means the material of thought or expression that is classified pursuant to
statute or Executive Order.
DOE
Counsel
means a DOE attorney assigned to represent DOE in proceedings under this
subpart. DOE Counsel shall be a U.S. citizen and shall have been subject to a
favorably adjudicated background investigation.
Hearing
Officer
means a DOE attorney or senior management official appointed by the Director,
Office of Hearings and Appeals, pursuant to '710.25. A Hearing Officer shall be
a U.S. citizen and shall have been subject to a favorably adjudicated
background investigation.
Local
Director of Security means the Operations Office or Naval Reactors Office Security and
Safeguards Division Director, or other similar title; for Washington, DC area
cases, the Director, Headquarters Operations Division; for the Idaho Operations
Office, the Program Manager, Security and Resource Management Division; for the
Pittsburgh Naval Reactors Office, the Director, Contracts and Securities
Division; for the Savannah River Operations Office, the Director, Internal
Security Division; and any person designated in writing to serve in one of the
aforementioned positions in an Acting capacity.
National
Security Information means any information that has been determined, pursuant to Executive
Order No. 12958 or any predecessor Order, to require protection against
unauthorized disclosure and that is so designated.
Operations
Office Manager or Manager means the Manager of a DOE Operations Office (Albuquerque, Chicago,
Idaho, Nevada, Oak Ridge, Oakland, Richland, or Savannah River), the Manager of
the Pittsburgh Naval Reactors Office, the Manager of the Schenectady Naval
Reactors Office, and, for Washington, DC area cases, the Director, Office of
Safeguards and Security.
Secretary means the Secretary of
Energy, as provided by section 201 of the Department of Energy Organization
Act.
Special
nuclear material means plutonium, uranium enriched in the isotope 233, or in the isotope
235, and any other material which, pursuant to the provisions of Section 51 of
the Atomic Energy Act of 1954, as amended, has been determined to be special
nuclear material, but does not include source material; or any material artificially
enriched by any of the foregoing, not including source material.
(b)
Throughout this subpart the use of the male gender shall include the female
gender and vice versa.
Sec.
710.6 Cooperation by the individual.
(a) It
is the responsibility of the individual to cooperate by providing full, frank,
and truthful answers to DOE's relevant and material questions, and when
requested, to furnish or authorize others to furnish information that the DOE
deems pertinent to the individual's eligibility for DOE access authorization.
This obligation to cooperate applies when completing security forms, during the
course of a personnel security background investigation or reinvestigation, and
at any stage of DOE's processing of the individual's access authorization,
including but not limited to, personnel security interviews, DOE-sponsored
mental evaluations, and other authorized DOE investigative activities under
this subpart. The individual may elect not to cooperate; however, such refusal
may prevent DOE from reaching an affirmative finding required for granting or
continuing access authorization. In this event, any access authorization then
in effect may be terminated, or, for applicants, further processing may be
suspended.
(b) If
the individual believes that the provisions of paragraph (a) of this section
have been inappropriately applied in his case, he may file a written appeal of
the action with the Director, Office of Safeguards and Security, DOE
Headquarters, within 30 calendar days of the date he was notified of the
action.
(c) Upon
receipt of the written appeal, the Director, Office of Safeguards and Security,
shall conduct an inquiry as to the circumstances involved in the action and
shall, within 30 calendar days of receipt of the written appeal, notify the
individual, in writing, as to whether the action to terminate or suspend
processing of access authorization was appropriate. If the Director, Office of
Safeguards and Security, determines that the action was inappropriate, he shall
direct that the individual continue to be processed for access authorization,
or that access authorization for the individual be reinstated.
Sec.
710.7 Application of the criteria.
(a) The
decision as to access authorization is a comprehensive, common-sense judgment,
made after consideration of all relevant information, favorable and
unfavorable, as to whether the granting or continuation of access authorization will not
endanger the common defense and security and is clearly consistent with
the national interest. Any doubt as to an individual's access authorization
eligibility shall be resolved in favor of the national security. Absent any
derogatory information, a favorable determination usually will be made as to access
authorization eligibility.
(b) To
assist in making these determinations, on the basis of all the information in a
particular case, there are set forth in this subpart criteria consisting of a
number of specific types of derogatory information. These criteria are not
exhaustive but contain the principal types of derogatory information which
create a question as to the individual's eligibility for access authorization.
DOE is not limited to these criteria or precluded from exercising its judgment
that information or facts in a case under its cognizance are derogatory
although at variance with, or outside the scope of, the stated categories.
These criteria are subject to continuing review and may be revised from time to
time as experience and circumstances may make desirable.
(c) In
resolving a question concerning an individual's eligibility for access
authorization, all DOE officials involved in the decision-making process shall
consider: the nature, extent, and seriousness of the conduct; the circumstances
surrounding the conduct, to include knowledgeable participation; the frequency
and recency of the conduct; the age and maturity of the individual at the time
of the conduct; the voluntariness of participation; the absence or presence of
rehabilitation or reformation and other pertinent behavioral changes; the
motivation for the conduct; the potential for pressure, coercion, exploitation,
or duress; the likelihood of continuation or recurrence; and other relevant and
material factors.
Derogatory
information shall include, but is not limited to, information that the
individual has:
(a)
Committed, prepared or attempted to commit, or aided, abetted or conspired with
another to commit or attempt to commit any act of sabotage, espionage, treason,
terrorism, or sedition.
(b)
Knowingly established or continued a sympathetic association with a saboteur,
spy, terrorist, traitor, seditionist, anarchist, or revolutionist, espionage
agent, or representative of a foreign nation whose interests are inimical to
the interests of the United States, its territories or possessions, or with any
person advocating the use of force or violence to overthrow the Government of
the United States or any state or subdivision thereof by unconstitutional
means.
(c)
Knowingly held membership in or had a knowing affiliation with, or has
knowingly taken action which evidences a sympathetic association with the
intent of furthering the aims of, or adhering to, and actively participating
in, any foreign or domestic organization, association, movement, group, or
combination of persons which advocates or practices the commission of acts of
force or violence to prevent others from exercising their rights under the
Constitution or Laws of the United States or any state or subdivision thereof
by unlawful means.
(d)
Publicly or privately advocated, or participated in the activities of a group
or organization, which has as its goal, revolution by force or violence to
overthrow the Government of the United States or the alteration of the form of
Government of the United States by unconstitutional means with the knowledge
that it will further those goals.
(e)
Parent(s), brother(s), sister(s), spouse, or offspring residing in a nation
whose interests may be inimical to the interests of the United States.
(f)
Deliberately misrepresented, falsified, or omitted significant information from
a Personnel Security Questionnaire, a Questionnaire for Sensitive National
Security Positions, a personnel qualifications statement, a personnel security
interview, written or oral statements made in response to official inquiry on a
matter that is relevant to a determination regarding eligibility for DOE access
authorization, or proceedings conducted pursuant to '710.20 through '710.31.
(g)
Failed to protect classified matter, or safeguard special nuclear material; or
violated or disregarded security or safeguards regulations to a degree which
would be inconsistent with the national security; or disclosed classified
information to a person unauthorized to receive such information; or violated
or disregarded regulations, procedures, or guidelines pertaining to sensitive
information technology systems.
(h) An
illness or mental condition of a nature which, in the opinion of a psychiatrist
or licensed clinical psychologist, causes, or may cause, a significant defect
in judgment or reliability.
(i)
Refused to testify before a Congressional Committee, Federal or state court, or
Federal administrative body, regarding charges relevant to eligibility for DOE,
or another Federal agency's access authorization.
(j)
Been, or is, a user of alcohol habitually to excess, or has been diagnosed by a
psychiatrist or a licensed clinical psychologist as alcohol dependent or as
suffering from alcohol abuse.
(k)
Trafficked in, sold, transferred, possessed, used, or experimented with a drug
or other substance listed in the Schedule of Controlled Substances established
pursuant to section 202 of the Controlled Substances Act of 1970 (such as
marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as
prescribed or administered by a physician licensed to dispense drugs in the
practice of medicine, or as otherwise authorized by Federal law.
(l)
Engaged in any unusual conduct or is subject to any circumstances which tend to
show that the individual is not honest, reliable, or trustworthy; or which
furnishes reason to believe that the individual may be subject to pressure, coercion,
exploitation, or duress which may cause the individual to act contrary to the
best interests of the national security. Such conduct or circumstances include,
but are not limited to, criminal behavior, a pattern of financial
irresponsibility, conflicting allegiances, or violation of any commitment or
promise upon which DOE previously relied to favorably resolve an issue of
access authorization eligibility.
Sec.
710.9 Action on derogatory information.
(a) If
the reports of investigation of an individual or other reliable information
tend to establish the validity and significance of one or more items in the
criteria, or of other reliable information or facts which are of security
concern, although outside the scope of the stated categories, such information
shall be regarded as derogatory and create a question as to the individual's
access authorization eligibility.
(b) If a
question arises as to the individual's access authorization eligibility, the
Local Director of Security shall authorize the conduct of an interview with the
individual, or other appropriate actions, which may include a DOE-sponsored
mental evaluation, and, on the basis of the results of such interview or
actions, may authorize the granting of the individual's access authorization. If,
in the opinion of the Local Director of Security, the question as to the
individual's access authorization eligibility has not been favorably resolved,
he shall submit the matter to the Manager with a recommendation that authority
be obtained to process the individual's case under administrative review
procedures.
(c) If
the Manager agrees that unresolved derogatory information is present and that
appropriate attempts to resolve such derogatory information have been unsuccessful,
he shall notify the Director, Office of Safeguards and Security, of his
proposal to conduct an administrative review proceeding, accompanied by an
explanation of the security concerns and a duplicate Personnel Security File.
If the Manager believes that the derogatory information has been favorably
resolved, he shall direct that access authorization be granted for the
individual. The Manager may also direct the Local Director of Security to
obtain additional information in the matter prior to deciding whether to grant
the individual access authorization or to submit a request for authority to
conduct an administrative review proceeding. A decision in the matter shall be
rendered by the Manager within 10 calendar days of its receipt.
(d) Upon
receipt of the Manager's notification, the Director, Office of Safeguards and
Security, shall review the matter and confer with the Manager on:
(1) The
institution of administrative review proceedings set forth in ''710.20 through
710.32;
(2) The
granting of access authorization; or
(3)
Other actions as the Director deems appropriate.
(e) The
Director, Office of Safeguards and Security, shall act pursuant to one of these
options within 30 calendar days of the receipt of the Manager's notification
unless an extension is granted by the Director, Office of Security Affairs.
Sec.
710.10 Suspension of access authorization.
(a) If
information is received that raises a question concerning an individual's
continued access authorization eligibility, the Local Director of Security
shall authorize action(s), to be taken on an expedited basis, to resolve the
question pursuant to '710.9(b). If the question as to the individual's
continued access authorization eligibility is not resolved in favor of the
individual, the Local Director of Security shall submit the matter to the
Manager with a recommendation that the individual's access authorization be
suspended pending the final determination resulting from the procedures in this
subpart.
(b)
Within two working days of receipt of the recommendation from the Local
Director of Security to suspend the individual's DOE access authorization, the
Manager shall review the matter and authorize continuation or suspension of
access authorization. The access authorization of an individual shall not be
suspended except by the direction of the Manager. This authority to suspend
access authorization may not be delegated but may be exercised by a person who
has been designated in writing as Acting Manager.
(c) Upon
suspension of an individual's access authorization pursuant to paragraph (b) of
this section, the individual, the individual's employer, any other DOE
Operations Office having an access authorization interest in the individual,
and, if known, any other government agency where the individual holds an access
authorization, security clearance, or access approval, or to which the DOE has
certified the individual's DOE access authorization, shall be notified
immediately. The Central Personnel Clearance Index shall also be updated.
Notification to the individual shall be made in writing and shall reflect, in
general terms, the reason(s) why the suspension has been effected. Pending
final determination of the individual's eligibility for access authorization
from the operation of the procedures provided in this subpart, the individual
shall not be afforded access to classified matter, special nuclear material, or
unescorted access to security areas that require the individual to possess a
DOE access authorization.
(d)
Following the decision to suspend an individual's DOE access authorization, the
Manager shall immediately notify the Director, Office of Safeguards and
Security, of the action and the reason(s) therefore. In addition, the Manager,
within 10 calendar days of the date of suspension, shall notify the Director,
Office of Safeguards and Security, of his proposal to conduct an administrative
review proceeding, accompanied by an explanation of its basis and a duplicate
Personnel Security File.
(e) Upon
receipt of the Manager's notification, the Director, Office of Safeguards and
Security, shall review the matter and confer with the Manager on:
(1) The
institution of administrative review procedures set forth in ''710.20 through
710.32;
(2) The reinstatement
of access authorization; or
(3)
Other actions as the Director deems appropriate.
(f) The
Director, Office of Safeguards and Security, shall act pursuant to one of these
options within 30 calendar days of the receipt of the Manager's notification
unless an extension is granted by the Director, Office of Security Affairs.
Administrative
Review
Sec.
710.20 Purpose of administrative review.
These
procedures establish methods for the conduct of the administrative review of
questions concerning an individual's eligibility for access authorization when
it is determined that such questions cannot be favorably resolved by interview
or other action.
Sec.
710.21 Notice to the individual.
(a)
Unless an extension is authorized by the Director, Office of Safeguards and
Security, within 30 calendar days of receipt of authority to institute
administrative review procedures, the Manager shall prepare and deliver to the
individual a notification letter approved by the local Office of Chief Counsel,
or the Office of General Counsel for Headquarters cases. Where practicable, the
letter shall be delivered to the individual in person.
(b) The
letter shall state:
(1) That
reliable information in the possession of DOE has created a substantial doubt
concerning the individual's eligibility for access authorization.
(2) The
information which creates a substantial doubt regarding the individual's access
authorization eligibility (which shall be as comprehensive and detailed as the
national security permits) and why that information creates such doubt.
(3) That
the individual has the option to have the substantial doubt regarding
eligibility for access authorization resolved in one of two ways:
(i) By
the Manager, without a hearing, on the basis of the existing information in the
case;
(ii) By
personal appearance before a Hearing Officer (a Ahearing'').
(4)
That, if the individual desires a hearing, the individual must, within 20
calendar days of the date of receipt of the notification letter, indicate this
in writing to the Manager from whom the letter was received.
(5) That
the individual may also file with the Manager the individual's written answer
to the reported information which raises the question of the individual's
eligibility for access authorization, and that, if the individual requests a
hearing without filing a written answer, the request shall be deemed a general
denial of all of the reported information.
(6)
That, if the individual so requests, a hearing will be scheduled before a
Hearing Officer, with due regard for the convenience and necessity of the
parties or their representatives, for the purpose of affording the individual
an opportunity of supporting his eligibility for access authorization;
(7)
That, if a hearing is requested, the individual will have the right to appear
personally before a Hearing Officer; to present evidence in his own behalf,
through witnesses, or by documents, or both; and, subject to the limitations
set forth in '710.26(g), to be present during the entire hearing and be
accompanied, represented, and advised by counsel or representative of the
individual's choosing and at the individual's own expense;
(8) That
the individual's failure to file a timely written request for a hearing before
a Hearing Officer in accordance with paragraph (b)(4) of this section, unless
time deadlines are extended for good cause, will be considered as a
relinquishment by the individual of the right to a hearing provided in this
subpart, and that in such event a final decision will be made by the Manager;
and
(9) That
in any proceedings under this subpart DOE Counsel will be participating on
behalf of and representing the Department of Energy, and that any statements
made by the individual to DOE Counsel may be used in subsequent proceedings.
(c) The
notification letter referenced in paragraph (b) of this section shall also:
(1)
Describe the individual's access authorization status until further notice;
(2)
Advise the individual of the right to representation at the individual's own
expense at each and every stage of the proceedings;
(3)
Provide the name and telephone number of the designated DOE official to contact
for any further information desired concerning the proceedings, including an
explanation of the individual's rights under the Freedom of Information and
Privacy Acts; and
(4)
Include a copy of this subpart.
Sec.
710.22 Initial decision process.
(a) The
Manager shall make an initial decision as to the individual's access authorization
eligibility based on the existing information in the case if:
(1) The
individual fails to respond to the notification letter by filing a timely
written request for a hearing before a Hearing Officer or fails to respond to
the notification letter after requesting an extension of time to do so;
(2) The
individual's response to the notification letter does not request a hearing
before a Hearing Officer; or
(3) The
Hearing Officer refers the individual's case to the Manager in accordance with
'710.25(e) or '710.26(b).
(b)
Unless an extension of time is granted by the Director, Office of Safeguards
and Security, the Manager's initial decision as to the individual's access
authorization eligibility shall be made within 15 calendar days of the date of
receipt of the information in paragraph (a) of this section. The Manager shall
either grant or deny, or reinstate or revoke, the individual's access
authorization.
(c) A
letter reflecting the Manager's initial decision in the individual's case shall
be signed by the Manager and delivered to the individual within 15 calendar
days of the date of the Manager's decision unless an extension of time is
granted by the Director, Office of Safeguards and Security. If the Manager's
initial decision is unfavorable to the individual, the individual shall be
advised:
(1) Of
the Manager's unfavorable decision and the reason(s) therefor;
(2) That
within 30 calendar days from the date of receipt of the letter, he may file a
written request for a review of the Manager's initial decision through the
Director, Office of Safeguards and Security, DOE Headquarters, to the DOE
Headquarters Appeal Panel (hereafter referred to as the AAppeal Panel'');
(3) That
the Director, Office of Safeguards and Security, may, for good cause shown, at
the written request of the individual, extend the time for filing a written
request for a review of the case by the Appeal Panel; and
(4) That
if the written request for a review of the Manager's initial decision by the
Appeal Panel is not filed within 30 calendar days of the individual's receipt
of the Manager's letter, the Manager's initial decision in the case shall be
final.
Sec.
710.23 Extensions of time by the Manager.
The
Manager may, for good cause shown, at the written request of the individual,
extend the time for filing a written request for a hearing, and/or the time for
filing a written answer to the matters contained in the notification letter.
The Manager shall notify the Director, Office of Safeguards and Security, when
such extensions have been approved.
Sec. 710.24 Appointment of DOE Counsel.
(a) Upon receipt from the individual of a
written request for a hearing, an attorney shall forthwith be assigned by the
Manager to act as DOE Counsel.
(b) DOE Counsel
is authorized to consult directly with the individual if he is not represented
by counsel, or with the individual's counsel or representative if so
represented, to clarify issues and reach stipulations with respect to testimony
and contents of documents and other physical evidence. Such stipulations shall
be binding upon the individual and the DOE Counsel for the purposes of this
subpart.
Sec.
710.25 Appointment of Hearing Officer; prehearing conference; commencement of
hearings.
(a) Upon
receipt of a request for a hearing, the Manager shall in a timely manner
transmit that request to the Office of Hearings and Appeals, and identify the
DOE Counsel. The Manager shall at the same time transmit a copy of the
notification letter and the individual's response to the Office of Hearings and
Appeals.
(b) Upon
receipt of the hearing request from the Manager, the Director, Office of
Hearings and Appeals, shall appoint, as soon as practicable, a Hearing Officer.
(c)
Immediately upon appointment of the Hearing Officer, the Office of Hearings and
Appeals shall notify the individual and DOE Counsel of the Hearing Officer's
identity and the address to which all further correspondence should be sent.
(d) The
Hearing Officer shall have all powers necessary to regulate the conduct of
proceedings under this subpart, including, but not limited to, establishing a
list of persons to receive service of papers, issuing subpoenas for witnesses
to attend the hearing or for the production of specific documents or other physical
evidence, administering oaths and affirmations, ruling upon motions, receiving
evidence, regulating the course of the hearing, disposing of procedural
requests or similar matters, and taking other actions consistent with the
regulations in this Subpart. Requests for subpoenas shall be liberally granted
except where the Hearing Officer finds that the grant of subpoenas would
clearly result in evidence or testimony that is repetitious, incompetent,
irrelevant, or immaterial to the issues in the case. The Hearing Officer may
take sworn testimony, sequester witnesses, and control the dissemination or
reproduction of any record or testimony taken pursuant to this part, including
correspondence, or other relevant records or tangible evidence including, but not
limited to, information retained in computerized or other automated systems in
possession of the subpoenaed person.
(e) The
Hearing Officer will determine the day, time, and place for the hearing.
Hearings will normally be held at or near the appropriate DOE facility, unless
the Hearing Officer determines that another location would be more appropriate.
Normally the location for the hearing will be selected for the convenience of
all participants. In the event the individual fails to appear at the time and
place specified, the record in the case shall be closed and returned to the
Manager, who will then make a final determination regarding the eligibility of
the individual for DOE access authorization.
(f) At
least 7 calendar days prior to the date scheduled for the hearing, the Hearing
Officer will convene a prehearing conference for the purpose of discussing
stipulations and exhibits, identifying witnesses, and disposing of other
appropriate matters. The conference will usually be conducted by telephone.
(g)
Hearings shall commence within 90 calendar days from the date the individual's
request for hearing is received by the Office of Hearings and Appeals. Any
extension of the hearing date past 90 calendar days from the date the request
for hearing is received by the Office of Hearings and Appeals shall be approved
by the Director, Office of Hearings and Appeals.
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 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 ''710.26(1), 710.26(m), 710.26(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 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.
Sec.
710.27 Hearing Officer's decision.
(a) The
Hearing Officer shall carefully consider the record in view of the standards set
forth herein and shall render a decision as to whether the grant or restoration
of access authorization to the individual would not endanger the common defense
and security and would be clearly consistent with the national interest. In
resolving a question concerning the eligibility of an individual for access
authorization under these procedures, the Hearing Officer shall consider the
factors stated in paragraph 710.7(c) to determine whether the findings will be
adverse or favorable.
(b) In
reaching the findings, the Hearing Officer shall consider the demeanor of the
witnesses who have testified at the hearing, the probability or likelihood of
the truth of their testimony, their credibility, and the authenticity and
accuracy of documentary evidence, or lack of evidence on any material points in
issue. If the individual is, or may be, handicapped by the non-disclosure to
the individual of confidential information or by lack of opportunity to
cross-examine confidential informants, the Hearing Officer shall take that fact
into consideration. Possible impact of the loss of the individual's access
authorization upon the DOE program shall not be considered by the Hearing
Officer.
(c) The
Hearing Officer shall make specific findings based upon the record as to the
validity of each of the allegations contained in the notification letter and
the significance which the Hearing Officer attaches to such valid allegations.
These findings shall be supported fully by a statement of reasons which
constitute the basis for such findings.
(d) The
Hearing Officer's decision shall be based on the Hearing Officer's findings of
fact. If, after considering all of the factors in light of the criteria set
forth in this subpart, the Hearing Officer is of the opinion that it will not
endanger the common defense and security and will be clearly consistent with
the national interest to grant or reinstate access authorization for the
individual, the Hearing Officer shall render a favorable decision; otherwise,
the Hearing Officer shall render an unfavorable decision. Within 15 calendar
days of the Hearing Officer's written decision, the Hearing Officer shall
provide copies of the decision and the administrative record to the Manager and
the Director, Office of Safeguards and Security.
Sec. 710.28 Action on the Hearing Officer's
decision.
(a) Within 10 calendar days of receipt of the
decision and the administrative record, unless an extension of time is granted
by the Director, Office of Safeguards and Security, the Manager shall:
(1) Notify
the individual in writing of the Hearing Officer's decision;
(2)
Advise the individual in writing of the appeal procedures available to the
individual in paragraph (b) of this section if the decision is unfavorable to
the individual;
(3)
Advise the individual in writing of the appeal procedures available to the
Manager and the Director, Office of Safeguards and Security, in paragraph (c)
of this section if the decision is favorable to the individual; and,
(4)
Provide the individual and/or counsel or representative, a copy of the Hearing
Officer's decision and the administrative record.
(b) If
the Hearing Officer's decision is unfavorable to the individual:
(1) The
individual may file with the Director, Office of Safeguards and Security, a written
request for further review of the decision by the Appeal Panel along with a
statement required by paragraph (e) of this section within 30 calendar days of
the individual's receipt of the Manager's notice;
(2) The
Director, Office of Safeguards and Security may, for good cause shown, extend
the time for filing a request for further review of the decision by the Appeal
Panel at the written request of the individual provided the request for an
extension of time is filed by the individual within 30 calendar days of receipt
of the Manager's notice;
(3) The
Hearing Officer's decision shall be considered final if the individual does
not: file a written request for a review of the decision by the Appeal Panel or
for an extension of time to file a written request for further review of the
decision by the Appeal Panel in accordance with paragraphs (b)(1) or (b)(2) of
this section; or, file a written request for a further review of the decision
by the Appeal Panel after having been granted an extension of time to do so.
(c) If
the Hearing Officer's decision is favorable to the individual, within 30
calendar days of the individual's receipt of the Manager's notice:
(1) The
Manager or the Director, Office of Safeguards and Security, may file a written
request for further review of the decision by the Appeal Panel along with the
statement required by paragraph (e) of this section;
(2) The
Director, Office of Security Affairs, may, at the written request of the
Manager or Director, Office of Safeguards and Security, extend the time for
filing a request for further review of the decision by the Appeal Panel; or
(3) The
Manager, with the concurrence of the Director, Office of Safeguards and
Security, shall grant or reinstate the individual's access authorization.
(d) A
copy of any request for further review of the individual's case by the Appeal
Panel filed by the Manager or the Director, Office of Safeguards and Security,
shall be provided to the individual by the Manager.
(e) The
party filing a request for review of the individual's case by the Appeal Panel
shall include with the request a statement identifying the issues on which it
wishes the Appeal Panel to focus. A copy of such statement shall be served on
the other party, who may file a response with the Appeal Panel within 20
calendar days of receipt of the statement.
Sec.
710.29 Final appeal process.