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
Source: 59 FR 35185, July 8, 1994, unless otherwise noted.
General Provisions
Sec. 710.1 Purpose.
(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 12356, 47
FR 14874 (April 2, 1982), Executive Order 10865, 25 FR 1583 (February
24, 1960), and Executive Order 10450, 18 FR 2489 (April 27, 1954), all
as amended.
Sec. 710.2 Scope.
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.
Sec. 710.3 Reference.
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.
Sec. 710.4 Policy.
(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 Sec. 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
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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) In instances where the individual has been convicted of a crime
punishable by imprisonment of six (6) months or longer, or the
individual is currently awaiting or serving a form of preprosecution
probation, or 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, the 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 Sec. 710.6.
Sec. 710.5 Definitions.
(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.
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
Sec. 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 Division Director of Security, or other similar title;
for Washington, DC area cases, the Director, Headquarters Operations
Division; for the Oak Ridge Operations Office, the Director of
Personnel; for the Albuquerque Operations Office, the Director of the
Personnel Security Division; for the Savannah River Operations Office,
the Director of 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. 12356 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, the Manager of the Rocky Flats Office, 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.
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Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material
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 the relevant
information, favorable or unfavorable, as to whether the granting of
access authorization would not endanger the common defense and security
and would be clearly consistent with the national interest.
(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.
Sec. 710.8 Criteria.
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
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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 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 Sec. 710.20 through Sec. 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.
(h) An illness or mental condition of a nature which, in the opinion
of a board-certified psychiatrist, other licensed physician or a
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 board-certified psychiatrist, other licensed physician 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 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, or violation of any commitment or promise upon which
DOE previously relied to favorably resolve an issue of access
authorization eligibility.
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Sec. 710.9 Action on derogatory information.
(a) When the reports of investigation of an individual or other
reliable information reasonably tend to establish the validity and
significance of one or more of the items in the criteria, or of other
reliable information or facts which are derogatory, although outside the
scope of the stated categories, such information shall be regarded as
substantially derogatory and create a question as to the individual's
eligibility for access authorization. The Local Director of Security
will authorize the conduct of an interview with the individual, or
request other appropriate actions, and, on the basis of such interview
and/or actions, may authorize the granting or continuation of access
authorization. If the question as to the individual's eligibility is not
resolved through interview, and/or other actions, which may include a
DOE-sponsored mental evaluation, the Local Director of Security will
submit the matter to the Manager. If the Manager agrees that unresolved
derogatory information is present, and that appropriate attempts to
resolve such derogatory information have failed, the Manager shall
forward the individual's case to the Director, Office of Safeguards and
Security, with a request for authority to conduct an administrative
review proceeding. If the Manager believes that the derogatory
information has been favorably resolved, the Manager shall direct that
the individual be granted access authorization. A decision in the matter
shall be rendered by the Manager within 10 calendar days after receipt.
Following the decision of the Manager, the Director, Office of
Safeguards and Security, may authorize:
(1) The granting of access authorization,
(2) The institution of administrative review procedures set forth in
Secs. 710.20 through 710.31, or
(3) Such other action as the Director deems appropriate.
(b) The Director, Office of Safeguards and Security, must authorize
one of these options within 30 calendar days of the receipt of the case
from the Manager, unless an extension is granted by the Director, Office
of Security Affairs.
Sec. 710.10 Suspension of access authorization.
(a) In those cases where information is received which raises a
question concerning the continued eligibility of an individual for DOE
access authorization, the Local Director of Security may authorize
action(s) to resolve the question pursuant to Sec. 710.9. Such action(s)
shall be taken on an expedited basis. If the question as to the
individual's continued eligibility for access authorization is not
resolved in favor of the individual, the Local Director of Security will
submit the matter to the Manager with a recommendation that the
individual's DOE access authorization be suspended pending the final
determination resulting from the operation of the procedures provided 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,
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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 submit a request for authority to conduct an
administrative review proceeding, accompanied by an explanation of its
basis and a duplicate Personnel Security File, to the Director, Office
of Safeguards and Security.
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 individual.
(a) When the Director, Office of Safeguards and Security, has
authorized the institution of administrative review procedures with
respect to an individual's questioned eligibility for access
authorization, in accordance with Sec. 710.9, the Manager shall direct
the preparation of a notification letter, approved by the local Office
of Chief Counsel, or the Office of General Counsel for Headquarters
cases, for delivery to the individual within 30 calendar days of the
receipt of such directive from the Office of Safeguards and Security,
unless an extension has been authorized by the Director, Office of
Safeguards and Security. Where practicable, such letter shall be
presented 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 eligibility for access authorization (which shall be as
comprehensive and detailed as the national interest permits).
(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
``hearing'').
(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 Sec. 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;
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(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.
Sec. 710.22 Additional information.
The notification letter referenced in Sec. 710.21 shall also:
(a) Describe the individual's access authorization status until
further notice;
(b) Advise the individual of the right to counsel at the
individual's own expense at each and every stage of the proceeding;
(c) Provide the name and telephone number of the designated DOE
official to contact for any further information desired, including an
explanation of the individual's rights under the Privacy Act of 1974;
and
(d) Include a copy of 10 CFR Part 710, Subpart A.
Sec. 710.23 Extensions of time by the Operations Office 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
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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.
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(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 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.
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(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 Opinion of the Hearing Officer.
(a) The Hearing Officer shall carefully consider the record in view
of the standards set forth herein and shall render an initial opinion 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.
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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 opinion shall be predicated upon the
Hearing Officer's findings of fact. If, after considering all 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 continue access authorization to the individual, the Hearing
Officer shall render a favorable opinion; otherwise, the Hearing Officer
shall render an adverse opinion.
(e) The Office of Hearings and Appeals shall issue the opinion of
the Hearing Officer within 30 calendar days of the receipt of the
hearing transcript by the Hearing Officer, or the closing of the record,
whichever is later, unless an extension is granted by the Director,
Office of Hearings and Appeals. Copies of the Hearing Officer's opinion
will be provided to the Office of Security Affairs, the Manager, the
individual concerned and his counsel or other representatives, DOE
Counsel, and any other party identified by the Hearing Officer. At that
time, the individual shall also be notified of his right to request
further review of his case pursuant to Sec. 710.28.
(f) In the event the Hearing Officer's opinion is favorable to the
individual, a copy of the administrative record in the case shall also
be provided to the Office of Security Affairs. The Director, Office of
Security Affairs will determine whether:
(1) To grant or reinstate the individual's access authorization, or
(2) To refer the case to the Director, Office of Hearings and
Appeals, for further review.
(g) In the event the Hearing Officer's opinion is adverse to the
individual, and the individual does not file a request for further
review pursuant to Sec. 710.28, a copy of the administrative record
shall be provided to the Director, Office of Security Affairs, who shall
make a final determination on the basis of the material contained in the
administrative record.
Sec. 710.28 Action on the Hearing Officer's opinion.
(a) The Office of Security Affairs or the individual involved may
file a request for review of the Hearing Officer's opinion issued under
Sec. 710.27 within 30 calendar days of receipt of the opinion. Any such
request shall be filed with the Director, Office of Hearings and
Appeals, and served on the other party.
(b) Within 15 calendar days after filing a request for review under
this section, the party seeking review shall file a statement
identifying the issues on which it wishes the Director, Office of
Hearings and Appeals, to focus. A copy of such statement shall be served
on the other party, who may file a response within 20 days of receipt of
the statement.
(c) The Director, Office of Hearings and Appeals, may initiate an
investigation of any statement contained in the request for review and
utilize any relevant facts obtained by such investigation in conducting
the review of the Hearing Officer's opinion. The Director, Office of
Hearings and Appeals, may solicit and accept submissions from either the
individual or the Office of Security Affairs, that are relevant to the
review. The Director, Office of Hearings and Appeals, may establish
appropriate time frames to allow for such responses. In reviewing the
Hearing Officer's opinion, the Director, Office of Hearings and Appeals,
may consider any other source of information that will advance the
evaluation, provided that both parties are afforded an opportunity to
respond to all third person submissions. All information obtained under
this section shall be made part of the administrative record.
(d) Within 45 days of the closing of the record, the Director,
Office of Hearings and Appeals, shall make specific
[[Page 300]]
findings disposing of each substantial issue identified in a written
statement in support of the request for review and the written response
submitted by either the individual or the Office of Security Affairs,
and shall predicate his opinion on the administrative record, including
any new evidence that may have been submitted pursuant to Sec. 710.29.
If, after considering all the factors in light of the criteria set forth
in this subpart, the Director, Office of Hearings and Appeals, 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
continue access authorization to the individual, the Director, Office of
Hearings and Appeals, shall render an opinion favorable to the
individual; otherwise, the Director, Office of Hearings and Appeals,
shall render an opinion adverse to the individual. The written opinion
of the Director, Office of Hearings and Appeals, shall be provided to
the Director, Office of Security Affairs, accompanied by the
administrative record in the case. The Director, Office of Hearings and
Appeals, shall notify the individual of the foregoing action.
(e) Within 30 calendar days of receipt of the opinion of the
Director, Office of Hearings and Appeals, the Director, Office of
Security Affairs, will make the final determination, based on a complete
review of the record, whether access authorization shall be granted or
denied, or reinstated or revoked. If, after considering all of the
factors in light of the criteria set forth in this subpart, the
Director, Office of Security Affairs, determines that it will not
endanger the common defense and security and will be clearly consistent
with the national interest, access authorization shall be granted to or
reinstated for the individual; otherwise, the Director, Office of
Security Affairs, shall determine that access authorization shall be
denied to or revoked for the individual.
(f) The Director, Office of Security Affairs, shall, through the
Director, Office of Safeguards and Security, inform the individual
involved and his counsel or representative in writing of the final
determination and provide a copy of the written opinion rendered by the
Director, Office of Hearings and Appeals. Copies of the correspondence
shall also be provided to the Director, Office of Hearings and Appeals,
the Manager, DOE Counsel, and any other party. In the event of an
adverse determination, the correspondence shall indicate the findings by
the Director, Office of Security Affairs, with respect to each
allegation contained in the notification letter.
Sec. 710.29 New evidence.
(a) In the event of the discovery of new evidence relevant to the
allegations contained in the notification letter prior to final
determination of the individual's eligibility for access authorization,
such evidence shall be submitted by the offering party to the Director,
Office of Safeguards and Security. DOE Counsel shall notify the
individual of any new evidence submitted by DOE.
(b) The Director, Office of Safeguards and Security, shall:
(1) Refer the matter to the Hearing Officer appointed in the
individual's case if the Hearing Officer has not yet issued an opinion.
The Hearing Officer getting the application for the presentation of new
evidence shall determine the appropriate form in which any new evidence,
and the other party's response, shall be received, e.g., by testimony
before the Hearing Officer, by deposition or by affidavit.
(2) In those cases where the Hearing Officer's opinion has been
issued, the application for presentation of new evidence shall be
referred to the Director, Office of Hearings and Appeals, or the
Director, Office of Security Affairs, depending upon where the case
resides. In the event that the Director, Office of Hearings and Appeals,
or Director, Office of Security Affairs, determines that the new
evidence should be received, he shall determine the form in which it,
and the other party's response, shall be received.
(c) When new evidence submitted by either party is received into the
record, the opposing party shall be afforded the opportunity to cross-
examine the source of the new information or to submit a written
response, unless the information is subject to the exceptions in
Sec. 710.26 (l) or (o).
[[Page 301]]
Sec. 710.30 Action by the Secretary.
(a) Whenever an individual has not been afforded an opportunity to
cross-examine witnesses who have furnished information adverse to the
individual under the provisions of Sec. 710.26 (l) or (o), only the
Secretary may issue a final determination denying or revoking the access
authorization after personally reviewing the record.
(b) When the Secretary makes a final determination regarding the
individual's eligibility for DOE access authorization, the individual
will be notified, by the Director, Office of Security Affairs, of that
decision and of the Secretary's findings with respect to each allegation
contained in the notification letter and each substantial issue
identified in the statement in support of the request for review.
(c) Nothing contained in these procedures shall be deemed to limit
or affect the responsibility and powers of the Secretary to issue
subpoenas or to deny or revoke access to Restricted Data, national
security information, or special nuclear material if the security of the
nation so requires. The Secretary's authority may not be delegated and
may be exercised only when the Secretary determines that the procedures
prescribed in Sec. 710.26 (l) or (o) cannot be invoked consistent with
the national security, and such determination shall be conclusive.
Sec. 710.31 Reconsideration of access eligibility.
(a) Where, pursuant to the procedures set forth in Secs. 710.20
through 710.30, the Director, Office of Security Affairs, or the
Secretary has made a determination granting or reinstating access
authorization to an individual, the individual's eligibility for access
authorization shall be reconsidered as a new administrative review under
the procedures set forth in this subpart when previously unconsidered
substantially derogatory information is identified, or the individual
violates a commitment or promise upon which the DOE previously relied to
favorably resolve an issue of access eligibility.
(b) Where, pursuant to those procedures, the Manager, Director,
Office of Security Affairs, or the Secretary has made a determination
denying or revoking access authorization to an individual, the
individual's eligibility for access authorization may be reconsidered
when there is a bona fide offer of employment requiring access to
Restricted Data, national security information or special nuclear
material, and there is either:
(1) Material and relevant new evidence which the individual and the
individual's representatives are without fault in failing to present
earlier, or
(2) Convincing evidence of reformation or rehabilitation.
(c) A request for reconsideration shall be submitted in writing to
the Manager having jurisdiction over the position for which access
authorization is required. A request for reconsideration shall be
accompanied by an affidavit setting forth in detail the new evidence or
evidence of reformation or rehabilitation. The Manager shall notify the
individual as to whether the individual's eligibility for access
authorization will be reconsidered and, if so, the method by which such
reconsideration will be accomplished.
(d) Final determinations regarding eligibility for DOE access
authorization in reconsideration cases shall be made by the Director,
Office of Security Affairs.
Miscellaneous
Sec. 710.32 Terminations.
In the event the individual is no longer an applicant for access
authorization or no longer requires access authorization, the procedures
of this subpart shall be terminated without a final determination as to
the individual's eligibility for access authorization.
Sec. 710.33 Attorney representation.
In the event the individual is represented by an attorney or other
representatives, the individual shall file with the Hearing Officer and
DOE Counsel a document designating such attorney or representatives and
authorizing one such attorney or representative to receive all
correspondence, transcripts, and other documents pertaining to the
proceeding under this subpart.
[[Page 302]]
Sec. 710.34 Time frames.
Statements of time established for processing aspects of a case
under this subpart are the agency's desired time frames in implementing
the procedures set forth in this subpart. They shall have no impact upon
the final disposition of an access authorization by an Operations Office
Manager, the Director, Office of Security Affairs, or the Secretary, and
shall confer no rights upon an individual whose eligibility for access
authorization is being considered.
Appendix A to Subpart A of Part 710--Selected Provisions of the Atomic
Energy Act of 1954, as Amended, Sec. 141 (42 U.S.C. 2161), Sec. 145 (42
U.S.C. 2165), Sec. 161 (42 U.S.C. 2201)
(By authority of the Department of Energy Organization Act, 42 U.S.C.
7151(a), the Secretary of Energy or her designated representative is to
be substituted for the ``Commission'' and ``General Manager'' as
appropriate.)
Sec. 141. Policy. It shall be the policy of the Commission to
control the dissemination and declassification of Restricted Data in
such a manner as to assure the common defense and security. * * *
Sec. 145. Restriction. (a) No arrangement shall be made under
section 31, no contract shall be made or continued in effect under
section 141, and no license shall be issued under section 103 or 104,
unless the person with whom such arrangement is made, the contractor or
prospective contractor, or the prospective licensee agrees in writing
not to 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.
(b) 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.
(c) In lieu of the investigation and report to be made by the Civil
Service Commission pursuant to subsection (b) of this appendix, 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.
(d) In the event an investigation made pursuant to subsections (a)
and (b) of this appendix develops any data reflecting that the
individual who is the subject of the investigation is of questionable
loyalty, the Civil Service Commission shall refer the matter to the
Federal Bureau of Investigation for the conduct of a full field
investigation, the results of which shall be furnished to the Civil
Service Commission for its information and appropriate action.
(e) If the President deems it to be in the national interest he may
from time to time determine that investigations of any group or class
which are required by subsections (a), (b), and (c) of this appendix be
made by the Federal Bureau of Investigation.
(f) Notwithstanding the provisions of subsections (a), (b), and (c)
of this appendix, a majority of the members of the Commission shall
certify those specific positions which are of a high degree of
importance or sensitivity, and upon such certification, the
investigation and reports required by such provisions shall be made by
the Federal Bureau of Investigation.
(g) The Commission shall establish standards and specifications in
writing as to the scope and extent of investigations, the reports of
which will be utilized by the Commission in making the determination,
pursuant to subsections (a), (b), and (c) of this appendix, that
permitting a person access to Restricted Data will not endanger the
common defense and security. Such standards and specifications shall be
based on the location and class or kind of work to be done, and shall,
among other considerations, take into account the degree of importance
to the common defense and security of the Restricted Data to which
access will be permitted.
(h) Whenever the Congress declares that a state of war exists, or in
the event of a national disaster due to enemy attack, the Commission is
authorized during the state of war or period of national disaster due to
enemy attack to employ individuals and to permit individuals access to
Restricted Data pending the investigation report, and determination
required by section 145b, to the extent that and so long as the
Commission finds that such action is required to prevent
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impairment of its activities in furtherance of the common defense and
security.
Sec. 161. General provisions. In the performance of its functions
the Commission is authorized to:
(a) Establish advisory boards to advise with and make
recommendations to the Commission on legislation, policies,
administration, research, and other matters, provided that the
Commission issues regulations setting forth the scope, procedure, and
limitations of the authority of each such board;
(b) Establish by rule, regulation, or order, such standards and
instructions to govern the possession and use of special nuclear
material, source material, and byproduct material as the Commission may
deem necessary or desirable to promote the common defense and security
or to protect health or to minimize danger to life or property;
(c) Make such studies and investigations, obtain such information,
and hold such meetings or hearings as the Commission may deem necessary
or proper to assist it in exercising any authority provided in this
chapter, or in the administration or enforcement of this Act, or any
regulations or orders issued thereunder. For such purposes the
Commission is authorized to administer oaths and affirmations, and by
subpoena to require any person to appear and testify, or to appear and
produce documents, or both, at any designated place. Witnesses
subpoenaed under this subsection, shall be paid the same fees and
mileage as are paid witnesses in the district courts of the United
States.
* * * * *
(i) Prescribe such regulations or orders as it may deem necessary
(1) to protect Restricted Data received by any person in connection with
any activity authorized pursuant to this Act, (2) to guard against the
loss or diversion of any special nuclear material acquired by any person
pursuant to section 53 or produced by any person in connection with any
activity authorized pursuant to the Act, to prevent any use or
disposition thereof which the Commission may determine to be inimical to
the common defense and security, including regulations or orders
designating activities, involving quantities of special nuclear material
which in the opinion of the Commission are important to the common
defense and security, that may be conducted only by persons whose
character, associations, and loyalty shall have been investigated under
standards and specifications established by the Commission and as to
whom the Commission shall have determined that permitting each such
person to conduct the activity will not be inimical to the common
defense and security, and (3) to govern any activity authorized pursuant
to this Act, including standards and restrictions governing the design,
location, and operation of facilities used in the conduct of such
activity, in order to protect health and to minimize danger to life or
property;
* * * * *
(n) Delegate to the General Manager or other officers of the
Commission any of those functions assigned to it under this Act except
those specified in sections 51, 57b, 61, 108, 123, 145b (with respect to
the determination of those persons to whom the Commission may reveal
Restricted Data in the national interest), 145f, and 161a;
* * * * *
(p) Make, promulgate, issue, rescind, and amend such rules and
regulations as may be necessary to carry out the purposes of this Act.