[Federal Register Volume 59, Number 130 (Friday, July 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16580]
[[Page Unknown]]
[Federal Register: July 8, 1994]
_______________________________________________________________________
Part II
Department of Energy
_______________________________________________________________________
Office of Nonproliferation and National Security
_______________________________________________________________________
10 CFR Part 710
Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material; Final Rule
DEPARTMENT OF ENERGY
Office of Nonproliferation and National Security
10 CFR Part 710
RIN 1992-AA15
Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material
AGENCY: Office of Nonproliferation and National Security, DOE.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) hereby amends its regulations
regarding the criteria and process used to review determinations of
eligibility for access to classified matter or special nuclear
material. The purpose of the rulemaking is to clarify the criteria used
to determine access authorization eligibility and implement the
Department's decision to reassign personnel security Hearing Officer
and Review functions, formerly performed by contractors, to the DOE's
Office of Hearings and Appeals.
DATES: These rules become effective August 8, 1994. Stakeholder
meetings with Office of Hearings and Appeals and Office of Safeguards
and Security staff to discuss procedural and logistical matters that
will arise under these regulations will be held in Oak Ridge,
Tennessee, on July 12, 1994, and in Albuquerque, New Mexico, on July
19, 1994. These meetings will be open to the public.
FOR FURTHER INFORMATION CONTACT:
A. Barry Dalinsky, Policy, Standards and Analysis Division, Office of
Safeguards and Security, Office of Security Affairs, U.S. Department of
Energy, Washington, DC 20585, (301) 903-5010
Thomas O. Mann, Deputy Director, Office of Hearings and Appeals, U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585, (202) 586-2094; Thomas.Mann@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Summary of regulations
III. Discussion of comments received on proposed regulations
A. General analytical comments
B. Comments on specific sections of the proposed regulations
IV. Procedural requirements
V. Conclusion
I. Introduction
The DOE has established procedures that govern the resolution of
questions concerning the eligibility of individuals who are employed by
or applicants for employment with DOE contractors, agents, and DOE
access permittees; individuals who are DOE employees or applicants for
DOE employment; and other persons designated by the Secretary of Energy
for access to classified matter or special nuclear material. (This
access authorization is commonly referred to as a security clearance.)
These procedures are codified in Subpart A of 10 CFR Part 710. Subpart
A provides an opportunity for hearing and administrative review in
cases when it is determined that questions concerning an individual's
eligibility for access authorization cannot be favorably resolved by
interview or other action.
For a number of years, the DOE has contracted for the services of
Hearing Officers and Personnel Security Review Examiners to implement
the regulations. The DOE has decided to use federal employees to
perform those functions. The functions have been assigned to the DOE's
Office of Hearings and Appeals (OHA), which is a DOE Headquarters
office with a staff of professional Hearing Officers experienced in the
conduct of adjudicative proceedings. Today's rulemaking implements this
change. Concurrent with this change, DOE is making other procedural and
substantive changes to the regulations. Each change is discussed below.
A Notice of Proposed Rulemaking was published in the Federal
Register on December 8, 1993. (58 FR 64509, December 8, 1993). Eighteen
comments were received. The issues raised in the comments have been
thoroughly considered. As a result of suggestions made in the comments,
a number of changes have been made in the proposed regulations. The
comments also reflected some confusion in the timing of events that
occur under Subpart A. A number of sections in Subpart A have been
reorganized to alleviate any ambiguities. The comments are discussed
below.
II. Summary of Regulations
As noted above, the regulations being promulgated today utilize
Hearing Officers from the OHA in the administrative review process set
forth in this subpart. The regulations also replace the review
conducted by Personnel Security Review Examiners with a review by the
OHA Director. The OHA Director will review the record in the matter,
seek any additional infor- mation necessary, and issue an opinion. The
OHA Director's opinion and the administrative record in the case will
be transmitted to the Director of DOE's Office of Security Affairs
(SA), who will make the final determination regarding the individual's
access authorization.
Also, there are nomenclature changes to conform the regulations to
the current DOE organization, and the applicable procedures have been
streamlined. Under the previous regulations, only the SA Director had
the authority to make the final determination in those cases where
derogatory information was received which raised a question concerning
the individual's eligibility for DOE access authorization. These
regulations delegate the authority to make the final determination on
eligibility for DOE access authorization to the local managers of its
field offices in those cases where an individual whose request for
access authorization is being processed under this subpart does not
request a hearing. In all other cases, the SA Director will continue to
make the final determination regarding eligibility for DOE access
authorization.
The notice being published today also establishes new procedures
for processing cases: in which the individual has been arrested for or
convicted of a crime punishable by imprisonment for six (6) months or
longer (Sec. 710.4(b)); in which sufficient information about the
individual's background cannot be obtained to meet the investigative
requirements for the access authorization requested (Sec. 710.4(c)); in
which questions involving an individual's national allegiance are
presented (Sec. 710.4(d)); and in which the individual fails to
cooperate in the investigative or administrative review process
(Sec. 710.4(e) and Sec. 710.6). The criteria under Sec. 710.11 in the
current regulations have been renumbered as Sec. 710.8, and have been
modified. All changes from what was proposed last December are
explained below.
Two ancillary issues involve ongoing cases already in process and
the publication of OHA opinions. Comments were solicited on both of
these issues. The DOE will apply the regulations being promulgated
today to cases in which a notification letter is issued on or after the
effective date of these rules. The DOE will continue to apply the old
regulations to cases in which a notification letter was issued prior to
the effective date of the new rules. Finally, the Office of Hearings
and Appeals will publish opinions of Hearing Officers and the OHA
Director in a commercially available, loose-leaf service in which it
routinely publishes its decisions. Appropriate deletions will be made
to protect the privacy of the individuals involved. See generally
Freedom of Information Act, 552 U.S.C. 552, as implemented by DOE in 10
CFR Part 1004.
III. Discussion of Comments Received on Proposed Regulations
A. General Analytical Comments
Transition for Pending Cases
All cases in which the notification letter has been issued before
the effective date of the new rules will be conducted under the old
rules. All cases in which the notification letter is issued on or after
the effective date of the new rules will be conducted under the new
rules. This recognizes the fact that, with the notification letter, a
copy of 10 CFR Part 710, Subpart A, is provided to the individual.
Publication of Opinions
A couple of commentors strongly supported the publication of
opinions by OHA since they thought it would bring regularity to the
process. However, one commentor was concerned about maintaining the
privacy of individuals involved. Names, other personal identifiers, and
other confidential information will be deleted from published opinions
when necessary to protect individual privacy under the Freedom of
Information Act. It is not necessary to specify in the regulations that
opinions are going to be published. OHA already has a reporter system
for its other cases, and Hearing Officer opinions and review opinions
in administrative review cases will be published in that reporter, the
Federal Energy Guidelines.
Source of Hearings Officers
Several commentors questioned the wisdom of changing from Hearing
Officers that are obtained on as-needed contracts to Hearing Officers
from the DOE's Office of Hearings and Appeals. Some of those commentors
speculate that OHA Hearings Officers will not be as objective as
contractor Hearing Officers because they are full time employees of the
DOE. The Office of Management and Budget and the General Accounting
Office have advised the Secretary of Energy of their view that hearing
and review functions in the administrative review of DOE access
authorization eligibility are inherently governmental functions that
should not be contracted out. Noting the quasi-judicial nature of
hearing and review functions under this subpart, they referred the
Secretary to OMB Circular No. A-76, 6e, which specifically includes
``judicial functions'' as an example of an act of governing that should
not be contracted out. It is for this reason that the Department agreed
to federalize these functions.
There is a presumption of regularity for administrative decisions
issued by federal officials, and the public can rest assured that
administrative review by the OHA will not adversely affect the appeal
rights of individuals. The OHA has a reputation for professionalism and
independent, high quality decision-making. It is a staff office that
reports directly to the Office of the Secretary, and it is separate
from the Office of Security Affairs. The OHA has a history of affording
individuals an unbiased forum in which every relevant argument can be
heard. This certainly will continue to be the case as the OHA assumes
its duties in the personnel security administrative review process.
Suggested Additions to Regulations
A number of commentors suggested that additional provisions be
incorporated into the administrative review regulations. Two commentors
suggested a provision that would prohibit DOE contractors from making
employment decisions based upon the security implications of the
results of their pre-employment screening of job applicants. This type
of provision is unnecessary. By law, only the Department of Energy
makes determinations on requests for DOE access authorization. It is
DOE policy that contractors are to establish job employment suitability
of prospective employees prior to and separate from making a request to
DOE for access authorization.
Another commentor suggested a new provision that would state that
sexual orientation or preference may not be used as a basis for or
negative factor in determining a person's eligibility for access
authorization. Under the criteria that exist now and will continue to
exist under these regulations, sexual orientation or preference, in and
of itself, is not considered a negative factor in determining a
person's eligibility for access authorization.
One commentor suggested that the DOE add a regulation that would
permit an appeal in these cases to the United States District Courts.
It is beyond the scope of the present rulemaking process to incorporate
a provision for judicial review in the federal courts of decisions made
in DOE administrative review proceedings under this Subpart. Only
Congress, acting by statute, has that type of legislative prerogative.
One commentor suggested that the regulations should provide the
right to a timely hearing within a specified period of time after an
access authorization has been suspended. The proposed regulations do
provide for a timely hearing within a specified period of time after
access authorization is suspended. The Manager, within 10 days of
suspension, must forward the case to the Director, Office of Safeguards
and Security (OSS) in Washington, DC, who, within 30 days, must either
reinstate access authorization or authorize administrative review. When
administrative review is authorized, the Manager must deliver a
notification letter to the individual within 30 days. This is usually
done in person. Within 20 days after receiving the notification letter,
the individual may request a hearing. The Manager must transmit that
request on a timely basis to the OHA; the OHA must appoint a Hearing
Officer as soon as practicable, and a hearing must be held within 90
days from the date when the individual's request is received by the
OHA. Unfortunately, some of these time limits appeared in
Sec. 710.7(c)(2) in the ``General Provisions'' part of the proposed
regulations, and others appeared in proposed Secs. 710.21, 710.22, and
710.26 in the ``Procedures'' part. In the final rule, certain
provisions in the proposed Secs. 710.7(c) and 710.21 have been
reorganized and renumbered to state more clearly the time limits that
govern the sequence of actions that must be taken by DOE officials
before a case is referred to the OHA for a hearing.
One commentor suggested that the regulations provide the right to
seek a stay of actions taken under these regulations. The DOE declines
to establish procedures for requesting stays of access authorization
actions under the same legal standards that govern stays before the
Merit Systems Protection Board. Overriding national security concerns
do not permit generally applicable federal personnel practices to be
substituted for DOE access authorization procedures, which are mandated
by Sections 141, 145 and 161 of the Atomic Energy Act of 1954, as
amended, 42 U.S.C. 2161, 2165 and 2201 (reprinted in Appendix A), and
Executive Order 10450. Further, it should be noted that most cases
involve access authorizations for employees of DOE contractors, not
federal employees.
A number of comments dealt with alleged irregularities in the
access authorization process and perceptions that actions are or may be
taken under these regulations in reprisal for making disclosures
protected by law. One commentor suggested that the DOE provide a right
for an employee to introduce an affirmative defense challenging alleged
irregularities in the process. This change is unnecessary. No express
provision in the rules is required to enable individuals to assert
affirmative defenses based on the alleged misconduct of DOE agents or
officials during any stage of the process for determining eligibility
for access authorization. Specific statutory and regulatory remedies
already exist to protect ``whistleblowers.'' The Secretary of Energy is
committed to the policy that both DOE Federal and contractor employees
must be free to voice their concerns and opinions without fear of
reprisal. She has stated that there would be ``zero tolerance'' for
reprisal against whistleblowers. Some whistleblowers have alleged that
the administrative review process has been used against them in
reprisal for disclosures relating to health and safety concerns,
environmental matters, as well as waste, fraud, abuse and
mismanagement. Whistleblowing activities have never constituted
legitimate grounds for suspension, revocation or denial of a DOE access
authorization, and a new provision has been added at Sec. 710.4(b),
unambiguously stating the Department's ``zero tolerance'' policy for
reprisals. In addition to the new hearing and review functions that
would be assigned to it under this proposed rule, the OHA is
responsible for conducting hearings and issuing determinations in
whistleblower cases brought under DOE's Contractor Employee Protection
Program, codified in 10 CFR Part 708. Since it is adjudicating both
types of claims, the OHA is familiar with the applicable rules and will
be sensitive to any alleged abuses of the administrative review process
in cases involving whistleblowers.
One commentor suggested providing a right to reimbursement of
attorneys fees and costs in cases where it is shown that the suspension
of access authorization was taken in reprisal for making disclosures
protected by law. This change is also unnecessary. Both contractor
employee and federal employee whistleblowers who claim to be victims of
reprisals already have the right to reimbursement of legal fees under
existing DOE regulations, 10 CFR Part 708 (contractor employees) and
the Whistleblower Protection Act of 1989 (WPA) (federal employees).
Another commentor suggested review of personnel security actions by
the Office of Contractor Employee Protection if an action involves an
alleged whistleblower. In addition, this commentor urged that sanctions
be imposed against managers who abuse the process for determining
eligibility for access authorization. As noted above, DOE is sensitive
to the potential for abuses of the administrative review process where
whistleblowers are involved. In response to these comments, the new
Sec. 710.4(b) expressly authorizes disciplinary action against DOE
officers or employees who violate the policy against reprisals for
protected whistleblowing activities. In addition, the federal
Whistleblower Protection Act provides for sanctions against DOE
managers who are shown to have acted against government employees in
reprisal for making protected disclosures. Training is being given to
security adjudicators to raise their level of sensitivity to this
issue. An access authorization case in which reprisal was claimed was
recently referred to the DOE Office of Contractor Employee Protection.
However, any change in the DOE Contractor Employee Protection Program
regulations at Part 708 is beyond the scope of the present rulemaking
to revise Subpart A of Part 710.
One commentor suggested a provision that would prohibit the
characterization of an individual's invocation of his rights under the
Fifth Amendment to the United States Constitution as derogatory
information. There is nothing in these regulations that bars an
individual from invoking the privilege against self-incrimination to
avoid testifying in a DOE personnel security proceeding. However, the
invocation of that privilege could be construed as a refusal to
cooperate with the process, and therefore constitute a basis for
suspension, revocation or denial of an individual's DOE access
authorization. In this context, DOE must strike a balance between the
protection of individual rights and the overriding national security
concerns spelled out in Sections 141, 145 and 161 of the Atomic Energy
Act of 1954, as amended, 42 U.S.C. 2161, 2165 and 2201, Executive
Orders 10450 and 12356, and other orders on the protection of
classified information and special nuclear material.
Finally, one commentor suggested a provision prohibiting coercion
and threatening of witnesses and other misconduct by DOE Counsel and
providing for exclusion of any evidence obtained in such manner.
Misconduct by DOE Counsel, such as coercion and threatening of
witnesses, is against agency policy and will not be tolerated. However,
there is no indication of the existence of a systemic problem of this
nature, and a regulation addressing this issue is not appropriate. Any
alleged instances of misconduct should be brought to the attention of
the Chief Counsel in the appropriate field office, the General Counsel,
the Office of Safeguards and Security (OSS) Director in Washington, DC,
and the OHA Hearing Officer.
Other General Comments
A number of commentors opposed granting the authority to suspend
access authorization to the local Directors of Security. At present,
this authority is exercised by the Manager of an Operations Office.
After considering these comments, DOE has decided not to make the
proposed change. Therefore, under the final rule, the Manager of an
Operations Office will retain the authority to suspend an individual's
access authorization when it is determined that a security concern
exists that cannot be favorably resolved by interview or other action.
As noted above, suspension of an individual's access authorization will
result in the referral of the matter to the OSS Director in Washington,
DC. The OSS Director must either reinstate the access authorization, or
trigger the administrative review process so that the question
regarding the individual's access authorization can be resolved as
quickly as possible. DOE recognizes that the order of events described
in Sec. 710.7(c) and Sec. 710.21 of the proposed regulations was not
clear. Both of these provisions involve actions that occur before
administrative review. As a result, Sec. 710.21, ``Suspension of Access
Authorization'' did not belong in the next part of the regulations
entitled ``Procedures.'' To make this clear in the final rules, the
``Procedures'' section is renamed ``Administrative Review.'' The
proposed Sec. 710.7(c) is moved and renumbered as Sec. 710.9, entitled
``Action on Derogatory Information,'' and the proposed Sec. 710.21 is
moved and renumbered as Sec. 710.10. The rules in the ``Procedures''
and ``Miscellaneous'' sections are renumbered accordingly, with the
proposed Sec. 710.22 becoming Sec. 710.21 in the final rules, and so
forth through the newly renumbered Sec. 710.34, ``Time Frames.''
Another commentor suggests that the ``cold war'' aspects of the
regulations should be dropped. In response to this comment, DOE is
removing the phrase ``or in satellites or occupied areas thereof'' from
the criteria in Sec. 710.8(e), since that language specifically
referred to the former Soviet Union.
Another commentor is concerned that dual citizenship will be an
automatic bar to access authorization under these regulations. The
question of national allegiance for individuals who exercise dual
citizenship has always been a concern in the DOE access authorization
process, and the purpose of this change is to state that policy
explicitly. However, dual citizenship has not been and will not
necessarily be a bar to obtaining access authorization. Accordingly,
Sec. 710.4(d) has been amended to clarify that our principal concerns
are whether an individual is exercising allegiance to a nation other
than the United States, and if so, whether granting access
authorization may constitute an unacceptable national security risk.
This provision in the new rules will not trigger review of an existing
access authorization of a person holding dual citizenship.
Under the proposed regulations, members of the OHA staff would be
assigned by the OHA Director to act as Hearing Officers, and the
opinions they issue would be subject to review by the OHA Director.
Several commentors suggested that the DOE should separate the Hearing
Officer function from the review function. These commentors asserted
that ``the same body of persons will be making both decisions, and not
many board members are able to admit error.'' These fears are based on
a lack of understanding of the manner in which the OHA is organized,
and the way in which the administrative review functions under Part 710
will be separated. The OHA consists of several different divisions: the
Office of the Director, the Office of Management Operations, the Office
of Legal Analysis, the Office of Financial Analysis, the Office of
Economic Analysis, and the Board of Contract Appeals. The Hearing
Officer function will be assigned on a case-by-case basis to attorneys
and senior management officials in the Office of the Director and the
Offices of Legal, Financial and Economic Analysis, who will be
personally responsible for the initial opinions. When an initial
Hearing Officer opinion is issued by a member of one OHA office, staff
work on any review of that opinion under the auspices of the OHA
Director will be assigned to a different OHA office. The OHA Director
will be personally responsible for review opinions.
These organizational separations of functions will be more than
adequate to protect the due process and other rights of individuals.
Similar separations of functions have been successfully used by the OHA
in other types of proceedings for the past 19 years. For example,
appeals of initial determinations made by OHA Office Directors under
the Freedom of Information Act are assigned to the staff of a different
OHA Office and appeal decisions are made by the OHA Director. In
addition, under 10 CFR Part 205, Subpart D, objections to proposed
exception decisions issued by the staff of one OHA Office are assigned
to a different staff, and the final decision is signed by the OHA
Director. There has never been any reluctance to reverse or modify a
prior decision made by another office where such action is appropriate.
One commentor asserts that DOE has shown that it cannot properly
administer this program and it should therefore be removed and placed
in a separate organization with oversight from Congress. However, this
comment contains no factual basis for its claim, and it is belied by
over 40 years of experience by DOE and its predecessors in managing a
process that safeguards national security concerns while preserving
traditional American concepts of justice and fairness.
Another commentor suggests that the regulations should prohibit the
use of contractors to conduct any aspect of access authorization
investigations or reviews. As noted above, one of the principal reasons
for revising Part 710 is to federalize a number of functions formerly
performed by contractors. This transition to Hearing Officer and review
functions by federal employees will bring DOE into full compliance with
the requirements of OMB Circular No. A-76. Nevertheless, some
predecisional functions in the initial phase of the access
authorization adjudication process are, and will continue to be,
performed by contractors. This is a resource issue, driven by budgetary
concerns, and the DOE is not at liberty to change it at this time.
The last general comment suggests that the DOE issue a policy
statement implementing the federal ``Anti-Gag Law,'' Aug. 24, 1912, Ch.
389, Section 6, 37 Stat. 555. This law applies to removal of persons in
the civil service, and provides that they shall be given notice of the
charges against them and an opportunity to answer. The Anti-Gag Law
further provides that a person's ``right to petition Congress shall not
be interfered with.'' Both of these protections are already afforded to
individuals in the DOE access authorization process. The right to
petition Congress is protected by the DOE Contractor Employee
Whistleblower Program in 10 CFR Part 708, and by the federal
Whistleblower Protection Act.
B. Comments on Specific Sections of the Proposed Regulations
The identifiers below reference the section or paragraph identifier
in the proposed regulations published in the Notice of Proposed
Rulemaking. They do not in all cases reflect the section or paragraph
identifier in the final rule because some of the sections and
paragraphs have been reorganized in the final rule.
Section 710.1(a). A commentor pointed out that there is no
definition for the term ``national security information.'' A definition
of that term has been added.
Section 710.4(b). One commentor suggested that a felony conviction
should not preclude the approval of access authorization for an
individual's entire life. The DOE agrees, and if the section is read
carefully, its meaning should become clear.
710.4(c). One commentor suggested that this provision in the
proposed regulations was unclear. DOE agrees, and this paragraph has
been rewritten to better express its meaning.
710.4(d). A couple of commentors were concerned that this paragraph
would prevent a person who holds dual citizenship from obtaining access
authorization. This is not intended, and the paragraph has been
rewritten to make it clearer.
Section 710.5. One commentor noted that OHA Hearing Officers are
not required to be attorneys. Most of those persons are attorneys, but
the group also includes some senior OHA management officials who, while
not attorneys, have extensive experience in conducting hearings,
assembling the record, and writing decisions in adjudicative
proceedings. The language in the final rule has been changed so this is
clearer.
Two commentors suggested that it be clear that DOE Counsel need not
possess an access authorization. DOE Counsel may or may not require
access authorization, depending on whether classified information is
involved in a case. Past experience shows that in the great majority of
administrative review cases, access authorization will not be necessary
for DOE Counsel.
Section 710.6. This section generated a large number of comments.
Most of the commentors who discussed this section asserted that they
believed that the section was coercive in spirit. A number of
commentors thought that the term ``administrative termination'' was
vague and needs to be described. This section is designed to give
notice to people seeking access authorization that they have an
obligation to be honest, forthright, and to answer all questions that
the DOE deems to be pertinent to the investigation. This type of
cooperation may be essential in obtaining copies of medical or other
typically confidential records. However, the DOE is mindful of the
possibility that there might be disputes over whether the termination
or suspension of further processing is appropriate in a given
situation. The section has been rewritten to allow the individual to
file an appeal of such a decision under this section. The appeal must
be filed with the Director, Office of Safeguards and Security, at DOE
Headquarters. The Director will investigate any claims made and decide
within 30 calendar days whether the action was appropriate. If he or
she determines that the action was inappropriate, the Director shall
direct that the individual continue to be processed for access
authorization or that access authorization for the individual be
reinstated.
Section 710.7(a). A number of commentors suggested that certain
terms used in these paragraphs (such as ``common-sense judgment,''
``seriousness,'' and ``maturity'') should be specifically defined. DOE
does not agree. These terms do not lend themselves to precise
definitions. Moreover, the same basic terminology has been used
successfully for over 40 years to describe the type of analysis used to
adjudicate requests for DOE access authorization. That language is
necessary to impart the degree of flexibility needed to protect both
the individuals involved and the national security.
710.7(b). One commentor said that DOE should be required to state
the basis for a negative determination on a request for access
authorization, and make that determination a part of the administrative
record. As noted above, those actions are already required, as stated
in the later sections on suspension and notification. To clarify the
suspension and notification process, the rule governing suspension has
been codified in a new Sec. 710.10, and the notification rule has been
codified as Sec. 710.21 in the part on ``Administrative Review.''
710.7(c)(1). A commentor challenged the constitutionality of these
paragraphs in the proposed rule because they do not contain an
exhaustive list of all types of derogatory information. This particular
language is required by Executive Order 10450, Sec. 8(a), and it
provides the flexibility needed to administer the program in a manner
consistent with national security concerns.
710.7(d). In response to a comment, this regulation in the final
rule has been revised to specify that all DOE decision-makers must
apply the criteria in this fashion. It has been renumbered as
Sec. 710.7(c) in the final rule.
Section 710.8(a) through (d). These criteria are prescribed in
Executive Order 10450 and have been in use for more than 40 years.
Since they must cover a wide variety of different situations, the terms
by their very nature must be broad enough to provide the flexibility
needed for the program. It is important to note that in some cases,
national security concerns may prevent certain individuals who choose
to exercise First Amendment rights from receiving DOE access
authorization. This does not violate the Constitution, as one commentor
suggests, since no one has a right to DOE access authorization.
710.8(e). One commentor suggested that there is no rational basis
to suggest that persons who have relatives living in countries whose
interests are inimical to the United States should be denied DOE access
authorizations. There is an obvious rational basis for this paragraph,
which focuses, among other things, on the vulnerability of an
individual to coercion. Although having relatives living in those
countries is a security concern, it does not necessarily constitute a
bar to granting an individual access authorization. As noted above, the
reference to ``satellites or occupied areas'' of the former Soviet
Union has been deleted.
710.8(f). A number of commentors suggested that this paragraph of
the regulations has been used to harass individuals who surface
information that may cause embarrassment to management. Any individual
who believes the personnel security process is being used to harass him
or her for whistleblowing activities has adequate legal remedies under
DOE regulations, 10 CFR Part 708 (contractor employees), or the
Whistleblower Protection Act of 1989 (federal employees).
710.8(h). Two commentors suggest that only board certified
psychiatrists should be able to provide diagnosis of mental conditions
and illnesses in these proceedings. The categories of professionals
qualified to render diagnoses of mental conditions has been expanded
from board certified psychiatrists in conformance with the National
Industrial Security Program (NISP) initiative described in Executive
Order 12829, 58 FR 3479 (January 6, 1993). The DOE decisionmakers in
the administrative review process will give appropriate weight to this
type of evidence, depending on the knowledge, training and experience
of the person rendering the opinion, and the reasons given by that
person in support of the opinion.
710.8(i). One commentor is concerned that a person not be punished
for asserting a Fifth Amendment privilege during any phase of the DOE
personnel security process. A refusal to answer a question on Fifth
Amendment grounds during the process may prevent the processing of a
request for access authorization. However, no one has ever been (or
will be) punished for invoking the privilege in this context, since the
process for determining eligibility for access authorization is not a
criminal proceeding.
710.8(j) (alcohol) and (k) (drugs). Commentors have suggested that
these related criteria should not include behavior that occurred more
than five years in the past. Some confusion may result from the fact
that while the ``Questionnaire for Sensitive Positions'' (Standard Form
86) only deals with conduct within the last five years, the DOE
security investigation covers the last ten years of a person's life.
However, once a question concerning an individual's alcohol or illegal
drug use is uncovered, under these criteria it must be resolved, no
matter when it occurred. Of course, the time when such use occurred
could be an appropriate fact to be weighed in the decision on an
individual's access authorization (see Sec. 710.7(c)).
710.8(l). Several commentors expressed the view that the terms in
this criterion were overly vague, and allow too much discretion to DOE
security personnel. Another comment asserted that the word ``deviant''
reflects DOE's ``decades-old preoccupation with homosexual conduct.''
All of these comments ignored the critical first sentence in criterion
(l) and focused instead on the second sentence. The first sentence
describes derogatory information, in general terms, as any conduct or
circumstances that raise a question concerning an individual's honesty,
reliability or trustworthiness, or gives reason to believe he or she
may be subject to coercion or exploitation. The second sentence
includes a partial list of the specific kinds of conduct or
circumstances that might raise the concerns stated in the first
sentence. However, since there is no general agreement or consensus as
to what type of conduct constitutes ``deviant sexual activity,'' we
have deleted that term from the final rule. In addition, since ``child
abuse'' and ``domestic violence'' are subsumed within ``criminal
activity,'' we have likewise deleted these terms from the final rule.
Finally, it is not possible to list every conceivable kind of conduct
that would constitute derogatory information under this criterion, as
urged by some commentors. As noted elsewhere in this preamble, some
degree of flexibility in the definitions used is necessary to enable
the DOE to administer its personnel security program.
Section 710.21(a). Several commentors suggested that the
regulations should continue to require the Manager to review the file
and the rationale behind the local Director of Security's
recommendation for suspension. In response to these comments, this
section, renumbered as 710.10, has been rewritten to keep the authority
to suspend an individual's access authorization with the Manager.
710.21(c). Several commentors focused on the use of the phrase ``in
general terms'' to describe the notice given by the Manager to the
individual upon suspension of the individual's access authorization.
DOE added the requirement of a written notice to the individual at this
stage in the process in response to a recommendation by the General
Accounting Office. For clarity, the language of that sentence has been
revised to read as follows: ``The individual shall be advised in
writing, in general terms, of the reason(s) why the suspension has been
effected.'' DOE's agreement to provide a general description with the
suspension action represented a careful balancing of (i) the
individual's natural desire for at least some immediate information
about the basis for a suspension, and (ii) DOE's need to protect
national security interests by effecting the suspension without delay.
The moment of suspension is not the time in the process when the
individual is notified in detail of the nature of the derogatory
information. That occurs in the administrative review process, in which
there are much more extensive notice requirements. Those requirements
are described in the next part of the regulations entitled
``Administrative Review.'' At that stage, the individual is given
notice about the derogatory information ``which shall be as
comprehensive and detailed as the national interest permits.''
Section 710.22(b)(5). A number of commentors misread this paragraph
in the proposed regulations to suggest that an individual was being
given an option not to respond to a notification letter. Some
commentors urged DOE to require specific denial of charges, and deem
failure to specifically deny a charge an admission. Others urged that
this clause be removed from the regulations and instead stated in the
notification letter. This paragraph was drafted to cover the real world
situation where the DOE does not receive a written response to the
charges contained in a notification letter; it is not meant to convey
an option not to respond. In order to protect the individual, a request
for a hearing, standing alone, was considered a general denial of the
charges in the notification letter. On balance, DOE has decided to
continue to urge individuals to answer charges in the notification
letter, but to retain the provision that a request for a hearing
constitutes a general denial.
710.22(b)(6). A number of commentors questioned who would define
``convenience'' for purposes of scheduling hearings. The OHA Hearing
Officers will make that determination on a case-by-case basis. Whenever
possible, DOE intends to hold hearings within 90 calendar days of the
date on which the individual's request for a hearing is received by the
OHA. Due consideration will be given to scheduling concerns of both DOE
Counsel and the individual involved.
710.22(b)(7). This provision states that the individual, rather
than DOE, must pay for his own counsel if he wishes to be represented
at an administrative review hearing. The Equal Access to Justice Act,
28 U.S.C. 2412, does not (as claimed by one commentor) apply to
hearings held under Part 710. That Act provides that ``[a]n agency that
conducts an adversary adjudication shall award, to a prevailing party
other than the United States, fees and other expenses incurred by that
party in connection with that proceeding, unless the adjudicative
officer of the agency finds that the position of the agency was
substantially justified or that special circumstances make an award
unjust.'' ``Adversary adjudication,'' in turn, is defined as an
adjudication under section 554 of the Administrative Procedure Act
(APA), 5 U.S.C. 554, which provides that the formal adjudication
requirements of the APA apply only to ``every case of adjudication
required by statute to be determined on the record after opportunity
for an agency hearing'' (with certain exceptions not relevant here).
Because administrative review hearings under Part 710 are not required
by statute to be determined on the record after opportunity for an
agency hearing, the APA, and therefore, the Equal Access to Justice
Act, do not apply to Part 710 hearings. See Ardestani v. I.N.S., 112 S.
Ct. 515 (1991). Nevertheless, this provision does not bar an employer,
such as a DOE contractor or another federal agency, from hiring an
attorney to represent its employee at an administrative review hearing.
Section 710.25(b). Several commentors questioned whether it was
necessary for the OHA Hearing Officer to join in any stipulations
between DOE Counsel and counsel for the individual. DOE did not intend
for the Hearing Officer to enter into stipulations with the parties and
the clause that created the confusion has been deleted from the final
rule.
Section 710.26(a) and (b). Commentors suggested that the phrases
``in a timely manner'' and ``as soon as practicable'' be replaced with
an exact timetable for transmittal of a request for hearing to the OHA,
and appointment of a Hearing Officer, respectively. The commentors have
failed to understand that the language was not inserted as an
opportunity for delay, but as guidance to DOE officials that these
steps in the administrative process should be completed with dispatch.
Since DOE intends to do both of these tasks swiftly, no purpose would
be served by establishing a more precise timetable.
710.26(c). One commentor noted the deletion of the procedure in the
former rules for requesting recusal of a Hearing Officer, and
questioned whether such a motion would still be permitted under the
revised rules. Any type of motion that could be made in normal motions
practice under the Federal Rules of Civil Procedure will be permitted
under the new Subpart A of Part 710.
710.26(d). One commentor suggested that the regulations do not set
forth a process to obtain a subpoena and which party will pay to serve
the subpoena as well as travel and per diem for the subpoenaed witness.
Under the new rules, a party seeking a subpoena need only to request it
from the Hearing Officer. The party requesting a subpoena pays for
service of the subpoena, as well as the costs of travel and per diem
for any witness he or she may call.
710.26(f). Two commentors suggested that a prehearing conference is
a formality that is not required in these cases. DOE does not agree.
The OHA intends for its Hearing Officers to convene a prehearing
telephone conference in every case, to ensure that the hearing will
proceed expeditiously, and to dispose of matters that can be more
efficiently dealt with before hearings begin. This will require counsel
to focus on the case in advance of the hearing date. In most cases,
this conference will be brief.
Section 710.27. If classified information is involved in the
hearing, it is DOE's practice to process the individual's attorney for
access authorization whenever possible so that he or she can have
access to the classified material.
710.27(c). One commentor questioned why hearings were presumed
closed to the public and the press and suggested that a hearing should
be open if either the individual or the DOE Counsel so requests. The
regulation in this matter is designed to protect the privacy of the
individual involved, and to ensure decorum at the hearing. There are
also space limitations in the rooms where hearings are held. Hearings
could be open to a non-participating person if the individual or DOE
Counsel so requests. This question will be decided by the Hearing
Officer on a case-by-case basis. Of course, any portion of a hearing
involving classified information will be closed.
710.27(d). One commentor pointed out that this provision means that
the Hearing Officer may have to assist an individual who is not
represented by counsel. This is correct. Another commentor suggested
that the new role of DOE Counsel would preclude the Counsel from
disclosing exculpatory information to the individual. While the DOE
Counsel is representing the Department under the regulations, he or she
still has a professional and ethical obligation to disclose any and all
exculpatory information which is favorable to the individual.
Nevertheless, to make this obligation explicit we have added language
that requires DOE Counsel to present all evidence, both favorable and
unfavorable, to the Hearing Officer that bears on the issues so that
the Hearing Officer and the Director of OHA will have a full and
complete record on which to base his or her opinion.
710.27(k). One commentor suggested that this paragraph should be
deleted because the Hearing Officer should not consider any information
that is not reviewable by the individual. This paragraph, which
describes highly unusual circumstances, is required by and consistent
with the provisions of Executive Order No. 10450. DOE cannot therefore
comply with the request of that commentor.
710.27(n). One commentor questioned whether this provision would
enable police records to be submitted without authenticating witnesses.
The regulation is self-explanatory as written. It covers records
compiled in the regular course of business or other physical evidence
if furnished to the DOE by an investigative agency (such as the Federal
Bureau of Investigation or the Office of Personnel Management) pursuant
to its responsibilities to assist the Secretary in safeguarding
Restricted Data, national security information, or special nuclear
material. In any event, admission of evidence in these proceedings is
the prerogative of the Hearing Officer, subject to the usual
considerations of relevance and materiality. Since they are informal
administrative hearings, the weight to be accorded any evidence is more
important than its admissibility.
Section 710.28(e). One commentor maintained that this paragraph
should state that the opinion of the Hearing Officer will be provided
to the individual at the same time as it is served on the Manager. It
is already clear from this provision that the OHA will serve the
Hearing Officer's opinion on everyone involved in the case at the same
time as it is served on the Manager.
Section 710.29. One commentor urged that the DOE Manager also be
given the right to request review of a Hearing Officer's opinion. DOE
will decline to adopt this suggestion for the final rule. DOE believes
that the procedure in the proposed rule which gives the Office of
Security Affairs the right to request review of a favorable Hearing
Officer's opinion is adequate to protect national security.
Another commentor argued that the Office of Security Affairs should
not be able to appeal a Hearing Officer's opinion to the OHA Director
and (through the SA Director) make the final determination regarding an
individual's access authorization. The authority to make the final
determination on a DOE access authorization has historically been
delegated by the Secretary of Energy (and before 1977, by her
predecessors in the Energy Research and Development Administration, the
Atomic Energy Commission and the Manhattan Engineer District) to the SA
Director (and his predecessors in the prior agencies responsible for
the nuclear weapons program). In those cases where the SA Director
intends to take final action which disagrees with the opinion of the
OHA Director, a request will be made to the Office of General Counsel
for a legal sufficiency review, prior to a final decision.
710.29(c). There were two comments on this paragraph. The first one
said that limiting language should be added to make clear that the
``investigation'' authorized by the OHA Director at the review stage is
not for the purpose of providing a de novo hearing on factual matters
that could have been developed during the initial hearing. DOE believes
there is no need to specify limits which would unnecessarily confine
the flexibility of the process to deal with a wide variety of
situations. In some instances, it may be more efficient for the OHA
Director to develop the record on minor factual matters; in other
instances, it may be better to remand a case to the OHA Hearing Officer
for supplementing the record on matters of greater complexity. The
second comment observed that there was no reason given for going from
three people (the Personnel Security Review Examiners or ``PSREs'')
reviewing the initial opinion to review by the OHA Director. As noted
above, in view of the requirement that DOE bring the Hearing Officer
and review functions in-house, the Department believes this is the best
way to accomplish that goal.
710.30. Some commentors urged DOE to define the term ``new
evidence.'' As with many other phrases in Part 710 that are stated in
general terms, DOE believes that a more specific definition of this
phrase would rob the administrative process of the flexibility needed
to deal with a wide variety of different types of individual cases. On
our own, we have added a sentence requiring DOE Counsel to notify the
individual of any new evidence submitted by DOE.
IV. Procedural Requirements
A. Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Executive Order 12612
Executive Order 12612 requires that regulations or rules be
reviewed for direct effects on States, on the relationship between the
national government and the States, or in the distribution of power
among various levels of government. If there are sufficient substantial
direct effects, then Executive Order 12612 requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating or implementing a regulation or rule.
Today's regulations do not affect any traditional State function.
There are therefore no substantial direct effects requiring evaluation
or assessment under Executive Order 12612.
C. Regulatory Flexibility Analysis
These regulations were reviewed under the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., which requires preparation of a regulatory
flexibility analysis for any regulations that will have a significant
economic impact on a substantial number of small entities. DOE finds
that sections 603 and 604 of that Act do not apply to this rule because
it will not have a significant economic impact on a substantial number
of small entities. Thus the preparation of a regulatory flexibility
analysis is not warranted.
D. NEPA Review
There is no impact on the human environment under the regulatory
amendments being issued today. Accordingly, DOE has determined that
this is not a major Federal action with significant impact upon the
quality of the human environment and, therefore, preparation of an
environmental assessment or an environmental impact statement is not
required under the National Environmental Policy Act.
E. Paperwork Reduction Act
There will be no additional paperwork burden imposed by the
amendments issued today. Therefore, the goals of the Paperwork
Reduction Act are not diminished by the amendments.
F. Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2 (a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. The DOE certifies that today's final rule meets the requirements
of sections 2 (a) and (b)(2) of Executive Order 12778.
V. Conclusion
The DOE has scheduled two stakeholder meetings to discuss
procedural and logistical issues that may arise under these final
rules. They will be held at Oak Ridge, Tennessee on July 12, 1994, and
at Albuquerque, New Mexico on July 19, 1994. Notice of the specific
time and place of each meeting will be published in the Federal
Register. Staff members from the Office of Safeguards and Security and
the Office of Hearings and Appeals will attend. It is expected that
potential DOE Counsels from DOE field facilities will also attend these
meetings. These meetings will be open to the public, and the DOE
encourages private attorneys and others who may represent individuals
in the administrative review process to attend.
List of Subjects in 10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Government employees, Nuclear materials.
Issued in Washington, DC, on July 1, 1994.
John G. Keliher,
Director, Office of Nonproliferation and National Security.
For the reasons set forth in the preamble, part 710 of title 10 of
the Code of Federal Regulations is amended as set forth below.
1. The authority citation for part 710 is revised to read as
follows:
Authority: Atomic Energy Act of 1954, sec. 141, 68 Stat. 940, as
amended (42 U.S.C. 2161), Atomic Energy Act of 1954, sec. 145, 68
Stat. 942, as amended (42 U.S.C. 2165); Atomic Energy Act of 1954,
sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); E.O. 10450, 3
CFR 1949-1953 comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963
comp., p. 398, as amended, 3 CFR, Chap. IV; E.O. 12356, 3 CFR, 1982
comp., p. 166.
Sec. 710 Heading revised
2. The part heading is revised to read as set forth above.
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL
3. Subpart A of part 710 is revised to read as set forth below:
Subpart A--General Criteria and Procedures for Determining Eligibility
for Access to Classified Matter or Special Nuclear Material
General Provisions
Sec.
710.1 Purpose.
710.2 Scope.
710.3 Reference.
710.4 Policy.
710.5 Definitions.
Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material
710.6 Cooperation by the individual.
710.7 Application of the criteria.
710.8 Criteria.
710.9 Action on derogatory information.
710.10 Suspension of access authorization.
Administrative Review
710.20 Purpose of administrative review.
710.21 Notice to individual.
710.22 Additional information.
710.23 Extensions of time by the Operations Office Manager.
710.24 Appointment of DOE Counsel.
710.25 Appointment of Hearing Officer; prehearing conference;
commencement of hearings.
710.26 Conduct of hearings.
710.27 Opinion of the Hearing Officer.
710.28 Action on the Hearing Officer's opinion.
710.29 New evidence.
710.30 Action by the Secretary.
710.31 Reconsideration of access eligibility.
Miscellaneous
710.32 Terminations.
710.33 Attorney representation.
710.34 Time frames.
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)
Subpart A--General Criteria and Procedures for Determining
Eligibility for Access to Classified Matter or Special Nuclear
Material
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 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.
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 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.
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, 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;
(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 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 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.
(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. 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 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).
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.
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 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.
[FR Doc. 94-16580 Filed 7-7-94; 8:45 am]
BILLING CODE 6450-01-P
