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classified or sensitive information concern, although outside the scope of technology systems.
the stated categories, such information (h) An illness or mental condition of shall be regarded as derogatory and a nature which, in the opinion of a psy- create a question as to the individual's chiatrist or licensed clinical psycholo- access authorization eligibility. gist, causes or may cause, a significant
(b) If a question arises as to the indidefect in judgment or reliability.
vidual's access authorization eligi(i) Refused to testify before a Con
bility, the Local Director of Security gressional Committee, Federal or state
shall authorize the conduct of an intercourt, or Federal administrative body,
view with the individual, or other apregarding charges relevant to eligi
propriate actions, which may include a bility for DOE, or another Federal
DOE-sponsored mental evaluation, and, agency's access authorization.
on the basis of the results of such (j) Been, or is, a user of alcohol habit
interview or actions, may authorize ually to excess, or has been diagnosed by a psychiatrist or a licensed clinical
the granting of the individual's access
authorization. If, in the opinion of the psychologist as alcohol dependent or as suffering from alcohol abuse.
Local Director of Security, the ques(k) Trafficked in, sold, transferred,
tion as to the individual's access aupossessed, used, or experimented with a
thorization eligibility has not been fadrug or other substance listed in the
vorably resolved, he shall submit the Schedule of Controlled Substances es
matter to the Manager with a rectablished pursuant to section 202 of the
ommendation that authority be obControlled Substances Act of 1970 (such
tained to process the individual's case as marijuana, cocaine, amphetamines,
under administrative review procebarbiturates, narcotics, etc.) except as
dures. prescribed or administered by a physi
(c) If the Manager agrees that unrecian licensed to dispense drugs in the solved derogatory information is practice of medicine, or as otherwise
present and that appropriate attempts authorized by Federal law.
to resolve such derogatory information (1) Engaged in any unusual conduct have been unsuccessful, he shall notify or is subject to any circumstances
the Director, Office of Safeguards and which tend to show that the individual Security, of his proposal to conduct an is not honest, reliable, or trustworthy; administrative review proceeding, acor which furnishes reason to believe companied by an explanation of the sethat the individual may be subject to curity concerns and a duplicate Perpressure. coercion, exploitation, or du- sonnel Security File. If the Manager ress which may cause the individual to believes that the derogatory informaact contrary to the best interests of tion has been favorably resolved, he the national security. Such conduct or shall direct that access authorization circumstances include, but are not lim- be granted for the individual. The Manited to, criminal behavior, a pattern of ager may also direct the Local Director financial irresponsibility, conflicting of Security to obtain additional inforallegiances, or violation of any com mation in the matter prior to deciding mitment or promise upon which DOE whether to grant the individual access previously relied to favorably resolve authorization or to submit a request an issue of access authorization eligi for authority to conduct an adminisbility.
trative review proceeding. A decision 159 FR 35185, July 8, 1994, as amended at 66
in the matter shall be rendered by the FR 47063, Sept. 11, 2001)
Manager within 10 calendar days of its
receipt. $710.9 Action on derogatory informa (d) Upon receipt of the Manager's notion.
tification, the Director, Office of Safe(a) If the reports of investigation of guards and Security, shall review the an individual or other reliable informa- matter and confer with the Manager tion tend to establish the validity and on: significance of one or more items in (1) The institution of administrative the criteria, or of other reliable infor- review proceedings set forth in 88 710.20 mation or facts which are of security through 710.32;
(2) The granting of access authorization; or
(3) Other actions as the Director deems appropriate.
(e) The Director, Office of Safeguards and Security, shall act pursuant to one of these options within 30 calendar days of the receipt of the Manager's notification unless an extension is granted by the Director, Office of Security Affairs. [66 FR 47063, Sept. 11, 2001] 8710.10 Suspension of access author
ization. (a) If information is received that raises a question concerning an individual's continued access authorization eligibility, the Local Director of Security shall authorize action(s), to be taken on an expedited basis, to resolve the question pursuant to $710.9(b). If the question as to the individual's continued access authorization eligibility is not resolved in favor of the individual, the Local Director of Security shall submit the matter to the Manager with a recommendation that the individual's access authorization be suspended pending the final determination resulting from the procedures in this subpart.
(b) Within two working days of receipt of the recommendation from the Local Director of Security to suspend the individual's DOE access authorization, the Manager shall review the matter and authorize continuation or suspension of access authorization. The access authorization of an individual shall not be suspended except by the direction of the Manager. This authority to suspend access authorization may not be delegated but may be exercised by a person who has been designated in writing as Acting Manager.
(c) Upon suspension of an individual's access authorization pursuant to paragraph (b) of this section, the individual, the individual's employer, any other DOE Operations Office having an access authorization interest in the individual, and, if known, any other government agency where the individual holds an access authorization, security clearance, or access approval, or to which the DOE has certified the individual's DOE access authorization, shall be notified immediately. The Cen
tral Personnel Clearance Index shall also be updated. Notification to the individual shall be made in writing and shall reflect, in general terms, the reason(s) why the suspension has been effected. Pending final determination of the individual's eligibility for access authorization from the operation of the procedures provided in this subpart, the individual shall not be afforded access to classified matter, special nuclear material, or unescorted access to security areas that require the individual to possess a DOE access authorization.
(d) Following the decision to suspend an individual's DOE access authorization, the Manager shall immediately notify the Director, Office of Safeguards and Security, of the action and the reason(s) therefore. In addition, the Manager, within 10 calendar days of the date of suspension, shall notify the Director, Office of Safeguards and Security, of his proposal to conduct an administrative review proceeding, accompanied by an explanation of its basis and a duplicate Personnel Security File.
(e) Upon receipt of the Manager's notification, the Director, Office of Safeguards and Security, shall review the matter and confer with the Manager on:
(1) The institution of administrative review procedures set forth in $$ 710.20 through 710.32;
(2) The reinstatement of access authorization; or
(3) Other actions as the Director deems appropriate.
(f) The Director, Office of Safeguards and Security, shall act pursuant to one of these options within 30 calendar days of the receipt of the Manager's notification unless an extension is granted by the Director, Office of Security Affairs. [59 FR 35185, July 8, 1994, as amended at 66 FR 47064, Sept. 11, 2001)
$710.20 Purpose of administrative re
view. 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. $710.21 Notice to the individual.
(a) Unless an extension is authorized by the Director, Office of Safeguards and Security, within 30 calendar days of receipt of authority to institute administrative review procedures, the Manager shall prepare and deliver to the individual a notification letter approved by the local Office of Chief Counsel, or the Office of General Counsel for Headquarters cases. Where practicable, the letter shall be delivered to the individual in person.
(b) The letter shall state:
(1) That reliable information in the possession of DOE has created a substantial doubt concerning the individual's eligibility for access authorization.
(2) The information which creates a substantial doubt regarding the individual's access authorization eligibility (which shall be as comprehensive and detailed as the national security permits) and why that information creates such doubt.
(3) That the individual has the option to have the substantial doubt regarding eligibility for access authorization resolved in one of two ways:
(i) By the Manager, without a hearing, on the basis of the existing information in the case;
(ii) By personal appearance before a Hearing Officer (a "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 $710.26(g), to be present during the entire hearing and be accompanied, represented, and advised by counsel or representative of the individual's choosing and at the individual's own expense;
(8) That the individual's failure to file a timely written request for a hearing before a Hearing Officer in accordance with paragraph (b)(4) of this section, unless time deadlines are extended for good cause, will be considered as a relinquishment by the individual of the right to a hearing provided in this subpart, and that in such event a final decision will be made by the Manager: and
(9) That in any proceedings under this subpart DOE Counsel will be participating on behalf of and representing the Department of Energy, and that any statements made by the individual to DOE Counsel may be used in subsequent proceedings.
(c) The notification letter referenced in paragraph (b) of this section shall also:
(1) Describe the individual's access authorization status until further notice;
(2) Advise the individual of the right to representation at the individual's own expense at each and every stage of the proceedings;
(3) Provide the name and telephone number of the designated DOE official to contact for any further information desired concerning the proceedings, including an explanation of the individual's rights under the Freedom of Information and Privacy Acts; and
(4) Include a copy of this subpart. (59 FR 35185, July 8, 1994, as amended at 66 FR 47064, Sept. 11, 2001)
$710.22 Initial decision process.
30 calendar days of the individual's re(a) The Manager shall make an ini
ceipt of the Manager's letter, the Mantial decision as to the individual's ac
ager's initial decision in the case shall cess authorization eligibility based on
be final. the existing information in the case if: (66 FR 47064, Sept. 11, 2001)
(1) The individual fails to respond to the notification letter by filing a time- $710.23 Extensions of time by the ly written request for a hearing before Manager. a Hearing Officer or fails to respond to
The Manager may, for good cause the notification letter after requesting
shown, at the written request of the inan extension of time to do so;
dividual, extend the time for filing a (2) The individual's response to the
written request for a hearing, and/or notification letter does not request a
the time for filing a written answer to hearing before a Hearing Officer; or
the matters contained in the notifica(3) The Hearing Officer refers the in
tion letter. The Manager shall notify dividual's case to the Manager in ac
the Director, Office of Safeguards and cordance with $710.25(e) or $710.26(b).
Security, when such extensions have (b) Unless an extension of time is
been approved. granted by the Director, Office of Safeguards and Security, the Manager's ini
$ 710.24 Appointment of DOE Counsel. tial decision as to the individual's access authorization eligibility shall be
(a) Upon receipt from the individual made within 15 calendar days of the
of a written request for a hearing, an date of receipt of the information in
attorney shall forthwith be assigned by paragraph (a) of this section. The Man
the Manager to aot as DOE Counsel. ager shall either grant or deny, or rein
(b) DOE Counsel is authorized to constate or revoke, the individual's access
sult directly with the individual if he is authorization.
not represented by counsel, or with the (c) A letter reflecting the Manager's individual's counsel or representative initial decision in the individual's case if so represented, to clarify issues and shall be signed by the Manager and de reach stipulations with respect to teslivered to the individual within 15 cal timony and contents of documents and endar days of the date of the Manager's other physical evidence. Such stipuladecision unless an extension of time is tions shall be binding upon the indigranted by the Director, Office of Safe- vidual and the DOE Counsel for the guards and Security. If the Manager's purposes of this subpart. initial decision is unfavorable to the individual, the individual shall be ad
$710.25 Appointment of Hearing Offi. vised:
cer; prehearing conference; com(1) Of the Manager's unfavorable de
mencement of hearings. cision and the reason(s) therefor;
(a) Upon receipt of a request for a (2) That within 30 calendar days from hearing, the Manager shall in a timely the date of receipt of the letter, he may manner transmit that request to the file a written request for a review of Office of Hearings and Appeals, and the Manager's initial decision through identify the DOE Counsel. The Manthe Director, Office of Safeguards and ager shall at the same time transmit a Security, DOE Headquarters, to the copy of the notification letter and the DOE Headquarters Appeal Panel (here- individual's response to the Office of after referred to as the "Appeal Hearings and Appeals. Panel”);
(b) Upon receipt of the hearing re(3) That the Director, Office of Safe- quest from the Manager, the Director, guards and Security, may, for good Office of Hearings and Appeals, shall cause shown, at the written request of appoint, as soon as practicable, a Hearthe individual, extend the time for fil- ing Officer. ing a written request for a review of (c) Immediately upon appointment of the case by the Appeal Panel; and
the Hearing Officer, the Office of Hear(4) That if the written request for a ings and Appeals shall notify the indireview of the Manager's initial decision vidual and DOE Counsel of the Hearing by the Appeal Panel is not filed within Officer's identity and the address to
which all further correspondence (g) Hearings shall commence within should be sent.
90 calendar days from the date the indi(d) The Hearing Officer shall have all vidual's request for hearing is received powers necessary to regulate the con- by the Office of Hearings and Appeals. duct of proceedings under this subpart, Any extension of the hearing date past including, but not limited to, estab- 90 calendar days from the date the relishing a list of persons to receive serv- quest for hearing is received by the Ofice of papers, issuing subpoenas for wit fice of Hearings and Appeals shall be nesses to attend the hearing or for the approved by the Director, Office of production of specific documents or Hearings and Appeals. other physical evidence, administering oaths and affirmations, ruling upon
$710.26 Conduct of hearings. motions, receiving evidence, regulating (a) In all hearings conducted under the course of the hearing, disposing of this subpart, the individual shall have procedural requests or similar matters, the right to be represented by a person and taking other actions consistent of his own choosing. The individual is with the regulations in this subpart. responsible for producing witnesses in Requests for subpoenas shall be lib his own behalf, including requesting erally granted except where the Hear the issuance of subpoenas, if necessary, ing Officer finds that the grant of sub- or presenting other proof before the poenas would clearly result in evidence Hearing Officer to support his defense or testimony that is repetitious, in to the allegations contained in the nocompetent, irrelevant, or immaterial tification letter. With the exception of to the issues in the case. The Hearing procedural or scheduling matters, the Officer may take sworn testimony, se Hearing Officer is prohibited from iniquester witnesses, and control the dis- tiating or otherwise engaging in ex semination or reproduction of any parte discussions about the case during record or testimony taken pursuant to the pendency of proceedings under this this part, including correspondence, or part. other relevant records or tangible evi- (b) Unless the Hearing Officer finds dence including, but not limited to, in good cause for granting a waiver of this formation retained in computerized or paragraph or granting an extension of other automated systems in possession time, in the event that the individual of the subpoenaed person.
unduly delays the hearing, such as by (e) The Hearing Officer will deter- failure to meet deadlines set by the mine the day, time, and place for the Hearing Officer, the record shall be hearing. Hearings will normally be held closed, and a final decision shall be at or near the appropriate DOE facil made by the Manager on the basis of ity, unless the Hearing Officer deter- the record in the case. mines that another location would be (c) Hearings shall be open only to more appropriate. Normally the loca- DOE Counsel, duly authorized reption for the hearing will be selected for resentatives of the staff of DOE, the inthe convenience of all participants. In dividual and his counsel or other repthe event the individual fails to appear resentatives, and such other persons as at the time and place specified, the may be authorized by the Hearing Offirecord in the case shall be closed and cer. Unless otherwise ordered by the returned to the Manager, who will then Hearing Officer, witnesses shall testify make a final determination regarding in the presence of the individual but the eligibility of the individual for not in the presence of other witnesses. DOE access authorization.
(d) DOE Counsel shall assist the (1) At least 7 calendar days prior to Hearing Officer in establishing a comthe date scheduled for the hearing, the plete administrative hearing record in Hearing Officer will convene a pre- the proceeding and bringing out a full hearing conference for the purpose of and true disclosure of all facts, both fadiscussing stipulations and exhibits, vorable and unfavorable, having a bearidentifying witnesses, and disposing of ing on the issues before the Hearing Ofother appropriate matters. The con ficer. The individual shall be afforded ference will usually be conducted by the opportunity of presenting evidence, telephone.
including testimony by the individual