(h) Testimony of the individual and witnesses shall be given under oath or affirmation, and the individual and witnesses shall be subject to cross-examination. Attention of the individual and the witness shall be invited to 18 U.S.C. 1001 and 18 U.S.C. 1621;

(i) The individual shall be afforded the opportunity of testifying in his own behalf;

(j) The Board shall endeavor to obtain all the facts that are reasonably available in order for it to arrive at its recommendations. If, prior to or during the proceeding, in the opinion of the Board the allegations in the notification letter are not sufficient to cover all matters into which inquiry should be directed, the Board shall recommend to the Director, Office of Administration, that he instruct the Director, Division of Security 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 Office of the Executive Legal Director. If, in the opinion of the Board, the circumstances of such an amendment may involve an undue hardship 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) Unless permitted by paragraphs (1), (m), (n), (o), and (p) of this section, the record may contain no information adverse to the individual on any controverted issue unless: (1) The information or its substance has been made available to the individual and he offers no objection to its presentation; or (2) the information or its substance is made available to him and the individual is afforded an opportunity to cross-examine the person providing the information. Information whose admission is not prohibited by this paragraph, or by any other provision of this part, may be received and made a part of the record and may be considered by the Board or officials charged with making determinations under this part;

(1) A written or oral statement of a person relating to the characterization in the notification letter of any organization or person other than the indi

vidual may be received and considered by the Board 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 Board, and is informed of its contents provided such is not prohibited by paragraph (f) of this section;

(m) The individual shall be afforded an opportunity to cross-examine persons who have made oral or written statements adverse to the individual relating to a controverted issue except that any such statement may be received and considered by the Board without affording such opportunity in either of the following circumstances:

(1) The head of the department 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 his identity would be substantially harmful to the national interest;

(2) The Commission or its 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 the statement concerned appears to be reliable and material, and the Commission or such special designee has determined that failure of the Board to receive and consider such statement would, in view of the access to Restricted Data or national security information sought, be substantially harmful to the national security and that the person who furnished the information cannot appear to testify (i) 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 (ii) due to some other cause determined by the Commission to be good and sufficient;

(n) Whenever procedures under paragraph (m) (1) or (2) of this section are used: (1) The individual shall be given a summary of the information

which shall be as comprehensive and detailed as the national security permits, and (2) appropriate consideration shall be accorded to the fact that the individual did not have an opportunity to cross-examine such person or persons;

(0) Records compiled in the regular course of business, or other physical evidence other than investigative reports, may be received and considered subject to rebuttal without authenticating witnesses, provided that such information has been furnished to the NRC by an investigative agency pursuant to its responsibilities in connection with assisting the Commission to safeguard Restricted Data or national security information;

(p) 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 Commission or its special designee for that purpose has made a preliminary determination that such physical evidence appears to be material;

(2) The Commission or such designee has made a determination that failure to receive and consider such physical evidence would, in view of the access to Restricted Data or national security information 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 shall be 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;

(q) The Board may request the Director, Office of Administration, that he instruct the Director, Division of Security to arrange for additional investigation on any points which are material to the deliberations of the Board and which the Board believes need extension or clarification. In this event, the Board shall set forth in writing those issues upon which more evidence is requested, identifying

where possible persons or sources from which evidence should be sought. The Office of Administration shall make every effort through appropriate sources to obtain additional information upon the matters indicated by the Board;

(r) A written transcript of the entire proceedings shall be made by a person possessing appropriate NRC clearance and, except for portions containing Restricted Data or national security information, a copy of such transcript shall be furnished the individual without cost.

[25 FR 6510, July 12, 1960, as amended at 42 FR 54403, Oct. 6, 1977]

§ 10.28

Recommendation of the Board.

(a) The Board shall carefully consider the record and the standards set forth herein. In reaching its determination the Board shall consider the demeanor of the witnesses who have testified before the Board, the probability or likelihood of the truth of their testimony, their credibility, the authenticity and accuracy of documentary evidence, or the lack of evidence upon some material points in issue. If the individual is, or may be, handicapped by the non-disclosure to him of confidential information or by lack of opportunity to cross-examine confidential informants, the Board

shall take that fact into consideration. The Board may also consider as part of the record the individual's past employment in the nuclear energy field, and the nature and sensitivity of the job he is or may be expected to perform. Possible impact of the loss of the individual's services upon the NRC program shall not be considered by the Board;

(b) The Board shall make specific findings based upon the record as to whether each of the allegations contained in the notification letter is true or false and the significance which the Board attaches to such allegations. These findings shall be supported fully by a statement of reasons which constitute the basis for such findings;

(c) The recommendation of the Board shall be predicated upon its findings. If, after considering all the factors in the light of the criteria set

forth in this part, the Board 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 access authorization to the individual, it shall make a favorable recommendation; otherwise, it shall make an adverse recommendation;

the

(d) The recommendation of Board shall be determined by a majority vote. In the event of a dissent from the majority, the recommendation of the minority member shall be made a matter of record together with a statement of the reasons leading to his conclusions. The recommendation of the Board shall be submitted to the Director, Office of Administration accompanied by a statement of the reasons leading to the Board's conclusions.

[25 FR 6510, July 12, 1960, as amended at 40 FR 8782, Mar. 3, 1975; 42 FR 54403, Oct. 6, 1977]

§ 10.29 New evidence.

(a) In the event of the discovery of new evidence by the individual prior to final determination of the individual's eligibility for access authorization, such evidence shall be submitted by the individual or his representative to the Director, Office of Administration;

(b) The Office of Administration with the advice of Hearing Counsel shall review the application for the presentation of new evidence to ascertain its materiality and relevancy and further, that the individual or his representative is without fault in failing to present the evidence before. In the event it is determined that the new evidence should be received, the Office of Administration shall:

(1) Refer the matter to the Personnel Security Board which had been appointed in the individual's case when the Director, Office of Administration has not yet transmitted the record to the Executive Director for Operations. The Board receiving the application for the presentation of new evidence shall determine the form in which it shall be received, whether by testimony, before the Board, by deposition, or by affidavit.

(2) In those cases where the Director, Office of Administration has forwarded the record to the Executive Di

rector for Operations, the application for presentation of new evidence shall be referred to the Executive Director for Operations with appropriate comment and recommendations. In the event the Executive Director for Operations determines that the new evidence should be received, he shall determine the form in which it shall be received, whether by testimony before a Personnel Security Board, by deposition, or by affidavit.

[25 FR 6510, July 12, 1960, as amended at 42 FR 54403, Oct. 6, 1977]

§ 10.30 Actions on the recommendations.

(a) The recommendations of the Board and any dissent therefrom shall be signed by the members of the Board as appropriate, and together with the record of the case, shall be transmitted with the least practicable delay to the Director, Office of Administration;

(b) Upon receipt of the findings and recommendation of the Board, and the record, the Director, Office of Administration shall forthwith transmit it to the Executive Director for Operations;

(c) The Executive Director for Operations may return the record to the Director, Office of Administration for further proceedings by the Personnel Security Board with respect to specific matters designated by the Executive Director for Operations;

(d)(1) In the event of a recommendation by the Board for a denial of access authorization, the individual shall be immediately notified in writing of that fact by the Executive Director for Operations, or his designee, and shall be informed of the Board's findings with respect to each allegation contained in the notification letter. The individual shall also be notified of his right to request a review of his case by the NRC Personnel Security Review Board and of his right to submit a brief in support of his contentions. The request for a review shall be submitted to the Executive Director for Operations, within five days after the receipt of the notice. The brief shall be forwarded to the Executive Director for Operations, Office of Administration, not later than 10 days after receipt of such

notice, unless such time is extended by the Executive Director for Operations for good cause shown;

(2) Where the individual requests a review of the adverse recommendation, the Executive Director for Operations shall forthwith send the record, with all findings and recommendations, to the Personnel Security Review Board;

(3) In the event the individual fails to request a review by the NRC Personnel Security Review Board of an adverse recommendation within the prescribed time, the final determination shall be made on the basis of the record with all findings and recommendations;

(e)(1) Where the Board has made a recommendation favorable to the individual and the Executive Director for Operations proposes to transmit the record to the Personnel Security Review Board for its recommendation, the Executive Director for Operations shall immediately cause the individual to be notified of that fact and of those matters contained in the notification letter concerning which he desires the advice of the Personnel Security Review Board. He shall further inform the individual that he may submit a brief concerning such matters for the consideration of the Personnel Security Review Board. Such brief shall be filed not later than 10 days from the receipt of the notice by the individual, unless extended for good cause shown. The brief shall be forwarded to the Executive Director for Operations for transmission to the Personnel Security Review Board.

[25 FR 6510, July 12, 1960, as amended at 42 FR 54403, Oct. 6, 1977]

§ 10.31 Recommendations of the NRC Personnel Security Review Board.

(a) The NRC Personnel Security Review Board shall make its deliberations based upon the record, supplemented by such brief as the individual submits. The Personnel Security Review Board may request such additional briefs as it deems appropriate. In any case where the NRC Personnel Security Review Board determines that additional evidence or further proceedings are necessary, it may return the record to the Executive Di

rector for Operations with a recommendation that the case be remanded to the Director, Office of Administration for appropriate action;

(b) In its deliberations, the NRC Personnel Security Review Board shall make its findings and recommendations as to the eligibility of an individual for access authorization on the record supplemented by additional testimony or briefs, as determined by the Board. When additional testimony is taken by the Personnel Security Review Board a verbatim transcript of such testimony shall be made part of the record;

(c) The Personnel Security Review Board shall not concern itself with the possible impact of the loss of the individual's services upon the NRC program;

(d) After its deliberations, the NRC Personnel Security Review Board shall make its findings and recommendations on the record in writing to the Executive Director for Operations.

[25 FR 6510, July 12, 1960, as amended at 42 FR 54403, Oct. 6, 1977]

§ 10.32 Action by the Executive Director for Operations.

(a) The Executive Director for Operations, on the basis of the record accompanied by all recommendations, shall then make a final determination whether access authorization shall be granted or denied, unless the provisions of § 10.27 (m), (n), (o), or (p) have been used, in which case the decision to deny or revoke access authorization may be made only by the Commission.

(b) In making the determination as to whether access authorization shall be granted or denied, the Executive Director for Operations or Commission shall give due recognition to the favorable as well as the unfavorable information concerning the individual and shall take into account the value of the individual's services to the Commission's program and the consequences of denial of access authorization.

(c) In the event of an adverse determination the Executive Director for Operations shall notify the individual through the Director, Office of Ad

ministration of his decision that access authorization is being denied or revoked and of his findings with respect to each allegation contained in the notification letter for transmittal to the individual.

[25 FR 6510, July 12, 1960, as amended at 42 FR 54403, Oct. 6, 1977]

§ 10.33 Action by the Commission.

(a) Whenever an individual has not been afforded an opportunity to confront and cross-examine witnesses who have furnished information adverse to the individual under the provisions of § 10.27 (m), (n), (o), or (p) and an adverse recommendation has been made by the Executive Director for Operations, the Commissioners shall personally review the record and determine whether access authorization shall be granted, denied or revoked, based upon the record;

(b) When the Commission determines to deny or revoke access authorization the individual will be notified through the Director, Office of Administration of its decision that access authorization is being denied or revoked and of its findings with respect to each allegation contained in the notification letter for transmittal to the individual;

(c) Nothing contained in these procedures shall be deemed to limit or affect the responsibility and powers of the Commission to deny or revoke access to Restricted Data or national security information if the security of the nation so requires. Such authority may not be delegated and may be exercised only when the Commission determines that the procedures prescribed in § 10.27 (m), (n), (o), or (p) cannot be involved consistently with the national security and such determination shall be conclusive.

[25 FR 6510, July 12, 1960, as amended at 42 FR 54403, Oct. 6, 1977]

§ 10.34 Reconsideration of cases.

(a) Where, pursuant to the procedures set forth in §§ 10.20 to 10.33, the Executive Director for Operations or the Commission has made a determination granting access authorization to an individual, the individual's eligibility for access authorization shall be

reconsidered only when subsequent to the time of the prior hearing, there is new substantially derogatory information or a significant increase in the scope or sensitivity of the Restricted Data or national security information to which the individual has or will have access;

(b) Where, pursuant to these procedures, the Commission or Executive Director for Operations has made a determination denying 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 or national security information and either material and relevant new evidence, which the individual and his representatives are without fault in failing to present before, or convincing evidence of reformation or rehabilitation. Requests for reconsideration shall be submitted in writing to the Executive Director for Operations

through the Director, Office of Administration. Such requests shall be accompanied by an affidavit setting forth in detail the information referred to above. The Executive Director for Operations shall cause the individual to be notified as to whether his eligibility for access authorization will be reconsidered and, if so, the method by which such reconsideration will be accomplished;

(c) Where access authorization has been granted to an individual by the Office of Administration without recourse to the procedures set forth in §§ 10.20 to 10.33, the individual's eligibility for access authorization shall be reconsidered only in a case where subsequent to the granting of the access authorization, new substantially derogatory information has been received or there is a significant increase in the scope or sensitivity of the Restricted Data or national security information to which the individual has, or will have access.

[25 FR 6510, July 12, 1960, as amended at 40 FR 8782, Mar. 3, 1975; 42 FR 54403, Oct. 6. 1977]