[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.

-----------------------------------------------------------------------

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.M[email protected].

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