[Code of Federal Regulations] [Title 10, Volume 4] [Revised as of January 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 10CFR710.29] [Page 360-362] TITLE 10--ENERGY CHAPTER III--DEPARTMENT OF ENERGY PART 710_CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO Subpart A_General Criteria and Procedures for Determining Eligibility for Access to Classified Matter or Special Nuclear Material Sec. 710.29 Final appeal process. (a) The Appeal Panel shall be convened by the Deputy Chief for Operations, Office of Health, Safety and Security, to review and render a final decision in an access authorization eligibility case referred by the individual, the Manager, or the Director, Office of Personnel Security, in accordance with Sec. Sec. 710.22, 710.28, and 710.32. (b) The Appeal Panel shall consist of three members, each of whom shall be a DOE Headquarters employee, a United States citizen, and hold a DOE [[Page 361]] Q access authorization. The Deputy Chief for Operations, Office of Health, Safety and Security, shall serve as a permanent member of the Appeal Panel and as the Appeal Panel Chairman. The second member of the Appeal Panel shall be a DOE attorney designated by the General Counsel. The head of the DOE Headquarters element who has cognizance over the individual whose access authorization eligibility is being considered may designate an employee to act as the third member on the Appeal Panel; otherwise, the third member will be designated by the Chairman. Only one member of the Appeal Panel shall be from the security field. (c) In filing a written request for a review by the Appeal Panel in accordance with Sec. Sec. 710.22 and 710.28, the individual, or the counsel or representative, shall identify the relevant issues and may also submit any relevant material in support of the individual. The individual's written request and supportive material shall be made a part of the administrative record. The Director, Office of Personnel Security, shall provide staff support to the Appeal Panel as requested by the Deputy Chief for Operations, Office of Health, Safety and Security. (d) Within 15 calendar days from the date of receipt of a request for a review of a case by the Appeal Panel, the Deputy Chief for Operations, Office of Health, Safety and Security, shall: (1) Request the General Counsel to designate an attorney who shall serve as an Appeal Panel member; (2) Either request the head of the cognizant DOE element to designate, or himself designate, an employee from outside the security field who shall serve as the third member of the Appeal Panel; and (3) Arrange for the Appeal Panel members to convene to review the administrative record or provide a copy of the administrative record to the other Appeal Panel members for their independent review. (e) The Appeal Panel may initiate an investigation of any statement or material contained in the request for an Appeal Panel review and use any relevant facts obtained by such investigation in the conduct of the final decision process. The Appeal Panel may solicit and accept submissions from either the individual or DOE officials that are relevant to the final decision process and may establish appropriate time frames to allow for such submissions. The Appeal Panel may also consider any other source of information that will advance the final decision process, provided that both parties are afforded an opportunity to respond to all third party submissions. All information obtained by the Appeal Panel under this section shall be made a part of the administrative record. (f) Within 45 work days of the closing of the administrative record, the Appeal Panel shall render a final written decision in the case predicated upon an evaluation of the administrative record, findings as to each of the allegations contained in the notification letter, and any new evidence that may have been submitted pursuant to Sec. 710.30. If a majority of the Appeal Panel members determine that it will not endanger the common defense and security and will be clearly consistent with the national interest, the Deputy Chief for Operations, Office of Health, Safety and Security, shall grant or reinstate access authorization for the individual; otherwise, he shall deny or revoke access authorization for the individual. The Appeal Panel written decision shall be made a part of the administrative record. (g) The Deputy Chief for Operations, Office of Health, Safety and Security, through the Director, Office of Personnel Security, shall inform in writing the individual involved and counsel or representative of the Appeal Panel's final decision. A copy of the correspondence shall also be provided to the other panel members and the Manager. (h) If, upon receipt of a written request for a review of the individual's case by the Appeal Panel, the Deputy Chief for Operations, Office of Health, Safety and Security, is aware or subsequently becomes aware of information that the individual is the subject of an unresolved inquiry or investigation of a matter that could reasonably be expected to affect the individual's DOE access authorization eligibility, the Deputy Chief for Operations may defer [[Page 362]] action by the Appeal Panel on the request until the inquiry or investigation is completed and its results available for review by the Appeal Panel. In such instances, the Deputy Chief for Operations, shall: (1) Obtain written approval from the Secretary to defer review of the individual's case by the Appeal Panel for an initial interval not to exceed 90 calendar days; (2) Advise the individual and appropriate DOE officials in writing of the initial deferral and the reason(s) therefor; (3) Request that the individual's employment status not be affected during the initial and any subsequent deferral interval, except at the written request of the individual; (4) Obtain written approval from the Secretary to extend the deferral for each subsequent 90 calendar day interval and advise in writing all concerned parties of the Secretary's approval; (5) Inform in writing all concerned parties when the inquiry or investigation has been completed and the results made available to the Appeal Panel. (i) If, upon receipt of a written request for review of an individual's case by the Appeal Panel, the Deputy Chief for Operations, Office of Health, Safety and Security, is aware or subsequently becomes aware of information that adversely affects the individual's DOE access authorization eligibility and that cannot for national security reasons be disclosed in the proceedings before a DOE Hearing Officer, the Deputy Chief for Operations may refer the information and the administrative record to the Secretary for the final decision as to the individual's DOE access authorization eligibility. In such instances, the Deputy Chief for Operations shall notify in writing all concerned parties that the individual's case has been provided to the Secretary for a final decision in accordance with Sec. 710.31. (j) Upon the recommendation of the Appeal Panel, the Secretary may exercise the appeal authority of the Appeal Panel. If the Secretary exercises the appeal authority, then the decision of the Secretary is final. [66 FR 47065, Sept. 11, 2001, as amended at 71 FR 68731, Nov. 28, 2006]