Editorial Note on Part 712
Editorial Note: Nomenclature changes to part 712 appear at 88 FR 41292, June 26, 2023.

§ 712.22 Office of Hearings and Appeals. ( a ) Upon receipt of the hearing request from the Manager, the Director, DOE Office of Hearings and Appeals, shall appoint, as soon as practicable, an Administrative Judge.
( b ) The Administrative Judge must have a DOE “Q” access authorization.
( c ) An individual who requests a certification review hearing has the right to appear personally before the Administrative Judge; to present evidence in his or her own behalf, through witnesses or by documents, or by both; and to be accompanied and represented at the hearing by counsel or any other person of the individual's choosing and at the individual's own expense.
( d ) An individual must come forward with evidence to demonstrate that the decision to revoke his or her HRP certification was clearly erroneous or that extraordinary circumstances warrant recertification into HRP. Evidence that the individual has rehabilitated or reformed since the time of the Manager's decision will not be considered by the Administrative Judge.
( e ) DOE Counsel shall assist the Administrative Judge 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 bearing on the issues before the Administrative Judge.
( f ) In conducting the proceedings, the Administrative Judge will: ( 1 ) Determine the date, time, and location of the hearing, including whether the hearing will be conducted by video teleconference;
( 2 ) At least 7 calendar days prior to date scheduled for the hearing, 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;
( 3 ) Receive all relevant and material information relating to the individual's fitness for HRP duties through witnesses or documentation;
( 4 ) Ensure that the individual is permitted to offer information in his or her behalf; to call, examine, and cross-examine witnesses and other persons who have made written or oral statements, and to present and examine documentary evidence to the extent permitted by national security;
( 5 ) Require the testimony of the individual and all witnesses be given under oath or affirmation;
( 6 ) Ensure that a transcript of the certification review proceedings is made; and
( 7 ) Not engage in ex parte communications with either party.
( g ) The Administrative Judge shall have all powers necessary to regulate the conduct of proceedings, 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 part. Requests for subpoenas shall be granted except where the Administrative Judge 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.
( h ) The Administrative Judge may return a case to the HRP Manager for a final agency decision consistent with § 712.20(b) if— ( 1 ) The individual or his or her attorney fails to heed the instructions of the Administrative Judge;
( 2 ) The individual fails to appear at the appointed time, date and location for the certification review hearing;
( 3 ) The individual otherwise fails to cooperate at the hearing phase of the process; or
( 4 ) The individual withdraws his/her request for a certification review hearing.
( i ) Based on a review of the administrative hearing record, the Administrative Judge shall prepare a decision regarding the individual's eligibility for recertification in the HRP, which shall consist of written findings and a supporting statement of reasons. In making a decision, the Administrative Judge shall ensure that any doubt as to an individual's certification shall be resolved against the individual in favor of national security and/or safety.