10 C.F.R. Subpart A—General Provisions
Title 10 - Energy
This part: (a) Describes the categories of individuals who are eligible for counterintelligence-scope polygraph testing; and (b) Provides guidelines for the use of counterintelligence-scope polygraph examinations and for the use of exculpatory polygraph examinations, upon the request of an individual, in order to resolve counterintelligence investigations and personnel security issues; and (c) Provides guidelines for protecting the rights of individual DOE, and DOE contractor, and employees subject to this rule. This part includes: (a) A description of the conditions under which DOE may administer and use polygraph examinations; (b) A description of the positions which DOE may subject to polygraph examination; (c) Controls on the use of polygraph examinations; and (d) Safeguards to prevent unwarranted intrusion into the privacy of individuals. For purposes of this part: Accelerated Access Authorization Program or AAAP means the program for granting interim access to classified matter and special nuclear material based on a drug test, a National Agency Check, a psychological assessment, and a counterintelligence-scope polygraph examination consistent with this part. Access means the admission of DOE and contractor employees and applicants for employment, and other individuals assigned or detailed to Federal positions at DOE to the eight categories of positions identified in §709.4(a)(1)–(8). 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. Adverse personnel action means (1) With regard to a DOE employee, the removal, suspension for more than 14 days, reduction in grade or pay, or a furlough of 30 days or less as described in 5 U.S.C. Chapter 75; or (2) With regard to a contractor employee, the discharge, discipline, or denial of employment or promotion, or any other discrimination in regard to hire or tenure of employment or any term or condition of employment. Contractor means a DOE contractor or a subcontractor at any tier. Control questions means questions used during a polygraph examination that are designed to produce a physiological response, which may be compared to the physiological responses to the relevant questions. Counterintelligence means information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities. Deception indicated means an opinion that indicates that an analysis of the polygraph charts reveal physiological responses to the relevant questions that were indicative of evasion. DOE means the Department of Energy. Eligibility evaluation means the process employed by the Office of Counterintelligence to determine whether DOE and contractor employees and applicants for employment, and other individuals assigned or detailed to Federal positions at DOE will be recommended for access or continued access to the eight categories of positions identified in §709.4(a)(1)–(8). Intelligence means information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations or foreign persons. Local commuting area means the geographic area that usually constitutes one area for employment purposes. It includes any population center (or two or more neighboring ones) and the surrounding localities in which people live and can reasonably be expected to travel back and forth daily to their usual employment. No deception indicated means an opinion that indicates that an analysis of the polygraph charts revealed the physiological responses to the relevant questions were not indicative of evasion. No opinion refers to an evaluation of a polygraph test in which the polygraph examiner cannot render an opinion based upon the physiological data on the polygraph charts. Personnel Assurance Program or PAP means the human reliability program set forth under 10 CFR part 711 designed to ensure that individuals assigned to nuclear explosive duties do not have emotional, mental or physical incapacities that could result in a threat to nuclear explosive safety. Personnel Security Assurance Program or PSAP means the program in subpart B of 10 CFR part 710. Personnel security clearance 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. Polygraph means an instrument that (1) Records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards; and (2) Is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual. Polygraph examination means a process that encompasses all activities that take place between a polygraph examiner and individual during a specific series of interactions, including the pretest interview, the use of the polygraph instrument to collect physiological data from the individual while the polygraph examiner is presenting a series of tests, the test data analysis phase, and the post-test phase. Polygraph examination records means all records of the polygraph examination, including the polygraph report, audio-video recording, and the polygraph consent form. Polygraph report refers to a polygraph document that may contain identifying data of the individual, a synopsis of the basis for which the examination was conducted, the relevant questions utilized and the polygraph examiner's conclusions. Polygraph test means that portion of the polygraph examination during which the polygraph instrument collects physiological data based upon the individual's responses to test questions from the examiner. Relevant questions are those questions used during the polygraph examination that pertain directly to the issues for which the examination is being conducted. Special Access Program or SAP means a program established under Executive Order 12958 for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level. Unresolved issues refers to an opinion which indicates that the analysis of the polygraph charts revealed consistent, significant, timely physiological responses to the relevant questions in personnel screening. (a) Except as provided in paragraph (b) of this section, this part applies to DOE and contractor employees and applicants for employment, and other individuals assigned or detailed to Federal positions at DOE, who are in: (1) Positions that DOE has determined include counterintelligence activities or access to counterintelligence sources and methods; (2) Positions that DOE has determined include intelligence activities or access to intelligence sources and methods; (3) Positions requiring access to information that is protected within a non-intelligence special access program (SAP) designated by the Secretary of Energy; (4) Positions that are subject to the Personnel Security Assurance Program (PSAP); (5) Positions that are subject to the Personnel Assurance Program (PAP); (6) Positions that DOE has determined have a need-to-know or access to information specifically designated by the Secretary regarding the design and operation of nuclear weapons and associated use control features; (7) Positions within the Office of Independent Oversight and Performance Assurance, or any successor thereto, involved in inspection and assessment of safeguards and security functions, including cyber security, of the Department; (8) Positions within the Office of Security and Emergency Operations, or any successor thereto; (9) The Accelerated Access Authorization Program (AAAP); and (10) Positions where the applicant or incumbent has requested a polygraph examination in order to respond to questions that have arisen in the context of counterintelligence investigations or personnel security issues. These examinations are referred to in this part as exculpatory polygraph examinations. (b) This part does not apply to: (1) Any individual for whom the Director of the Office of Counterintelligence (D/OCI), gives a waiver, based upon certification from another Federal agency that the individual has successfully completed a full scope or counterintelligence-scope polygraph examination administered within the last five years; (2) Any individual who is being treated for a medical or psychological condition or is taking medication that, based upon consultation with the individual, the DOE Test Center determines would preclude the individual from being tested; or (3) Any individual for whom the Secretary of Energy gives a written waiver in the interest of national security. (c) The Program Manager responsible for each program with positions identified in paragraphs (a)(1)–(8) of this section identifies in the first instance, in order of priority, those specific positions that will be polygraphed. (d) The Program Manager submits positions identified under paragraph (c) of this section to the D/OCI for review and concurrence. The D/OCI forwards the positions, with suggested additions or deletions, to the Secretary for approval. (a) All positions in the programs described in §709.4(a)(1)–(8) are eligible for polygraph examination. When a polygraph examination is scheduled, DOE must notify the individual, in accordance with §709.21. (b) Any job announcement or posting with respect to any position in those programs must indicate that the selection of an individual for the position may be conditioned upon his or her successful completion of a counterintelligence-scope polygraph examination. Positions identified in §709.4(a)(1)–(8) are subject to a five year periodic, as well as an aperiodic, reinvestigation polygraph.
Title 10: Energy
PART 709—POLYGRAPH EXAMINATION REGULATIONS
Subpart A—General Provisions
§ 709.1 What is the purpose of this part?
§ 709.2 What is the scope of this part?
§ 709.3 What are the definitions of the terms used in this part?
§ 709.4 To whom does the polygraph examination requirement under this part apply?
§ 709.5 How will an individual know if his or her position will be eligible for a polygraph examination?
§ 709.6 How often will an individual be subject to polygraph examination?
