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8708.29 What must the parties to a

complaint prove? The employee who files a complaint has the burden of establishing by a preponderance of the evidence that he or she made a disclosure, participated in a proceeding, or refused to participate, as described under $ 708.5, and that such act was a contributing factor in one or more alleged acts of retaliation against the employee by the contractor. Once the employee has met this burden, the burden shifts to the contractor to prove by clear and convincing evidence that it would have taken the same action without the employee's disclosure, participation, or refusal.

$708.31 If no hearing is conducted,

what is the process for issuing an

initial agency decision? (a) If no party wants a hearing after the issuance of a report of investigation, the Hearing Officer will issue an initial agency decision by the 60th day after the hearing is canceled pursuant to $708.24. The standards in $708.30. governing the issuance of an initial agency decision, apply whether or not a hearing has been held on the complaint.

(b) The Hearing Officer will serve the initial agency decision on all parties.

8 708.32 Can a dissatisfied party ap

peal an initial agency decision? (a) Yes. By the 15th day after receiving an initial agency decision from the Hearing Officer, any party may file a notice of appeal with the OHA Director requesting review of the initial agency decision.

(b) A party who appeals an initial agency decision (the appellant) must serve a copy of the notice of appeal on all other parties.

(c) A party who receives an initial agency decision by a Hearing Officer has not exhausted its administrative remedies until an appeal has been filed with the OHA Director and a decision granting or denying the appeal has been issued.

$708.30 What process does the Hear

ing Officer follow to issue an initial agency decision? (a) The Hearing Officer will issue an initial agency decision on your complaint by the 60th day after the later of:

(1) The date the Hearing Officer approves the parties' agreement to cancel the hearing;

(2) The date the Hearing Officer receives the transcript of the hearing; or

(3) The date the Hearing Officer receives post-hearing submissions permitted under $ 708.28(b)(7) of this subpart.

(b) The Hearing Officer will serve the initial agency decision on all parties.

(c) An initial agency decision issued by the Hearing Officer will contain appropriate findings, conclusions, an order, and the factual basis for each finding, whether or not a hearing has been held on the complaint. In making such findings, the Hearing Officer may rely upon, but is not bound by, the report of investigation.

(d) If the Hearing Officer determines that an act of retaliation has occurred, the initial agency decision will include an order for any form of relief permitted under $ 708.36.

(e) If the Hearing Officer determines that an act of retaliation has not occurred, the initial agency decision will state that the complaint is denied.

$ 708.33 What is the procedure for an

appeal? (a) By the 15th day after filing a notice of appeal under $ 708.32, the appellant must file a statement identifying the issues that it wishes the OHA Director to review. A copy of the statement must be served on the other parties, who may file a response by the 20th day after receipt of the statement. Any response must also be served on the other parties.

(b) In considering the appeal, the OHA Director:

(1) 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 initial agency decision;

(2) May solicit and accept submis- 8708.35 How can a party obtain resions from any party that are relevant view by the Secretary of Energy of to the review. The OHA Director may an appeal decision? establish appropriate times to allow for

(a) By the 30th day after receiving an such submissions;

appeal decision from the OHA Director, (3) May consider any other source of

any party may file a petition for Secreinformation that will advance the eval

tarial review with the Office of Hearuation, provided that all parties are

ings and Appeals. given an opportunity to respond to all

(b) By the 15th day after filing a petithird person submissions; and

tion for Secretarial review, the peti(4) Will close the record on appeal

tioner must file a statement identiafter receiving the last submission per

fying the issues that it wishes the Secmitted under this section.

retary to consider. A copy of the state

ment must be served on the other par$708.34 What is the process for issuing

ties, who may file a response by the an appeal decision?

20th day after receipt of the statement. (a) If there is no appeal of an initial Any response must also be served on agency decision, and the time for filing the other parties. an appeal has passed, the initial agency (c) All submissions permitted under decision becomes the final agency deci this section must be filed with the Ofsion.

fice of Hearings and Appeals. (b) If there is an appeal of an initial

(d) After a petition for Secretarial reagency decision, the OHA Director will

view is filed, the Secretary (or his or issue an appeal decision based on the

her delegee) will issue the final agency record of proceedings by the 60th day decision on the complaint. The Secafter the record is closed.

retary will reverse or revise an appeal (1) An appeal decision issued by the decision by the OHA Director only OHA Director will contain appropriate under extraordinary circumstances. In findings, conclusions, an order, and the the event the Secretary determines factual basis for each finding, whether

that a revision in the appeal decision is or not a hearing has been held on the appropriate, the Secretary will direct complaint. In making such findings the OHA Director to issue a revised dethe OHA Director may rely upon, but is cision which is the final agency action not bound by, the report of investiga on the complaint. tion and the initial agency decision.

(2) If the OHA Director determines $708.36 What remedies for retaliation that an act of retaliation has occurred, may be ordered in initial and final the appeal decision will include an agency decisions? order for any form of relief permitted (a) General remedies. If the initial or under $ 708.36.

final agency decision determines that (3) If the OHA Director determines an act of retaliation has occurred, it that the contractor charged has not may order: committed an act of retaliation, the (1) Reinstatement; appeal decision will deny the com (2) Transfer preference; plaint.

(3) Back pay; (c) The OHA Director will send an ap (4) Reimbursement of your reasonpeal decision to all parties and to the able costs and expenses, including atHead of Field Element or EC Director

torney and expert-witness fees reasonhaving jurisdiction over the contract ably incurred to prepare for and parunder which you were employed when ticipate in proceedings leading to the the alleged retaliation occurred.

initial or final agency decision; or (d) The appeal decision issued by the (5) Such other remedies as are OHA Director is the final agency deci- deemed necessary to abate the violasion unless a party files a petition for tion and provide you with relief. Secretarial review by the 30th day (b) Interim relief. If an initial agency after receiving the appeal decision. decision contains a determination that

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an act of retaliation occurred, the decision may order the contractor to provide you with appropriate interim relief (including reinstatement) pending the outcome of any request for review of the decision by the OHA Director. Such interim relief will not include payment of any money.

8708.40 Are contractors required to in

form their employees about this program? Yes. Contractors who are covered by this part must inform their employees about these regulations by posting notices in conspicuous places at the work site. These notices must include the name and address of the DOE office where you can file a complaint under this part.

[64 FR 37397, July 12, 1999)

$ 708.37 Will an employee whose com

plaint is denied by a final agency decision be reimbursed for costs and expenses incurred in pursuing

the complaint? No. If your complaint is denied by a final agency decision, you may not be reimbursed for the costs and expenses you incurred in pursuing the complaint.

$ 708.41 Will DOE ever refer a com

plaint filed under this part to another agency for investigation and

a decision? Notwithstanding the provisions of this part, the Secretary of Energy retains the right to request that a complaint filed under this part be accepted by another Federal agency for investigation and factual determinations. [64 FR 37397, July 12, 1999]

$ 708.38 How is a final agency decision

implemented? (a) The Head of Field Element having jurisdiction over the contract under which you were employed when the alleged retaliation occurred, or EC Director, will implement a final agency decision by forwarding the decision and order to the contractor, or subcontractor, involved.

(b) A contractor's failure or refusal to comply with a final agency decision and order under this regulation may result in a contracting officer's decision to disallow certain costs or terminate the contract for default. In the event of a contracting officer's decision to disallow costs or terminate a contract for default, the contractor may file a claim under the disputes procedures of the contract.

$708.42 May the deadlines established

by this part be extended by any DOE official? Yes. The Secretary of Energy (or the Secretary's designee) may approve the extension of any deadline established by this part, and the OHA Director may approve the extension of any deadline under $ 708.22 through $708.34 of this subpart (relating to the investigation, hearing, and OHA appeal process). [64 FR 37397, July 12, 1999]

8 708.43 Does this rule impose an af

firmative duty on DOE contractors not to retaliate? Yes. DOE contractors may not retaliate against any employee because the employee (or any person acting at the request of the employee) has taken an action listed in $8 708.5(a)c). [65 FR 6319, Feb. 9, 2000; 65 FR 9201, Feb. 24. 2000]

8 708.39 Is a decision and order imple

mented under this regulation considered a claim by the government against a contractor or a decision by the contracting officer under sections 6 and 7 of the Contract Dis

putes Act? No. A final agency decision and order issued pursuant to this regulation is not considered a claim by the government against a contractor or “a decision by the contracting officer” under sections 6 and 7 of the Contract Disputes Act (41 U.S.C. 605 and 606).

PART 709–POLYGRAPH EXAMINATION REGULATIONS

Subpart A-General Provisions

Sec. 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 examina

tion requirement under this part apply? 709.5 How will an individual know if his or

her position will be eligible for a poly

graph examination? 709.6 How often will an individual be subject

to polygraph examination?

Subpart B-Polygraph Examina

tion Protocols and Protection of National Security

Subpart A-General Provisions $709.1 What is the purpose of this

part? 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.

709.11 What types of topics are within the

scope of a polygraph examination? 709.12 How does DOE determine the wording

of questions? 709.13 May an individual refuse to take a

polygraph examination? 709.14 What are the consequences of a re

fusal to take a polygraph examination? 709.15 How does DOE use polygraph exam

ination results?

Subpart C—Safeguarding Privacy

and Employee Rights

$ 709.2 What is the scope of this part?

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 polygra examination;

(c) Controls on the use of polygraph examinations; and

(d) Safeguards to prevent unwarranted intrusion into the privacy of individuals.

709.21 When is an individual notified that a

polygraph examination is scheduled? 709.22 What rights to counsel or other rep

resentation does an individual have? 709.23 How does DOE obtain an individual's

consent to a polygraph examination? 709.24 What other information is provided

to the individual prior to a polygraph ex

amination? 709.25 Are there limits on use of polygraph

examination results that reflect "decep

tion indicated" or "no opinion''? 709.26 How does DOE protect the confiden

tiality of polygraph examination records?

Subpart D-Polygraph Examina

tion and Examiner Standards

709.31 What are the DOE standards for poly

graph examinations and polygraph exam

iners? 709.32 What are the training requirements

for polygraph examiners? AUTHORITY: 42 U.S.C. 2011, et seq., 42 U.S.C. 7101, et seq., 42 U.S.C. 7383h.

SOURCE: 64 FR 70975, Dec. 17, 1999, unless otherwise noted.

8 709.3 What are the definitions of the

terms used in this part? 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 8 709.4(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 and can reasonably be expected to travcontrol over, special nuclear material. el back and forth daily to their usual Adverse personnel action means

employment. (1) With regard to a DOE employee, No deception indicated means an opinthe removal, suspension for more than ion that indicates that an analysis of 14 days, reduction in grade or pay, or a the polygraph charts revealed the furlough of 30 days or less as described physiological responses to the relevant in 5 U.S.C. Chapter 75; or

questions were not indicative of eva(2) With regard to a contractor em- sion. ployee, the discharge, discipline, or de- No opinion refers to an evaluation of nial of employment or promotion, or a polygraph test in which the polyany other discrimination in regard to graph examiner cannot render an opinhire or tenure of employment or any ion based upon the physiological data term or condition of employment.

on the polygraph charts. Contractor means a DOE contractor Personnel Assurance Program of PAP or a subcontractor at any tier.

means the human reliability program Control questions means questions set forth under 10 CFR part 711 deused during a polygraph examination signed to ensure that individuals asthat are designed to produce a physio- signed to nuclear explosive duties do logical response, which may be com- not have emotional, mental or physical pared to the physiological responses to incapacities that could result in a the relevant questions.

threat to nuclear explosive safety. Counterintelligence means information Personnel Security Assurance Program gathered and activities conducted to or PSAP means the program in subpart protect against espionage, other intel- B of 10 CFR part 710. ligence activities, sabotage, or assas- Personnel security clearance means an sinations conducted by or on behalf of administrative determination that an foreign governments or elements there- individual is eligible for access to clasof, foreign organizations, or foreign sified matter or is eligible for access persons, or international terrorist ac to, or control over, special nuclear mativities.

terial. Deception indicated means an opinion Polygraph means an instrument that that indicates that an analysis of the (1) Records continuously, visually, polygraph charts reveal physiological permanently, and simultaneously responses to the relevant questions changes in cardiovascular, respiratory, that were indicative of evasion.

and electrodermal patterns as minDOE means the Department of En imum instrumentation standards; and ergy.

(2) Is used, or the results of which are Eligibility evaluation means the proc used, for the purpose of rendering a diess employed by the Office of Counter- agnostic opinion regarding the honesty intelligence to determine whether DOE or dishonesty of an individual. and contractor employees and appli Polygraph examination means a proccants for employment, and other indi- ess that encompasses all activities that viduals assigned or detailed to Federal take place between a polygraph exampositions at DOE will be recommended iner and individual during a specific sefor access or continued access to the ries of interactions, including the preeight categories of positions identified test interview, the use of the polygraph in $ 709.4(a)(1)(8).

instrument to collect physiological Intelligence means information relat data from the individual while the ing to the capabilities, intentions, or polygraph examiner is presenting a seactivities of foreign governments or ries of tests, the test data analysis elements thereof, foreign organizations phase, and the post-test phase. or foreign persons.

Polygraph examination records means Local commuting area means the geo- all records of the polygraph examinagraphic area that usually constitutes tion, including the polygraph report, one area for employment purposes. It audio-video recording, and the polyincludes any population center (or two graph consent form. or more neighboring ones) and the sur Polygraph report refers to a polygraph rounding localities in which people live document that may contain identifying

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