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period. This does not include those in Psychophysiological Detection of De. stances in which an individual volun- ception. tarily terminates an examination prior (c) The following organizations proto the actual testing phase.

vide acceptable curricula to meet the (c) The polygraph examiner must be training requirement of paragraph (b) certified to conduct polygraph exami- of this section: nations under this part by the DOE (1) American Polygraph Association, Psychophysiological Detection of De- (2) American Association of Police ception/Polygraph Program Quality Polygraphists, and Control Official.

(3) Department of Defense Polygraph (d) To be certified under paragraph Institute. (c) of this section, an examiner must have the following minimum qualifica- PART 710–CRITERIA AND PROCEtions:

DURES FOR DETERMINING ELIGI(1) The examiner must be an experi

BILITY FOR ACCESS TO CLASSIenced counterintelligence or criminal

FIED MATTER OR SPECIAL NUinvestigator with extensive additional

CLEAR MATERIAL training in using computerized instrumentation in Psychophysiological Detection of Deception and in psychology,

Subpart A-General Criteria and Proce. physiology, interviewing, and interro

dures for Determining Eligibility for Ac.

cess to Classified Matter or Special gation. (2) The examiner must have a favor

Nuclear Material ably adjudicated single-scope back

GENERAL PROVISIONS ground investigation, complete a counterintelligence-scope polygraph exam

710.1 Purpose. ination, and must hold a “Q” access 710.2 Scope. authorization, which is necessary for 710.3 Reference. access to Secret Restricted Data and 710.4 Policy. Top Secret National Security Informa- 710.5 Definitions. tion. In addition, he or she must have

CRITERIA AND PROCEDURES FOR DETERMINING been granted SCI access approval.

ELIGIBILITY FOR ACCESS TO CLASSIFIED (3) The examiner must receive basic

MATTER OR SPECIAL NUCLEAR MATERIAL Forensic Psychophysiological Detec

710.6 Cooperation by the individual. tion of Deception training from the

710.7 Application of the criteria. DODPI.

710.8 Criteria. (4) The examiner must be certified by

710.9 Action on derogatory information, DOE to conduct the following tests:

710.10 Suspension of access authorization. (i) Test for Espionage, Sabotage, and Terrorism;

ADMINISTRATIVE REVIEW (ii) Counterintelligence-Scope Poly 710.20 Purpose of administrative review. graph Tests;

710.21 Notice to the individual. (iii) Zone Comparison Tests;

710.22 Initial decision process. (iv) Modified General Question Tests;

710.23 Extensions of time by the Manager.

710.24 Appointment of DOE Counsel. (v) Peak of Tension Tests; and,

710.25 Appointment of Hearing Officer; pre(vi) Relevant and Irrelevant and Di

hearing conference; commencement of rected Lie Control Tests.

hearings.

710.26 Conduct of hearings. 8 709.32 What are the training require.

710.27 Hearing Officer's decision. ments for polygraph examiners? 710.28 Action on the Hearing Officer's deci(a) Examiners must complete an ini sion. tial training course of thirteen weeks,

710.29 Final appeal process.

710.30 New evidence. or longer, in conformance with the pro

710.31 Action by the Secretary. cedures and standards established by

710.32 Reconsideration of access eligibility, DODPI. (b) Examiners must undergo annual

MISCELLANEOUS continuing education for a minimum of 710.33 Terminations. forty hours training within the dis- 710.34 Attorney representation. cipline

of

Forensic 710.35 Time frames.

710.36 Acting officials. APPENDIX A TO SUBPART A OF PART 710—SE

LECTED 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)
APPENDIX B TO SUBPART A OF PART 710—AD-

JUDICATIVE GUIDELINES APPROVED BY THE
PRESIDENT IN ACCORDANCE WITH THE PRO-
VISIONS OF EXECUTIVE ORDER 12968

Subpart B-Criteria and Procedures for Es

tablishment of the Personnel Security Assurance Program and Determinations of an Individual's Eligibility for Access to a Personnel Security Assurance Program Position

GENERAL PROVISIONS 710.50 Purpose. 710.51 Scope. 710.52 References. 710.53 Policy. 710.54 Definitions.

PROCEDURES 710.55 Designation of PSAP positions. 710.56 Program process. 710.57 Supervisory review. 710.58 Medical assessment. 710.59 Management evaluation. 710.60 DOE security review and clearance

determination. AUTHORITY: 42 U.S.C. 7101, et seq.; 50 U.S.C. 2401, et seq.; 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. 12958, 3 CFR 1995, comp., p. 333; E.O. 12968, 3 CFR 1995, comp., p. 391.

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 12968, 60 FR 40245 (August 7, 1995); Executive Order 12958, 60 FR 19825 (April 20, 1995); Executive Order 10865, 25 FR 1583 (February 24, 1960), as amended; and Executive Order 10450, 18 FR 2489 (April 27, 1954), as amended. This subpart also provides for public information: selected provisions of the Atomic Energy Act of 1954, as amended, set forth in appendix A to this subpart; and the 1997 Adjudicative Guidelines approved by the President and set forth in appendix B to this subpart. [59 FR 35185, July 8, 1994, as amended at 66 FR 47062, Sept. 11, 2001) $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.

Subpart A-General Criteria and

Procedures for Determining
Eligibility for Access to Classi-
fied Matter or Special Nuclear
Material

SOURCE: 59 FR 35185, July 8, 1994, unless otherwise noted.

$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.

GENERAL PROVISIONS

$710.1 Purpose.

(a) This subpart establishes the criteria, procedures, and methods for resolving questions concerning the eligibility of individuals who are employed

$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 es tablished criteria for determining eligibility for access authorization and procedures that will afford those individuals described in $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.

(f) DOE may suspend processing an application for access authorization whenever an individual fails to fulfill the responsibilities described in $710.6.

(g) If an individual believes that the provisions of paragraph (c), (d), or (e) of this section have been inappropriately applied, a written appeal may be filed with the Director, Office of Safeguards and Security, DOE Headquarters, within 30 calendar days of the date the individual was notified of the action. The Director, Office of Safeguards and Security, shall act on the written af as described in section 710.6(c). (59 FR 35185, July 8, 1994, as amended at 66 FR 47062, Sept. 11, 2001)

awaiting a hearing or trial, or has been convicted of a crime punishable by imprisonment of six (6) months or longer, or is awaiting or serving a form of

oing or serving a form of preprosecution probation, 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, DOE may suspend processing an application for access authorization until such time as the hearing, trial, criminal prosecution, suspended sentencing, 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 con ferred 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.

$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.

Classified Matter means the material of thought or expression that is classified pursuant to statute or Executive Order.

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 $710.25. A Hearing Officer shall be a U.S. citizen and shall have been subject to a favorably adjudicated background investiga

Local Director of Security means the Operations Office or Naval Reactors Office Security and Safeguards Division Director, or other similar title; for Washington, DC area cases, the Director, Headquarters Operations Division; for the Idaho Operations Office, the Program Manager, Security and Resource Management Division; for the Pittsburgh Naval Reactors Office, the Director, Contracts and Securities Division; for the Savannah River Operations Office, the Director, Internal Security Division; and any person designated in writing to serve in one of

the aforementioned positions in an cess authorization, including but not "acting" capacity.

limited to, personnel security interNational Security Information means views, DOE-sponsored mental evaluaany information that has been deter tions, and other authorized DOE invesmined, pursuant to Executive Order tigative activities under this subpart. 12958 or any predecessor Order, to re The individual may elect not to coquire protection against unauthorized

operate; however, such refusal may disclosure and that is so designated.

prevent DOE from reaching an affirmaOperations Office Manager or Manager

tive finding required for granting or means the Manager of a DOE Oper

continuing access authorization. In ations Office (Albuquerque, Chicago,

this event, any access authorization Idaho, Nevada, Oak Ridge, Oakland,

then in effect may be terminated, or, Richland, or Savannah River), the

for applicants, further processing may Manager of the Pittsburgh Naval Reac

be suspended. tors Office, the Manager of the Schenectady Naval Reactors Office, and, for

(b) If the individual believes that the Washington, DC area cases, the Direc

provisions of paragraph (a) of this sector, Office of Safeguards and Security.

tion have been inappropriately applied Secretary means the Secretary of En

in his case, he may file a written apergy, as provided by section 201 of the

peal of the action with the Director, Department of Energy Organization

Office of Safeguards and Security, DOE Act.

Headquarters, within 30 calendar days Special nuclear material means pluto of the date he was notified of the acnium, uranium enriched in the isotope tion. 233, or in the isotope 235, and any other (c) Upon receipt of the written apmaterial which, pursuant to the provi peal, the Director, Office of Safeguards sions of Section 51 of the Atomic En and Security, shall conduct an inquiry ergy Act of 1954, as amended, has been as to the circumstances involved in the determined to be special nuclear mate action and shall, within 30 calendar rial, but does not include source mate days of receipt of the written appeal, rial; or any material artificially en notify the individual, in writing, as to riched by any of the foregoing, not in

whether the action to terminate or suscluding source material.

pend processing of access authorization (b) Throughout this subpart the use

was appropriate. If the Director, Office of the male gender shall include the fe

of Safeguards and Security, determines male gender and vice versa.

that the action was inappropriate, he [59 FR 35185, July 8, 1994, as amended at 66 shall direct that the individual conFR 47063, Sept. 11, 2001)

tinue to be processed for access author

ization, or that access authorization CRITERIA AND PROCEDURES FOR DETER

for the individual be reinstated.
MINING ELIGIBILITY FOR ACCESS TO
CLASSIFIED MATTER OR SPECIAL NU- 8710.7 Application of the criteria.
CLEAR MATERIAL

(a) The decision as to access author$710.6 Cooperation by the individual. ization is a comprehensive, common(a) It is the responsibility of the indi

sense judgment, made after considervidual to cooperate by providing full,

ation of all relevant information, fafrank, and truthful answers to DOE's vorable and unfavorable, as to whether relevant and material questions, and the granting or continuation of access when requested, to furnish or authorize authorization will not endanger the others to furnish information that the common defense and security and is DOE deems pertinent to the individ clearly consistent with the national inual's eligibility for DOE access author terest. Any doubt as to an individual's ization. This obligation to cooperate access authorization eligibility shall be applies when completing security resolved in favor of the national secuforms, during the course of a personnel rity. Absent any derogatory informasecurity background investigation or tion, a favorable determination usually reinvestigation, and at any stage of will be made as to access authorization DOE's processing of the individual's ac- eligibility.

(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. (59 FR 35185, July 8, 1994, as amended at 66 FR 47063, Sept. 11, 2001]

imical 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 wi 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 (or National Security) 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 $710.20 through $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; or violated or disregarded regulations, procedures, or guidelines pertaining to

8710.8 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 in

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