03-9009. Office of Counterintelligence; Polygraph Examination Regulations

AGENCY:

Department of Energy.

ACTION:

Notice of proposed rulemaking and opportunity for public comment.

SUMMARY:

The Department of Energy (DOE or Department) publishes a notice of proposed rulemaking to begin a proceeding to consider whether to retain or modify its current Polygraph Examination Regulations. DOE is undertaking this action, among other reasons, to satisfy the directive of section 3152 of the National Defense Authorization Act for Fiscal Year 2002 that following issuance of the National Academy of Sciences' Polygraph Review (NAS Polygraph Review), DOE is to prescribe regulations for a new counterintelligence polygraph program, whose Congressionally-specified purpose is “* * * to minimize the potential for release or disclosure of classified data, materials, or information.”

DATES:

Written comments (10 copies) are due June 13, 2003.

ADDRESSES:

You may choose to address written comments to U.S. Department of Energy, Office of Counterintelligence (CN-1), Docket No. CN-03-RM-01, 1000 Independence Avenue. SW., Washington, DC 20585. Alternatively, you may e-mail your comments to: [e-mail]. You may review or copy the public comments DOE has received in Docket No. CN-03-RM-01 and any other docket material DOE makes available at the DOE Freedom of Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW., Washington, DC 20585. This notice of proposed rulemaking and supporting documentation is available on DOE's internet home page at the following address: http://www.energy.gov.

FOR FURTHER INFORMATION CONTACT:

Douglas Hinckley, U.S. Department of Energy, Office of Counterintelligence, CN-1, 1000 Independence Avenue, SW., Washington, DC 20585, [phone]; or Lise Howe, U.S. Department of Energy, Office of General Counsel, GC-73, 1000 Independence Avenue, SW., Washington, DC 20585, [phone].

SUPPLEMENTARY INFORMATION:

I. Introduction

Under section 3152(a) of the National Defense Authorization Act for Fiscal Year 2002 (NDAA for FY 2002), DOE is obligated to prescribe regulations for a new counterintelligence polygraph program the stated purpose of which is “* * * to minimize the potential for release or disclosure of classified data, materials, or information” (42 U.S.C. 7383h-1(a).) Section 3152(b) requires DOE to “* * * take into account the results of the Polygraph Review,” which is defined by section 3152(e) to mean “* * * the review of the Committee to Review the Scientific Evidence on the Polygraph of the National Academy of Sciences” (42 U.S.C. 7383h-1(b), (e)).

Upon promulgation of final regulations under section 3152, and “effective 30 days after the Secretary submits to the congressional defense committees the Secretary's certification that the final rule * * * has been fully implemented, * * *” section 3154 of the National Defense Authorization Act for Fiscal Year 2000 (NDAA for FY 2000) (42 U.S.C. 7383h), would be repealed by operation of law. (42 U.S.C. 7383h-1(c).) The repeal of section 3154 would eliminate the existing authority which underlies DOE's counterintelligence polygraph regulations, which are codified at 10 CFR part 709, but would not preclude the retention of some or all of those regulations through this rulemaking pursuant to the later-enacted section 3152 of the NDAA for FY 2002.

In Part II of this Supplementary Information, DOE reviews background information useful in understanding the existing statutory and regulatory provisions applicable to DOE's current counterintelligence polygraph examination program. In Part III of this Supplementary Information, DOE discusses its preliminary views with regard to the relevant factual and policy issues, including DOE's evaluation of the NAS Polygraph Review which is entitled “The Polygraph and Lie Detection.” That discussion explains why the Secretary of Energy has approved today's preliminary proposal to retain the regulations in 10 CFR part 709 as a balanced approach for the carefully circumscribed use of polygraph examinations as a tool that appears in current circumstances well-suited to accomplish the Congressionally-specified purpose “* * * to minimize the potential for release or disclosure of classified data, materials, or information” (42 U.S.C. 7383h-1).

DOE invites interested members of the public to provide their views on the issues in this rulemaking by filing written comments. With an open mind, DOE intends carefully to evaluate the public comments received in response to this notice of proposed rulemaking. DOE will then consider whether to issue a supplemental notice of proposed rulemaking with additional policy options for public comment and whether it is necessary and timely to hold a public hearing to provide an opportunity for presentation of oral comments.

II. Background

Consistent with section 3154 of the NDAA for FY 2000, DOE published a notice of final rulemaking establishing 10 CFR part 709 on December 17, 1999 (64 FR 70975). The provisions of 10 CFR part 709 list the types of employees and positions that are subject to polygraph examinations. Under 10 CFR 709.4, the polygraph program applies to all DOE employees and contractor employees, applicants for employment, and other individuals assigned or detailed to positions in eight categories which are discussed in detail in part III of this Supplementary Information. Employees may request exculpatory polygraph examinations to deal with unresolved counterintelligence or personnel security issues. Part 709 also describes the polygraph examination protocols DOE uses, the policies for safeguarding the privacy rights of employees, and the requirements that apply to ensure well qualified and well trained polygraph examiners.

After DOE promulgated 10 CFR part 709, Congress amended section 3154 of the NDAA for FY 2000 by section 3135 in the National Defense Authorization Act for Fiscal Year 2001 (Pub. L. 106-398). Section 3135 amended the earlier definition of “covered persons” contained in section 3154 to include assignees, detailees and applicants. The definition of “high risk program” was revised to include programs using information known as Sensitive Compartmented Information, SAP, PSAP, PAP, and any other program or position category specified in section 709.4(a) of Title 10, Code of Federal Regulations. Section 3135 amended section 3154(f) to add the terms “terrorism” after “sabotage” and “deliberate damage to or malicious misuse of a United States Government information or defense system” to the statutory definition of the scope of a counterintelligence polygraph examination. Section 3135 also amended section 3154 by adding language that limited the Secretary's authority to waive the examination requirement.

III. DOE's Proposal To Implement Section 3152(a) of the NDAA for FY 2002

The focal point for analysis of the factual information and policy considerations relevant to this rulemaking is the Congressionally stated purpose of the counterintelligence polygraph regulations which is “* * * to minimize the potential for release or disclosure of classified data, material, or information” (42 U.S.C. 7383h-1(a)). Given the nature of this directive—as a statement of the purpose of the program, not as a standard that the program must meet—DOE does not construe this directive as a mandate mechanistically to construct a program that takes all steps to protect classified data, materials, or information, no matter what the countervailing considerations. Construing the directive in that fashion could lead to absurd results, potentially requiring DOE to expend so much of its resources on polygraphs and associated provisions that the program would significantly detract from DOE's ability to accomplish its national security mission. At the same time, however, DOE does believe that the directive signals a Congressional hierarchy in the weighing of various considerations, pursuant to which DOE must take potential jeopardy of classified data, materials, or information very seriously in considering the potential consequences that may flow from how it constructs its program. DOE has evaluated the question whether to retain or modify the list of positions currently set forth in its regulations as subject to polygraph examinations over a five-year period against this Congressionally-stated purpose so construed.

As noted above, that list is set forth at 10 CFR 709.4. It includes: “(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 * * *” This list reflects, but is not restricted to, the positions listed in section 3154 of the NDAA for FY 2000. Consistent with section 3152 of the NDAA for FY 2002, DOE proposes to retain these eight position categories because in each category there are individuals who possess or have routine access to classified data, material, or information that would likely be targeted for acquisition by foreign powers. DOE has not reached a firm conclusion that all the position categories on the list should be retained, or that all should be retained in their current form, but it believes that a sufficient basis for their retention exists that it is not prepared to propose the modification or removal of any at this time. DOE accordingly particularly invites comment on the question whether the list, or any of the position categories on the list, is overinclusive or underinclusive, and if so, how and on what basis the list, or any of the position categories on the list, should be modified.

The list of position categories in 10 CFR 709.4(a) also includes two categories of individuals who volunteer for polygraph examinations. There is a category of applicants for employment who opt for the Accelerated Access Authorization Program (AAAP) (10 CFR 709.4(a)(9)). These applicants choose to be polygraphed in order to obtain expedited interim “Q” clearances pending completion of field investigations. There is also a category composed of incumbent employees who volunteer for so-called exculpatory polygraph examinations to resolve questions that have arisen in the context of counterintelligence investigations or personnel security issues (10 CFR 709.4(a)(10).

The NAS Polygraph Review examined the scientific evidence with regard to the validity of polygraph examinations used for the screening of applicants for employment and incumbent employees, as well as for specific-event investigations (which include what DOE calls “exculpatory polygraph examinations”). The NAS pointed out that the available scientific evidence is generally of low quality and consisted of 57 studies of which 53 are specific-event investigations and four are flawed studies of employee screening. While noting that the available empirical research has not established the underlying factors that produce the physiological responses observed during polygraph examinations, and that generalizing from such responses in research settings to real world settings is hazardous, the NAS nevertheless concluded that “* * * specific-incident polygraph tests discriminate lying from truth telling at rates well above chance, though well below perfection * * *” (NAS Polygraph Review at p. 3). DOE is inclined to accept this conclusion with regard to exculpatory polygraph examinations under 10 CFR 709.4(a)(10), but given the limitations of the tool, DOE does not treat the results of such examinations as conclusive as to truthfulness or mendacity. Accordingly, DOE may follow up an exculpatory polygraph result with additional investigative activities if DOE considers that action appropriate. DOE does not now contemplate any change in this policy.

With regard to polygraph examinations for employee screening under 10 CFR part 709, the NAS takes a significantly different view. Against the background of what it acknowledges is very sparse evidence, the NAS is dubious about both the validity and the advisability of such examinations.

Validity. According to the NAS, the proportion of the employee population at DOE that poses a major national security threat (presumably including threats to classified information) is extremely low. In the NAS's view, screening in a population with a very low rate of target transgressions will necessarily yield, as a function of how sensitively the polygraph test is set, either a large number of false positives or a large of false negatives (NAS Polygraph Review at 4, 2-4 through 2-7, 2-20 though 2-21, and 7-2 through 7-4). On that basis, the NAS concludes that polygraph examinations are too inaccurate to be used for employee screening. (NAS Polygraph Review, p.4.)

In reaching its negative conclusion, the NAS acknowledged that a screening polygraph, even if set to reduce the number of false positives, will identify true positives who are being deceptive. Accordingly, DOE does not believe that the issues that the NAS has raised about the polygraph's accuracy are sufficient to warrant a decision by DOE to abandon it as a screening tool. Doing so would mean that DOE would be giving up a tool that, while far from perfect, will help identify some individuals who should not be given access to classified data, materials, or information. DOE does not believe wholesale abandonment of a tool that has some admitted value for that purpose can be squared with Congress's overall direction to implement a polygraph program whose purpose is “ * * * to minimize the potential for release or disclosure of classified data, materials, or information.”

Advisability. The NAS's main conclusion is that lack of evidence of validity and accuracy justifies not using polygraph examinations for screening purposes. In arriving at this conclusion, the NAS also took into account the expense associated with invalid polygraph results, the potential loss of competent or highly skilled individuals due to false positives or the fear of such a test result, and claims of adverse impact on civil liberties. The NAS also acknowledged but considered less significant the deterrent effect that the prospect of being polygraphed could have on employment applicants who are national security risks. In short, what NAS conducted was a cost-benefit analysis that (given the nature of the costs and benefits) inevitably rested in no small part on value judgments made by the NAS. There is nothing inappropriate about this approach in light of the NAS's mission and charge.

DOE, however, has a significantly different mission—one that is intimately involved in science, but directed to a particular end—the national security of the United States; therefore, not surprisingly, section 3152 gave the Department a particular charge for its polygraph program. That charge was not to devise a program based on the NAS's or the Department's own weighing of costs and benefits based on its own value judgments. Rather, Congress directed DOE to develop a polygraph program focused on minimizing the risk of release or disclosure of classified information. That amounts to a Congressional specification that the most important cost about which DOE should be concerned is the risk of release or disclosure of classified information. DOE believes that Congress's judgment in that regard was reasonable. Given that DOE's classified information consists in significant measure of information regarding nuclear weapons of mass destruction, the consequences of compromise of that information can be profoundly significant. Those consequences make it sensible for Congress to conclude that DOE's priority should be on deterrence and detection of potential security risks with a secondary priority of mitigating the consequences of false positives and false negatives. Moreover, whatever may be the importance of other considerations, DOE believes that at this time, when the United States is engaged in hostilities precisely in order to address the potentially disastrous consequences that may flow from weapons of mass destruction falling into the wrong hands, it is under a particular obligation to make sure that no action that it takes be susceptible to misinterpretation as a relaxation of controls over information concerning these kinds of weapons. For all these reasons, while fully respecting the questions the NAS has raised about the use of polygraphs as a screening tool, DOE does not believe it can endorse the NAS's conclusion that the tool should be laid down.

Perhaps in recognition that its main conclusion was less tenable in the context of Federal agencies with national security missions established by law, the NAS went on to conclude in the alternative that if polygraph screening is to be used at all, it should only be used as a trigger for follow-up detailed investigations and not as a sole basis for personnel action (NAS Polygraph Review, p. 5). This alternative conclusion appears to DOE to be much more compatible with the priority DOE is statutorily invited to place on minimizing the potential for release or disclosure of classified information. It is also consistent with the way DOE currently uses screening polygraphs.

Under DOE's current regulations, neither DOE nor its contractors may take an adverse personnel action against an individual solely on the basis of a polygraph result indicating deception (10 CFR 709.25). If, after an initial polygraph examination, there are remaining unresolved issues, DOE must advise the individual and provide an opportunity for the individual to undergo an additional polygraph examination. If the additional polygraph examination is not sufficient to resolve the matter, DOE must undertake a comprehensive investigation using the polygraph examination as an investigative lead (10 CFR 709.15(b)). In DOE's view, this regulatory scheme is consistent both with the NAS's alternative conclusion and with the statutory priority on minimizing release or disclosure of classified information. Therefore, pursuant to section 3152 of the NDAA for FY 2002, DOE today proposes on a preliminary basis to retain the regulatory provisions in part 709. DOE invites public comment on its evaluation of the NAS Polygraph Review with regard to employee screening and on its assessment that the existing provisions of part 709 are consistent with the NAS's alternative conclusion.

IV. Regulatory Review

A. National Environmental Policy Act

The proposed rule would retain the existing procedures for counterintelligence evaluations to include polygraph examinations and therefore will have no impact on the environment. DOE has determined that this rule is covered under the Categorical Exclusion in DOE's National Environmental Policy Act regulations in paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, which applies to rulemakings amending an existing regulation that does not change the environmental effect of the regulations being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires preparation of an initial regulatory flexibility analysis for every rule that must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. This rulemaking will not directly regulate small businesses or small governmental entities. It will apply principally to individuals who are employees of, or applicants for employment by, some of DOE's prime contractors, which are large businesses. There may be some affected small businesses that are subcontractors, but the rule will not impose unallowable costs. Accordingly, DOE certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

C. Paperwork Reduction Act

DOE has determined that this proposed rule does not contain any new or amended record-keeping, reporting or application requirements, or any other type of information collection requirements that require the approval of the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The OMB has defined the term “information” to exclude certifications, consents, and acknowledgments that entail only minimal burden [5 CFR 1320.3(h)(1)].

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., requires a Federal agency to perform a detailed assessment of the costs and benefits of any rule imposing a Federal mandate with costs to state, local, or tribal governments, or to the private sector of $100 million or more. The proposed rule does not impose a Federal mandate requiring preparation of an assessment under the Unfunded Mandates Reform Act of 1995.

E. Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act of 1999, (Pub. L. No. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. This proposed rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

F. Executive Order 12866

Executive Order 12866, 58 FR 51735 (October 4, 1993) provides for a review by the Office of Information and Regulatory Affairs in the Office of Management and Budget of a “significant regulatory action,” which is defined as an action that may have an effect on the economy of $100 million or more or adversely affect the economy, competition, jobs, productivity, environment, public health or safety, or state, local or tribal governments. DOE has concluded that this proposed rule (10 CFR Part 709) is not a significant regulatory action. Accordingly, this rulemaking has not been reviewed by the Office of Information and Regulatory Affairs.

G. Executive Order 12988

Section 3(a) of Executive Order 12988, 61 FR 4729 (February 7, 1996) imposes on executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

H. Executive Order 13084

Under Executive Order 13084, 63 FR 27655 (May 19, 1998), DOE may not issue a discretionary rule that significantly or uniquely affects Indian tribal governments and imposes substantial direct compliance costs. This proposed rulemaking would not have such effects. Accordingly, Executive Order 13084 does not apply to this rulemaking.

I. Executive Order 13132

Executive Order 13132, 64 FR 43255 (August 10, 1999), requires agencies to develop an accountable process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have “federalism implications.” Policies that have federalism implications are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined this proposed rule and determined that it would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. No further action is required by the Executive Order.

J. Review Under Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use), 66 FR 28355 (May 22, 2001) requires preparation and submission to OMB of a Statement of Energy Effects for significant regulatory action under Executive Order 12866 that are likely to have a significant adverse effect on the supply, distribution, or use of energy. This rulemaking, although significant, will not have such an effect. Consequently, DOE has concluded that there is no need for a Statement of Energy Effects.

K. Treasury and General Government Appropriations Act, 1999

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issues by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2001), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this notice of proposed rulemaking under the OMB and DOE guidelines, and has concluded that it is consistent with applicable policies in those guidelines.

V. Opportunity for Public Comment

Interested members of the public are invited to participate in this proceeding by submitting data, views, or comments on this proposed rule. Ten copies of written comments should be submitted to the address indicated in the ADDRESSES section of this notice. Comments should be identified on the outside of the envelope and on the comments themselves with the designation “Polygraph Examination Regulation, Docket No. CN-03-RM-01.” If anyone wishing to provide written comments is unable to provide ten copies, alternative arrangements can be made in advance with the DOE. All comments received on or before the date specified at the beginning of this notice, and other relevant information before final action is taken on the proposed rule, will be considered.

All submitted comments will be available for public inspection as part of the administrative record on file for this rulemaking in the DOE Freedom of Information Reading Room at the address indicated in the ADDRESSES section of this notice. Pursuant to the provisions of 10 CFR 1004.11, anyone submitting information or data that he or she believes to be confidential and exempt by law from public disclosure should submit one complete copy of the document, as well as two copies, if possible, from which the information has been deleted. The DOE will make its determination as to the confidentiality of the information and treat it accordingly.

List of Subjects in 10 CFR Part 709

• Lie detector tests
• Privacy

Issued in Washington, DC on April 8, 2003.

Stephen W. Dillard,

Director, Office of Counterintelligence.

For the reasons stated in the preamble, DOE hereby proposes to amend 10 CFR part 709 to read as follows:

PART 709—POLYGRAPH EXAMINATION REGULATIONS

1. The authority citation for 10 CFR part 709 is revised to read as follows:

Authority: 42 U.S.C. 2011, et seq., 7101, et seq., 7383h-1.

* * * * *