[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70962-70980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32721]
[[Page 70961]]
_______________________________________________________________________
Part VII
Department of Energy
_______________________________________________________________________
10 CFR Parts 709, 710 and 711
Polygraph Examination Regulation; Final Rule
Federal Register / Vol. 64, No. 242 / Friday, December 17, 1999 /
Rules and Regulations
[[Page 70962]]
DEPARTMENT OF ENERGY
10 CFR Parts 709, 710 and 711
[Docket No. CN-RM-99-POLY]
RIN 1992-AB24
Polygraph Examination Regulation
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE or the Department) today is
publishing a final rule for the use of polygraph examinations for
certain DOE and contractor employees, applicants for employment, and
other individuals assigned or detailed to Federal positions at DOE. The
regulation describes the categories of individuals who will be eligible
for polygraph testing and controls for the use of such testing and for
prevention of unwarranted intrusion into the privacy of individuals.
This regulation is an important element of the Department's efforts to
protect highly sensitive and classified information and materials to
which certain DOE and contractor employees have access. The final rule
adopted today also contains conforming changes to regulations governing
the Department's Personnel Security Assurance Program (PSAP) and
Personnel Assurance Program (PAP).
EFFECTIVE DATE: January 18, 2000.
FOR FURTHER INFORMATION CONTACT: Douglas Hinckley, U.S. Department of
Energy, Office of Counterintelligence, CN-1, 1000 Independence Avenue,
SW, Washington, DC 20585, (202) 586-5901; or Lise Howe, U.S. Department
of Energy, Office of General Counsel, GC-73, 1000 Independence Avenue,
SW, Washington, DC 20585, (202) 586-2906.
SUPPLEMENTARY INFORMATION:
I. Introduction and Need for the Rule
II. Background
III. Discussion of General Public Comments
IV. Section-by-Section Review and Discussion of Public Comments
V. Regulatory Review
A. National Environmental Policy Act
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Treasury and General Government Appropriations Act, 1999
F. Executive Order 12866
G. Executive Order 13132
H. Executive Order 12875
I. Executive Order 12988
J. Executive Order 13084
K. Small Business Regulatory Enforcement Fairness Act of 1996
I. Introduction and Need for the Rule
The national weapons laboratories of DOE are premier institutions
among the world's government-sponsored scientific research and
development organizations. Their discoveries not only helped the United
States prevail in the Cold War, but they are providing for the
continued national security through their mission to maintain the
safety, security, and reliability of the nation's nuclear stockpile. As
the repository of America's most advanced know-how in nuclear and
related armaments and the home of some of America's finest scientific
minds and engineering capabilities, these labs have been and will
continue to be major targets of foreign intelligence services.
This threat to DOE and its facilities is not new; indeed it has
been confirmed throughout the years by reports from the Federal Bureau
of Investigation (FBI), the General Accounting Office (GAO), the
intelligence community, independent commissions, private management
consultants, and DOE's inspector general and security experts. Most
recently it has been highlighted in Presidential Decision Directive
(PDD)-61, ``The U.S. Department of Energy Counterintelligence
Program,'' and in a report on security problems at DOE by a Special
Investigative Panel of the President's Foreign Intelligence Advisory
Board (the Rudman report). (The unclassified versions of these
documents are on DOE's Internet home page at the following address:
http://home.doe.gov/news/fedreg.htm.)
During the past decade, DOE's security programs have been
challenged as the potential threats faced by DOE have become more
extended. The number of nations possessing, developing, or seeking
weapons of mass destruction continues to increase, and warnings mount
about the espionage goals of other nations. However, as the Rudman
report found, DOE has ``devoted too little time, attention, and
resources to the prosaic but grave responsibilities of security and
counterintelligence in managing its weapons and other national security
programs.'' (Rudman report at 1.) The weapons laboratories utilize some
of the most advanced security technology in the world. Nevertheless, as
the Rudman report noted, however, weak systems of personnel assurance,
information security, and counterintelligence have invited attack by
foreign intelligence services. (Id. at 3.)
DOE has acknowledged these deficiencies. In the past year, DOE has
taken steps to improve security and counterintelligence throughout the
Department in order to strengthen its protection of information and
technologies in connection with DOE's atomic energy defense activities.
Reform has focused on: the structure of the counterintelligence
program; selection and training of field counterintelligence personnel;
counterintelligence analysis; counterintelligence and security
awareness; protections against potential insider threats; computer
security; improved coordination with the FBI, the Central Intelligence
Agency (CIA), and the National Security Agency (NSA); and the
establishment of a counterintelligence-scope polygraph program.
II. Background
DOE has clear authority to implement a counterintelligence-scope
polygraph program. DOE, as the successor agency to the Atomic Energy
Commission, has broad national security responsibilities under the
Atomic Energy Act of 1954 (AEA or Atomic Energy Act) to direct the
development, use, and control of atomic energy. These responsibilities
include a specific mandate to protect sensitive and classified
information and materials involved in the design, production, and
maintenance of nuclear weapons, as well as a general obligation to
ensure that permitting an individual to have access to information
classified under the AEA will not endanger the nation's common defense
and security. Section 161 of the AEA authorizes DOE to adopt rules
necessary to carry out those functions. 42 U.S.C. 2201.
Various Executive Orders of government-wide applicability also
require DOE to take steps to protect classified information. Executive
Order No. 12958, ``Classified National Security Information'' (April
17, 1995), requires the Secretary to establish controls to ensure that
classified information is used only under conditions that provide
adequate protection and prevent access by unauthorized persons.
Executive Order 12968, ``Access to Classified Information'' (August 2,
1995), requires the Secretary to establish and maintain an effective
program to ensure that employee access to classified information is
clearly consistent with the interests of national security. In
addition, in February 1998, President Clinton issued PDD-61, ``U.S.
Department of Energy Counterintelligence Program,'' a classified
document containing the President's determination that DOE must do more
to protect the highly sensitive and classified information at its
facilities. The President instructed DOE to develop and implement
specific measures to reduce the threat to such information. Such
measures may include additional requirements for financial disclosure,
reporting of foreign travel, the establishment of Special
[[Page 70963]]
Access Programs (SAPs) where appropriate, and use of polygraph and
psychological screening.
Congress recognized that polygraph examinations may appropriately
be used by the Department when it provided two relevant exemptions from
the general prohibitions contained in the Employee Polygraph Protection
Act (Pub. L. 100-347) (EPPA) against the use of polygraph examinations
in private employment settings. The prohibition in the EPPA does not
apply to counterintelligence polygraph examinations administered by DOE
to any expert, consultant or contractor employee of DOE in connection
with atomic energy defense activities, 29 U.S.C. 2006(b)(1)(B). The
prohibition also does not apply to counterintelligence polygraph
examinations administered by a Federal agency, in the performance of an
intelligence or counterintelligence function, to an individual whose
duties involve access to Top Secret classified information or
information designated as being within a SAP. 29 U.S.C. 2006(b)(2). The
Congress in the EPPA leaves to DOE the discretion to develop rational
procedures for evaluating and processing the results of polygraph
examinations and for protecting individuals from misuse of such an
examination.
DOE believes that requiring counterintelligence-scope limited
polygraph examinations for individuals in positions with access to the
most sensitive and classified information and materials in connection
with DOE's atomic energy defense activities is one of several
necessary, prudent actions required to fulfill its national security
responsibilities. A counterintelligence-scope polygraph examination
both serves as a means to deter unauthorized disclosures of classified
information and provides a means for early detection of disclosures to
enable DOE to take steps promptly to mitigate harm to the national
security. A counterintelligence-scope polygraph examination is also an
integral element of the DOE Accelerated Access Authorization Program
(AAAP), a program that DOE utilizes to grant interim personnel security
clearances on an expedited basis. In addition, use of a polygraph
examination when an individual requests one as a means of explanation
and corroboration in order to resolve issues in a counterintelligence
or personnel security investigation is an additional component of the
overall inquiry which hastens the DOE's resolution of such issues.
On March 17, 1999, DOE began developing and implementing a
counterintelligence-scope polygraph requirement for sensitive positions
by issuing an internal DOE directive, DOE Notice 472.2, Use of
Polygraph Examinations. That Notice establishes a polygraph requirement
for Federal employees who occupy or seek to occupy certain sensitive
positions. The DOE Notice also provides for polygraph examinations to
be administered to Federal employees as part of the AAAP and, upon
employee request, as a means of resolving remaining questions. (The
Notice is on DOE's Internet home page at the following address: http://
home.doe.gov/news/fedreg.htm.)
DOE published a Notice of Proposed Rulemaking (NOPR) on August 18,
1999 (64 FR 45062), that proposed expanding the counterintelligence
polygraph program to cover all employees at its facilities, contractor
employees as well as Federal employees, in positions with access to the
most sensitive categories of classified information and materials, as
well as applicants for such positions. The NOPR also proposed
conforming changes to regulations governing the Department's PAP and
PSAP.
After the NOPR was published, Congress directed DOE in section 3154
of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L.
160-65) (NDAA), enacted on October 5, 1999, to conduct a
counterintelligence polygraph program for specified defense-related
activities of the Department. Section 3154 requires DOE to issue rules
for administration of counterintelligence polygraph examinations to all
officers or employees of the Department, experts or consultants under
contract to DOE, and officers or employees of DOE contractors, who are
in SAPs or the PSAP. Section 3154 provides for consultation with the
FBI in developing the rule. It also requires DOE to submit to Congress,
within 180 days after the date of enactment of the Act, a plan to
extend the counterintelligence polygraph program to DOE employees and
contractor employees who have access to the PAP and information
identified as Sensitive Compartmented Information (SCI).
The NOPR explicitly covered SAP, PSAP, and PAP employees. It also
covered employees with access to SCI by reason of proposed section
709.4(a)(1) and (2). As required by section 3154 of the NDAA, DOE
provided a draft of this rule to the FBI for comment. DOE has been
advised that pursuant to section 3154 the FBI concurs in issuance of
today's final rule and did not recommend any changes.
In accordance with the Atomic Energy Act and section 3154 of the
NDAA, DOE today addresses the relevant major issues from the public
comments and after full consideration of those comments, DOE adopts a
final rule governing use of counterintelligence-scope polygraph
examinations for national security purposes, and use of polygraph
examinations initiated at the request of an individual to address
questions in the context of counterintelligence investigations or
personnel security inquiries.
III. Discussion of General Public Comments
DOE received one hundred and five written comments on the proposed
rule. In addition, eighty-seven people presented oral comments during
public hearings held at Lawrence Livermore, Sandia, and Los Alamos
National Laboratories, and Washington, D.C. on September 14, 16, 17 and
22, 1999, respectively. DOE has carefully considered all of these
comments in preparing this final rule.
Some comments were general in nature, addressing over-arching
issues such as the validity and reliability of polygraph examinations,
the effect of the proposed polygraph program on national security and
on retention and hiring of employees at the national laboratories, the
constitutionality of DOE's proposed polygraph program, and alternatives
to the program. This section discusses these issues and DOE's
responses.
Other comments addressed specific elements and sections of the
proposed rulemaking. DOE discusses those comments in section IV below.
That section also explains the changes that DOE has made to the rule in
response to the public comments and as a result of additional internal
review.
a. Validity of Polygraph. DOE received numerous comments asserting
that polygraph examinations have no theoretical foundation or validity.
According to some commenters, while there is disagreement among
scientists about the use of polygraph testing in specific-incident
criminal matters, there is almost universal agreement that polygraph
screening in the employment context is completely invalid. Other
commenters stated that they believe that polygraph examinations lack
reliability and may result in an unacceptable number of false positives
and false negatives.
DOE developed and published the NOPR under general discretionary
rulemaking authority in the Atomic Energy Act. In the absence of a
specific Congressional mandate for a counterintelligence-scope
polygraph examination program, the advisability of such a program in
light of the facts
[[Page 70964]]
about polygraph reliability were fair subjects for public comment.
However, during the public comment period, Congress enacted section
3154 of the NDAA. Section 3154 supplements the general authority of the
Atomic Energy Act, and includes a non-discretionary mandate to
implement a counterintelligence-scope polygraph program by rule for
each person in four ``high risk'' programs.
Due to enactment of this non-discretionary mandate, DOE concludes
as a matter of law that it is no longer free to act favorably on
comments arguing generally against establishment of a
counterintelligence-scope polygraph examination program because of
information and claims about deficiencies in polygraph reliability. In
DOE's view, this conclusion applies even though DOE's proposal listed
more ``high risk'' programs than the four programs listed in section
3154. There is no meaningful distinction among the various programs
listed in the NOPR with regard to general objections to polygraph
examinations on grounds of alleged excessive unreliability.
Although, as a purely legal matter, there is no obligation to
respond to comments generally attacking DOE's proposal to establish a
polygraph examination program, DOE nevertheless is responding to
specific objections to polygraph reliability that should be considered
because, if valid, they might suggest modification of the proposed
procedures. Commenters offering these objections did not suggest
modifying those procedures. Nor did they offer supporting scientific
information to validate their objections.
Some of the comments pointed to various medications and drugs, such
as beta blockers and antimuscarines, and argued that ingestion of any
of these substances, or the presence of illness or disease could
invalidate a polygraph examination. DOE disagrees with these comments
because neither these substances nor the presence of an illness or
disease will cause differential effects within a particular examination
as the examiner moves from one question to another. In addition, DOE
has added to section 709.4(b)(2) a medical exception to the final rule
for 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.
Other comments focused on various features of the polygraph
instrument or polygraph procedures. One comment speculated about the
relationship between electrode polarization of the sensors and known
facts about electrodermal activity. Another suggested that blood
pressure recordings are unreliable. Still another argued for
instantaneous heart rate measures. With regard to electrodermal blood
pressure, and heart rate measures, DOE is not persuaded that there is
any significant inaccuracy because the examiner is looking only at the
relative magnitude of phasic responses. The issue is changes in skin
conditions, blood volume and heart rate to specific questions when they
are repeated several times.
In view of the foregoing, DOE concludes that none of the
reliability issues suggested in public comments warrants changes in the
proposed polygraph procedures. Moreover, given their speculative
nature, they do not warrant curtailing the number of categories of
employees who are subject to polygraph examinations under today's final
rule.
b. Johnson Memorandum. Another commenter asserted that DOE's
decision to implement a counterintelligence-scope polygraph program is
inconsistent with President Johnson's memorandum entitled ``Use of
Polygraph in the Executive Branch.'' That memorandum, which is intended
to ``prevent unwarranted intrusion into the privacy of individuals,''
prohibits federal agencies from subjecting federal employees to
polygraph examinations except in limited situations. One of the
exceptions permits an executive department or agency that has an
intelligence or counterintelligence mission directly affecting national
security to use polygraph examinations for employment screening, and
personnel investigations, and intelligence and counterintelligence
operations. DOE believes that the institution of its polygraph program
is clearly permitted within the terms of the Johnson memorandum.
c. Employee Morale and Retention and Hiring. DOE has received a
number of comments asserting that the polygraph program will have a
negative impact on employee morale and that the establishment of the
polygraph program will make it more difficult to retain and recruit the
high caliber of scientists needed to maintain the safety and
reliability of the nuclear weapons stockpile. In the opinion of many
commenters, this potential loss of employees ultimately will so
significantly degrade the quality of scientific research necessary to
ensure the continuance of a reliable nuclear deterrent that the
national security of the United States will be threatened.
The issues of recruitment and retention of personnel and their
potential impact on national security are matters of great importance.
DOE notes these issues pre-date its proposed use of
counterintelligence-scope polygraph examinations, and are well
documented in the March 1999 Report of the Commission on Maintaining
United States Nuclear Weapons Expertise (Chiles report). (The report,
which was cited by a number of commenters, is available at DOE's
Internet home page at the following address: http://home.doe.gov/news/
fedreg.htm.)
The Chiles report characterized the DOE as being in a war for
talent with the private sector. The scientific and technical talent
that DOE must attract and retain has many options in today's
competitive technology marketplace. The Chiles report points out the
reasons DOE has not been successful in recruiting and retaining
laboratory employees, and section 3163 of the NDAA requires DOE to
report to Congress on measures that will be taken to retain skills
necessary to maintain the U.S. nuclear deterrent force.
DOE's federal and contractor employees have achieved remarkable
scientific advances and have contributed immensely to the nation's
security. DOE recognizes that enhanced security and counterintelligence
measures may be factors in attracting and retaining the best and
brightest scientific and technical talent. The value of the
contributions of DOE's employees was taken into account in developing
this rule. DOE further notes the National Reconnaissance Office, NSA,
CIA, and FBI also recruit scientists. They continue to be successful in
recruiting and retaining top-caliber individuals in their fields
despite the use of polygraph examinations in their screening processes.
DOE received at least ten comments that the proposed regulation
reflects a lack of trust in the employees of the national laboratories.
Commenters objected to what they perceived as a new DOE requirement
that they must now prove their loyalty to the United States. Several
commenters cited factors which they argued demonstrated their loyalty,
including military backgrounds, and scientific contributions toward
nuclear deterrence. While the polygraph requirement is a new condition
of participating in select programs that involve access to the most
sensitive classes of information with which DOE deals, DOE does not
view it as materially different from other measures presently utilized.
DOE currently conducts background investigations and
[[Page 70965]]
periodic reinvestigations, monitors financial records, imposes
restrictions on publishing materials, and, for some employees, requires
mandatory drug tests and medical assessments. Despite these measures,
critical reports from the FBI, the GAO, the intelligence community,
independent commissions, private management consultants, and DOE's
inspector general and security experts have judged DOE's security
program to be lacking. Now, the President, through PDD-61, has directed
DOE to consider establishing a polygraph program as one component of an
overall counterintelligence program. In addition, Congress, speaking
through the NDAA, has mandated similar remedial measures. The polygraph
program is a new component being added to existing protections, rather
than a fundamental change in DOE's treatment of national laboratory or
other contractor and DOE personnel.
d. Effect of the NDAA. Although DOE's notice of proposed rulemaking
cited general rulemaking authority in the Atomic Energy Act of 1954 as
the legal basis for DOE's proposal, several comments focused on pending
legislation that eventually was enacted as the NDAA. Some comments
argued for extending or reopening the comment period because the
Congressional bill language differed from the terms of DOE's proposal.
One of the comments specifically noted that the Congressional bill
language required consultation with the FBI in the development of the
regulation and identified fewer classes of employees to be polygraphed
than the number of classes listed in the notice of proposed rulemaking.
These features appear in the final legislative language, enacted as
section 3154 of the NDAA.
With regard to the foregoing comments, section 3154 of the NDAA is
significant for this rulemaking chiefly because it requires FBI
consultation on rule development, buttresses the Department's authority
for carrying out this rulemaking, and gives specific directions that
resolve some issues (e.g., whether to establish a polygraph program)
posed as matters of policy in DOE's proposal. The requirement for FBI
consultation is not reason enough to reopen the comment period because
section 3154 does not specifically require that consultation occur
prior to publication of a proposal. The FBI consultation was carried
out in connection with DOE's consideration of the public comments
received on the proposal. Enactment of additional authority for this
rulemaking is also not a reason to reopen the comment period because
the substantive differences between section 3154 and the proposed
regulation do not warrant such a reopening. Substantively, section 3154
requires DOE to prescribe regulations for conducting a
counterintelligence polygraph program applicable to each covered person
in certain ``high-risk'' programs. It is silent and neutral on the
issue of whether to include other classes of employees. It is mandatory
with regard to some of the details of basic program elements of initial
testing and consent, periodic testing, the scope of questions
calculated to obtain counterintelligence information, procedures to
identify and address ``false positives,'' and the circumstances for
undertaking adverse personnel actions on the basis of a response to a
question in a polygraph examination. The DOE notice of proposed
rulemaking specifically addressed each of these program elements. Apart
from some mandatory details to which DOE must conform regardless of
what public comments may be directed to them, section 3154 does not
significantly alter, or add to, the policy issues in this rulemaking.
Members of the public have already had a full and fair opportunity to
comment on those issues. On the basis of the foregoing, DOE concludes
that additional opportunity to comment is unnecessary, and, given the
need to enhance security at the national laboratories, contrary to the
public interest.
e. Constitutional Claims. Some commenters stated that this proposed
rulemaking was unconstitutional and violated the Constitution's Fourth
Amendment prohibition against unreasonable searches and the Fifth
Amendment protection against self-incrimination. Other commenters
stated that the proposal would erode civil liberties and invade
privacy. DOE believes that the case law on these issues is well
settled, and that the counterintelligence polygraph program as DOE
proposes to use it does not violate an individual's civil liberties.
The proposal does not violate the Fourth Amendment because an
individual must give his or her consent before taking the polygraph
examination. The Fifth Amendment is not violated because the proposal
provides an individual an opportunity to consult with an attorney and
contains a statement of the privilege against self-incrimination.
Furthermore, polygraph examination results generally are not admissible
in a criminal trial.
f. Alternatives to Polygraph. DOE received a number of suggestions
for alternatives to the polygraph program. These included enhanced or
more frequent background investigations; ``old fashioned detective
work'' and surveillance; interview hot lines to report suspicious
behavior; larger security staffs; spot checks of employees as they
enter and leave DOE facilities; an open dialogue with lab employees on
how to improve security; peer counseling for new hires; examination of
financial records and money wired to employee accounts from foreign
sources; monitoring of banking and charge accounts to look for unusual
financial or travel activities; improved security of computer systems;
classified areas of the facilities with some individuals having two
offices: one for classified work and a second one for unclassified
work; use of magnetic tape on classified documents to detect improper
removal of such documents; and undercover or sting operations. In the
opinion of DOE, while some of these suggested alternatives would be
useful once it has been determined that an individual should be
monitored because of some suspicious activity, these activities would
be exceedingly intrusive into the lives of DOE and contractor employees
if adopted on a widespread basis. DOE believes that the polygraph
program is more narrowly focused and less intrusive because it does not
require constant monitoring, and more effective as a screening device
than many of these alternatives.
Other commenters suggested that DOE should use the ``guilty
knowledge'' polygraph test format rather than the control question
format. DOE did not accept these suggestions because it believes that
the control question format, which is more standardized and therefore
more easily applied to a diverse population, is more appropriate for
the counterintelligence scope polygraph program that it has proposed.
Other commenters suggested that the money spent on the polygraph
program would be better spent on the suggested alternatives to enhance
external security and to perform more background investigations. DOE
does not believe that it is necessary to spend more money on additional
external security enhancements since its systems already are among the
best in the federal government. DOE notes that the polygraph program
serves an important function that is different from the background
investigation, or additional external security enhancements. Whereas
the background investigation provides an external view of the
individual, i.e., information derived from friends, neighbors, and
coworkers, and external documents such as financial records, the
polygraph examination provides an internal view of how the individual
understands his or her behavior, a view that is rarely
[[Page 70966]]
seen by anyone other than the individual. Additional enhanced external
security measures by themselves provide little protection against the
cleared employee who decides to engage in espionage. However, when
external security measures are coupled with other tools such as
polygraph examinations the combination constitutes a strong deterrent
to those who would compromise national security and defense.
g. Use of Polygraph Countermeasures. Several individuals expressed
their belief that spies trained in polygraph countermeasures will be
able to pass the counterintelligence-scope polygraph examination. DOE
is aware that there have been cases in which agents of a foreign
intelligence service have been able to successfully employ polygraph
countermeasures. While such countermeasures are relatively easy to
teach in a laboratory environment, they are much more difficult to
employ in real life situations. The Department of Defense Polygraph
Institute (DODPI) continues to conduct research on countermeasures and
how to counter countermeasures, and DOE's polygraph examiners receive
training in detecting countermeasures as part of their training
requirements. Accordingly, DOE is not persuaded that it should dispense
with counterintelligence-scope polygraph examinations because of the
potential use of countermeasures.
IV. Section-by-Section Review and Discussion of Public Comments
Subpart A--General Provisions
Section 709.1 What Is the Purpose of This Part?
One commenter suggested that DOE should state more clearly the
desired goal of the regulation at the beginning and describe in clear,
precise terms the steps of the process by which the goal will be
achieved. A second commenter questioned the relationship of proposed
section 709.1, which establishes the purpose of this regulation, to
proposed section 709.4(6), which describes a category of individuals
eligible for polygraph testing. In response to these comments DOE has
revised section 709.1. Section 709.1 of the final rule states that its
purpose is to describe the categories of individuals who are eligible
for counterintelligence-scope polygraph testing, and to provide
guidelines for the use of counterintelligence-scope polygraph
examinations and exculpatory examinations and guidelines to protect the
rights of individuals subject to this regulation.
DOE believes that it is unnecessary to make section 709.1 more
specific regarding the precise procedures the Department will follow in
achieving the goal of the regulation because the operative provisions
in subparts B and C of the regulation cover those procedures.
Section 709.3 What Are the Definitions of Terms Used in This Part?
Several commenters requested that DOE clarify terms or add
definitions for terms used in the NOPR. DOE has revised several
definitions. DOE also has added to section 709.3 a definition of
``access'' as it applies to this regulation. In addition, DOE has added
definitions of ``access authorization,'' ``control questions,''
``deception indicated,'' ``eligibility evaluation,'' ``local commuting
area,'' ``no deception indicated,'' ``no opinion,'' ``personnel
security clearance,'' ``polygraph examination records,'' ``polygraph
report,'' ``relevant questions,'' and ``unresolved issues.''
DOE is deleting the definition of ``Presidential appointee'' in
light of its decision to eliminate the proposed exception from the
polygraph requirement for any Presidential appointee who had received a
favorably adjudicated, full-field FBI background investigation.
Section 709.4 To Whom Does the Polygraph Examination Requirement Under
This Part Apply?
A number of commenters alleged that the categories of positions
subject to a polygraph examination included more positions than
necessary. Several commenters stated that the NOPR included positions
whose incumbents merely have access to ``sensitive'' information, as
opposed to classified information. The categories of positions
identified in the rule have access to DOE's most sensitive and
classified information and materials. Although the focus is on
``classified'' information and materials, DOE would be remiss if it
ignored the potential damage that would result from the unauthorized
disclosure of ``sensitive'' information and material.
Other commenters noted that the categories were excessively vague
or that the categories did not specify which individuals actually will
be polygraphed. Still other commenters expressed concern specifically
that proposed section 709.4(a)(6), which provides that positions are
eligible for polygraph examination that ``DOE has determined have a
need-to-know or access to information specifically designated by the
Secretary or his delegatee regarding the design and operation of
nuclear weapons and associated use control features,'' was so broad
that everyone with a ``Q'' clearance would be included.
DOE does not intend to include in section 709.4 everyone with a
``Q'' clearance. PDD-61 charged DOE with developing and implementing
specific measures for reducing the threat to sensitive and classified
information at DOE. DOE determined that the best approach was first to
identify those ``high risk'' programs that control DOE's most sensitive
information. DOE concluded that the individuals in the ``high risk''
programs identified in section 709.4(a)(1)-(8) are the most attractive
targets to foreign intelligence services because of the highly
sensitive information to which they have access, and therefore
represent the greatest potential threat to national security.
The Offices of Counterintelligence (709.4(a)(1)), Intelligence
(709.4(a)(2)), Independent Oversight and Performance Assurance
(709.4(a)(7)), and Security and Emergency Operations (709.4(a)(8))
administer DOE's counterintelligence, intelligence and security
programs and therefore have responsibility for the highly sensitive and
classified information, including SCI, and materials within these
programs. Similarly, SAPs (709.4(a)(3)) involve highly sensitive and
classified information and materials. DOE notes that other U.S.
government agencies routinely require counterintelligence-scope
polygraph examinations as a prerequisite for obtaining or retaining
access to SAP programs. Section 709.4(a)(6) includes positions that DOE
has determined have need-to-know or access to information regarding the
design and operation of nuclear weapons and associated use control
features.
Several commenters recommended that the ``PSAP'' (709.4(a)(4)) and
``PAP'' (709.4(a)(5)) categories should not automatically be included
in the categories of employees subject to polygraph examinations. These
commenters asserted that there are strong and legitimate arguments for
the people in these programs being subject to psychiatric and drug
abuse testing, but they did not believe that there is a strong
correlation between their job responsibilities and the espionage
threat. The PAP and PSAP include individuals who are assigned nuclear
explosive duties (PAP) or have access to Category I quantities of
special nuclear material (PSAP). In both cases, the potential for
causing damage to national security is great. Moreover, as noted
previously in the NDAA, Congress has required DOE to polygraph
individuals
[[Page 70967]]
who are members of SAPs and the PSAP and to present a plan to Congress
within 180 days concerning the polygraphing of individuals who are
members of the PAP or have access to SCI.
DOE recognizes that many individuals in positions within these
eight categories are uncertain as to whether they actually will be
polygraphed. DOE has decided to issue an implementation plan
simultaneously with this final rule. That plan identifies the positions
whose incumbents will be polygraphed initially and provides for a
review of the program after twelve months. (The implementation plan is
on DOE's Internet home page at the following address: http://
home.doe.gov/news/fedreg.htm.)
Several commenters objected to proposed section 709.4(b)(1), which
provided that the polygraph examination requirement would not apply to
Presidential appointees who had received a favorably adjudicated full-
field FBI background investigation. Upon review, DOE has decided to
delete proposed section 709.4(b)(1), believing that anyone with access
to DOE's highly sensitive information or materials should meet the same
standards, regardless of position.
DOE also has decided to delete proposed paragraph 709.4(b)(2) which
provides that the polygraph requirement does not apply to positions
requiring access to SAPs that are intelligence-related and therefore
subject to requirements promulgated by the Director of Central
Intelligence. This paragraph is unnecessary because proposed section
709.4(b)(4) of the NOPR (now renumbered as section 709.4(b)(1))
contains an exception for individuals for whom the Director of the
Office of Counterintelligence 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.
DOE received comments suggesting that the rule should contain an
exception for medical reasons. DOE agrees with this suggestion and has
added a new paragraph 709.4(b)(2) that provides an exception from this
regulation for 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.
DOE also received comments objecting to paragraph 709.4(b)(3) that
provides that the polygraph examination requirement does not apply to
individuals for whom the Secretary of Energy gives a written waiver in
the interest of national security. DOE has decided not to delete this
provision, believing that it is necessary to provide the Secretary the
authority to grant a national security exemption similar to that
provided by other agencies that conduct counterintelligence-scope
polygraph programs. DOE recognizes the success of the
counterintelligence polygraph program depends in large measure upon
employees' confidence that no one is being arbitrarily targeted or
preferentially exempted, but believes that this written exemption is
appropriately limited.
Section 709.4(c) of the NOPR provided that the Director of the
Office of Counterintelligence (D/OCI), in consultation with the
appropriate Program Manager, would establish the criteria for
identifying the specific positions that warrant a polygraph examination
and the order of priority for conducting polygraph examinations.
Several commenters stated that DOE should have provided the criteria as
part of the NOPR so that the public could comment on the criteria.
While DOE believes that it was appropriate to solicit public comments
on the categories of positions described in 709.4(a)(1)-(8), the
criteria that DOE will use to identify the specific positions for
polygraph examinations within those eight categories are subject to
review and change. DOE has revised paragraph 709.4(c) to provide that
the appropriate Program Manager for positions identified in paragraphs
(a)(1)-(8) of this section, rather than the D/OCI, identifies, in order
of priority, those specific positions that will be polygraphed. New
paragraph (d) requires the Program Manager to submit those positions to
the D/OCI for review and concurrence. The D/OCI forwards the positions,
with any suggested additions or deletions, to the Secretary for
approval. This revision will provide an extra level of review to ensure
that no positions are targeted unfairly.
Section 709.5 How Will an Individual Know If His or Her Position Will
be Eligible for a Polygraph Examination?
DOE received several comments seeking clarification of the
relationship of proposed section 709.5 to proposed section 709.4. The
purpose of section 709.5 is to describe the process by which an
individual will be notified that he or she is eligible for a polygraph
examination. DOE has revised proposed section 709.5 to provide that,
when a polygraph examination is scheduled, DOE must notify the
individual, in accordance with section 709.21. Applicants for those
positions identified in section 709.4(a)(1)-(8) will be notified in the
vacancy announcement that the individual selected for the position may
be required to complete successfully a counterintelligence-scope
polygraph examination before being hired.
Section 709.6 How Often Will an Individual be Subject to Polygraph
Examination?
DOE has added a new section 709.6 to clarify that the individuals
in positions identified in section 709.4(a)(1)-(8) are subject to a
five-year periodic, as well as an aperiodic, reinvestigation polygraph
examination.
Subpart B--Polygraph Examination Protocols and Protection of
National Security
Section 709.11 What Types of Topics Are Within the Scope of a
Polygraph Examination?
Several commenters suggested that some of the six
counterintelligence topics identified in proposed paragraph 709.11(b)
should be revised or deleted. DOE has decided not to accept this
suggestion, because DOE believes that paragraph 709.11(b) accurately
states the topics on which DOE should focus during a
counterintelligence-scope polygraph examination. Furthermore, these
topics are the same ones used by the eleven other federal agencies that
utilize polygraph examinations for screening purposes.
Several commenters recommended that DOE modify the regulation to
explain that the examiners will ask ``control questions.'' Control
questions are a standard part of a counterintelligence-scope polygraph
examination and are designed to determine an individual's ability to
respond during a polygraph examination. Since they do not constitute
the topics of the counterintelligence-scope polygraph examination, it
is not necessary to identify control questions in this section of the
regulation. However, DOE has revised section 709.24(d) to clarify that
the examiner will review with the individual all the questions to be
asked during the examination.
DOE received several general comments concerning section 709.11(c),
which limits the type of questions that DOE may ask during the
polygraph examination. One commenter suggested that DOE revise proposed
section 709.11(c)(2) to refer to ``conduct that has no
counterintelligence implication'' as distinguished from ``conduct that
has no
[[Page 70968]]
security implication,'' as it read in the NOPR. Section 709.11(c)(2)
has been revised to reflect this suggestion.
Other commenters expressed concern that DOE would expand the scope
of the polygraph examination in the future to ask either lifestyle
questions or questions not covered by the six topics identified in
proposed paragraph 709.11(a). DOE may not ask lifestyle questions or
expand the six topics without amending this regulation after providing
an opportunity for public comment.
One commenter asked how DOE could guarantee, without counsel or
witnesses present, that the examiner would not ask inappropriate
questions, notwithstanding section 709.11(c), which would make the
individual so upset that he or she would ``fail'' the test. DOE tapes
the entire test from the beginning to the conclusion. In addition, a
senior examiner continually supervises the conduct of the examination
via a closed-circuit system, and would be able to intervene immediately
if the examiner were to ask any inappropriate questions.
Section 709.12 How Does DOE Determine the Wording of Questions?
Several commenters asserted that proposed sections 709.11 and
709.12 do not adequately restrict the subject areas of the questions,
thereby allowing different questions for different individuals. Section
709.11 limits the subject matter of any questions asked to the six
topics identified in that section. However, the examiner is afforded
flexibility in the formulation of the actual questions in order to
assist the individual being tested to understand the topics of the
examination. It would be counterproductive to predetermine the exact
wording of the counterintelligence questions because some individuals
may find it confusing or difficult to respond to the questions without
additional clarification. The examiner needs to have the flexibility to
determine the wording of a specific question based upon a pretest
interview with the individual. In DOE's experience, this is the best
way to assure the individual understands the question and can answer it
appropriately, thereby minimizing the likelihood of unresolved issues.
Section 709.13 May An Individual Refuse to Take a Polygraph
Examination?
One commenter asked what DOE would do with any information gathered
during an examination if the individual terminated the examination,
given that the regulation provides that DOE will treat a termination as
a refusal to take the polygraph examination under section 709.13. DOE
will make decisions on a case-by-case basis in accordance with the
provisions of this regulation about information developed during a
counterintelligence-scope polygraph examination that is terminated
before completion.
Section 709.14 What Are The Consequences of a Refusal to Take a
Polygraph Examination?
The discussion of this section in the preamble of the NOPR stated
that ``[a]ll polygraph examinations administered by DOE are
voluntary.'' In other words, DOE cannot compel an individual to take a
polygraph test against his or her will. A large number of commenters
took exception to that statement in the NOPR, noting that the refusal
to take a polygraph examination may result in a severe job consequence,
including denial or loss of access to the information or activity that
justified the polygraph examination. DOE has noted before that the
polygraph examination requirement does not differ significantly from
other requirements for jobs within the DOE complex involving access to
highly sensitive and classified information. Refusal to complete a
financial disclosure form, complete or cooperate in a security
investigation, agree to be fingerprinted, or follow established
security procedures will result in denial or loss of a personnel
security clearance. Nonetheless, DOE has deleted the term ``voluntary''
from proposed section 709.23(c). Section 709.23(c) of the final rule
now provides that DOE may not administer a polygraph examination unless
DOE has obtained written consent from the individual.
Proposed section 709.14 provided that DOE may deny applicants or
incumbents who refuse to take a polygraph examination access to the
information or involvement in the activities that justified the
polygraph examination. After DOE issued the NOPR, Congress enacted the
NDAA, which requires DOE to polygraph individuals who are members of
SAPs and the PSAP. The NDAA also requires DOE to present a plan to
Congress within 180 days for polygraphing individuals who are subject
to the PAP or who have access to SCI. In addition, the NDAA provides
that DOE may not grant initial access to SAPs and the PSAP to any
covered individual who has not consented in writing to and undergone a
counterintelligence polygraph examination. The law further provides
that an incumbent may not have continued access to either of these
programs unless that person undergoes a counterintelligence polygraph
examination within five years after receiving initial access, and
thereafter not less frequently than every five years, and at any time
at the direction of the D/OCI.
DOE has revised section 709.14 by adding new paragraphs (a)-(d) to
conform it with the specific terms of section 3154 of the NDAA. The new
paragraph (a) provides that DOE and its contractors must refuse to
employ, assign, or detail any individual who is an applicant for
employment, assignment, or detail to one of the positions described in
section 709.4(a)(1)-(8), and refuses to take a counterintelligence
polygraph examination required by statute as an initial condition of
access. The new paragraph (b) provides that DOE and its contractors may
refuse to employ, assign, or detail any individual who is an applicant
for employment, assignment, or detail to a position described in
section 709.4(a)(1)-(8) and refuses to take a counterintelligence
polygraph examination otherwise required by this part as an initial
condition of access.
The new paragraph (c) provides that DOE and its contractors must
deny an incumbent access to any position described in section
709.4(a)(1)-(8), consistent with section 709.15, if that individual
refuses to take a counterintelligence polygraph examination required by
statute. The new paragraph (d) provides that DOE and its contractors
may deny an incumbent access to any position described in section
709.4(a)(1)-(8), consistent with section 709.15, if the individual
refuses to take a couterintelligence polygraph examination otherwise
required by this part. DOE has redesignated the proposed paragraphs
709.14(b), (d), (e), and (f) as paragraphs 709.14(e), (f), (g), and
(h), respectively.
Several commenters asked whether the refusal to take a polygraph
meant the revocation of a personnel security clearance (i.e.,
revocation of an access authorization), the automatic loss of a ``Q''
clearance, or loss of a job. Refusal to be polygraphed does not result
in the termination of one's personnel security clearance. DOE
recognizes that its use of the term ``access'' in this part may have
caused confusion because of its similarity to the term ``access
authorization'' as used in 10 CFR part 710. DOE has added definitions
to section 709.3 of ``access,'' ``access authorization,'' and
``personnel security clearance'' to clarify their use in this
regulation.
[[Page 70969]]
Proposed section 709.14(c) also provided that, ``[i]f the
individual is a DOE employee, DOE may reassign or realign the
individual's duties or take other action, consistent with the denial of
access.'' Several commenters asked DOE to clarify the phrase ``take
other action.'' In new paragraphs (c) and (d), DOE has added a sentence
that indicates that if the individual is a DOE employee, DOE may
reassign or realign the individual's duties, within the local commuting
area, or take other action, consistent with that denial of access. DOE
has added a definition of ``local commuting area'' to section 709.3 of
the final rule. DOE recognizes that in some instances, if the
individual's skills are intrinsically linked to a program identified in
section 709.4(a)(1)-(8) and access to that program has been denied, it
may not be possible to reassign that individual or realign that
individual's duties within the local commuting area. In such
circumstances, DOE may have no reasonable option other than to
terminate that individual's employment.
The language of the NOPR discussing this section provided that:
In some instances, the information or activities may be
essential to the individual's ability to do his or her job. In such
a case, the employer (whether DOE or contractor) must make every
effort to find a new position for which the individual would be
suitable, consistent with that denial of access. [64 FR 45063]
Both employees and contractors asked DOE to explain what ``make
every effort'' entailed. DOE will make every reasonable effort to find
a job for employees who refuse to take a polygraph examination and
therefore are denied access to the information or involvement in the
activities that justified conducting the polygraph examination.
Specifically, DOE will look for appropriate jobs within the local
commuting area.
In addition, a comment from a contractor suggested that DOE should
delete all language in the NOPR that explicitly or implicitly
references conduct of the contractor. DOE has decided not to delete all
language that references conduct of the contractor because DOE believes
that contractor employees should be treated similarly to federal
employees under this regulation whenever possible. DOE strongly
encourages contractors to make a similar effort to locate job
opportunities for employees who refuse to take a polygraph examination.
Proposed section 709.14(f) would prohibit DOE from recording in a
personnel file an employee's refusal to take a polygraph examination,
and the NOPR encouraged contractors to adopt a similar policy.
Nonetheless, one commenter expressed concern that the revocation of a
clearance and transfer to an unclassified position will be recorded by
the contractor and have the same effect as an entry into the employee's
personnel file. Refusal to be polygraphed results in denial or loss of
access to the position that required the polygraph examination, but
does not result in the loss of a personnel security clearance.
Section 709.15 How Does DOE Use Polygraph Examination Results?
Section 709.15(a) of the NOPR contemplates an ``in-depth
interview'' by the polygraph examiner if there are unresolved issues.
One commenter stated that this seemed very vague and alarmingly broad.
Accordingly, DOE has added a definition of ``unresolved issues.'' The
same commenter asked if the individual would be attached to the
polygraph instrument during the in-depth interview, and whether there
would be limitations on the subject areas that may be explored in the
in-depth interview. The individual will not be attached to the
polygraph during the in-depth interview. DOE will explore only relevant
topics that require resolution.
One commenter asked DOE to set a time limit for the in-depth
interview, while another asked DOE to indicate the time frame within
which the eligibility evaluation typically would be concluded. DOE is
aware of the stress that the process may cause some individuals. DOE
will not extend the evaluation period beyond that absolutely necessary
to conduct a fair, in-depth interview or an appropriate eligibility
evaluation which considers the examination results, the individual's
personnel security file, and all other pertinent facts. In fairness to
the individual, it is inappropriate to set arbitrary time limits
because a deadline might result in an incomplete eligibility
evaluation.
One commenter asked what assistance the employee may seek during
the evaluation process and suggested that the national laboratory
employing the individual should be allowed to assist in the resolution
of the issue. DOE believes that there may be instances in which the
national laboratories may be called upon to assist; however, any such
instances will be addressed on a case-by-case basis. It is
inappropriate to make a general statement identifying particular
organizations or persons DOE might ask to assist in resolving issues.
One commenter suggested that there would be great value in
reassuring individuals that no denial of access to a position
identified in section 709.4(a)(1)-(8) would take place until the
eligibility evaluation has been completed, unless the denial of access
is justified by serious national security concerns. DOE agrees that no
denial or revocation of access to the position will take place until
the eligibility evaluation has been completed. DOE believes that this
is consistent with section 3154(g) of the NDAA that provides that:
[The polygraph regulations] shall include procedures * * *
(2) ensuring that adverse personnel actions not be taken against
an individual solely by reason of that individual's physiological
reaction to a question in a polygraph examination, unless reasonable
efforts are first made to independently determine through
alternative means the veracity of that individual's response to the
question.
In addition, the Conference Committee Report states that:
The conferees direct that the Secretary not use failure of such
polygraph examinations as the sole basis for the removal of any
covered employee.
H.R. Report No. 106-301, 106th Cong. 1st Sess. 917 (1999)
(``Conference Report'').
Paragraph 709.15 (c) has been revised to reflect that no denial or
revocation of access to the information or involvement in the
activities that justified conducting the polygraph examination will
take place until the eligibility evaluation has been completed.
However, if justified by serious national security concerns, access may
be suspended, but not denied, in accordance with section 709.25.
Another individual noted that while proposed paragraph 709.15(c)
provides that DOE may interview the individual as part of the
eligibility evaluation, it does not give the individual the opportunity
to provide additional information or the right to an interview. The
individual always has the right to provide additional relevant
information. DOE does not believe it is necessary or appropriate to
accord the individual the right to an interview in all instances.
Proposed paragraph 709.15(c) has been revised to indicate that OCI will
conduct an eligibility evaluation, and that it will interview the
individual if it determines that such an interview will assist in
resolving the issue.
Several commenters recommended that the regulation should be
revised to provide a specific appeals process. DOE has decided that it
is not appropriate to establish an appeals process in this part for
positions that are established pursuant to other DOE regulations, e.g.,
PAP 10 CFR part 711; PSAP 10 CFR part 710, subpart B. However,
paragraph 709.15(e) has been added to provide that
[[Page 70970]]
DOE and contractor employees, applicants for employment, and other
individuals assigned or detailed to Federal positions at DOE whose
access to the categories described in 709.4(a)(1)-(8) is denied or
revoked may request reconsideration by the relevant head of the
departmental element, as identified in the notice of revocation or
denial.
One commenter asked DOE to define ``eligibility evaluation'' more
precisely. DOE has added a definition of ``eligibility evaluation'' to
section 709.3. Procedures for the eligibility evaluation have been
added to section 709.15. Another commenter asked a series of questions
concerning the eligibility evaluation: (1) Who in DOE conducts the
eligibility evaluation; (2) why is the personnel security file a part
of the evaluation process; (3) what constitutes ``other pertinent
information''; (4) how is an individual notified of the evaluation
results; (5) is a written record maintained of the evaluation; and (6)
does an individual has access to the examination and evaluation
results. Section 709.15 has been revised to indicate that the Office of
Counterintelligence will conduct the eligibility evaluation. The
personnel security file often is an important source of information for
resolving counterintelligence issues. It is impossible to describe what
constitutes ``other pertinent information'' since the information
considered by OCI depends upon the counterintelligence topics that
require resolution. The decision about whether or not to grant, retain,
deny, or revoke access is made by the appropriate Program Manager. The
polygraph report and the eligibility evaluation are permanent records.
An individual is able to file requests for release of these records
under the provisions of the Privacy Act.
One commenter requested DOE provide the individual with a written
copy of the examiner's opinions or conclusions as well as the questions
asked and charted responses before DOE may deny the individual access
to a position identified in section 709.4(a)(1)-(8). DOE will not
establish a policy of releasing written copies of examiners' opinions
and conclusions or the questions asked and charted responses because
such materials contains information concerning investigative techniques
of the Department. However, an individual may file a request for the
release of these materials under the Freedom of Information Act or the
Privacy Act and the request will be processed in accordance with the
applicable regulations.
DOE has added a new paragraph 709.15(f) which indicates that, using
the DOE security criteria used to grant or deny access to classified
information, OCI will make a determination whether disclosures during a
counterintelligence polygraph examination warrant referral to the
Office of Security and Emergency Operations or the Manager of the
applicable Operations Office. OCI will not report minor security
infractions that do not create a serious question as to the
individual's eligibility for a personnel security clearance.
Subpart C--Safeguarding Privacy and Employee Rights
Section 709.21 When Is an Individual Notified That a Polygraph
Examination is Scheduled?
Several commenters stated that the forty-eight hour notification
prior to a polygraph examination was insufficient notice. DOE's
proposal was based on the policy guidance contained in the Department
of Labor's regulation implementing the EPPA (29 CFR 801.23(a)(1)). In
light of the comments, DOE has revised proposed section 709.21 to
provide that individuals will receive notification of at least ten
days, excluding weekend days and holidays, as opposed to forty-eight
hours.
Other commenters asked how individuals would be notified of a
scheduled examination. A DOE representative from the DOE Test Center
will call individuals by telephone and will set a date and a time for
their counterintelligence-scope polygraph examination. DOE will follow
up with a letter to the individual confirming the date and time, and
providing additional administrative instructions, including directions
to get to the test center.
DOE also received several comments that suggested DOE should not
simply offer to make available to individuals a copy of this regulation
as provided in section 709.21 of the NOPR, but instead should provide
individuals with the regulation. DOE agrees with those comments and has
revised section 709.21 accordingly.
Section 709.22 What Rights to Counsel or Other Representation Does an
Individual Have?
The proposed regulation provides that an individual has the right,
at his or her expense, to obtain or consult with legal counsel or
another representative prior to the polygraph examination. One
commenter suggested that legal counsel of the individual's choosing
should be provided at DOE's expense. DOE has not adopted this
suggestion because DOE has concluded that it is not an appropriate use
of taxpayer dollars.
One commenter requested DOE make clear in the regulation that only
the examiner and the individual will be present in the room during the
polygraph examination. The commenter was concerned that additional
personnel in the room could make the individual feel he or she was
being ``ganged up on,'' thus adding to the individual's level of
stress. DOE agrees with this concern and has revised section 709.22 to
make clear that only the individual and the examiner are in the room
during the polygraph examination. All examinations, however, are
monitored by a senior examiner via a closed-circuit system and are
videotaped from beginning to end for the protection of the individual
and the examiner.
DOE received a number of comments objecting to the ban on having
legal counsel in the room during the polygraph examination. On a
related issue some commenters addressing section 709.15 (How does DOE
use polygraph examination results?) suggested that DOE should permit an
individual to consult with counsel if a personal interview takes place
as part of the eligibility evaluation process. Other commenters
suggested that not only should the individual have legal counsel
present in the room during the polygraph examination, but should also
have another witness or even two witnesses, such as an independent,
certified polygrapher or a union representative. DOE believes that the
presence of legal counsel or other witnesses in the examination room
would be a distraction to the individual and the examiner and would
interfere with conducting the examination. Furthermore, DOE notes that
the prohibition on consulting with counsel is consistent with
provisions of the EPPA (29 U.S.C. 2007(b)(2)(A)). Legal counsel or
witnesses may not be present in the examination room or during any
interview that may occur as part of the polygraph examination. However,
legal counsel may be available for private consultation in a private
room at the test center before the examination. DOE has added a new
paragraph (b) that provides an individual may consult with legal
counsel or another representative any time during a personal interview
that is conducted as part of the eligibility evaluation process.
Section 709.23 How Does DOE Obtain an Individual's Consent to a
Polygraph Examination?
DOE received questions about the content of the polygraph consent
form.
[[Page 70971]]
In addition, several commenters asked if by signing the consent form
the individual was waiving any rights, such as the right against self-
incrimination. The individual is asked to sign a form that states that
the individual consents to the polygraph examination and that no
threats have been made or promises extended to the individual to obtain
his or her agreement to take a polygraph examination. No specific
warning regarding self-incrimination is required, other than that given
by the examiner in accordance with section 709.24. However, the
exclusion of a specific warning does not preclude the individual from
consulting with legal counsel prior to the polygraph examination at the
individual expense. The individual is asked to sign a second portion of
the consent form at the end of the polygraph examination reaffirming
that the examination was taken freely. There is nothing in the form
that could be interpreted in any way as a waiver of an individual's
rights accorded by law.
DOE also has deleted the requirement in proposed paragraph (b) to
offer a copy of this part because it has revised section 709.21 to
require that DOE provide a copy of this part.
Section 709.24 What Other Information is Provided To the Individual
Prior To a Polygraph Examination?
DOE received several types of comments concerning the use of audio
and video recording devices during the examination. Several commenters
stated that DOE should provide each individual a copy of polygraph
reports and any audio or video tape made of the test, possibly at the
individual's own expense. Other commenters suggested that the
individual should have the right to record the polygraph examination,
and any interview that might occur as part of the eligibility
evaluation in accordance with section 709.15. DOE will not establish a
policy of releasing the polygraph reports or videotapes of examinations
or permitting individuals to record all or any portion of the polygraph
examination or related interviews. Such materials contain information
concerning investigative procedures and techniques of the Department.
However, an individual may file a request for the release of these
materials under the Freedom of Information Act or the Privacy Act and
the request will be processed in accordance with applicable
regulations.
Other commenters noted that the text of section 709.24 does not
indicate how the videotape of the polygraph examination might be used
if an individual should reveal information not specifically related to
counterintelligence matters in the course of attempting to resolve
questions raised during the polygraph examination. One commenter asked
specifically if the videotape would be used in a possible criminal
action against the individual, and if so, how would the individual's
right against self-incrimination be preserved? All polygraph records
are protected in accordance with section 709.26. If the individual
reveals information concerning a security matter, OCI will make a
determination, based upon the DOE security criteria used to grant or
deny access to classified information, whether such information
warrants referral, as appropriate, to the Office of Security and
Emergency Operations or the Manager of the applicable Operations Office
for appropriate action with respect to that individual's personnel
security clearance. OCI will not report minor security infractions that
do not create a serious question as to the individual's eligibility for
a personnel security clearance. As to the concern about the right
against self-incrimination, section 709.24 provides that the examiner
will advise the individual of his or her privilege against self-
incrimination.
Another commenter noted that the proposed regulation requires the
examiner to inform the individual of any audio or video recording
devices, but is silent on the disclosure of other observation devices,
such as two-way mirrors and observation rooms. DOE has modified the
regulation to reflect that the examiner will provide this information.
One commenter suggested that the regulation should contain a clear
statement of the individual's rights--the rights in the pre-test phase,
the actual testing phase, and the post-test phase--akin to those found
in the Department of Labor (DOL) regulation at 29 CFR 801.22-25 for
employees in the private sector. DOE believes that the regulation
adopted today constitutes a substantially comparable statement of an
individual's rights in the pre-test, test, and post-test phases,
although they are not in the same format as the DOL regulation. For
example, the medical exception and the limitation on the types of
questions set forth at 29 CFR 801.22 are similar to provisions of
section 709.4 and section 709.11, respectively, of the regulation. The
provision in 29 CFR 801.23 concerning the information that must be
provided to the individual before the examination is similar to that in
section 709.24 of the regulation.
Several commenters asserted that the individual should receive a
copy of the questions far enough in advance of the scheduled
examination to obtain legal advice, if desired. The individual may seek
detailed guidance from counsel based upon the description of the
counterintelligence topics identified in section 709.11, which also
lists the types of questions that may not be asked. It is not possible
to provide the exact questions in advance, because, as section 709.12
explains, the exact wording of the polygraph questions is determined by
the examiner based on the examiner's pretest interview of the
individual, the individual's understanding of the questions, and other
input from the individual.
Another commenter suggested that DOE should add a paragraph to
proposed section 709.24 stating that the examiner must advise the
individual that he or she may decline to answer any question that would
divulge or compromise classified information. DOE does not believe that
this is necessary because all of the examiners hold a ``Q'' access
authorization, which is necessary for access to Secret Restricted Data
and Top Secret National Security Information. In addition, they must
have been granted SCI access approval. DOE will protect from public
disclosure all videotapes and other polygraph records.
DOE received several suggestions that the privilege against self-
incrimination must be made available, and that exercising that
privilege while answering a specific question, or questions, does not
constitute a refusal to submit to the examination or, by itself, a
termination of the examination. Section 709.24(e) provides that, before
administering the examination, the examiner must advise the individual
of his or her privilege against self-incrimination. DOE recognizes and
respects the individual's privilege in this regard. However, exercise
of that privilege will constitute a refusal to submit to the
examination or a termination of the examination.
One commenter noted that the proposed regulation fails to notify
the individual of the office within DOE to which complaints should be
addressed in the event the individual feels that the examiner has
violated his or her rights. DOE has added a new paragraph 709.24(f)
which provides that the individual will receive a pre-addressed
envelope addressed to the D/OCI in Washington, D.C., which may be used
to submit comments or complaints concerning the examination. As part of
DOE's commitment to protecting the privacy of any individual
polygraphed under this program, the D/OCI is the
[[Page 70972]]
only person who routinely will see such letters.
Section 709.25 Are There Limits on Use of Polygraph Examination
Results That Reflect ``Deception Indicated'' or ``No Opinion'?
Section 709.25(a) of the NOPR provided that DOE or its contractors
may not take an adverse personnel action against an individual solely
on the basis of a polygraph examination result of ``deception
indicated'' or ``no opinion'' except when the Secretary or the
Secretary's designee made a written determination that the information
to which the individual had access is of such extreme sensitivity that
access under the circumstances posed an unacceptable risk to national
security or defense. Several commenters interpreted section 709.25(a)
to mean that any individual whose polygraph results are ``deception
indicated'' or ``no opinion'' may have his or her access to classified
information suspended. DOE has combined portions of paragraphs (a) and
(b) of proposed section 709.25 into a new paragraph 709.25(a). Section
709.25 of the final rule makes clear that DOE and its contractors may
not take adverse personnel actions against individuals solely on the
basis of a polygraph examination result of ``deception indicated'' or
``no opinion'' or use those polygraph examination results as a
substitute for any other required investigation.
Several commenters objected to the authority provided in proposed
section 709.25(a) for the Secretary, or his designee, to suspend access
under certain conditions, arguing that the Secretary already has the
authority to suspend a personnel security clearance. DOE has retained
this authority because it addresses the suspension of access as
distinguished from suspension of a personnel security clearance, but
has clarified its use in section 709.25(b) of the final rule.
Several commenters asked DOE to clarify or specify by category the
phrases in the proposed paragraph 709.25(a) ``under the
circumstances,'' and ``of such extreme sensitivity.'' In revising
section 709.25, DOE has deleted both of these phrases. Another
commenter asked DOE to specify at least by category those circumstances
where access to the information ``poses an unacceptable risk to
national security or defense,'' arguing that such circumstances should
be restricted to those where there is an imminent danger to national
security or defense that requires the Secretary or the designee to act
immediately and investigate later. DOE does not agree with the
commenter's recommendation that an unacceptable risk to national
defense and security must be ``imminent.'' The fact that the individual
has access to DOE's most sensitive information (709.4(a)(1)-(8)), and
the Secretary or the D/OCI has information, based upon the individual's
admissions during the polygraph examination, that the individual poses
an unacceptable risk to national defense and security is sufficient
justification for suspending the individual's access.
The new paragraph 709.25(b) (hereinafter referred to as the
``national security or defense'' exception) states that the Secretary
or the Director of the Office of Counterintelligence, may suspend an
individual's access based upon a written determination that the
individual's admission(s) of involvement in one or more of the
activities covered by a counterintelligence-scope polygraph
examination, when considered in the context of the individual's access
to one or more of the ``high risk'' programs identified in section
709.4(a)(1)-(8), poses an unacceptable risk to national security or
defense. The new paragraph also states that DOE will investigate the
matter immediately and make a determination of whether to revoke the
individual's access.
One commenter suggested that the regulation should include a
requirement that if the ``national security or defense'' exception is
used, that DOE will investigate the matter immediately and restore the
status quo ante, at the earliest date, if there is no clear and
convincing evidence to corroborate the negative polygraph examination
results. Another commenter suggested that DOE should limit the time to
six months that an individual's access may be suspended, and that after
such time, if there is no additional information, that the individual's
access will be reinstated. DOE agrees with the suggestion that it
should immediately investigate the matter and determine whether to
maintain or revoke the individual's access. DOE will make every effort
to ensure that the suspension of access is as short as possible, but
does not believe that it is appropriate to establish artificial time
limits for investigations concerning national security matters, or an
unduly high evidentiary standard for corroboration of polygraph
results.
Another commenter recommended that while the individual's access is
suspended the individual should be paid at the same pay grade. DOE
agrees with this recommendation because suspension of access does not
constitute an adverse personnel action.
One commenter suggested that the regulation should provide that the
``national security or defense'' exception will not be used except
where the polygraph examination has been employed in response to a
specific counterintelligence concern as distinct from its use as a
general screening instrument. If there is no known problem, the
commenter asserted that employees should not be adversely impacted by
polygraph results, given the high probability of false positives. DOE
disagrees. It has revised section 709.25 to make clear that the use of
the ``national security or defense'' exception is limited to instances
involving the individual's admission of involvement in one or more of
the counterintelligence topics, which when considered in the context of
the individual's access to one or more of the ``high risk'' programs
identified in section 709.4(a)(1)-(8), poses an unacceptable risk to
national security or defense. The same commenter suggested that the
regulation should include a review mechanism for use of the ``national
security or defense'' exception, which is independent of the office
that recommends exceptions, to ensure that the exception is not abused.
Proposed section 709.25 provided that the exception could be exercised
by the Secretary or the Secretary's designee. DOE has revised the
language of section 709.25 to provide that the ``national security or
defense'' exception can be made only by the Secretary or the Director
of the Office of Counterintelligence, and that it must be made in
writing. DOE believes that the Secretary and the D/OCI must have the
authority immediately to suspend an individual's access when they are
in receipt of information that the individual poses an unacceptable
risk to national security or defense.
Finally, one commenter stated that the proposed regulation did not
reflect the full range of possible results since this section only
considers ``deception indicated'' and ``no opinion.'' DOE believes that
the regulation, taken in its entirety, does address the full range of
possible results. The same commenter suggested that DOE should indicate
the basis for arriving at the determinations of ``deception indicated''
and ``no opinion.'' DOE has revised the regulation in section 709.3 to
provide a definition of each of these terms.
[[Page 70973]]
Section 709.26 How Does DOE Protect the Confidentiality of Polygraph
Examination Records?
One commenter stated that counterintelligence officials no doubt
would share information on individuals who refuse to take a polygraph
examination. OCI will not share information on such individuals, except
as provided in this rule. Under the provisions of section 709.26(e),
DOE must protect from disclosure the fact that an individual refused to
take a polygraph examination. However, in accordance with section
709.14, OCI must notify the individual's relevant Program Manager who
must implement any actions required by section 709.14. In addition, as
noted before, DOE will record a refusal in the individual's personnel
security file, but not in his or her personnel file.
One commenter noted that DOE may not begin collecting and storing
polygraph information until it publishes a Privacy Act notice regarding
the establishment of a system of records on polygraph examinations. The
Office of Counterintelligence has an existing system of records, System
of Records 84, which was established in 1994. DOE is amending this
system of records to clarify that polygraph examination records will be
stored in this system and to explain how they will be protected.
Several commenters recommended that all the records of the
polygraph examination be destroyed within a specified period of time
following completion of the polygraph examination. The polygraph report
is a permanent record. An individual is able to file a request for
release of the polygraph report under the provisions of the Privacy
Act. DOE has added a new paragraph (f) to section 709.26 which provides
that, subject to DOE Order 1324.5B, with the exception of the polygraph
report, all other polygraph examination records are destroyed ninety
days after the eligibility evaluation is completed, and a favorable
recommendation has been made to grant or continue the access any of to
the positions identified in section 709.4(a)(1)-(8). If the
recommendation is to deny or revoke access to the position, then the
records are retained at least until the final resolution of any request
for reconsideration by the individual or the completion of any ongoing
investigation.
Subpart D--Polygraph Examination and Examiner Standards
Section 709.31 What Are The DOE Standards for Polygraph Examinations
and Polygraph Examiners?
One commenter on this section suggested that DOE should publish
standards for polygraph examinations and examiners that are at least as
stringent as those set by the Department of Labor at 29 CFR 801.26. The
commenter noted that DOE had not established a limit on the number of
examinations that a polygrapher is permitted to conduct in a day. DOE
has reviewed the provisions of 29 CFR 801.26 and has determined that
those qualifications and requirements, such as a minimum bond
requirement, are more appropriately applied to private examiners as
opposed to those under contract to a federal agency. Nonetheless, DOE
has revised section 709.31 to limit the number of examinations to five
that an examiner may perform in a day. DOE has added a new paragraph
(b) that provides that a polygraph examiner may not administer any more
than five polygraph examinations in any twenty-four hour period. This
does not include those instances in which an individual voluntarily
terminates the examination prior to the actual testing phase.
DOE received a number of comments concerning the polygraph
examiners themselves. One commenter suggested that, in order to reduce
costs, DOE should hire independent contractors, who would provide their
own polygraph equipment. A second commenter objected to DOE's use of
contractors, rather than federal employees. A third commenter objected
that DOE, as part of its effort to assure that it only used experienced
polygraphers, was hiring experienced examiners from other federal
agencies rather than training its own from the start. Still others
suggested that DOE should hire female examiners to examine female
individuals. Finally, several commenters recommended using independent
polygraph examiners or permitting the individual to select his or her
own polygrapher. DOE has considered these diverse comments and decided
not to revise the proposed regulation because the commenters'
suggestions would unnecessarily restrict DOE's ability to select the
best polygraphers available.
A few commenters suggested that each polygraph examiner must obtain
a personnel security clearance at or above that of the individual whom
they are examining, or else the examiner should not be allowed to ask
questions that concern classified information. DOE agrees with this
comment. Proposed paragraph 709.31(c)(2) requires that DOE polygraph
examiners complete a single scope background investigation and a
counterintelligence scope polygraph examination. DOE believes that it
is also appropriate to require the examiners to hold a ``Q'' access
authorization, which is necessary for access to Secret Restricted Data
and Top Secret National Security Information. In addition, each
examiner must have been granted SCI access approval. DOE has revised
and relettered the proposed paragraph as paragraph 709.31(d)(2) to
reflect these levels of required clearance and access.
One commenter suggested that each polygraph examiner should have
adequate training in analysis of physiological data and that each
should be a physician licensed in the District of Columbia and the
state in which the polygraph examination is being conducted.
Furthermore, the commenter believed that the polygraph examiners should
meet the same annual requirements as those imposed on participants in
the PAP and PSAP, go through a full-field FBI investigation, and make
public a financial disclosure statement. Other suggested requirements
included an annual psychological examination which focused on emotional
stability and the ability to maintain objectivity while making
judgments about people which may affect national security; urine tests
taken before administering any polygraph examinations in order to
demonstrate that the examiner is not impaired by alcohol; and constant
monitoring to assure that the examiner does not drink alcoholic
beverages after the urine test but before conducting the polygraph
examination. DOE believes that these requirements are unnecessary and
would not substantially enhance the reliability of DOE's polygraph
program. In addition, the regulation already provides for appropriate
monitoring of examinations.
DOE has deleted from paragraph 709.31(a) the statements concerning
inspection, approval and certification of the DOE Test Center, because,
although true, they did not state regulatory requirements.
Section 709.32 What Are The Training Requirements for Polygraph
Examiners?
A number of commenters objected to what appeared to be minimal
training requirements for polygraph examiners. Proposed section
709.32(a) provided that polygraph examiners must undergo a minimum
forty hours of training annually within the discipline of
[[Page 70974]]
Forensic Psychophysiological Detection of Deception. This language
established the annual continuing education requirement, as
distinguished from the initial training required to become a polygraph
examiner. DOE has revised section 709.32 to make clear the forty hours
is an annual continuing education requirement and redesignated that
section as paragraph (b). In addition, DOE has added a new paragraph
709.32(a) that establishes that each polygraph examiner must undergo an
initial training period of thirteen weeks in accordance with the
procedures and standards established by the DODPI.
V. Regulatory Review
A. National Environmental Policy Act
One commenter asserted that the proposed regulation would require
the establishment of a number of offices and the hiring of new staff to
administer the proposed polygraph examinations and therefore would
require the preparation of an environmental assessment or impact
statement. This rule establishes the procedures for use of polygraph
examinations. DOE has determined that this rule is covered under the
Categorical Exclusion found in the Department's National Environmental
Policy Act regulations at paragraph A.6 of Appendix A to Subpart D, 10
CFR Part 1021, which applies to rulemakings that are strictly
procedural. Accordingly, neither an environmental assessment nor an
environmental impact statement is required. Furthermore, while DOE did
hire new staff in order to implement DOE Notice 472.2 as it applied to
Federal employees, it has no intention of building new facilities or
hiring new staff to administer this program. The Department has made no
determination that the institution of polygraph examinations will
require any significant enlargement of staff or construction of new
facilities. In any event, it is clear that not every Federal
procurement or hiring decision necessitates an environmental impact
statement. NEPA never has been applied to such administrative Federal
actions.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that an
agency prepare an initial regulatory flexibility analysis for any rule,
for which a general notice of proposed rulemaking is required, that
would have a significant economic effect on small entities. A final
regulatory flexibility analysis must be prepared and made available
when a final rule is published. These requirements do not apply if the
agency ``certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.'' 5 U.S.C. 605.
Comments submitted during this rulemaking prompted DOE to
reevaluate the application of the Regulatory Flexibility Act to this
rule. DOE finds that this rulemaking does not directly regulate small
businesses or small governmental entities. The rule applies to
individuals who currently are employed by, or applicants for employment
by, some of the DOE's prime contractors. Furthermore, the contractors
are primarily large businesses. Even if the rulemaking were to directly
regulate some small businesses that are subcontractors, the rule does
not have a significant economic impact because it would not impose
unallowable costs on the small businesses. Accordingly, DOE certifies
that the rule will not have a substantial impact on a significant
number of small entities.
C. Paperwork Reduction Act
DOE has determined that this rule does not contain any new or
amended record keeping, reporting, or application requirements, or any
other type of information collection requirements subject to the
Paperwork Reduction Act (Pub. L. No. 96-511).
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-4)
generally requires Federal agencies to examine closely the impacts of
regulatory actions on State, local, and tribal governments. Subsection
101(5) of title I of that law defines a Federal intergovernmental
mandate to include any regulation that would impose upon State, local,
or tribal governments an enforceable duty, except a condition of
Federal assistance or a duty arising from participating in a voluntary
federal program. Title II of that law requires each Federal agency to
assess the effects of Federal regulatory actions on State, local, and
tribal governments, in the aggregate, or to the private sector, other
than to the extent such actions merely incorporate requirements
specifically set forth in a statute. Section 202 of that title requires
a Federal agency to perform a detailed assessment of the anticipated
costs and benefits of any rule that includes a Federal mandate which
may result in costs to State, local, or tribal governments, or to the
private sector, of $100 million or more. Section 204 of that title
requires each agency that proposes a rule containing a significant
Federal intergovernmental mandate to develop an effective process for
obtaining meaningful and timely input from elected officers of State,
local, and tribal governments.
This rule does not impose a Federal mandate on State, local or
tribal governments. This rule will not result in the expenditure by
State, local, and tribal governments in the aggregate, or by the
private sector, of $100 million or more in any one year. Accordingly,
no assessment or analysis is required 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, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. While today's rule applies to individuals who may be
members of a family, the rule does 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
Section 6 of Executive Order 12866 provides for a review by the
Office of Information and Regulatory Affairs (OIRA) of a significant
regulatory action, which is defined to include an action that may have
an effect on the economy of $100 million or more, or adversely affect,
in a material way, the economy, competition, jobs, productivity, the
environment, public health or safety, or State, local, or tribal
governments. DOE has concluded that this rule is not a significant
regulatory action.
G. Executive Order 13132
Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined today's rule and has
determined that it does not preempt State law and does 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 Executive Order 13132.
[[Page 70975]]
H. Executive Order 12875
Executive Order 12875 (Enhancing Intergovernmental Partnership),
provides for reduction or mitigation, to the extent allowed by law, of
the burden on State, local and tribal governments of unfunded Federal
mandates not required by statute. The analysis under the Unfunded
Mandates Reform Act of 1995, satisfies the requirements of Executive
Order 12875. Accordingly, no further analysis is required under
Executive Order 12875.
I. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
Civil Justice Reform, 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. With regard to the review
required by section 3(a), 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,
the rule meets the relevant standards of Executive Order 12988.
J. Executive Order 13084
Under Executive Order 13084 (Consultation and Coordination with
Indian Tribal Governments), DOE may not issue a discretionary rule that
significantly or uniquely affects Indian tribal governments and imposes
substantial direct compliance costs. This rule would not have such
effects. Accordingly, Executive Order 13084 does not apply to this
rulemaking.
K. Small Business Regulatory Enforcement Fairness Act of 1996
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(3).
List of Subjects
10 CFR Part 709
Polygraph tests.
10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Government employees, Nuclear materials.
10 CFR Part 711
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Government contracts, Government employees, Health, Nuclear safety, and
Occupational safety and health.
Issued in Washington, D.C. on December 13, 1999.
Edward J. Curran,
Director, Office of Counterintelligence.
For the reasons stated in the preamble, DOE amends Chapter III of
title 10 of the Code of Federal Regulations as set forth below:
1. New part 709 is added to read as follows:
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 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?
Subpart B--Polygraph Examination Protocols and Protection of National
Security
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 refusal to take a polygraph
examination?
709.15 How does DOE use polygraph examination results?
Subpart C--Safeguarding Privacy and Employee Rights
709.21 When is an individual notified that a polygraph examination
is scheduled?
709.22 What rights to counsel or other representation 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 examination?
709.25 Are there limits on use of polygraph examination results
that reflect ``deception indicated'' or ``no opinion''?
709.26 How does DOE protect the confidentiality of polygraph
examination records?
Subpart D--Polygraph Examination and Examiner Standards
709.31 What are the DOE standards for polygraph examinations and
polygraph examiners?
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.
Subpart A `` General Provisions
Sec. 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.
Sec. 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
polygraph examination;
(c) Controls on the use of polygraph examinations; and
(d) Safeguards to prevent unwarranted intrusion into the privacy of
individuals.
Sec. 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
[[Page 70976]]
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 Sec. 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
Sec. 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.
Sec. 709.4 To whom does the polygraph examination requirement under
this part apply?
(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;
[[Page 70977]]
(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.
Sec. 709.5 How will an individual know if his or her position will be
eligible for a polygraph examination?
(a) All positions in the programs described in Sec. 709.4(a)(1)-(8)
are eligible for polygraph examination. When a polygraph examination is
scheduled, DOE must notify the individual, in accordance with
Sec. 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.
Sec. 709.6 How often will an individual be subject to polygraph
examination?
Positions identified in Sec. 709.4(a)(1)-(8) are subject to a five
year periodic, as well as an aperiodic, reinvestigation polygraph.
Subpart B--Polygraph Examination Protocols and Protection of
National Security
Sec. 709.11 What types of topics are within the scope of a polygraph
examination?
(a) DOE may ask questions that are appropriate to a
counterintelligence-scope examination or that are relevant to the
matter at issue in an exculpatory examination.
(b) A counterintelligence-scope polygraph examination is limited to
topics concerning the individual's involvement in espionage, sabotage,
terrorism, unauthorized disclosure of classified information,
unauthorized foreign contacts, and deliberate damage to or malicious
misuse of a U.S. government information or defense system.
(c) DOE may not ask questions that:
(1) Probe a person's thoughts or beliefs;
(2) Concern conduct that has no counterintelligence implication; or
(3) concern conduct that has no direct relevance to an
investigation.
Sec. 709.12 How does DOE determine the wording of questions?
The examiner determines the exact wording of the polygraph
questions based on the examiner's pretest interview of the individual,
the individual's understanding of the questions, and other input from
the individual.
Sec. 709.13 May an individual refuse to take a polygraph examination?
(a) Yes. An individual may refuse to take a counterintelligence-
scope or exculpatory polygraph examination, and an individual being
examined may terminate the examination at any time.
(b) If an individual terminates a counterintelligence-scope or
exculpatory polygraph examination prior to the completion of the
examination, DOE may treat that termination as a refusal to take a
polygraph examination under Sec. 709.14.
Sec. 709.14 What are the consequences of a refusal to take a polygraph
examination?
(a) If an individual is an applicant for employment, assignment, or
detail to one of the positions described in Sec. 709.4(a)(1)-(8), and
the individual refuses to take a counterintelligence polygraph
examination required by statute as an initial condition of access, DOE
and its contractors must refuse to employ, assign, or detail the
individual to the identified position.
(b) If the individual is an applicant for employment, assignment,
or detail to one of the positions described in Sec. 709.4(a)(1)-(8) and
the individual refuses to take a counterintelligence polygraph
examination otherwise required by this part, DOE and its contractors
may refuse to employ, assign, or detail the individual to the
identified position.
(c) If an individual is an incumbent in a position described in
Sec. 709.4(a)(1)-(8) and the individual refuses to take a
counterintelligence polygraph examination required by statute as a
condition of continued access, DOE and its contractors must deny the
individual access to the information or involvement in the activities
that justified conducting the examination, consistent with Sec. 709.15.
If the individual is a DOE employee, DOE may reassign or realign the
individual's duties, within the local commuting area, or take other
action, consistent with that denial of access.
(d) If the individual is an incumbent in a position described in
Sec. 709.4(a)(1)-(8), and the individual refuses to take a
counterintelligence polygraph examination as required by this part, DOE
and its contractors may deny that individual access to the information
or involvement in the activities that justified conducting the
examination, consistent with Sec. 709.15. If the individual is a DOE
employee, DOE may reassign or realign the individual's duties, within
the local commuting area, or take other action, consistent with that
denial of access.
(e) If the individual is a DOE employee whose current position does
not require a counterintelligence polygraph examination and is an
applicant for employment, assignment, or detail to one of the positions
described in Sec. 709.4(a)(1)-(8), the individual's refusal to take a
polygraph examination will not affect the individual's current
employment status.
(f) If an individual refuses to take a polygraph examination as
part of the Accelerated Access Authorization Program, DOE must
terminate the accelerated authorization process and the individual may
continue to be processed for access authorization under the standard
DOE personnel security process.
(g) Since an exculpatory polygraph examination is administered at
the request of an individual, DOE and its contractors may not take any
adverse personnel action against an individual for refusing to request
or take an exculpatory polygraph examination. DOE and its contractors
may not record an individual's refusal to take an exculpatory polygraph
examination in the individual's personnel security file, or any
investigative file. DOE also may
[[Page 70978]]
not record the fact of that refusal in a DOE employee's personnel file.
(h) If a DOE employee refuses to take a counterintelligence
polygraph examination, DOE may not record the fact of that refusal in
the employee's personnel file.
Sec. 709.15 How does DOE use polygraph examination results?
(a) If, following the completion of the polygraph test, there are
any unresolved issues, the polygraph examiner must conduct an in-depth
interview of the individual to address those unresolved issues.
(b) If, after the polygraph examination, there are remaining
unresolved issues that raise significant questions relevant to the
individual's access to the information or involvement in the activities
that justified the polygraph examination, DOE must so 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 of the individual, using the polygraph
examination as an investigative lead.
(c) The Office of Counterintelligence (OCI) will conduct an
eligibility evaluation that considers examination results, the
individual's personnel security file, and other pertinent information.
If unresolved issues remain at the time of the eligibility evaluation,
DOE will interview the individual if it is determined that a personal
interview will assist in resolving the issue. No denial or revocation
of access will occur until the eligibility evaluation is completed.
(d) Following the eligibility evaluation, D/OCI must recommend, in
writing, to the Program Manager responsible for the access that the
individual's access be approved or retained, or denied or revoked.
(1) If the Program Manager agrees with the recommendation, the
Program Manager will notify the individual, in writing, that the
individual's access has been approved or retained, or denied or
revoked.
(2) If the Program Manager disagrees with the D/OCI's
recommendation the matter will be referred to the Secretary for a final
decision.
(3) If the Program Manager denies or revokes the individual's
access, and the individual is a DOE employee, DOE may reassign the
individual or realign the individual's duties within the local
commuting area or take other actions consistent with the denial of
access.
(4) If the Program Manager denies the individual's access and the
individual is an applicant for employment, assignment, or detail to one
of the positions described in 709.4(a)(1)-(8), DOE and its contractors
may refuse to employ, assign or detail the individual to the identified
position.
(5) If the Program Manager revokes the access of an individual
assigned or detailed to DOE, DOE may remove the individual from access
to the information that justified the polygraph examination and return
the individual to the agency of origin.
(6) If the Program Manager denies or revokes the access for an
individual applying for a DOE access authorization or already holding a
DOE access authorization, DOE may initiate an administrative review of
the individual's clearance eligibility under the DOE regulations
governing eligibility for a security clearance at 10 CFR part 710.
(7) For cases involving a question of loyalty to the United States,
DOE may refer the matter to the FBI as required by section 145d of the
AEA.
(e) DOE and contractor employees, applicants for employment, and
other individuals assigned or detailed to Federal positions within DOE
whose access to the categories described in Sec. 709.4(a)(1)-(8) is
denied or revoked may request reconsideration by the relevant head of
the departmental element, as identified in the notice of denial or
revocation. Individuals who decline to take the counterintelligence
scope polygraph examination will not be afforded these reconsideration
rights.
(f) Utilizing the DOE security criteria used to grant or deny
access to classified information, OCI will make a determination whether
an individual completing a counterintelligence polygraph examination
has made disclosures that warrant referral, as appropriate, to the
Office of Security and Emergency Operations or the Manager of the
applicable Operations Office. OCI will not report minor security
infractions that do not create a serious question as to the
individual's eligibility for a personnel security clearance.
Subpart C--Safeguarding Privacy and Employee Rights
Sec. 709.21 When is an individual notified that a polygraph
examination is scheduled?
When a polygraph examination is scheduled, DOE must notify the
individual, in writing, of the date, time, and place of the polygraph
examination, and the individual's right to obtain and consult with
legal counsel or to secure another representative prior to the
examination. DOE must provide a copy of this part to the individual.
The individual must receive the notification at least ten days,
excluding weekend days and holidays, before the time of the examination
except when good cause is shown or when the individual waives the
advance notice provision.
Sec. 709.22 What rights to counsel or other representation does an
individual have?
(a) At the individual's own expense, an individual has the right to
obtain and consult with legal counsel or another representative prior
to the polygraph examination. The counsel or representative may not be
present during the polygraph examination. No one other than the
individual and the examiner may be present in the examination room
during the polygraph examination.
(b) At the individual's own expense, an individual has the right to
obtain and consult with legal counsel or another representative at any
time during an interview conducted in accordance with Sec. 709.15(c).
Sec. 709.23 How does DOE obtain an individual's consent to a polygraph
examination?
DOE may not administer a polygraph examination unless DOE has:
(a) Notified the individual of the polygraph examination in writing
in accordance with Sec. 709.21; and
(b) Obtained written consent from the individual.
Sec. 709.24 What other information is provided to the individual prior
to a polygraph examination?
Before administering the polygraph examination, the examiner must:
(a) Inform the individual of the use of audio and video recording
devices and other observation devices, such as two-way mirrors and
observation rooms;
(b) Explain to the individual the characteristics and nature of the
polygraph instrument and examination;
(c) Explain the physical operation of the instrument and the
procedures to be followed during the examination;
(d) Review with the individual the control questions and relevant
questions to be asked during the examination;
(e) Advise the individual of the individual's privilege against
self-incrimination; and
(f) Provide the individual with a pre-addressed envelope addressed
to the D/OCI in Washington, D.C., which may be used to submit comments
or complaints concerning the examination.
[[Page 70979]]
Sec. 709.25 Are there limits on use of polygraph examination results
that reflect ``deception indicated'' or ``no opinion''?
(a) DOE or its contractors may not:
(1) Take an adverse personnel action against an individual solely
on the basis of a polygraph examination result of ``deception
indicated'' or ``no opinion''; or
(2) Use a polygraph examination that reflects ``deception
indicated'' or ``no opinion'' as a substitute for any other required
investigation.
(b) The Secretary or the D/OCI may suspend an individual's access
based upon a written determination that the individual's admission of
involvement in one or more of the activities covered by the
counterintelligence polygraph, when considered in the context of the
individual's access to one or more of the high risk programs identified
in Sec. 709.4(a)(1)-(8), poses an unacceptable risk to national
security or defense. In such cases, DOE will investigate the matter
immediately and make a determination of whether to revoke the
individual's access.
Sec. 709.26 How does DOE protect the confidentiality of polygraph
examination records?
(a) DOE owns all polygraph examination records and reports.
(b) Except as provided in paragraph (c) of this section, the Office
of Counterintelligence maintains all polygraph examination records and
reports in a system of records established under the Privacy Act of
1974, 5 U.S.C. 552a.
(c) The Office of Intelligence also may maintain polygraph
examination reports generated with respect to individuals identified in
Sec. 709.4(a)(2) in a system of records established under the Privacy
Act.
(d) Polygraph examination records and reports used to make AAAP
determinations or generated as a result of an exculpatory personnel
security polygraph examination are maintained in a system of records
established under the Privacy Act of 1974.
(e) DOE must afford the full privacy protection provided by law to
information regarding an employee's refusal to take a polygraph
examination.
(f) With the exception of the polygraph report, all other polygraph
examination records are destroyed ninety days after the eligibility
evaluation is completed, provided that a favorable recommendation has
been made to grant or continue the access to the position. If a
recommendation is made to deny or revoke access to the information or
involvement in the activities that justified conducting the polygraph
examination, then all the records are retained at least until the final
resolution of any request for reconsideration by the individual or the
completion of any ongoing investigation.
Subpart D--Polygraph Examination and Examiner Standards
Sec. 709.31 What are the DOE standards for polygraph examinations and
polygraph examiners?
(a) DOE adheres to the procedures and standards established by the
Department of Defense Polygraph Institute (DODPI). DOE administers only
DODPI approved testing formats.
(b) A polygraph examiner may administer no more than five polygraph
examinations in any twenty-four hour period. This does not include
those instances in which an individual voluntarily terminates an
examination prior to the actual testing phase.
(c) The polygraph examiner must be certified to conduct polygraph
examinations under this part by the DOE Psychophysiological Detection
of Deception/Polygraph Program Quality Control Official.
(d) To be certified under paragraph (c) of this section, an
examiner must have the following minimum qualifications:
(1) The examiner must be an experienced counterintelligence or
criminal investigator with extensive additional training in using
computerized instrumentation in Psychophysiological Detection of
Deception and in psychology, physiology, interviewing, and
interrogation.
(2) The examiner must have a favorably adjudicated single-scope
background investigation, complete a counterintelligence-scope
polygraph examination, and must hold a ``Q'' access authorization,
which is necessary for access to Secret Restricted Data and Top Secret
National Security Information. In addition, he or she must have been
granted SCI access approval.
(3) The examiner must receive basic Forensic Psychophysiological
Detection of Deception training from the DODPI.
(4) The examiner must be certified by DOE to conduct the following
tests:
(i) Test for Espionage, Sabotage, and Terrorism;
(ii) Counterintelligence-Scope Polygraph Tests;
(iii) Zone Comparison Tests;
(iv) Modified General Question Tests;
(v) Peak of Tension Tests; and,
(vi) Relevant and Irrelevant and Directed Lie Control Tests.
Sec. 709.32 What are the training requirements for polygraph
examiners?
(a) Examiners must complete an initial training course of thirteen
weeks, or longer, in conformance with the procedures and standards
established by DODPI.
(b) Examiners must undergo annual continuing education for a
minimum of forty hours training within the discipline of Forensic
Psychophysiological Detection of Deception.
(c) The following organizations provide acceptable curricula to
meet the training requirement of paragraph (b) of this section:
(1) American Polygraph Association,
(2) American Association of Police Polygraphists, and
(3) Department of Defense Polygraph Institute.
[[Page 70980]]
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL
2. The authority citation for part 710 continues to read as
follows:
Authority: Sec. 145, 68 Stat. 942 (42 U.S.C. 2165) and sec. 161,
68 Stat. 948 (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; sec. 104(c), 38 Stat. 1237 (42 U.S.C.
5814); sec. 105(a), 88 Stat. 1238 (42 U.S.C. 5815); secs. 641, 644,
646, 91 Stat. 598, 599 (42 U.S.C. 7251, 7254, and 7256).
3. In Sec. 710.57 (subpart B), paragraphs (f) through (i) are
redesignated as paragraphs (g) through (j) and a new paragraph (f) is
added to read as follows:
Sec. 710.57 Supervisory review.
* * * * *
(f) Applicants tentatively selected for PSAP positions and each
individual occupying a PSAP position, but not yet holding a PSAP access
authorization, must submit to a polygraph examination under 10 CFR part
709.
* * * * *
PART 711--PERSONNEL ASSURANCE PROGRAM (PAP)
4. The authority citation for part 711 continues to read as
follows:
Authority: 42 U.S.C. 2201(p), 7191.
5. In Sec. 711.5:
a. Paragraph (b)(6) is amended by removing the word ``and'' from
the end of the paragraph;
b. Paragraph (b)(7) is amended by removing the period at the end of
the paragraph and adding ``; and'' in its place; and
c. Paragraph (b)(8) is added to read as follows:
Sec. 711.5 General requirements.
* * * * *
(b) * * *
(8) Be eligible for a polygraph examination under 10 CFR part 709.
* * * * *
[FR Doc. 99-32721 Filed 12-16-99; 8:45 am]
BILLING CODE 6450-01-P
