[Federal Register Volume 64, Number 159 (Wednesday, August 18, 1999)]
[Proposed Rules]
[Pages 45062-45070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21290]



[[Page 45061]]

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Part III





Department of Energy





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10 CFR Parts 709, 710, and 711



Polygraph Examination Regulation; Proposed Rule

  Federal Register / Vol. 64, No. 159 / Wednesday, August 18, 1999 / 
Proposed Rules  

[[Page 45062]]



DEPARTMENT OF ENERGY

10 CFR Parts 709, 710, and 711

[Docket No. CN-RM-99-POLY]
RIN 1992-AA24


Polygraph Examination Regulation

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking and public hearings.

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SUMMARY: The Department of Energy (DOE or the Department) proposes 
regulations 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 proposed 
regulations describe the categories of individuals who would be 
eligible for polygraph testing and controls for the use of such testing 
and for prevention of unwarranted intrusion into the privacy of 
individuals. These regulations are being proposed to comply with 
various Executive Orders which require the Department to protect 
classified information. These regulations for the use of polygraph 
examinations for certain DOE and contractor employees are intended to 
protect highly sensitive and classified information and materials to 
which such employees have access. This rulemaking also proposes 
conforming changes to regulations governing the Department's Personnel 
Security Assurance Program and Personnel Assurance Program.

DATES: The comment period for this proposed rule will end on October 4, 
1999. Public hearings will be held on: September 14, 1999 in Livermore, 
CA from 9 a.m. to 1 p.m. and 3 p.m. to 7 p.m.; September 16, 1999, in 
Albuquerque, NM from 9 a.m. to 1 p.m. and 3 p.m. to 7 p.m.; September 
17, 1999, in Los Alamos, NM from 9 a.m. to 1 p.m. and 3 p.m. to 6 p.m.; 
and September 22, 1999, in Washington D.C. from 9 a.m. to 1 p.m.
    Requests to speak at any of the hearings should be phoned in to 
Andi Kasarsky, (202) 586-3012, by September 10, for the Livermore, CA 
hearing; September 14, for the Albuquerque, NM hearing; September 15, 
for the Los Alamos, NM hearing; and September 20, for the Washington, 
DC hearing. Each presentation is limited to 5 minutes to ensure that 
all persons have an opportunity to speak.

ADDRESSES: Written comments (10 copies) should be addressed to Douglas 
J. Hinckley, Office of Counterintelligence, CN-1, Docket No. CN-RM-99-
POLY, U.S. Department of Energy, 1000 Independence Avenue, SW, 
Washington, DC 20585. Alternatively, comments may be e-mailed to the 
following address: [email protected]. Where possible, commentors should 
identify the specific section of the proposed rule to which they are 
responding.
    Copies of the public hearing transcripts, written comments 
received, technical reference material referred to in this notice, and 
any other docket material may be reviewed and copied at the DOE Freedom 
of Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW, 
Washington, DC 20585, between the hours of 9 a.m. and 4 p.m. Monday 
through Friday, except Federal holidays. The docket material for this 
rulemaking will be filed under ``CN-RM-99-POLY.'' The Federal Register 
notice and supporting documentation can be located on DOE's Internet 
home page at the following address: http://home.doe.gov/news/
fedreg.htm.
    The public hearings for this rulemaking will be held at the 
following addresses:

Livermore, CA: Lawrence Livermore National Laboratory, Building 123 
Auditorium (use South West Gate entrance, East Avenue).
Albuquerque, NM: Sandia National Laboratories, Steve Schiff Auditorium, 
Building 825.
Los Alamos, NM: Los Alamos National Laboratory, Administration 
Building, Main Auditorium (1st floor).
Washington, DC: U.S. Department of Energy, Auditorium (ground floor, E 
corridor), 1000 Independence Avenue, SW, Washington, DC.

    For more information concerning public participation in this 
rulemaking proceeding, see Section V of this notice (Opportunity for 
Public Comment).

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
Lise Howe, U.S. Department of Energy, Office of General Counsel, GC-73, 
1000 Independence Avenue, SW, Washington, DC 20585, (202) 586-2906

    For information concerning the public hearings, requests to speak 
at the hearings, submission of written comments or docket file 
information contact: Andi Kasarsky at (202) 586-3012.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Background
III. Description of Proposal
IV. Regulatory Review
    A. National Environmental Policy Act
    B. Regulatory Flexibility Act
    C. Review Under the 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 12612
    H. Executive Order 12875
    I. Executive Order 12988
    J. Review Under Executive Order 13084
V. Opportunity for Public Comment

I. Introduction

    The Atomic Energy Act of 1954 (AEA or Atomic Energy Act) assigns to 
DOE certain atomic energy defense production and clean-up obligations 
that are discharged at various DOE-owned, contractor-operated 
installations around the United States. Section 161 of the AEA 
authorizes DOE to adopt rules necessary to carry out those functions, 
42 U.S.C. 2201. Under that authority, DOE today proposes regulations 
for using counterintelligence-scope polygraph examinations for national 
security purposes, and exculpatory polygraph examinations at the 
request of an individual, while protecting the rights of individuals. 
All such polygraph examinations will be voluntary. However, if an 
individual refuses to submit to an examination that is for national 
security purposes, DOE and its contractors may decline to select the 
individual for the sensitive positions specified in this rule, and DOE 
may deny the individual access to the information that justified 
conducting the examination.

II. Background

    DOE, as the successor agency to the Atomic Energy Commission, has 
broad responsibilities under the AEA 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.
    In addition, various Executive Orders of government-wide 
applicability 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

[[Page 45063]]

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 Presidential Decision Directive-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, including implementation of a polygraph 
program. An unclassified version of the Presidential Decision Directive 
is available in the DOE Freedom of Information Reading Room.
    As an element of carrying out its national security mission, DOE 
has instituted a counterintelligence program to strengthen its 
protection of information and technologies in connection with DOE's 
atomic energy defense activities. DOE believes that requiring 
counterintelligence-scope polygraph examinations for individuals in 
positions with access to the most sensitive information in connection 
with DOE's atomic energy defense activities is a necessary, prudent 
measure to fulfill DOE's 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 possible early detection of disclosures to enable 
DOE to take steps promptly to prevent further harm to the national 
security.
    A counterintelligence-scope polygraph examination also is an 
integral element of the DOE Accelerated Access Authorization Program 
(AAAP), a program that DOE utilizes to grant interim security 
clearances on an expedited basis. In addition, use of a polygraph 
examination when an individual requests one as a means of exculpation 
in order to resolve a counterintelligence investigation or personnel 
security issue hastens the DOE's prompt resolution of such issues.
    The Employee Polygraph Protection Act (Pub. L. 100-347) (EPPA) 
generally prohibits the use of polygraph examinations in private 
employment settings, but that law does not apply to the Federal 
government or its employees. In addition, the EPPA specifically exempts 
from its prohibitions polygraph examinations administered by DOE in the 
performance of its counterintelligence function 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 statute also 
specifically exempts 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 
Special Access Program (SAP), 29 U.S.C. 2006(b)(2). In DOE's view, 
polygraph examinations are a useful investigatory tool for 
counterintelligence purposes because they assist in eliciting 
comprehensive information, and in distinguishing between deception and 
non-deception. Congress left 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.
    Along with the strong need for protection of classified and 
sensitive information in its possession, DOE recognizes the importance 
of protecting individuals' rights. In the 1960s, President Lyndon B. 
Johnson issued a memorandum entitled ``Use of Polygraph in the 
Executive Branch'' which is intended to ``prevent unwarranted intrusion 
into the privacy of individuals.'' The memorandum prohibits 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 in intelligence 
and counterintelligence operations. In such cases, the agency must 
complete a review process with the Office of Personnel Management 
(OPM).
    As an initial step toward developing and implementing a polygraph 
requirement for sensitive positions, DOE issued an internal DOE 
directive, DOE Notice 472.2, Use of Polygraph Examinations, that 
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 request, as a means of 
exculpation. The DOE Notice has been submitted to OPM for its review. 
The Notice is publicly available at http://www.explorer.doe.gov:1776/
htmls/regs/doe/newserieslist.html on the DOE Directives website.
    As a second step, DOE is proposing today to expand the polygraph 
examination 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. When final, this 
rule will establish polygraph examination regulations that apply to 
both Federal and contractor employees. DOE also has submitted a copy of 
this proposed rule to OPM.
    DOE acknowledges that some individuals consider polygraph 
examination results to be generally unreliable and believe that they 
should not be used as the basis for any action with regard to an 
employee. However, DOE is aware of no scientific studies that establish 
that polygraph examination results are unreliable for use as an 
investigative tool, as DOE today has proposed to use them. As an 
investigative tool, polygraph examinations results are superior to 
random interviews relying on purely subjective evaluations. DOE also is 
aware that some individuals think today's proposed rule could have an 
effect on the recruitment and retention of qualified personnel. 
Nevertheless, DOE believes that established procedures for polygraph 
testing, limitations on the scope of questions, qualifications 
standards for polygraph examiners, and limitations on the use of 
polygraph examination results with regard to final adverse actions, 
will be perceived as fair by most potential employees and will protect 
the legitimate interests of existing employees. DOE invites members of 
the public to comment on the balance it has struck in today's proposal 
between legitimate national security interests and regulatory 
limitations to protect employees from inappropriate or imprudent use of 
polygraph examinations and the results of such examinations.
    Today's action continues DOE's efforts to carry out its statutory 
responsibilities and Presidential direction to provide strong programs 
to protect against the disclosure of information and materials that 
could harm national defense and security.

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III. Description of Proposal

PART 709, Subpart A--General Provisions

Section 709.3  What Are the Definitions of the Terms Used in This Part?
    This section proposes definitions for terms used in the rule. The 
definition for the phrase ``adverse personnel action'' for Federal 
employees is derived from 5 U.S.C. Chapter 75, and for contractor 
employees from correlative principles under the National Labor 
Relations Act. The terms ``counterintelligence'' and ``intelligence'' 
are based on definitions in the National Security Act of 1947. 50 
U.S.C. 401a. The definition for ``polygraph'' is the same as that used 
by the Department of Labor in its regulations implementing the EPPA. 29 
CFR part 801. The definition for ``Special Access Program or SAP'' is 
based on the definition of that term in Executive Order 12958, 
Classified National Security Information (April 17, 1995).
Section 709.4  To Whom Does the Polygraph Examination Requirement Under 
This Part Apply?
    This section proposes the programs whose employees would be 
eligible for polygraph examination. The programs include employees and 
applicants for employment with DOE and its contractors (including 
subcontractors at all tiers), and also individuals who may be assigned 
or detailed to Federal positions at DOE. There are eight program 
categories whose employees are eligible for polygraph examination. 
These include counterintelligence and intelligence positions; positions 
requiring access to special access programs; positions subject to the 
Personnel Assurance Program (PAP) or Personnel Security Assurance 
Program (PSAP); positions with 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 and control 
features; 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; and positions within the Office of 
Security and Emergency Operations, or any successor thereto. DOE will 
establish an internal process to review these programs in order to 
develop the criteria for identifying the specific positions in the 
eight program categories that warrant polygraph examination and the 
order of priority for conducting polygraph examinations of the DOE and 
contractor employees in the eligible positions.
    In addition to the programs whose employees would be eligible for a 
polygraph examination, there are two other circumstances under which 
DOE would administer polygraph examinations. First, a 
counterintelligence-scope polygraph examination is an element of the 
AAAP, which is a voluntary program under which an individual's DOE 
access authorization (security clearance) may be expedited. Second, 
individuals would be permitted, at their own option, to request a 
polygraph examination in order to resolve questions that have arisen in 
either the personnel security or counterintelligence areas; these 
examinations are referred to as exculpatory polygraph examinations.
Section 709.5  How Will an Individual Know If His or Her Position Will 
Be Eligible for Polygraph Examination?
    As proposed, all employees of the programs described in 
Sec. 709.4(a)(1)-(8) are eligible for polygraph examinations. If there 
is a vacant position within one of these programs, DOE or its 
contractors must indicate in the job or vacancy announcement that the 
employee selected would be eligible for a 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?
    Polygraph examinations would be counterintelligence-scope, designed 
to address the narrow topics of whether the individual has engaged, or 
is engaging, in espionage, sabotage, terrorism, unauthorized 
disclosures of classified information, unauthorized foreign contacts, 
or deliberate damage to or malicious misuse of a U.S. government 
information or defense system. The only time topics other than these 
would be within the scope of a polygraph examination is when an 
individual has requested an exculpatory examination. In the case of 
exculpatory examinations, the topics are limited to the personnel 
security or counterintelligence matter at issue.
Section 709.14  What Are the Consequences of a Refusal To Take a 
Polygraph Examination?
    All polygraph examinations administered by DOE are voluntary. There 
may, however, be consequences resulting from a refusal to take, or 
failure to complete, a polygraph examination. This section describes 
the possible consequences of an individual's refusing to take, or 
failing to complete, a required polygraph examination.
    Failure to complete the polygraph examination is treated the same 
as a refusal to take a polygraph examination. If an individual refuses 
to take, or terminates at any time prior to completion, a polygraph 
examination, that individual may be denied access to the information 
and denied involvement in the activities that justified conducting the 
examination, consistent with proposed Sec. 709.15. In some 
circumstances, for example individuals with counterintelligence or 
intelligence responsibilities, 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 it is DOE or a contractor) must make every 
effort to find a new position for which the individual would be 
suitable, consistent with that denial of access. If the individual is 
on assignment or detail to DOE from another agency, the individual may 
simply be returned to the employing agency.
    If a DOE employee refuses to take a required polygraph examination, 
DOE cannot record the fact of that refusal in the individual's 
personnel file. Nevertheless, DOE may record the refusal in a personnel 
security file. The prohibition on recording a DOE employee's refusal to 
take a polygraph examination in an individual's personnel file is 
contained in President Lyndon B. Johnson's Memorandum on ``Use of the 
Polygraph in the Executive Branch.'' Because that memorandum is not 
explicitly applicable to contractor employees and because DOE does not 
maintain personnel files for contractor employees, DOE has limited the 
prohibition in the rule to Federal employees. However, the Department 
recommends that its contractors adopt a similar policy with respect to 
contractor employees.
    Exculpatory polygraph examinations are administered only at the 
request of the individual, and an individual is under no obligation to 
request an exculpatory polygraph examination. To ensure there are no 
inappropriate consequences if an individual does not request an 
exculpatory polygraph

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examination, DOE or its contractors may not take an adverse personnel 
action against an individual solely on the basis of refusing to take or 
complete such an exculpatory polygraph examination. Similarly, the fact 
that an individual has not requested an exculpatory examination may not 
be recorded in an individual's personnel security or investigative file 
or the personnel file of a Federal employee. Because DOE does not 
maintain personnel files for contractor employees, DOE has limited the 
prohibition in the rule to Federal employees. However, the Department 
recommends that its contractors adopt a similar policy with respect to 
contractor employees.
Section 709.15  How Does DOE Use Polygraph Examination Results?
    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. After 
the in-depth interview, if 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 will 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.
    After completion of the polygraph examination(s), the Department 
will conduct an eligibility evaluation that considers polygraph 
examination results, the individual's personnel security file, and 
other pertinent information. DOE may conduct a personal interview as an 
element of the eligibility evaluation. Based upon the eligibility 
evaluation, the individual may be denied access to the information and 
denied involvement in the activities that justified the polygraph 
examination. If the eligibility evaluation results raise questions of 
loyalty to the United States, DOE must refer the matter to the Federal 
Bureau of Investigation for investigation under section 145d of the 
Atomic Energy Act (42 U.S.C. 2165d). If the eligibility evaluation 
results reflect derogatory information and the individual already holds 
an access authorization, DOE may initiate an administrative review of 
the individual's access authorization eligibility under the DOE 
regulations governing eligibility for access authorization (security 
clearance) at 10 CFR part 710.

Subpart C--Safeguarding Privacy and Employee Rights

Section 709.21  When Is an Individual Notified That a Polygraph 
Examination Is Scheduled?
    DOE has elected to establish a minimum of forty-eight hours advance 
notification of scheduled polygraph examinations. DOE believes that the 
forty-eight hours should provide an individual sufficient time to 
secure any desired legal counsel or another representative. DOE has 
provided two exceptions to the rule, a good cause exception and an 
exception when the individual waives the advance notice. Under the good 
cause exception, DOE may provide an individual less than forty-eight 
hours advance notification of a polygraph examination when the 
Secretary of Energy or the Secretary's designee determines that the 
information to which the individual has access is of such extreme 
sensitivity that waiting forty eight hours poses an unacceptable risk 
to national security or defense. The waiver provision would favor an 
individual who wishes a polygraph examination as quickly as possible 
either for exculpatory reasons or to expedite his or her access to 
information or involvement in activities that justify the polygraph 
examination.
Section 709.22  What Rights to Counsel or Other Representation Does an 
Individual Have?
    An individual has a right to consult with anyone before any 
polygraph examination. The individual may obtain legal counsel, 
professional assistance, or union representation. However, these 
representatives may not be present during any phase of the polygraph 
examination.
Section 709.25  Are There Limits on Use of Polygraph Examination 
Results That Reflect ``Deception Indicated'' or ``No Opinion''?
    DOE believes that, while polygraph examinations are a useful tool, 
they should not constitute the sole basis for taking any action against 
an individual, except when the Secretary or the Secretary's designee 
determines that permitting the individual continued access to protected 
information would pose an unacceptable risk to national defense and 
security. While an individual's access may be suspended pursuant to 
such a Secretarial determination, DOE will in all such cases 
investigate further under Sec. 709.15 in order to resolve the issue.
Section 709.26  How Does DOE Protect the Confidentiality of Polygraph 
Examination Records?
    All polygraph examination records will be maintained in systems of 
records established under the Privacy Act of 1974 with appropriate 
protections on confidentiality. In accordance with the Privacy Act, the 
records cannot be disclosed, except in response to a written request 
by, or with the prior written consent of, the individual to whom the 
record pertains unless disclosure would be permitted by the Privacy 
Act.

Parts 710 and 711

    DOE proposes conforming changes to regulations established for the 
Personnel Security Assurance Program (PSAP), 10 CFR part 710, subpart 
B, and the Personnel Assurance Program (PAP), 10 CFR part 711. All 
positions subject to these programs would be eligible for the polygraph 
examination provisions of proposed part 709.

IV. Regulatory Review

A. National Environmental Policy Act

    This proposed rule would establish regulations 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.

B. Regulatory Flexibility Act

    Consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq., DOE must prepare an initial regulatory flexibility analysis for a 
proposed rule unless DOE certifies that the rule would not have a 
substantial impact on a significant number of small entities. This 
rulemaking would not directly regulate small businesses or small 
governmental entities. It would apply principally to individuals who 
are existing employees of, or applicants for employment by, some of the 
DOE's prime contractors who are all large businesses. There may be some 
affected small businesses that are subcontractors, but the rule would 
not impose unallowable costs. Accordingly, DOE certifies that the rule 
will not have a substantial impact on a significant number of small 
entities.

[[Page 45066]]

C. Review Under the Paperwork Reduction Act

    DOE has determined that this rule, as proposed, 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. 96-511).

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to closely examine 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 an enforceable duty upon 
State, local, or tribal governments, except, among other things, 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, as proposed, is not likely to result in any Federal 
mandate that may 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. Today's proposal would 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 proposed rule is not a 
significant regulatory action.

G. Executive Order 12612

    Executive Order 12612, 52 FR 41685, requires that regulations, 
rules, legislation, and any other policy actions be reviewed for any 
substantial direct effect on States, on the relationship between the 
Federal government and the States, or in the distribution of power and 
responsibilities among various levels of government. If there are 
substantial effects, then the Executive Order requires a preparation of 
a Federalism assessment to be used in all decisions involved in 
promulgating and implementing policy action. The rule, as proposed in 
this notice, will not have a substantial direct effect on the 
institutional interests or traditional functions of the States. 
Accordingly, no assessment or analysis is required under Executive 
Order 12612.

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 above, 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, as proposed, meets the relevant standards of Executive Order 
12988.

J. Review Under 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 proposed rulemaking would not 
have such effects. Accordingly, Executive Order 13084 does not apply to 
this rulemaking.

V. Opportunity for Public Comment

A. Written Comments

    Interested individuals are invited to participate in this 
proceeding by submitting data, views or comments with respect to this 
proposed rule. To help the Department review the submitted comments, 
commentors are requested to reference the paragraph(s) (e.g., 850.3(a)) 
to which they refer when possible.
    Ten copies of written comments should be submitted to the address 
indicated in the ADDRESSES section of this NOPR. Comments should be 
identified on the outside of the envelope and on the comments 
themselves with the designation, ``Polygraph Rule, Docket No. CN-RM-99-
POLY.'' Should anyone wishing to provide written comments be unable to 
provide ten copies, alternative arrangements can be made in advance 
with the Department.

[[Page 45067]]

DOE will consider all comments received on or before the date specified 
at the beginning of this NOPR and other relevant information before 
final action is taken on the proposed rule.
    All submitted comments will be available for public inspection as 
part of the administrative record on file for this rulemaking, which is 
in the DOE Freedom of Information Reading Room at the address indicated 
in the ADDRESSES section of this NOPR.
    Pursuant to the provisions of 10 CFR 1004.11, anyone submitting 
information or data which he or she believes to be confidential and 
exempt by law from public disclosure should submit one complete copy of 
the document, as well as two copies, if possible, from which the 
information has been deleted. The Department will make its own 
determination as to the confidentiality of the information and treat it 
accordingly.

B. Public Hearings

    Public hearings will be held at the times, dates and locations 
indicated in the DATES and ADDRESSES section of this NOPR. Any person 
who is interested in making an oral presentation should make a phone 
request to the number in the DATES section of this NOPR. The person 
should provide a daytime phone number where he or she may be reached. 
Persons requesting an opportunity to speak will be notified of the 
approximate time they will be speaking. To ensure that as many persons 
as possible have the opportunity to present comments, a maximum of five 
minutes may be allotted to each speaker. However, if there is time at 
the end of the hearing, DOE may allot additional time to the speakers 
present. Persons making oral statements should bring 6 copies of their 
statement to the hearing and submit them at the registration desk.
    In the event that requests exceed the time allowed, DOE reserves 
the right to schedule speakers, presentations and to establish the 
procedures for conducting the hearing. A DOE official will be 
designated to preside at each hearing, which will not be judicial or 
evidentiary. Only those persons conducting the hearing may ask 
questions. Any further procedural rules needed to conduct the hearing 
properly will be announced by the DOE presiding official.
    A transcript of each hearing will be made available to the public. 
DOE will retain the record of the full hearing, including the 
transcript, and make it available for inspection and copying in the DOE 
Freedom of Information Reading Room at the address provided in the 
ADDRESSES section of this NOPR. Transcripts may also be purchased from 
the court reporter.
    If DOE must cancel the hearings, it will make every effort to give 
advance notice.

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, DC, on August 11, 1999.
Edward J. Curran,
Director, Office of Counterintelligence.

    For the reasons stated in the preamble, DOE hereby proposes to 
amend 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

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?

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.

Subpart A--General Provisions


Sec. 709.1  What is the purpose of this part?

    (a) The purpose of this part is to provide guidelines for:
    (1) The use of counterintelligence-scope polygraph examinations in 
connection with the atomic energy defense activities of the Department;
    (2) The use of counterintelligence-scope polygraph examinations for 
individuals whose duties involve access to top secret classified 
information or information designated as being within a special access 
program (SAP); and
    (3) The use of exculpatory polygraph examinations, upon the request 
of an individual, in order to resolve counterintelligence 
investigations and personnel security issues.
    (b) This part also provides guidelines for protecting the rights of 
individual DOE and DOE contractor 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:

[[Page 45068]]

    Accelerated Access Authorization Program or AAAP means the program 
for granting interim access to classified matter and special nuclear 
material based on a drug test, a National Agency Check, a psychological 
assessment, and a counterintelligence-scope polygraph examination 
consistent with this part.
    Adverse personnel action means:
    (1) With regard to a DOE employee, any of the applicable personnel 
actions described in chapter 75 of title 5, United States Code; 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 DOE contractors and subcontractors at all tiers.
    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.
    DOE means the Department of Energy.
    Intelligence means information relating to the capabilities, 
intentions, or activities of foreign governments or elements thereof, 
foreign organizations or foreign persons.
    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 set 
forth under subpart B of 10 CFR part 710 for assuring the highest 
standards of reliability for individuals with access to certain 
material or facilities.
    Polygraph means an instrument that:
    (1) Records continuously, visually, permanently, and simultaneously 
changes in cardiovascular, respiratory, and electro dermal 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 examinee 
during a specific series of interactions. These interactions may 
include the pretest interview, the use of the polygraph instrument to 
collect physiological data from the examinee while the polygraph 
examiner is presenting a series of tests, the test data analysis phase, 
and the post-test phase.
    Polygraph test means that portion of the polygraph examination 
during which the polygraph instrument collects physiological data based 
upon the examinee's responses to test questions from the examiner.
    Presidential appointee means an individual appointed by the 
President and confirmed by the Senate.
    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.


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 or his 
delegatee regarding the design and operation of nuclear weapons and 
associated use and control features;
    (7) Positions within the Office of Independent Oversight and 
Performance Assurance, or any successor thereto, involved in inspection 
and assessment of safeguards and security functions, including cyber 
security, of the Department;
    (8) Positions within the Office of Security and Emergency 
Operations, or any successor thereto;
    (9) The Accelerated Access Authorization Program (AAAP); and
    (10) Positions where the applicant or incumbent has requested a 
polygraph examination in order to respond to questions that have arisen 
in the context of counterintelligence investigations or personnel 
security issues. These examinations are referred to in this part as 
exculpatory polygraph examinations.
    (b) This part does not apply to:
    (1) A Presidential appointee, if such an appointee has received a 
favorably adjudicated, full-field Federal Bureau of Investigation 
background investigation;
    (2) A position requiring access to SAP's that are intelligence-
related and therefore subject to requirements promulgated by the 
Director of Central Intelligence;
    (3) Any individual for whom the Secretary of Energy gives a written 
waiver in the interest of national security; or
    (4) Any individual for whom the Director, 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.
    (c) The Director, Office of Counterintelligence, in consultation 
with the appropriate Program Manager, will establish the criteria for 
identifying the specific positions described in Sec. 709.4(a)(1)-(8) 
that warrant polygraph examination and the order of priority for 
conducting polygraph examinations of the DOE and contractor employees 
in the eligible positions.


Sec. 709.5  How will an individual know if his or her position will be 
eligible for a polygraph examination?

    All positions in the programs described in Sec. 709.4(a)(1)-(8) are 
eligible for polygraph examination. Any job announcement or posting 
with respect to any position in those programs must indicate that the 
individual selected for the position is eligible for a polygraph 
examination.

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 examinee's involvement in espionage, sabotage, 
terrorism, unauthorized disclosure of classified information, 
unauthorized foreign contacts, or deliberate damage to or malicious 
misuse of a U.S.

[[Page 45069]]

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 security 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 examinee, 
the examinee's understanding of the questions, and other input from the 
examinee.


Sec. 709.13  May an individual refuse to take a polygraph examination?

    (a) Yes. An individual may refuse to take a polygraph examination, 
and an individual being examined may terminate the examination at any 
time.
    (b) If an individual terminates a polygraph examination prior to 
the completion of the examination, the 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 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 polygraph examination, DOE and its 
contractors may refuse to employ, assign, or detail the individual to 
the identified position.
    (b) If the individual is a DOE employee whose current position does 
not require a 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.
    (c) If the individual is an incumbent in a position described in 
Sec. 709.4(a)(1)-(8), and refuses to take a polygraph examination, DOE 
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 or take other action, consistent 
with that denial of access.
    (d) 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.
    (e) 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 not record the fact of that refusal in 
the employee's personnel file.
    (f) If a DOE employee refuses to take a polygraph examination, DOE 
cannot 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) DOE will conduct an eligibility evaluation that considers 
examination results, the individual's personnel security file, and 
other pertinent information. As part of the eligibility evaluation 
process, DOE may interview the individual.
    (d) Upon completion of the eligibility evaluation, DOE will 
determine whether the individual may have or continue to have access to 
the information or involvement in the activities that justified the 
examination. If DOE decides to discontinue the individual's access to 
the information or involvement in the activities that justified the 
examination, the following may occur:
    (1) DOE may deny the individual access to the information that 
justified conducting the examination, and if the individual is a DOE 
employee, DOE may reassign the individual or realign the individual's 
duties or take other actions consistent with the denial of access.
    (2) For an individual applying for DOE access authorization 
(including through the AAAP) or already holding DOE access 
authorization (including PSAP), DOE may initiate an administrative 
review of the individual's access authorization eligibility under the 
DOE regulations governing eligibility for access authorization 
(security clearance) at 10 CFR part 710.
    (3) For cases involving a question of loyalty to the United States, 
DOE may refer the matter to the Federal Bureau of Investigation as 
required by section 145d of the Atomic Energy Act.
    (4) If the individual is an applicant for employment, assignment, 
or detail to one of the positions described in Sec. 709.4(a)(1)-(8), 
DOE and its contractors may refuse to employ, assign or detail the 
individual to the identified position.
    (5) For 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.

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 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 
offer to make a copy of these regulations available to the individual. 
The individual must receive the notification at least forty-eight 
hours, 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?

    At the individual's own expense, an individual has the right to 
obtain and consult with legal counsel or another representative prior 
to the examination. The counsel or representative may not be present 
during the polygraph examination.

[[Page 45070]]

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;
    (b) Offered to the individual a copy of these regulations; and
    (c) Obtained voluntary 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;
    (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 questions to be asked during the 
examination; and
    (e) Advise the individual of the individual's privilege against 
self-incrimination.


Sec. 709.25  Are there limits on use of polygraph examination results 
that reflect ``deception indicated'' or ``no opinion'?

    DOE or its contractors may not:
    (a) 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 makes a written determination that the information 
to which the individual has access is of such extreme sensitivity that 
access under the circumstances poses an unacceptable risk to national 
security or defense; or
    (b) Use a polygraph examination that reflects ``deception 
indicated'' or ``no opinion'' as a substitute for any other required 
investigation.


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 of 1974.
    (d) Polygraph examination records and reports used to make AAAP 
determinations or generated as a result of an exculpatory personnel 
security polygraph examination will be maintained in a System of 
Records.
    (e) DOE must afford the full privacy protection provided by law to 
information regarding an employee's refusal to take a polygraph 
examination.

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 only administers 
DODPI approved testing formats. The DOE Test Center has been inspected, 
approved and/or certified by DODPI, the U.S. Air Force Office of 
Special Investigations, American Polygraph Association, and the 
American Association of Police Polygraphers
    (b) 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.
    (c) To be certified under paragraph (b) 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 and complete a counterintelligence-scope 
polygraph examination.
    (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 undergo a minimum of forty hours training 
annually within the discipline of Forensic Psychophysiological 
Detection of Deception.
    (b) The following organizations provide acceptable curricula to 
meet the training requirement of paragraph (a) of this section:
    (1) American Polygraph Association,
    (2) American Association of Police Polygraphists, and
    (3) Department of Defense Polygraph Institute.

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, 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. 99-21290 Filed 8-17-99; 8:45 am]
BILLING CODE 6450-01-P