[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]]

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Part VII





Department of Energy





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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