[Federal Register Volume 71, Number 189 (Friday, September 29, 2006)]
[Rules and Regulations]
[Pages 57386-57397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16049]


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DEPARTMENT OF ENERGY

10 CFR Parts 709 and 710

[Docket No. CN-03-RM-01]
RIN 1992-AA33


Counterintelligence Evaluation Regulations

AGENCY: Office of Intelligence and Counterintelligence, Department of 
Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE or Department) today is 
publishing a final rule to establish new counterintelligence evaluation 
regulations to minimize the potential for disclosure of classified 
information, data, and materials. The rule published today, which 
replaces the current DOE polygraph regulations contained at 10

[[Page 57387]]

CFR part 709, requires counterintelligence evaluations for applicants 
of certain high-risk positions and every five years for incumbents of 
those positions.

EFFECTIVE DATE: This rule is effective October 30, 2006.

FOR FURTHER INFORMATION CONTACT: Charles Costa, U.S. Department of 
Energy, Office of Intelligence and Counterintelligence, 1000 
Independence Avenue, SW., Washington, DC 20585, (202) 586-5901; or 
Robert Newton, U.S. Department of Energy, Office of the General 
Counsel, GC-53, 1000 Independence Avenue, SW., Washington, DC 20585, 
(202) 586-6980.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Background Information
III. DOE's Response to Comments
    A. Response to General Comments
    B. Response to Comments on Specific Proposed Regulatory 
Provisions
IV. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Treasury and General Government Appropriations Act, 1999
    I. Review Under the Treasury and General Government 
Appropriations Act, 2001
    J. Review Under Executive Order 13211
    K. Congressional Notification

I. Introduction

    DOE's existing counterintelligence polygraph regulations are set 
forth at 10 CFR part 709. Under section 3152(a) of the National Defense 
Authorization Act for Fiscal Year 2002, Pub. L. 107-107 (NDAA for FY 
2002), DOE is obligated to prescribe revised regulations for a new 
counterintelligence polygraph program the stated purpose of which is 
``* * * to minimize the potential for release or disclosure of 
classified data, materials, or information'' (42 U.S.C. 7383h-1(a).) 
Section 3152(b) requires DOE to ``* * * take into account the results 
of the Polygraph Review,'' which is defined by section 3152 (e) to mean 
``* * * the review of the Committee to Review the Scientific Evidence 
on the Polygraph of the National Academy of Sciences'' (42 U.S.C. 
7383h-1(b), (e)).
    Upon promulgation of final regulations under section 3152, and 
``effective 30 days after the Secretary submits to the congressional 
defense committees the Secretary's certification that the final rule * 
* * has been fully implemented, * * *'' section 3154 of the National 
Defense Authorization Act for Fiscal Year 2000 (NDAA for FY 2000) (42 
U.S.C. 7383h), is repealed by operation of law. (42 U.S.C. 7383h-1(c).) 
The repeal of section 3154 would eliminate the existing authority which 
underlies DOE's current counterintelligence polygraph regulations but 
would not preclude the retention of some or all of those regulations 
through this rulemaking pursuant to the later-enacted section 3152 of 
the NDAA for FY 2002.
    On January 7, 2005, DOE published a Supplemental NOPR at 70 FR 1383 
to solicit public comments on proposed new counterintelligence 
evaluation regulations, including revised regulations governing the use 
of polygraph examinations. The Supplemental NOPR requested written 
comments by March 8, 2005, and invited oral comments at a public 
hearing held in Washington, DC on March 2, 2005. Written comments were 
received from 10 sources, including members of the public, current and 
former DOE employees and two groups representing employees at two DOE 
national laboratories. No oral comments were presented at the public 
hearing.
    Part II of this SUPPLEMENTARY INFORMATION presents background 
information useful in understanding the statutory and regulatory 
background of both DOE's current counterintelligence polygraph 
examination program, contained in 10 CFR part 709, and the new 
Counterintelligence Evaluation Program set forth in the regulations 
that DOE publishes in this notice.
    In Part III of this SUPPLEMENTARY INFORMATION DOE responds to the 
major issues raised in the public comments on the Supplemental NOPR.

II. Background Information

    For more than 50 years, DOE, like its predecessor the Atomic Energy 
Commission, has had to balance two sets of considerations. On the one 
hand, we must attract the best minds that we can to do cutting edge 
scientific work at the heart of DOE's national security mission, and we 
must allow sufficient dissemination of that work to allow it to be put 
to the various uses that our national security demands. On the other 
hand, we must take all reasonable steps to prevent our enemies from 
gaining access to the work we are doing, lest that work end up being 
used to the detriment rather than the advancement of our national 
security. There are no easy answers to the dilemma of how best to 
reconcile these competing considerations.
    The question of whether and to what extent DOE should use the 
polygraph as a tool for screening individuals for access to our most 
sensitive information is the latest manifestation of this perennial 
struggle. This particular chapter begins in 1988, when Congress enacted 
the Employee Polygraph Protection Act of 1988. That legislation 
generally restricted employers from using polygraphs to screen 
potential employees. Congress, however, included three exceptions that 
are relevant. First, Congress decided that it would not apply any of 
the legislation's prohibitions to the United States or other 
governmental employers with respect to their own employees. Second, 
Congress specifically allowed the Federal Government to administer 
polygraphs to Department of Defense contractors and contractor 
employees, and Department of Energy contractors and contractor 
employees in connection with the Department's atomic energy defense 
activities. And finally, Congress specifically provided that the 
Federal Government could administer polygraphs to contractors and 
contractor employees of the intelligence agencies and any other 
contractor or contractor employee whose duties involve access to top 
secret information or information that has been designated as within a 
special access program.
    In February 1998, President Clinton issued Presidential Decision 
Directive-61. In that classified directive, entitled U.S. Department of 
Energy Counterintelligence Program, the Department was ordered to 
enhance its protections against the loss or compromise of highly 
sensitive information associated with certain defense-related programs 
by considering a variety of improvements to its counterintelligence 
program. One of these was the use of polygraph examinations to screen 
individuals with access to this information.
    In order to carry out this directive, after initially proceeding 
through an internal order governing only Federal employees, on August 
18, 1999 (64 FR 45062), the Department proposed a rule, entitled 
`Polygraph Examination Regulation,' that would govern the use of the 
polygraph as a screening tool. It proposed that employees at DOE 
facilities, contractor employees as well as Federal employees, with 
access to certain classified information and materials, as well as 
applicants for such positions, be subject to a counterintelligence 
polygraph before they received initial access to the information and 
materials and at five-year intervals thereafter.

[[Page 57388]]

    In the NDAA for FY 2000, Congress directed that the Department 
administer a counterintelligence polygraph to all Department employees, 
consultants, and contractor employees in `high risk programs' prior to 
their being given access to the program. Congress specified that these 
programs were the `Special Access Programs' and `Personnel Security and 
Assurance Programs.'
    On January 18, 2000, the Department finalized essentially the rule 
it had proposed, which included individuals with access to these 
programs and others in the screening requirement. Thereafter, on 
October 30, 2000, Congress enacted the NDAA of FY 2001, which added DOE 
employees, consultants, and contractor employees in programs that use 
`Sensitive Compartmented Information' and all others already covered by 
the Department's prior rule to those to whom the polygraph screening 
mandate applied.
    More recently, in the NDAA for FY 2002 (Pub. L. 107-107), enacted 
on December 28, 2001, Congress required the Secretary of Energy to 
carry out, under regulations, a new counterintelligence polygraph 
program for the Department. Congress directed that the purpose of the 
new program should be to minimize the potential for release or 
disclosure of classified data, materials, or information. Congress 
further directed that the Secretary, in prescribing the regulation for 
the new program, take into account the results of a not-yet-concluded 
study being done by the National Academy of Sciences. That study was 
being conducted pursuant to a contract DOE had entered into with the 
National Academy of Sciences in November 2000, in which the Department 
requested the Academy to conduct a review of the existing research on 
the validity and reliability of polygraph examinations, particularly as 
used for personnel security screening. Congress directed the Department 
to propose a new rule regarding polygraphs no later than six months 
after publication of the NAS study.
    The NAS study, entitled The Polygraph and Lie Detection, was 
published in October 2002 (hereinafter referred to as `NAS Report' or 
`NAS Study'). The Department published a Notice of Proposed Rulemaking 
on April 14, 2003 (68 FR 17886). In that Notice, the Department 
indicated its then-current intent to continue the current polygraph 
program under a new rule. As the Secretary of Energy said upon release 
of that proposed rule, he `concluded that it was appropriate at the 
present time to' retain the current system `in light of the current 
national security environment, the ongoing military operations in Iraq, 
and the war on Terrorism.' At the same time, the Secretary recognized 
that in the longer term some changes might be appropriate. Therefore, 
the Department explicitly asked for public comment during a period 
which ended on June 13, 2003. The Secretary also personally wrote all 
laboratory directors inviting their comments and views on the proposed 
rule.
    DOE received comments that were mostly critical of the proposal to 
retain the existing regulations. The comments especially took issue 
with DOE's proposal, despite the NAS Report, to continue with mandatory 
employee screening in the absence of an event or other good cause to 
administer a polygraph examination. Some of the comments recommended 
random screening as an alternative to mandatory screening. Others 
complained about the adequacy of the regulatory protections in 10 CFR 
part 709 against adverse personnel-related action resulting from 
reliance on adverse polygraph examination results. Some of the 
management comments of the DOE weapons laboratories expressed concern 
about the effect of the counterintelligence polygraph program on 
employee morale and recruitment.
    Following the close of the comment period and consideration of 
public comments, DOE conducted an extensive review of the then current 
polygraph policy and its implementation history, the NAS Report, and 
the public and internal comments resulting from the April 2003 Notice 
of Proposed Rulemaking. Following this review, DOE published a 
Supplemental NOPR at 70 FR 1383 (January 7, 2005). The Supplemental 
NOPR proposed a new mandatory counterintelligence (CI) evaluation 
program including mandatory polygraph screening for individuals with 
``regular and routine access'' to DOE's most sensitive information, in 
particular all DOE-originated ``Top Secret'' information, including Top 
Secret ``Restricted Data'' and Top Secret ``National Security 
Information.'' The proposed rule, like the current polygraph 
regulations, provided for a mandatory CI evaluation and CI-scope 
polygraph exam prior to initial access being granted, as well as 
periodic CI evaluations at intervals not to exceed five years. In 
deciding to propose continued use of mandatory polygraph screening, the 
Supplemental NOPR noted that the NAS Report's conclusion on the use of 
the polygraph exam as a screening tool only addresses the use of 
polygraph results as the sole basis for access determinations. The 
Supplemental NOPR pointed out that, in fact, the NAS Report 
acknowledges that the use of the polygraph examination as an 
investigative lead, in conjunction with other investigative tools can 
ameliorate the problems the NAS Report attributes to polygraph 
screening. The NOPR emphasized that the proposed rule would make clear 
that polygraph exams are only one element to be used in 
counterintelligence evaluations. Reviews of personnel security files 
and, as necessary and appropriate, personal interviews and review of 
financial and credit information, net worth analyses, analyses of 
foreign travel and foreign contacts and connections, would be employed 
in conjunction with the polygraph.
    The Supplemental NOPR proposed that some elements of the mandatory 
screening population remain essentially the same as under the current 
regulation. DOE also proposed a random CI evaluation program including 
polygraph intended to achieve the objectives of deterrence with the 
minimum reasonable percentage or number of individuals to which it 
would apply. In addition to the mandatory and random screening 
programs, DOE also proposed a provision for conducting ``specific-
incident'' polygraph examinations in response to specific facts or 
circumstances with potential counterintelligence implications with a 
defined foreign nexus. That proposal also grew out of the NAS Report, 
which noted that this kind of use of the polygraph is the one for which 
the existing scientific literature provides the strongest support. The 
proposed rule also provided for employee-requested polygraph 
examinations in the context of a specific incident.

 III. DOE's Response to Comments

    The following discussion describes the major issues raised in the 
comments received from 10 sources, provides DOE's response to these 
comments, and describes any resulting changes in the final regulations. 
The comments overwhelmingly focused on the use of the polygraph 
examination in the proposed new Counterintelligence Evaluation Program. 
Only one of the commenters supported DOE's proposed reliance on the 
polygraph examination as an integral part of the Counterintelligence 
Evaluation Program. The remaining commenters strongly opposed DOE's 
proposal to continue with mandatory polygraph screening. Some of these 
commenters objected to the proposed random screening program

[[Page 57389]]

and to the use of polygraph testing in specific incident 
investigations. Some of these commenters also raised objections with 
respect to specific elements of the proposed new polygraph examination 
regulations. DOE responds first to the general comments and thereafter 
to the specific comments.

A. Response to General Comments

    The commenters opposed to DOE's continued reliance on the polygraph 
examination argued principally that polygraph testing is not supported 
by sound science. Most of these commenters cited the NAS Report to 
support their positions, and they challenged DOE's interpretation of 
the NAS Report's findings and conclusions. According to the commenters, 
because polygraph testing lacks scientific reliability, there is a high 
probability of an unacceptable number of ``false positives'' and, in 
part due to what they perceive as the efficacy of countermeasures, 
``false negatives.'' [The phenomena of ``false positive'' and ``false 
negative'' examination findings are described in greater detail in the 
Supplemental NOPR at 70 FR 1383-1389.] Because of problems associated 
with examination results that produce ``false positives'' and ``false 
negatives,'' many of the commenters contended that continued use of 
polygraph testing would have a highly negative effect on employee 
morale, retention of present employees, and recruitment of new 
employees. Additionally, commenters asserted that the likelihood of 
false negatives undermined any deterrence value of polygraph testing. 
One commenter urged DOE to reject the use of polygraph testing in its 
Counterintelligence Evaluation Program and to focus instead on the 
development of new techniques for the behavioral, psychological, or 
physiological assessments of individuals in security and 
counterintelligence evaluations.
    In DOE's view, the commenters' arguments for eliminating the use of 
polygraph testing entirely simply cannot be reconciled with the 
Congress' direction to DOE in the NDAA for FY 2002. In section 3152 of 
that Act, Congress required the Secretary of Energy, taking into 
account the NAS Report, to adopt regulations for a new 
counterintelligence polygraph program to minimize the potential for 
release or disclosure of classified data, materials or information. 
When enacting section 3152, Congress was well aware of the controversy 
with regard to the scientific basis for polygraph examinations. 
Nevertheless, Congress' direction was to adopt new polygraph 
regulations, and DOE believes it would not be permissible to interpret 
section 3152 as authorizing a new polygraph regulation that would 
provide for the total abandonment of polygraph testing.
    Nor have the arguments advanced by the commenters caused us to 
change our view that polygraph testing, including mandatory polygraph 
screening, may be both a necessary and effective measure in appropriate 
circumstances for protecting classified data, information and 
materials.
    Consistent with the practices of the Intelligence Community, and 
the NAS Report, DOE has decided to alter the role of polygraph testing 
as a required element of the counterintelligence evaluation program by 
eliminating such testing for general screening of applicants for 
employment and incumbent employees without specific cause. The rule 
published today requires a counterintelligence evaluation for 
applicants for certain high-risk positions and every five years for 
incumbents of those positions. A polygraph examination only will be 
required in five situations: (1) If a counterintelligence evaluation of 
an applicant or an incumbent employee reveals foreign nexus issues 
which warrant a polygraph exam; (2) if an incumbent employee is to be 
assigned within DOE to activities involving another agency and a 
polygraph examination is required as a condition of access to the 
activities by the other agencies; (3) if an incumbent employee is 
proposed to be assigned or detailed to another agency and the receiving 
agency requests DOE to administer a polygraph examination as a 
condition of the assignment or detail; (4) if, as described below, an 
incumbent employee is selected for a random counterintelligence 
evaluation; or (5) if, as described below, an incumbent employee is 
required to take a specific-incident polygraph examination.
    These changes to the proposed rule will significantly reduce the 
number of individuals who will undergo a polygraph examination. Under 
the rule, a counterintelligence evaluation consists of a 
counterintelligence-based review of a ``covered person's'' personnel 
security file, and review of other relevant information available in 
DOE. If the counterintelligence evaluation, including a possible 
polygraph exam, discloses unresolved foreign nexus issues, DOE may 
undertake a more comprehensive evaluation that may, in appropriate 
circumstances, include evaluation of financial, credit, travel, and 
other relevant information to resolve the issues. Participation by 
Office of Intelligence and Counterintelligence personnel in this 
extended evaluation is subject to Executive Order 12333, the DOE 
``Procedures for Intelligence Activities,'' and other relevant laws, 
guidelines, as may be applicable.
    The final rule includes, as proposed, random counterintelligence 
evaluations, including polygraph screening, to deter unauthorized 
releases or disclosures of classified information or materials. The 
rule also includes provision, as proposed, for conducting specific 
incident polygraph examinations to respond to specific cases presenting 
facts or circumstances with potential counterintelligence implications 
with a defined foreign nexus.
    As proposed in the Supplemental NOPR, DOE also will retain the 
policy in the present rule against taking any adverse personnel action 
solely based on the test results of polygraph examinations. Finally, we 
will retain the present policy that no adverse decision on access to 
certain information or programs will be made solely on the basis of 
such test results.

B. Response to Comments on Specific Proposed Regulatory Provisions

1. Random Screening Program
    Two of the commenters questioned the scientific merits of the 
proposed random screening program (section 709.3(c)), contending, 
without offering support for the proposition, that random screening 
will neither contribute to good security nor to deterrence. As DOE 
noted in the Supplemental NOPR, the NAS Report observed that ``the 
value, or utility, of polygraph testing does not lie only in its 
validity for detecting deception. It may have a deterrent value * * * 
'' and ``predictable polygraph testing (e.g. fixed-interval testing of 
people in specific job classifications) probably has less deterrent 
value than random testing.'' This led DOE to conclude that it is 
appropriate to include random testing as a component of the new 
Counterintelligence Evaluation Program, to enhance the deterrent value 
of the polygraph. Another commenter, while expressing support for 
random screening as an alternative to the mandatory screening program, 
urged DOE to ensure that the system for identifying individuals who 
will be subject to random testing is fair. DOE's Energy Information 
Administration's Statistics and Methods Group has designed the 
statistical model which will be utilized in the random screening 
program, and DOE believes that the EIA model will ensure selection 
fairness.

[[Page 57390]]

2. Specific Incident Polygraph Examinations
    Two commenters contended that the likelihood of a certain 
percentage of ``false negative'' and ``false positive'' responses in 
polygraph examinations, which could impede an investigation, argue 
against the use of polygraph testing in specific incident 
investigations. In DOE's view these comments are largely speculative. 
As DOE noted in the Supplemental NOPR, the proposed provision [section 
709.3(d)] for conducting specific incident polygraph examinations grew 
out of the NAS Report, which observed that this kind of use of the 
polygraph is one for which the existing scientific literature provides 
the strongest support. In the absence of a showing which rebuts the NAS 
Report, DOE has determined not to abandon what the NAS Report considers 
a potentially useful investigative tool, employed in appropriate 
circumstances in conjunction with other investigative techniques, in 
specific incident investigations, and thus DOE retains the proposed 
provision in the final rule.
3. Other Information Provided to an Individual Prior to a Polygraph 
Examination
    One commenter recommended DOE revise paragraph (a) of proposed 
section 709.24 (Other information provided to the individual prior to a 
polygraph examination) in two respects. First, the commenter noted that 
the proposed provision does not actually require video and audio 
recording and recommended DOE modify the provision to require these 
recordings, as a means of protecting both the individual and the 
examiner. DOE agrees that such a requirement would help protect both 
the individual being examined as well as the examiner. Section 
709.24(a), as modified, reads:

    (a) Inform the covered person that video and audio recordings of 
the examination session will be made, and that other observation 
devices, such as two-way mirrors and observation rooms, also may be 
employed.

    The commenter also recommended that section 709.24 be revised to 
provide that a copy of the videotape be made available to the 
individual, if not routinely at least if the individual challenges the 
Office of Intelligence and Counterintelligence's determination pursuant 
to section 709.17 (Final disposition of CI evaluation findings and 
recommendations). DOE examined this issue in the Federal Register 
notice (64 FR 70962) publishing the current polygraph regulations and 
adopted the following position, which DOE reaffirms today:

    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.
4. Topics Within the Scope of a Polygraph Examination; Defining 
Polygraph Examination Questions
    Several commenters were critical of the question format DOE uses in 
polygraph examinations (section 709.11), which is known as the ``Test 
for Espionage and Sabotage Format.'' One commenter claimed that 
notwithstanding DOE's description of the question format in section 
709.11, and section 709.12 (``Defining polygraph examination 
questions''), the TES methodology actually permits the examiner to go 
beyond national security questions and to engage in a ``fishing 
expedition'' in areas potentially unrelated to the stated scope of 
DOE's polygraph examination. DOE disagrees. The question format and 
question methodology employed by DOE examiners has been approved by the 
Department of Defense Polygraph Institute (DODPI) and is generally used 
throughout the Federal government. Additionally, DOE polygraph 
examiners are subject to rigorous training requirements and standards 
(sections 709.31 and 709.32) and examiners as well as polygraph program 
results are subject to bi-annual DODPI quality assurance reviews. DOE 
does not believe the commenters have supported the need for changes to 
the proposed provisions pertaining to the topics within the scope of a 
polygraph examination and defining polygraph examination questions, 
respectively.
5. Need for Independent Oversight
    Three commenters who questioned the credibility and integrity of 
DOE's polygraph examination process recommended that DOE include in the 
regulations provision for independent oversight of the examination 
process by an independent board. DOE believes that the regulations 
provide sufficient safeguards to ensure the integrity of the 
examination process and is not persuaded that there is justification or 
need for independent oversight board. Following a polygraph 
examination, examinees have the opportunity and are encouraged to 
complete and to submit to DOE a quality assurance questionnaire and 
comments or complaints concerning the examination (section 709.24(f)). 
Examinees also might submit complaints to the appropriate line Program 
Manager or laboratory or facility manager. Secondly, as noted in the 
previous section, DOE polygraph examiners are subject to rigorous 
training requirements and standards (sections 709.31 and 709.32) and, 
additionally, as already noted DOE as well as other Federal Departments 
and agencies are subject to bi-annual DODPI quality assurance reviews.
6. Accelerated Access Authorization Program (AAAP)
    One commenter, opposed to DOE's use of polygraph examinations, 
recommended that DOE terminate its AAAP, which DOE discussed in the 
Supplemental NOPR. As explained in the Supplemental NOPR, DOE reviewed 
the use of polygraph examinations in the AAAP, in light of the NAS 
Report, to determine if the AAAP was unduly reliant on the polygraph 
examination in granting interim access authorizations. DOE's review 
found that there are sufficient checks and balances in place that the 
continued use of polygraph examinations, together with other components 
of the AAAP, is appropriate. In any event, however, DOE determined not 
to retain in the new counterintelligence evaluation regulations the 
provision on the use of polygraph exams in the AAAP, since the AAAP is 
not a component of DOE's Counterintelligence Evaluation Program.
    The Secretary has approved for publication this notice of final 
rulemaking.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    The Office of Information and Regulatory Affairs of the Office of 
Management and Budget (OMB) has determined that today's regulatory 
action is a ``significant regulatory action'' under Executive Order 
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 
1993). OMB has completed its review of this notice of final rulemaking.

B. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) which requires preparation of an initial regulatory 
flexibility analysis for any rule that is likely to have a significant 
economic impact on a substantial number of small entities. This 
rulemaking does not directly

[[Page 57391]]

regulate small businesses or small governmental entities. It applies 
principally to individuals who are employees of, or applicants for 
employment by, some of DOE's prime contractors, which generally are 
large businesses. There may be some affected small businesses that are 
subcontractors, but the rule will not impose unallowable costs. 
Accordingly, DOE certifies that the rule will not have a significant 
economic impact on a substantial number of small entities.

C. Review Under the Paperwork Reduction Act

    DOE has determined that this rulemaking does not contain any new or 
amended record keeping, reporting, or application requirements, or any 
other type of information collection requirements that require the 
approval of OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. OMB has defined the term ``information'' to exclude 
certifications, consents, and acknowledgments that entail only minimal 
burden (5 CFR 1320(h)(1)).

D. Review Under the National Environmental Policy Act

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

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 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. The Executive Order requires agencies 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. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations (65 FR 13735). DOE has examined 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.

F. Review Under Executive Order 12988

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

G. Review Under the Unfunded Mandates Reform Act of 1995

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

H. Treasury and General Government Appropriations Act, 1999

    The Treasury and General Government Appropriations Act, 1999 
(Public Law 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's information 
quality guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's implementing guidelines were published at 67 FR 62446 
(October 7, 2002). DOE has reviewed today's notice under the OMB and 
DOE information quality guidelines and has concluded that it is 
consistent with applicable policies in those guidelines. DOE also has 
concluded that today's notice is consistent with OMB's ``Information 
Quality Bulletin for Peer Review'' applicable to agency disseminations 
of ``influential scientific information'' and ``highly influential 
scientific assessments,'' published at 70 FR 2664 (January 14, 2005). 
As discussed above, today's final regulations take into account the 
2002 report entitled ``The Polygraph and Lie Detection'' of the 
Committee to Review the Scientific Evidence on the Polygraph of the 
National Academy of Sciences. OMB's Peer Review Bulletin permits 
agencies, as an alternative to the Bulletin's peer review requirements 
otherwise applicable to disseminations of influential scientific 
information and highly scientific assessments, to rely on the principal 
findings, conclusions and recommendations of a report produced by the 
National Academy of Sciences.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to

[[Page 57392]]

prepare and submit to the Office of Information and Regulatory Affairs 
(OIRA), Office of Management and Budget, a Statement of Energy Effects 
for any significant energy action under Executive Order 12866 that are 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rulemaking, although significant, 
will not have such an effect. Consequently, DOE has concluded that 
there is no need for a Statement of Energy Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of today's 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(2).

List of Subjects

10 CFR Part 709

    Lie detector test, Privacy.

10 CFR Part 710

    Administrative practice and procedure, Classified information, 
Government contracts, Nuclear materials.

    Issued in Washington, DC, on September 25, 2006.
Rolf Mowatt-Larssen,
Director, Office of Intelligence and Counterintelligence.

0
For the reasons stated in the preamble, DOE hereby amends Chapter III 
of Title 10 of the Code of Federal Regulations to read as follows:
0
1. Part 709 is revised to read as follows:

PART 709--COUNTERINTELLIGENCE EVALUATION PROGRAM

Subpart A--General Provisions
Sec.
709.1 Purpose.
709.2 Definitions.
709.3 Covered persons subject to a CI evaluation and polygraph.
709.4 Notification of a CI evaluation.
709.5 Waiver of polygraph examination requirements.
Subpart B--CI Evaluation Protocols and Protection of National Security
709.10 Scope of a counterintelligence evaluation.
709.11 Topics within the scope of a polygraph examination.
709.12 Defining polygraph examination questions.
709.13 Implications of refusal to take a polygraph examination.
709.14 Consequences of a refusal to complete a CI evaluation 
including a polygraph examination.
709.15 Processing counterintelligence evaluation results.
709.16 Application of Counterintelligence Evaluation Review Boards 
in reaching conclusions regarding CI evaluations.
709.17 Final disposition of CI evaluation findings and 
recommendations.
Subpart C--Safeguarding Privacy and Employee Rights
709.21 Requirements for notification of a polygraph examination.
709.22 Right to counsel or other representation.
709.23 Obtaining consent to a polygraph examination.
709.24 Other information provided to the covered person prior to a 
polygraph examination.
709.25 Limits on use of polygraph examination results that reflect 
``Significant Response'' or ``No Opinion''.
709.26 Protection of confidentiality of CI evaluation records to 
include polygraph examination records and other pertinent 
documentation.
Subpart D--Polygraph Examination and Examiner Standards
709.31 DOE standards for polygraph examiners and polygraph 
examinations.
709.32 Training requirements for polygraph examiners.

    Authority: 42 U.S.C. 2011, et seq., 7101, et seq., 7144b, et 
seq., 7383h-1; 50 U.S.C. 2401, et seq.

Subpart A--General Provisions


Sec.  709.1  Purpose.

    This part:
    (a) Describes the categories of individuals who are subject for 
counterintelligence evaluation processing;
    (b) Provides guidelines for the counterintelligence evaluation 
process, including the use of counterintelligence-scope polygraph 
examinations, and for the use of event-specific polygraph examinations; 
and
    (c) Provides guidelines for protecting the rights of individual DOE 
employees and DOE contractor employees subject to this part.


Sec.  709.2  Definitions.

    For purposes of this part:
    Access authorization means an administrative determination under 
the Atomic Energy Act of 1954, Executive Order 12968, or 10 CFR part 
710 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 any industrial, educational, commercial, or other 
entity, assistance recipient, or licensee, including an individual who 
has executed an agreement with DOE for the purpose of performing under 
a contract, license, or other agreement, and including any 
subcontractors of any tier.
    Counterintelligence or CI means information gathered and activities 
conducted to protect against espionage, other intelligence activities, 
sabotage, or assassinations conducted for or on behalf of foreign 
powers, organizations or persons, or international terrorist 
activities, but not including personnel, physical, document or 
communications security programs.
    Counterintelligence evaluation or CI evaluation means the process, 
possibly including a counterintelligence scope polygraph examination, 
used to make recommendations as to whether certain employees should 
have access to information or materials protected by this part.
    Counterintelligence program office means the Office of 
Counterintelligence in the Office of Intelligence and 
Counterintelligence (and any successor office to which that office's 
duties and authorities may be reassigned).
    Counterintelligence-scope or CI-scope polygraph examination means a 
polygraph examination using questions reasonably calculated to obtain 
counterintelligence information, including questions relating to 
espionage, sabotage, terrorism, unauthorized disclosure of classified 
information, deliberate damage to or malicious misuse of a United 
States Government information or defense system, and unauthorized 
contact with foreign nationals.
    Covered person means an applicant for employment with DOE or a DOE 
contractor, a DOE employee, a DOE contractor employee, and an assignee 
or detailee to DOE from another agency.
    DOE means the Department of Energy including the National Nuclear 
Security Administration (NNSA).
    Foreign nexus means specific indications that a covered person is 
or may be engaged in clandestine or unreported relationships with 
foreign powers, organizations or persons, or international terrorists; 
contacts with foreign intelligence services; or other hostile 
activities directed against DOE facilities, property, personnel, 
programs or contractors by or on behalf of foreign powers, 
organizations or persons, or international terrorists.

[[Page 57393]]

    Human Reliability Program means the program under 10 CFR part 712.
    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.
    Materials means any ``nuclear explosive'' as defined in 10 CFR 
712.3, and any ``special nuclear material,'' hazardous ``source 
material,'' and hazardous ``byproduct material'' as those terms are 
defined by the Atomic Energy Act of 1954 (42 U.S.C. 2014).
    National security information means information that has been 
determined pursuant to Executive Order 12958, as amended by Executive 
Order 13292, or any predecessor order to require protection against 
unauthorized disclosure and is marked to indicate its classified status 
when in documentary form.
    NNSA means DOE's National Nuclear Security Administration.
    No opinion means an evaluation of a polygraph test by a polygraph 
examiner in which the polygraph examiner cannot render an opinion.
    Polygraph examination means all activities that take place between 
a Polygraph Examiner and an examinee (person taking the test) during a 
specific series of interactions, including the pretest interview, the 
use of the polygraph instrument to collect physiological data from the 
examinee while 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 instrument means a diagnostic instrument used during a 
polygraph examination, which is capable of monitoring, recording and/or 
measuring at a minimum, respiratory, electrodermal, and cardiovascular 
activity as a response to verbal or visual stimuli.
    Polygraph report means a document that may contain identifying data 
of the examinee, a synopsis of the basis for which the examination was 
conducted, the relevant questions utilized, and the examiner's 
conclusion.
    Polygraph test means that portion of the polygraph examination 
during which the polygraph instrument collects physiological data based 
upon the individual's responses to questions from the examiner.
    Program Manager means a DOE official designated by the Secretary or 
the Head of a DOE Element to make an access determination under this 
part.
    Random means a statistical process whereby eligible employees have 
an equal probability of selection for a CI evaluation each time the 
selection process occurs.
    Regular and routine means access by individuals without further 
permission more than two times per calendar quarter.
    Relevant questions are those questions used during the polygraph 
examination that pertain directly to the issues for which the 
examination is being conducted.
    Restricted data means all data concerning the design, manufacture, 
or utilization of atomic weapons; the production of special nuclear 
material; or the use of special nuclear material in the production of 
energy, but does not include data declassified or removed from the 
restricted data category pursuant to section 142 of the Atomic Energy 
Act of 1954.
    Secret means the security classification that is applied to DOE-
generated information or material the unauthorized disclosure of which 
reasonably could be expected to cause serious damage to the national 
security.
    Secretary means the Secretary of Energy or the Secretary's 
designee.
    Significant response means an opinion that the analysis of the 
polygraph charts reveals consistent, significant, timely physiological 
responses to the relevant questions.
    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.
    Suspend means temporarily to withdraw an employee's access to 
information or materials protected under Sec.  709.3 of this part.
    System Administrator means any individual who has privileged 
system, data, or software access that permits that individual to exceed 
the authorization of a normal system user and thereby override, alter, 
or negate integrity verification and accountability procedures or other 
automated and/or technical safeguards provided by the systems security 
assets for normal users.
    Top Secret means the security classification that is applied to 
DOE-generated information or material the unauthorized disclosure of 
which reasonably could be expected to cause exceptionally grave damage 
to the national security.
    Unresolved issues means an opinion by a CI evaluator that the 
analysis of the information developed during a CI evaluation remains 
inconclusive and needs further clarification before a CI access 
recommendation can be made.


Sec.  709.3  Covered persons subject to a CI evaluation and polygraph.

    (a) Mandatory CI evaluation. Except as provided in Sec.  709.5 of 
this part with regard to waivers, a CI evaluation, which may include a 
CI-scope polygraph examination, is required for any covered person in 
any category under paragraph (b) of this section who will have or has 
access to classified information or materials protected under this 
paragraph. Such an evaluation is required for covered persons who are 
incumbent employees at least once every five years. DOE, in its sole 
discretion, may require a CI-scope polygraph examination:
    (1) If the CI evaluation reveals foreign nexus issues;
    (2) If a covered person who is an incumbent employee is to be 
assigned within DOE to activities involving another agency and a 
polygraph examination is required as a condition of access to the 
activities by the other agency; or
    (3) If a covered person who is an incumbent employee is proposed to 
be assigned or detailed to another agency and the receiving agency 
requests DOE to administer a polygraph examination as a condition of 
the assignment or detail.
    (b) Paragraph (a) of this section applies to covered persons:
    (1) In an intelligence or counterintelligence program office (or 
with programmatic reporting responsibility to an intelligence or 
counterintelligence program office) because of access to classified 
intelligence information, or sources, or methods;
    (2) With access to Sensitive Compartmented Information;
    (3) With access to information that is protected within a non-
intelligence Special Access Program (SAP) designated by the Secretary;
    (4) With regular and routine access to Top Secret Restricted Data;
    (5) With regular and routine access to Top Secret National Security 
Information; and
    (6) Designated, with approval of the Secretary, on the basis of a 
risk

[[Page 57394]]

assessment consistent with paragraphs (e) and (f) of this section, by a 
Program Manager for the following DOE offices and programs (and any 
successors to those offices and programs): The Office of the Secretary; 
the Human Reliability Program; the National Nuclear Security 
Administration (including the Office of Emergency Operations); and the 
Office of Health, Safety and Security.
    (c) Random CI evaluation. Except as provided in Sec.  709.5 of this 
part with regard to waivers, DOE may require a CI evaluation, including 
a CI-scope polygraph examination, of covered persons who are incumbent 
employees selected on a random basis from the following:
    (1) All covered persons identified in Sec.  709.3(b);
    (2) All employees in the Office of Independent Oversight (or any 
successor office) within the Office of Health, Safety and Security 
because of access to classified information regarding the inspection 
and assessment of safeguards and security functions, including cyber 
security, of the DOE;
    (3) All employees in other elements of the Office of Health, Safety 
and Security (or any successor office) because of their access to 
classified information;
    (4) All employees in the NNSA Office of Emergency Operations (OEO 
or any successor office) including DOE field offices or contractors who 
support OEO because of their access to classified information;
    (5) All employees with regular and routine access to classified 
information concerning: The design and function of nuclear weapons use 
control systems, features, and their components (currently designated 
as Sigma 15); vulnerability of nuclear weapons to deliberate 
unauthorized nuclear detonation (currently designated as Sigma 14); and 
improvised nuclear device concepts or designs; and
    (6) Any system administrator with access to a system containing 
classified information, as identified by the DOE or NNSA Chief 
Information Officer.
    (d) Specific incident polygraph examinations. In response to 
specific facts or circumstances with potential counterintelligence 
implications with a defined foreign nexus, the Director of the Office 
of Intelligence and Counterintelligence (or, in the case of a covered 
person in NNSA, the Administrator of NNSA, after consideration of the 
recommendation of the Director, Office of Intelligence and 
Counterintelligence) may require a covered person with access to DOE 
classified information or materials to consent to and take an event-
specific polygraph examination. Except as otherwise determined by the 
Secretary, on the recommendation of the appropriate Program Manager, if 
a covered person with access to DOE classified information or materials 
refuses to consent to or take a polygraph examination under this 
paragraph, then the Director of the Office of Intelligence and 
Counterintelligence (or, in the case of a covered person in NNSA, the 
Administrator of NNSA, after consideration of the recommendation of the 
Director, Office of Intelligence and Counterintelligence) shall direct 
the denial of access (if any) to classified information and materials 
protected under paragraphs (b) and (c) of this section, and shall refer 
the matter to the Office of Health, Safety and Security for a review of 
access authorization eligibility under 10 CFR part 710. In addition, in 
the circumstances described in this paragraph, any covered person with 
access to DOE classified information or material may request a 
polygraph examination.
    (e) Risk assessment. For the purpose of deciding whether to 
designate or remove employees for mandatory CI evaluations under 
paragraph (b)(6) of this section, Program Managers may consider:
    (1) Access on a non-regular and non-routine basis to Top Secret 
Restricted Data or Top Secret National Security Information or the 
nature and extent of access to other classified information;
    (2) Unescorted or unrestricted access to significant quantities or 
forms of special nuclear materials; and
    (3) Any other factors concerning the employee's responsibilities 
that are relevant to determining risk of unauthorized disclosure of 
classified information or materials.
    (f) Based on the risk assessments conducted under paragraph (e) of 
this section and in consultation with the Director of the Office of 
Intelligence and Counterintelligence, the Program Manager shall provide 
recommendations as to positions to be designated or removed under 
paragraph (b)(6) of this section for approval by the Secretary. 
Recommendations shall include a summary of the basis for designation or 
removal of the positions and of the views of the Director of the Office 
of Intelligence and Counterintelligence as to the recommendations.
    (g) Not less than once every calendar year quarter, the responsible 
Program Manager must provide a list of all incumbent employees who are 
covered persons under paragraphs (b) and (c) of this section to the 
Director of the Office of Intelligence and Counterintelligence.


Sec.  709.4  Notification of a CI evaluation.

    (a) If a polygraph examination is scheduled, DOE must notify the 
covered person, in accordance with Sec.  709.21 of this part.
    (b) Any job announcement or posting with respect to any position 
with access to classified information or materials protected under 
Sec.  709.3(b) and (c) of this part should indicate that DOE may 
condition the selection of an individual for the position (709.3(b)) or 
retention in that position (709.3(b) and (c)) upon his or her 
successful completion of a CI evaluation, including a CI-scope 
polygraph examination.
    (c) Advance notice will be provided to the affected Program Manager 
and laboratory/site/facility director of the covered persons who are 
included in any random examinations that are administered in accordance 
with provisions at Sec.  709.3(c).


Sec.  709.5  Waiver of polygraph examination requirements.

    (a) General. Upon a waiver request submitted under paragraph (b) of 
this section, DOE may waive the CI-scope polygraph examination under 
Sec.  709.3 of this part for:
    (1) Any covered person based upon certification from another 
Federal agency that the covered person has successfully completed a 
full scope or CI-scope polygraph examination administered within the 
previous five years;
    (2) Any covered person who is being treated for a medical or 
psychological condition that, based upon consultation with the covered 
person and appropriate medical personnel, would preclude the covered 
person from being tested; or
    (3) Any covered person in the interest of national security.
    (b) Submission of Waiver Requests. A covered person may submit a 
request for waiver under this section, and the request shall assert the 
basis for the waiver sought and shall be submitted, in writing, to the 
Director, Office of Intelligence and Counterintelligence, at the 
following address: U.S. Department of Energy, Attn: Director, Office of 
Intelligence and Counterintelligence, 1000 Independence Avenue, SW., 
Washington, DC 20585.
    (c) Disposition of Waiver Requests. The Director, Office of 
Intelligence and Counterintelligence, shall issue a written decision on 
a request for waiver prior to the administration of a polygraph 
examination. The Director shall obtain the concurrence of the Secretary 
in his or her decision on a request for waiver under Sec.  709.5(a)(3) 
and shall obtain the concurrence of the

[[Page 57395]]

Administrator of NNSA in a decision on a waiver request from an NNSA 
covered person under Sec.  709.5(a)(1) and Sec.  709.5(a)(2). 
Notification of approval of a waiver request will contain information 
regarding the duration of the waiver and any other relevant 
information. Notification of the denial of a waiver request will state 
the basis for the denial and state that the covered person may request 
reconsideration of the denial by the Secretary under Sec.  709.5(d).
    (d) Reconsideration Rights. If a waiver is denied, the covered 
person may file with the Secretary a request for reconsideration of the 
denial within 30 days of receipt of the decision, and the Secretary's 
decision will be issued prior to the administration of a polygraph 
examination.

Subpart B--CI Evaluation Protocols and Protection of National 
Security


Sec.  709.10  Scope of a counterintelligence evaluation.

    A counterintelligence evaluation consists of a counterintelligence-
based review of the covered person's personnel security file and review 
of other relevant information available to DOE in accordance with 
applicable guidelines and authorities. As provided in Sec.  709.3(b), 
DOE also may require a CI-scope polygraph examination. As provided for 
in Sec.  709.3(c), a CI evaluation, if conducted on a random basis, 
will include a CI-scope polygraph examination. As set forth in Sec.  
709.15(b) and (c) of this part, a counterintelligence evaluation may 
also include other pertinent measures to address and resolve 
counterintelligence issues in accordance with Executive Order 12333, 
the DOE ``Procedures for Intelligence Activities,'' and other relevant 
laws, guidelines and authorities, as applicable.


Sec.  709.11  Topics within the scope of a polygraph examination.

    (a) DOE may ask questions in a specific incident polygraph 
examination that are appropriate for a CI-scope examination or that are 
relevant to the counterintelligence concerns with a defined foreign 
nexus raised by the specific incident.
    (b) A CI-scope polygraph examination is limited to topics 
concerning the covered person'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 covered person's thoughts or beliefs;
    (2) Concern conduct that has no CI implication with a defined 
foreign nexus; or
    (3) Concern conduct that has no direct relevance to a CI 
evaluation.


Sec.  709.12  Defining polygraph examination questions.

    The examiner determines the exact wording of the polygraph 
questions based on the examiner's pretest interview of the covered 
person, the covered person's understanding of the questions, 
established test question procedures from the Department of Defense 
Polygraph Institute, and other input from the covered person.


Sec.  709.13  Implications of refusal to take a polygraph examination.

    (a) Subject to Sec.  709.14 of this part, a covered person may 
refuse to take a polygraph examination pursuant to Sec.  709.3 of this 
part, and a covered person being examined may terminate the examination 
at any time.
    (b) If a covered person terminates a polygraph examination prior to 
the completion of the examination, DOE may treat that termination as a 
refusal to complete a CI evaluation under Sec.  709.14 of this part.


Sec.  709.14  Consequences of a refusal to complete a CI evaluation 
including a polygraph examination.

    (a) If a covered person is an applicant for employment or 
assignment or a potential detailee or assignee with regard to an 
identified position and the covered person refuses to complete a CI 
evaluation including a polygraph examination required by this part as 
an initial condition of access, DOE and its contractors must refuse to 
employ, assign, or detail that covered person with regard to the 
identified position.
    (b) If a covered person is an incumbent employee in an identified 
position subject to a CI evaluation including a polygraph examination 
under Sec.  709.3(b), (c), or (d), and the covered person refuses to 
complete a CI evaluation, DOE and its contractors must deny that 
covered person access to classified information and materials protected 
under Sec.  709.3(b) and (c) and may take other actions consistent with 
the denial of access, including administrative review of access 
authorization under 10 CFR part 710. If the covered person is a DOE 
employee, DOE may reassign or realign the DOE employee's duties, or 
take other action, consistent with that denial of access and applicable 
personnel regulations.
    (c) If a DOE employee refuses to take a CI polygraph examination, 
DOE may not record the fact of that refusal in the employee's personnel 
file.


Sec.  709.15  Processing counterintelligence evaluation results.

    (a) If the reviews under Sec.  709.10 or a polygraph examination 
present unresolved foreign nexus issues that raise significant 
questions about the covered person's access to classified information 
or materials protected under Sec.  709.3 of this part that justified 
the counterintelligence evaluation, DOE may undertake a more 
comprehensive CI evaluation that, in appropriate circumstances, may 
include evaluation of financial, credit, travel, and other relevant 
information to resolve any identified issues. Participation by Office 
of Intelligence and Counterintelligence personnel in any such 
evaluation is subject to Executive Order 12333, the DOE ``Procedures 
for Intelligence Activities,'' and other relevant laws, guidelines, and 
authorities as may be applicable with respect to such matters.
    (b) The Office of Intelligence and Counterintelligence, in 
coordination with NNSA with regard to issues concerning a NNSA covered 
person, may conduct an in-depth interview with the covered person, may 
request relevant information from the covered person, and may arrange 
for the covered person to undergo an additional polygraph examination.
    (c) Whenever information is developed by the Office of Health, 
Safety and Security indicating counterintelligence issues, the Director 
of that Office shall notify the Director, Office of Intelligence and 
Counterintelligence.
    (d) If, in carrying out a comprehensive CI evaluation of a covered 
person under this section, there are significant unresolved issues, not 
exclusively related to polygraph examination results, indicating 
counterintelligence issues, then the Director, Office of Intelligence 
and Counterintelligence shall notify the DOE national laboratory 
director (if applicable), plant manager (if applicable) and program 
manager(s) for whom the individual works that the covered person is 
undergoing a CI evaluation pursuant to this part and that the 
evaluation is not yet complete.
    (e) Utilizing the DOE security criteria in 10 CFR part 710, the 
Director, Office of Intelligence and Counterintelligence, makes a 
determination whether a covered person completing a CI evaluation has 
made disclosures that warrant referral, as appropriate, to the Office 
of Health, Safety and Security or the Manager of the applicable DOE/
NNSA Site, Operations Office or Service Center.

[[Page 57396]]

Sec.  709.16  Application of Counterintelligence Evaluation Review 
Boards in reaching conclusions regarding CI evaluations.

    (a) General. If the results of a counterintelligence evaluation are 
not dispositive, the Director of the Office of Intelligence and 
Counterintelligence may convene a Counterintelligence Evaluation Review 
Board to obtain the individual views of each member as assistance in 
resolving counterintelligence issues identified during a 
counterintelligence evaluation.
    (b) Composition. A Counterintelligence Evaluation Review Board is 
chaired by the Director of the Office of Intelligence and 
Counterintelligence (or his/her designee) and includes representation 
from the appropriate line Program Managers, lab/site/facility 
management (if a contractor employee is involved), NNSA, if the 
unresolved issues involve an NNSA covered person, the DOE Office of 
Health, Safety and Security and security directors for the DOE or NNSA 
site or operations office.
    (c) Process. When making a final recommendation under Sec.  709.17 
of this part, to a Program Manager, the Director of Intelligence and 
Counterintelligence shall report on the Counterintelligence Evaluation 
Review Board's views, including any consensus recommendation, or if the 
members are divided, a summary of majority and dissenting views.


Sec.  709.17  Final disposition of CI evaluation findings and 
recommendations.

    (a) Following completion of a CI evaluation, the Director of the 
Office of Intelligence and Counterintelligence must recommend, in 
writing, to the appropriate Program Manager that the covered person's 
access be approved or retained, or denied or revoked.
    (b) If the Program Manager agrees with the recommendation, the 
Program Manager notifies the covered person that the covered person's 
access has been approved or retained, or denied or revoked.
    (c) If the Program Manager disagrees with the recommendation of the 
Director, Office of Intelligence and Counterintelligence, the matter is 
referred to the Secretary for a final decision.
    (d) If the Program Manager denies or revokes a DOE employee's 
access, DOE may reassign the employee or realign the employee's duties 
within the local commuting area or take other actions consistent with 
the denial of access.
    (e) If the Program Manager revokes the access of a covered person 
assigned or detailed to DOE, DOE may remove the assignee or detailee 
from access to the information that justified the CI evaluation and 
return the assignee or detailee to the agency of origin.
    (f) Covered persons whose access is denied or revoked may request 
reconsideration by the head of the relevant DOE element.
    (g) For cases involving a question of loyalty to the United States, 
the Director of the Office of Intelligence and Counterintelligence may 
refer the matter to the FBI as required by section 145d of the Atomic 
Energy Act of 1954. For cases indicating that classified information is 
being, or may have been, disclosed in an unauthorized manner to a 
foreign power or an agent of a foreign power, DOE is required by 50 
U.S.C. 402a(e) to refer the matter to the Federal Bureau of 
Investigation.

Subpart C--Safeguarding Privacy and Employee Rights


Sec.  709.21  Requirements for notification of a polygraph examination.

    When a polygraph examination is scheduled, the DOE must notify the 
covered person, in writing, of the date, time, and place of the 
polygraph examination, the provisions for a medical waiver, and the 
covered person'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 covered person. The covered person 
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 covered person waives the advance notice 
provision.


Sec.  709.22  Right to counsel or other representation.

    (a) At the covered person's own expense, a covered person has the 
right to obtain and consult with legal counsel or another 
representative. However, the counsel or representative may not be 
present during the polygraph examination. Except for interpreters and 
signers, no one other than the covered person and the examiner may be 
present in the examination room during the polygraph examination.
    (b) A covered person has the right to consult with legal counsel or 
another representative at any time during an interview conducted in 
accordance with Sec.  709.15 of this part.


Sec.  709.23  Obtaining consent to a polygraph examination.

    DOE may not administer a polygraph examination unless DOE:
    (a) Notifies the covered person of the polygraph examination in 
writing in accordance with Sec.  709.21 of this part; and
    (b) Obtains written consent from the covered person prior to the 
polygraph examination.


Sec.  709.24  Other information provided to a covered person prior to a 
polygraph examination.

    Before administering the polygraph examination, the examiner must:
    (a) Inform the covered person that audio and video recording of 
each polygraph examination session will be made, and that other 
observation devices, such as two-way mirrors and observation rooms, 
also may be employed;
    (b) Explain to the covered person the characteristics and nature of 
the polygraph instrument and examination;
    (c) Explain to the covered person the physical operation of the 
instrument and the procedures to be followed during the examination;
    (d) Review with the covered person the relevant questions to be 
asked during the examination;
    (e) Advise the covered person of the covered person right against 
self-incrimination; and
    (f) Provide the covered person with a pre-addressed envelope, which 
may be used to submit a quality assurance questionnaire, comments or 
complaints concerning the examination.


Sec.  709.25  Limits on use of polygraph examination results that 
reflect ``Significant Response'' or ``No Opinion''.

    DOE or its contractors may not:
    (a) Take an adverse personnel action against a covered person or 
make an adverse access recommendation solely on the basis of a 
polygraph examination result of ``significant response'' or ``no 
opinion''; or
    (b) Use a polygraph examination that reflects ``significant 
response'' or ``no opinion'' as a substitute for any other required 
investigation.


Sec.  709.26  Protection of confidentiality of CI evaluation records to 
include polygraph examination records and other pertinent 
documentation.

    (a) DOE owns all CI evaluation records, including polygraph 
examination records and reports and other evaluation documentation.
    (b) DOE maintains all CI evaluation records, including polygraph 
examination records and other pertinent documentation acquired in 
conjunction with a counterintelligence evaluation, in a system of 
records established under the Privacy Act of 1974 (5 U.S.C. 552a).
    (c) DOE must afford the full privacy protection provided by law to 
information regarding a covered

[[Page 57397]]

person's refusal to participate in a CI evaluation to include a 
polygraph examination and the completion of other pertinent 
documentation.
    (d) With the exception of the polygraph report, all other polygraph 
examination records are destroyed ninety days after the CI 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 CI evaluation, then all of the 
polygraph examination records are retained until the final resolution 
of any request for reconsideration by the covered person or the 
completion of any ongoing investigation.

Subpart D--Polygraph Examination and Examiner Standards


Sec.  709.31  DOE standards for polygraph examiners and polygraph 
examinations.

    (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 a covered person 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 CI 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 CI-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.


Sec.  709.32  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.

PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR 
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL

0
2. The authority citation for part 710 is revised to read as follows:

    Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-1; 
50 U.S.C. 2401, et seq.; 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.


0
3. Section 710.6 is amended by re-designating paragraph (a) as 
paragraph (a)(1) and by adding at the end of re-designated paragraph 
(a)(1) a new paragraph (a)(2) to read as follows:


Sec.  710.6  Cooperation by the individual.

    (a) * * *
    (2) It is the responsibility of an individual subject to Sec.  
709.3(d) to consent to and take an event-specific polygraph 
examination. A refusal to consent to or take such an examination may 
prevent DOE from reaching an affirmative finding required for 
continuing access authorization. In this event, DOE may suspend or 
terminate any access authorization.
* * * * *
 [FR Doc. E6-16049 Filed 9-28-06; 8:45 am]
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