Federal Register: August 18, 1999 (Volume 64, Number 159)
Proposed Rules
Page 45061-45070
DEPARTMENT OF ENERGY
10 CFR Parts 709, 710, and 711
[Docket No. CN-RM-99-POLY]
RIN 1992-AA24
Polygraph Examination Regulation
AGENCY: Department of Energy.
ACTION: Notice of proposed rulemaking and public hearings.
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SUMMARY: The Department of Energy (DOE or the Department) proposes
regulations for the use of polygraph examinations for certain DOE and
contractor employees, applicants for employment, and other individuals
assigned or detailed to Federal positions at DOE. The proposed
regulations describe the categories of individuals who would be
eligible for polygraph testing and controls for the use of such testing
and for prevention of unwarranted intrusion into the privacy of
individuals. These regulations are being proposed to comply with
various Executive Orders which require the Department to protect
classified information. These regulations for the use of polygraph
examinations for certain DOE and contractor employees are intended to
protect highly sensitive and classified information and materials to
which such employees have access. This rulemaking also proposes
conforming changes to regulations governing the Department's Personnel
Security Assurance Program and Personnel Assurance Program.
DATES: The comment period for this proposed rule will end on October 4,
1999. Public hearings will be held on: September 14, 1999 in Livermore,
CA from 9 a.m. to 1 p.m. and 3 p.m. to 7 p.m.; September 16, 1999, in
Albuquerque, NM from 9 a.m. to 1 p.m. and 3 p.m. to 7 p.m.; September
17, 1999, in Los Alamos, NM from 9 a.m. to 1 p.m. and 3 p.m. to 6 p.m.;
and September 22, 1999, in Washington D.C. from 9 a.m. to 1 p.m.
Requests to speak at any of the hearings should be phoned in to
Andi Kasarsky, (202) 586-3012, by September 10, for the Livermore, CA
hearing; September 14, for the Albuquerque, NM hearing; September 15,
for the Los Alamos, NM hearing; and September 20, for the Washington,
DC hearing. Each presentation is limited to 5 minutes to ensure that
all persons have an opportunity to speak.
ADDRESSES: Written comments (10 copies) should be addressed to Douglas
J. Hinckley, Office of Counterintelligence, CN-1, Docket No. CN-RM-99-
POLY, U.S. Department of Energy, 1000 Independence Avenue, SW,
Washington, DC 20585. Alternatively, comments may be e-mailed to the
following address: poly@hq.doe.gov. Where possible, commentors should
identify the specific section of the proposed rule to which they are
responding.
Copies of the public hearing transcripts, written comments
received, technical reference material referred to in this notice, and
any other docket material may be reviewed and copied at the DOE Freedom
of Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW,
Washington, DC 20585, between the hours of 9 a.m. and 4 p.m. Monday
through Friday, except Federal holidays. The docket material for this
rulemaking will be filed under "CN-RM-99-POLY." The Federal Register
notice and supporting documentation can be located on DOE's Internet
home page at the following address: http://home.doe.gov/news/
fedreg.htm.
The public hearings for this rulemaking will be held at the
following addresses:
Livermore, CA: Lawrence Livermore National Laboratory, Building 123
Auditorium (use South West Gate entrance, East Avenue).
Albuquerque, NM: Sandia National Laboratories, Steve Schiff Auditorium,
Building 825.
Los Alamos, NM: Los Alamos National Laboratory, Administration
Building, Main Auditorium (1st floor).
Washington, DC: U.S. Department of Energy, Auditorium (ground floor, E
corridor), 1000 Independence Avenue, SW, Washington, DC.
For more information concerning public participation in this
rulemaking proceeding, see Section V of this notice (Opportunity for
Public Comment).
FOR FURTHER INFORMATION CONTACT:
Douglas Hinckley, U.S. Department of Energy, Office of
Counterintelligence, CN-1, 1000 Independence Avenue, SW, Washington, DC
20585, (202) 586-5901
Lise Howe, U.S. Department of Energy, Office of General Counsel, GC-73,
1000 Independence Avenue, SW, Washington, DC 20585, (202) 586-2906
For information concerning the public hearings, requests to speak
at the hearings, submission of written comments or docket file
information contact: Andi Kasarsky at (202) 586-3012.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. Description of Proposal
IV. Regulatory Review
A. National Environmental Policy Act
B. Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Unfunded Mandates Reform Act of 1995
E. Treasury and General Government Appropriations Act, 1999
F. Executive Order 12866
G. Executive Order 12612
H. Executive Order 12875
I. Executive Order 12988
J. Review Under Executive Order 13084
V. Opportunity for Public Comment
I. Introduction
The Atomic Energy Act of 1954 (AEA or Atomic Energy Act) assigns to
DOE certain atomic energy defense production and clean-up obligations
that are discharged at various DOE-owned, contractor-operated
installations around the United States. Section 161 of the AEA
authorizes DOE to adopt rules necessary to carry out those functions,
42 U.S.C. 2201. Under that authority, DOE today proposes regulations
for using counterintelligence-scope polygraph examinations for national
security purposes, and exculpatory polygraph examinations at the
request of an individual, while protecting the rights of individuals.
All such polygraph examinations will be voluntary. However, if an
individual refuses to submit to an examination that is for national
security purposes, DOE and its contractors may decline to select the
individual for the sensitive positions specified in this rule, and DOE
may deny the individual access to the information that justified
conducting the examination.
II. Background
DOE, as the successor agency to the Atomic Energy Commission, has
broad responsibilities under the AEA to direct the development, use,
and control of atomic energy. These responsibilities include a specific
mandate to protect sensitive and classified information and materials
involved in the design, production, and maintenance of nuclear weapons,
as well as a general obligation to ensure that permitting an individual
to have access to information classified under the AEA will not
endanger the nation's common defense and security.
In addition, various Executive Orders of government-wide
applicability require DOE to take steps to protect classified
information. Executive Order No. 12958, Classified National Security
Information (April 17, 1995), requires the Secretary to establish
controls to ensure that classified information is used only under
conditions that provide adequate protection and prevent access
[[Page 45063]]
by unauthorized persons. Executive Order 12968, Access to Classified
Information (August 2, 1995), requires the Secretary to establish and
maintain an effective program to ensure that employee access to
classified information is clearly consistent with the interests of
national security. In addition, in February 1998, President Clinton
issued Presidential Decision Directive-61, "U.S. Department of Energy
Counterintelligence Program," a classified document containing the
President's determination that DOE must do more to protect the highly
sensitive and classified information at its facilities. The President
instructed DOE to develop and implement specific measures to reduce the
threat to such information, including implementation of a polygraph
program. An unclassified version of the Presidential Decision Directive
is available in the DOE Freedom of Information Reading Room.
As an element of carrying out its national security mission, DOE
has instituted a counterintelligence program to strengthen its
protection of information and technologies in connection with DOE's
atomic energy defense activities. DOE believes that requiring
counterintelligence-scope polygraph examinations for individuals in
positions with access to the most sensitive information in connection
with DOE's atomic energy defense activities is a necessary, prudent
measure to fulfill DOE's national security responsibilities. A
counterintelligence-scope polygraph examination both serves as a means
to deter unauthorized disclosures of classified information and
provides a means for possible early detection of disclosures to enable
DOE to take steps promptly to prevent further harm to the national
security.
A counterintelligence-scope polygraph examination also is an
integral element of the DOE Accelerated Access Authorization Program
(AAAP), a program that DOE utilizes to grant interim security
clearances on an expedited basis. In addition, use of a polygraph
examination when an individual requests one as a means of exculpation
in order to resolve a counterintelligence investigation or personnel
security issue hastens the DOE's prompt resolution of such issues.
The Employee Polygraph Protection Act (Pub. L. 100-347) (EPPA)
generally prohibits the use of polygraph examinations in private
employment settings, but that law does not apply to the Federal
government or its employees. In addition, the EPPA specifically exempts
from its prohibitions polygraph examinations administered by DOE in the
performance of its counterintelligence function to any expert,
consultant or contractor employee of DOE in connection with atomic
energy defense activities, 29 U.S.C. 2006(b)(1)(B). The statute also
specifically exempts polygraph examinations administered by a Federal
agency, in the performance of an intelligence or counterintelligence
function, to an individual whose duties involve access to top secret
classified information or information designated as being within a
Special Access Program (SAP), 29 U.S.C. 2006(b)(2). In DOE's view,
polygraph examinations are a useful investigatory tool for
counterintelligence purposes because they assist in eliciting
comprehensive information, and in distinguishing between deception and
non-deception. Congress left to DOE the discretion to develop rational
procedures for evaluating and processing the results of polygraph
examinations and for protecting individuals from misuse of such an
examination.
Along with the strong need for protection of classified and
sensitive information in its possession, DOE recognizes the importance
of protecting individuals' rights. In the 1960s, President Lyndon B.
Johnson issued a memorandum entitled "Use of Polygraph in the
Executive Branch" which is intended to "prevent unwarranted intrusion
into the privacy of individuals." The memorandum prohibits subjecting
Federal employees to polygraph examinations except in limited
situations. One of the exceptions permits an executive department or
agency that has an intelligence or counterintelligence mission directly
affecting national security to use polygraph examinations for
employment screening and personnel investigations, and in intelligence
and counterintelligence operations. In such cases, the agency must
complete a review process with the Office of Personnel Management
(OPM).
As an initial step toward developing and implementing a polygraph
requirement for sensitive positions, DOE issued an internal DOE
directive, DOE Notice 472.2, Use of Polygraph Examinations, that
establishes a polygraph requirement for Federal employees who occupy or
seek to occupy certain sensitive positions. The DOE Notice also
provides for polygraph examinations to be administered to Federal
employees as part of the AAAP and, upon request, as a means of
exculpation. The DOE Notice has been submitted to OPM for its review.
The Notice is publicly available at http://www.explorer.doe.gov:1776/
htmls/regs/doe/newserieslist.html on the DOE Directives website.
As a second step, DOE is proposing today to expand the polygraph
examination program to cover all employees at its facilities,
contractor employees as well as Federal employees, in positions with
access to the most sensitive categories of classified information and
materials, as well as applicants for such positions. When final, this
rule will establish polygraph examination regulations that apply to
both Federal and contractor employees. DOE also has submitted a copy of
this proposed rule to OPM.
DOE acknowledges that some individuals consider polygraph
examination results to be generally unreliable and believe that they
should not be used as the basis for any action with regard to an
employee. However, DOE is aware of no scientific studies that establish
that polygraph examination results are unreliable for use as an
investigative tool, as DOE today has proposed to use them. As an
investigative tool, polygraph examinations results are superior to
random interviews relying on purely subjective evaluations. DOE also is
aware that some individuals think today's proposed rule could have an
effect on the recruitment and retention of qualified personnel.
Nevertheless, DOE believes that established procedures for polygraph
testing, limitations on the scope of questions, qualifications
standards for polygraph examiners, and limitations on the use of
polygraph examination results with regard to final adverse actions,
will be perceived as fair by most potential employees and will protect
the legitimate interests of existing employees. DOE invites members of
the public to comment on the balance it has struck in today's proposal
between legitimate national security interests and regulatory
limitations to protect employees from inappropriate or imprudent use of
polygraph examinations and the results of such examinations.
Today's action continues DOE's efforts to carry out its statutory
responsibilities and Presidential direction to provide strong programs
to protect against the disclosure of information and materials that
could harm national defense and security.
[[Page 45064]]
III. Description of Proposal
PART 709, Subpart A--General Provisions
Section 709.3 What Are the Definitions of the Terms Used in This Part?
This section proposes definitions for terms used in the rule. The
definition for the phrase "adverse personnel action" for Federal
employees is derived from 5 U.S.C. Chapter 75, and for contractor
employees from correlative principles under the National Labor
Relations Act. The terms "counterintelligence" and "intelligence"
are based on definitions in the National Security Act of 1947. 50
U.S.C. 401a. The definition for "polygraph" is the same as that used
by the Department of Labor in its regulations implementing the EPPA. 29
CFR part 801. The definition for "Special Access Program or SAP" is
based on the definition of that term in Executive Order 12958,
Classified National Security Information (April 17, 1995).
Section 709.4 To Whom Does the Polygraph Examination Requirement Under
This Part Apply?
This section proposes the programs whose employees would be
eligible for polygraph examination. The programs include employees and
applicants for employment with DOE and its contractors (including
subcontractors at all tiers), and also individuals who may be assigned
or detailed to Federal positions at DOE. There are eight program
categories whose employees are eligible for polygraph examination.
These include counterintelligence and intelligence positions; positions
requiring access to special access programs; positions subject to the
Personnel Assurance Program (PAP) or Personnel Security Assurance
Program (PSAP); positions with a need-to-know or access to information
specifically designated by the Secretary or his delegatee regarding the
design and operation of nuclear weapons and associated use and control
features; positions within the Office of Independent Oversight and
Performance Assurance, or any successor thereto, involved in inspection
and assessment of safeguards and security functions, including cyber
security, of the Department; and positions within the Office of
Security and Emergency Operations, or any successor thereto. DOE will
establish an internal process to review these programs in order to
develop the criteria for identifying the specific positions in the
eight program categories that warrant polygraph examination and the
order of priority for conducting polygraph examinations of the DOE and
contractor employees in the eligible positions.
In addition to the programs whose employees would be eligible for a
polygraph examination, there are two other circumstances under which
DOE would administer polygraph examinations. First, a
counterintelligence-scope polygraph examination is an element of the
AAAP, which is a voluntary program under which an individual's DOE
access authorization (security clearance) may be expedited. Second,
individuals would be permitted, at their own option, to request a
polygraph examination in order to resolve questions that have arisen in
either the personnel security or counterintelligence areas; these
examinations are referred to as exculpatory polygraph examinations.
Section 709.5 How Will an Individual Know If His or Her Position Will
Be Eligible for Polygraph Examination?
As proposed, all employees of the programs described in
Sec. 709.4(a)(1)-(8) are eligible for polygraph examinations. If there
is a vacant position within one of these programs, DOE or its
contractors must indicate in the job or vacancy announcement that the
employee selected would be eligible for a polygraph examination.
Subpart B--Polygraph Examination Protocols and Protection of National
Security
Section 709.11 What Types of Topics Are Within the Scope of a
Polygraph Examination?
Polygraph examinations would be counterintelligence-scope, designed
to address the narrow topics of whether the individual has engaged, or
is engaging, in espionage, sabotage, terrorism, unauthorized
disclosures of classified information, unauthorized foreign contacts,
or deliberate damage to or malicious misuse of a U.S. government
information or defense system. The only time topics other than these
would be within the scope of a polygraph examination is when an
individual has requested an exculpatory examination. In the case of
exculpatory examinations, the topics are limited to the personnel
security or counterintelligence matter at issue.
Section 709.14 What Are the Consequences of a Refusal To Take a
Polygraph Examination?
All polygraph examinations administered by DOE are voluntary. There
may, however, be consequences resulting from a refusal to take, or
failure to complete, a polygraph examination. This section describes
the possible consequences of an individual's refusing to take, or
failing to complete, a required polygraph examination.
Failure to complete the polygraph examination is treated the same
as a refusal to take a polygraph examination. If an individual refuses
to take, or terminates at any time prior to completion, a polygraph
examination, that individual may be denied access to the information
and denied involvement in the activities that justified conducting the
examination, consistent with proposed Sec. 709.15. In some
circumstances, for example individuals with counterintelligence or
intelligence responsibilities, the information or activities may be
essential to the individual's ability to do his or her job. In such a
case, the employer (whether it is DOE or a contractor) must make every
effort to find a new position for which the individual would be
suitable, consistent with that denial of access. If the individual is
on assignment or detail to DOE from another agency, the individual may
simply be returned to the employing agency.
If a DOE employee refuses to take a required polygraph examination,
DOE cannot record the fact of that refusal in the individual's
personnel file. Nevertheless, DOE may record the refusal in a personnel
security file. The prohibition on recording a DOE employee's refusal to
take a polygraph examination in an individual's personnel file is
contained in President Lyndon B. Johnson's Memorandum on "Use of the
Polygraph in the Executive Branch." Because that memorandum is not
explicitly applicable to contractor employees and because DOE does not
maintain personnel files for contractor employees, DOE has limited the
prohibition in the rule to Federal employees. However, the Department
recommends that its contractors adopt a similar policy with respect to
contractor employees.
Exculpatory polygraph examinations are administered only at the
request of the individual, and an individual is under no obligation to
request an exculpatory polygraph examination. To ensure there are no
inappropriate consequences if an individual does not request an
exculpatory polygraph
[[Page 45065]]
examination, DOE or its contractors may not take an adverse personnel
action against an individual solely on the basis of refusing to take or
complete such an exculpatory polygraph examination. Similarly, the fact
that an individual has not requested an exculpatory examination may not
be recorded in an individual's personnel security or investigative file
or the personnel file of a Federal employee. Because DOE does not
maintain personnel files for contractor employees, DOE has limited the
prohibition in the rule to Federal employees. However, the Department
recommends that its contractors adopt a similar policy with respect to
contractor employees.
Section 709.15 How Does DOE Use Polygraph Examination Results?
If following the completion of the polygraph test there are any
unresolved issues, the polygraph examiner must conduct an in-depth
interview of the individual to address those unresolved issues. After
the in-depth interview, if there are remaining unresolved issues that
raise significant questions relevant to the individual's access to the
information or involvement in the activities that justified the
polygraph examination, DOE will so advise the individual and provide an
opportunity for the individual to undergo an additional polygraph
examination. If the additional polygraph examination is not sufficient
to resolve the matter, DOE must undertake a comprehensive investigation
of the individual, using the polygraph examination as an investigative
lead.
After completion of the polygraph examination(s), the Department
will conduct an eligibility evaluation that considers polygraph
examination results, the individual's personnel security file, and
other pertinent information. DOE may conduct a personal interview as an
element of the eligibility evaluation. Based upon the eligibility
evaluation, the individual may be denied access to the information and
denied involvement in the activities that justified the polygraph
examination. If the eligibility evaluation results raise questions of
loyalty to the United States, DOE must refer the matter to the Federal
Bureau of Investigation for investigation under section 145d of the
Atomic Energy Act (42 U.S.C. 2165d). If the eligibility evaluation
results reflect derogatory information and the individual already holds
an access authorization, DOE may initiate an administrative review of
the individual's access authorization eligibility under the DOE
regulations governing eligibility for access authorization (security
clearance) at 10 CFR part 710.
Subpart C--Safeguarding Privacy and Employee Rights
Section 709.21 When Is an Individual Notified That a Polygraph
Examination Is Scheduled?
DOE has elected to establish a minimum of forty-eight hours advance
notification of scheduled polygraph examinations. DOE believes that the
forty-eight hours should provide an individual sufficient time to
secure any desired legal counsel or another representative. DOE has
provided two exceptions to the rule, a good cause exception and an
exception when the individual waives the advance notice. Under the good
cause exception, DOE may provide an individual less than forty-eight
hours advance notification of a polygraph examination when the
Secretary of Energy or the Secretary's designee determines that the
information to which the individual has access is of such extreme
sensitivity that waiting forty eight hours poses an unacceptable risk
to national security or defense. The waiver provision would favor an
individual who wishes a polygraph examination as quickly as possible
either for exculpatory reasons or to expedite his or her access to
information or involvement in activities that justify the polygraph
examination.
Section 709.22 What Rights to Counsel or Other Representation Does an
Individual Have?
An individual has a right to consult with anyone before any
polygraph examination. The individual may obtain legal counsel,
professional assistance, or union representation. However, these
representatives may not be present during any phase of the polygraph
examination.
Section 709.25 Are There Limits on Use of Polygraph Examination
Results That Reflect "Deception Indicated" or "No Opinion"?
DOE believes that, while polygraph examinations are a useful tool,
they should not constitute the sole basis for taking any action against
an individual, except when the Secretary or the Secretary's designee
determines that permitting the individual continued access to protected
information would pose an unacceptable risk to national defense and
security. While an individual's access may be suspended pursuant to
such a Secretarial determination, DOE will in all such cases
investigate further under Sec. 709.15 in order to resolve the issue.
Section 709.26 How Does DOE Protect the Confidentiality of Polygraph
Examination Records?
All polygraph examination records will be maintained in systems of
records established under the Privacy Act of 1974 with appropriate
protections on confidentiality. In accordance with the Privacy Act, the
records cannot be disclosed, except in response to a written request
by, or with the prior written consent of, the individual to whom the
record pertains unless disclosure would be permitted by the Privacy
Act.
Parts 710 and 711
DOE proposes conforming changes to regulations established for the
Personnel Security Assurance Program (PSAP), 10 CFR part 710, subpart
B, and the Personnel Assurance Program (PAP), 10 CFR part 711. All
positions subject to these programs would be eligible for the polygraph
examination provisions of proposed part 709.
IV. Regulatory Review
A. National Environmental Policy Act
This proposed rule would establish regulations for use of polygraph
examinations. DOE has determined that this rule is covered under the
Categorical Exclusion found in the Department's National Environmental
Policy Act regulations at paragraph A.6 of appendix A to subpart D, 10
CFR part 1021, which applies to rulemakings that are strictly
procedural. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
B. Regulatory Flexibility Act
Consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., DOE must prepare an initial regulatory flexibility analysis for a
proposed rule unless DOE certifies that the rule would not have a
substantial impact on a significant number of small entities. This
rulemaking would not directly regulate small businesses or small
governmental entities. It would apply principally to individuals who
are existing employees of, or applicants for employment by, some of the
DOE's prime contractors who are all large businesses. There may be some
affected small businesses that are subcontractors, but the rule would
not impose unallowable costs. Accordingly, DOE certifies that the rule
will not have a substantial impact on a significant number of small
entities.
[[Page 45066]]
C. Review Under the Paperwork Reduction Act
DOE has determined that this rule, as proposed, does not contain
any new or amended record keeping, reporting, or application
requirements, or any other type of information collection requirements
subject to the Paperwork Reduction Act (Pub. L. 96-511).
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to closely examine the impacts of regulatory
actions on State, local, and tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose an enforceable duty upon
State, local, or tribal governments, except, among other things, a
condition of Federal assistance or a duty arising from participating in
a voluntary federal program. Title II of that law requires each Federal
agency to assess the effects of Federal regulatory actions on State,
local, and tribal governments, in the aggregate, or to the private
sector, other than to the extent such actions merely incorporate
requirements specifically set forth in a statute. Section 202 of that
title requires a Federal agency to perform a detailed assessment of the
anticipated costs and benefits of any rule that includes a Federal
mandate which may result in costs to State, local, or tribal
governments, or to the private sector, of $100 million or more. Section
204 of that title requires each agency that proposes a rule containing
a significant Federal intergovernmental mandate to develop an effective
process for obtaining meaningful and timely input from elected officers
of State, local, and tribal governments.
This rule, as proposed, is not likely to result in any Federal
mandate that may result in the expenditure by State, local, and tribal
governments in the aggregate, or by the private sector, of $100 million
or more in any one year. Accordingly, no assessment or analysis is
required under the Unfunded Mandates Reform Act of 1995.
E. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well-being. Today's proposal would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
F. Executive Order 12866
Section 6 of Executive Order 12866 provides for a review by the
Office of Information and Regulatory Affairs (OIRA) of a significant
regulatory action, which is defined to include an action that may have
an effect on the economy of $100 million or more, or adversely affect,
in a material way, the economy, competition, jobs, productivity, the
environment, public health or safety, or State, local, or tribal
governments. DOE has concluded that this proposed rule is not a
significant regulatory action.
G. Executive Order 12612
Executive Order 12612, 52 FR 41685, requires that regulations,
rules, legislation, and any other policy actions be reviewed for any
substantial direct effect on States, on the relationship between the
Federal government and the States, or in the distribution of power and
responsibilities among various levels of government. If there are
substantial effects, then the Executive Order requires a preparation of
a Federalism assessment to be used in all decisions involved in
promulgating and implementing policy action. The rule, as proposed in
this notice, will not have a substantial direct effect on the
institutional interests or traditional functions of the States.
Accordingly, no assessment or analysis is required under Executive
Order 12612.
H. Executive Order 12875
Executive Order 12875 (Enhancing Intergovernmental Partnership),
provides for reduction or mitigation, to the extent allowed by law, of
the burden on State, local and tribal governments of unfunded Federal
mandates not required by statute. The analysis under the Unfunded
Mandates Reform Act of 1995 above, satisfies the requirements of
Executive Order 12875. Accordingly, no further analysis is required
under Executive Order 12875.
I. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the rule, as proposed, meets the relevant standards of Executive Order
12988.
J. Review Under Executive Order 13084
Under Executive Order 13084 (Consultation and Coordination with
Indian Tribal Governments), DOE may not issue a discretionary rule that
significantly or uniquely affects Indian tribal governments and imposes
substantial direct compliance costs. This proposed rulemaking would not
have such effects. Accordingly, Executive Order 13084 does not apply to
this rulemaking.
V. Opportunity for Public Comment
A. Written Comments
Interested individuals are invited to participate in this
proceeding by submitting data, views or comments with respect to this
proposed rule. To help the Department review the submitted comments,
commentors are requested to reference the paragraph(s) (e.g., 850.3(a))
to which they refer when possible.
Ten copies of written comments should be submitted to the address
indicated in the ADDRESSES section of this NOPR. Comments should be
identified on the outside of the envelope and on the comments
themselves with the designation, "Polygraph Rule, Docket No. CN-RM-99-
POLY." Should anyone wishing to provide written comments be unable to
provide ten copies, alternative arrangements can be made in advance
with the Department.
[[Page 45067]]
DOE will consider all comments received on or before the date specified
at the beginning of this NOPR and other relevant information before
final action is taken on the proposed rule.
All submitted comments will be available for public inspection as
part of the administrative record on file for this rulemaking, which is
in the DOE Freedom of Information Reading Room at the address indicated
in the ADDRESSES section of this NOPR.
Pursuant to the provisions of 10 CFR 1004.11, anyone submitting
information or data which he or she believes to be confidential and
exempt by law from public disclosure should submit one complete copy of
the document, as well as two copies, if possible, from which the
information has been deleted. The Department will make its own
determination as to the confidentiality of the information and treat it
accordingly.
B. Public Hearings
Public hearings will be held at the times, dates and locations
indicated in the DATES and ADDRESSES section of this NOPR. Any person
who is interested in making an oral presentation should make a phone
request to the number in the DATES section of this NOPR. The person
should provide a daytime phone number where he or she may be reached.
Persons requesting an opportunity to speak will be notified of the
approximate time they will be speaking. To ensure that as many persons
as possible have the opportunity to present comments, a maximum of five
minutes may be allotted to each speaker. However, if there is time at
the end of the hearing, DOE may allot additional time to the speakers
present. Persons making oral statements should bring 6 copies of their
statement to the hearing and submit them at the registration desk.
In the event that requests exceed the time allowed, DOE reserves
the right to schedule speakers, presentations and to establish the
procedures for conducting the hearing. A DOE official will be
designated to preside at each hearing, which will not be judicial or
evidentiary. Only those persons conducting the hearing may ask
questions. Any further procedural rules needed to conduct the hearing
properly will be announced by the DOE presiding official.
A transcript of each hearing will be made available to the public.
DOE will retain the record of the full hearing, including the
transcript, and make it available for inspection and copying in the DOE
Freedom of Information Reading Room at the address provided in the
ADDRESSES section of this NOPR. Transcripts may also be purchased from
the court reporter.
If DOE must cancel the hearings, it will make every effort to give
advance notice.
List of Subjects
10 CFR Part 709
Polygraph tests.
10 CFR Part 710
Administrative practice and procedure, Classified information,
Government contracts, Government employees, Nuclear materials.
10 CFR Part 711
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Government contracts, Government employees, Health, Nuclear safety, and
Occupational safety and health.
Issued in Washington, DC, on August 11, 1999.
Edward J. Curran,
Director, Office of Counterintelligence.
For the reasons stated in the preamble, DOE hereby proposes to
amend Chapter III of title 10 of the Code of Federal Regulations as set
forth below:
1. New Part 709 is added to read as follows:
PART 709--POLYGRAPH EXAMINATION REGULATIONS
Subpart A--General Provisions
709.1 What is the purpose of this part?
709.2 What is the scope of this part?
709.3 What are the definitions of the terms used in this part?
709.4 To whom does the polygraph examination requirement under this
part apply?
709.5 How will an individual know if his or her position will be
eligible for a polygraph examination?
Subpart B--Polygraph Examination Protocols and Protection of National
Security
709.11 What types of topics are within the scope of a polygraph
examination?
709.12 How does DOE determine the wording of questions?
709.13 May an individual refuse to take a polygraph examination?
709.14 What are the consequences of a refusal to take a polygraph
examination?
709.15 How does DOE use polygraph examination results?
Subpart C--Safeguarding Privacy and Employee Rights
709.21 When is an individual notified that a polygraph examination
is scheduled?
709.22 What rights to counsel or other representation does an
individual have?
709.23 How does DOE obtain an individual's consent to a polygraph
examination?
709.24 What other information is provided to the individual prior
to a polygraph examination?
709.25 Are there limits on use of polygraph examination results
that reflect "deception indicated" or "no opinion'?
709.26 How does DOE protect the confidentiality of polygraph
examination records?
Subpart D--Polygraph Examination and Examiner Standards
709.31 What are the DOE standards for polygraph examinations and
polygraph examiners?
709.32 What are the training requirements for polygraph examiners?
Authority: 42 U.S.C. 2011, et seq., 42 U.S.C. 7101, et seq.
Subpart A--General Provisions
Sec. 709.1 What is the purpose of this part?
(a) The purpose of this part is to provide guidelines for:
(1) The use of counterintelligence-scope polygraph examinations in
connection with the atomic energy defense activities of the Department;
(2) The use of counterintelligence-scope polygraph examinations for
individuals whose duties involve access to top secret classified
information or information designated as being within a special access
program (SAP); and
(3) The use of exculpatory polygraph examinations, upon the request
of an individual, in order to resolve counterintelligence
investigations and personnel security issues.
(b) This part also provides guidelines for protecting the rights of
individual DOE and DOE contractor employees subject to this rule.
Sec. 709.2 What is the scope of this part?
This part includes:
(a) A description of the conditions under which DOE may administer
and use polygraph examinations;
(b) A description of the positions which DOE may subject to
polygraph examination;
(c) Controls on the use of polygraph examinations; and
(d) Safeguards to prevent unwarranted intrusion into the privacy of
individuals.
Sec. 709.3 What are the definitions of the terms used in this part?
For purposes of this part:
[[Page 45068]]
Accelerated Access Authorization Program or AAAP means the program
for granting interim access to classified matter and special nuclear
material based on a drug test, a National Agency Check, a psychological
assessment, and a counterintelligence-scope polygraph examination
consistent with this part.
Adverse personnel action means:
(1) With regard to a DOE employee, any of the applicable personnel
actions described in chapter 75 of title 5, United States Code; or
(2) With regard to a contractor employee, the discharge,
discipline, or denial of employment or promotion, or any other
discrimination in regard to hire or tenure of employment or any term or
condition of employment.
Contractor means DOE contractors and subcontractors at all tiers.
Counterintelligence means information gathered and activities
conducted to protect against espionage, other intelligence activities,
sabotage, or assassinations conducted by or on behalf of foreign
governments or elements thereof, foreign organizations, or foreign
persons, or international terrorist activities.
DOE means the Department of Energy.
Intelligence means information relating to the capabilities,
intentions, or activities of foreign governments or elements thereof,
foreign organizations or foreign persons.
Personnel Assurance Program or PAP means the human reliability
program set forth under 10 CFR part 711 designed to ensure that
individuals assigned to nuclear explosive duties do not have emotional,
mental or physical incapacities that could result in a threat to
nuclear explosive safety.
Personnel Security Assurance Program or PSAP means the program set
forth under subpart B of 10 CFR part 710 for assuring the highest
standards of reliability for individuals with access to certain
material or facilities.
Polygraph means an instrument that:
(1) Records continuously, visually, permanently, and simultaneously
changes in cardiovascular, respiratory, and electro dermal patterns as
minimum instrumentation standards; and
(2) Is used, or the results of which are used, for the purpose of
rendering a diagnostic opinion regarding the honesty or dishonesty of
an individual.
Polygraph examination means a process that encompasses all
activities that take place between a polygraph examiner and examinee
during a specific series of interactions. These interactions may
include the pretest interview, the use of the polygraph instrument to
collect physiological data from the examinee while the polygraph
examiner is presenting a series of tests, the test data analysis phase,
and the post-test phase.
Polygraph test means that portion of the polygraph examination
during which the polygraph instrument collects physiological data based
upon the examinee's responses to test questions from the examiner.
Presidential appointee means an individual appointed by the
President and confirmed by the Senate.
Special Access Program or SAP means a program established under
Executive Order 12958 for a specific class of classified information
that imposes safeguarding and access requirements that exceed those
normally required for information at the same classification level.
Sec. 709.4 To whom does the polygraph examination requirement under
this part apply?
(a) Except as provided in paragraph (b) of this section, this part
applies to DOE and contractor employees and applicants for employment,
and other individuals assigned or detailed to Federal positions at DOE,
who are in:
(1) Positions that DOE has determined include counterintelligence
activities or access to counterintelligence sources and methods;
(2) Positions that DOE has determined include intelligence
activities or access to intelligence sources and methods;
(3) Positions requiring access to information that is protected
within a non-intelligence special access program (SAP) designated by
the Secretary of Energy;
(4) Positions that are subject to the Personnel Security Assurance
Program (PSAP);
(5) Positions that are subject to the Personnel Assurance Program
(PAP);
(6) Positions that DOE has determined have a need-to-know or access
to information specifically designated by the Secretary or his
delegatee regarding the design and operation of nuclear weapons and
associated use and control features;
(7) Positions within the Office of Independent Oversight and
Performance Assurance, or any successor thereto, involved in inspection
and assessment of safeguards and security functions, including cyber
security, of the Department;
(8) Positions within the Office of Security and Emergency
Operations, or any successor thereto;
(9) The Accelerated Access Authorization Program (AAAP); and
(10) Positions where the applicant or incumbent has requested a
polygraph examination in order to respond to questions that have arisen
in the context of counterintelligence investigations or personnel
security issues. These examinations are referred to in this part as
exculpatory polygraph examinations.
(b) This part does not apply to:
(1) A Presidential appointee, if such an appointee has received a
favorably adjudicated, full-field Federal Bureau of Investigation
background investigation;
(2) A position requiring access to SAP's that are intelligence-
related and therefore subject to requirements promulgated by the
Director of Central Intelligence;
(3) Any individual for whom the Secretary of Energy gives a written
waiver in the interest of national security; or
(4) Any individual for whom the Director, Office of
Counterintelligence, gives a waiver, based upon certification from
another Federal agency that the individual has successfully completed a
full scope or counterintelligence-scope polygraph examination
administered within the last five years.
(c) The Director, Office of Counterintelligence, in consultation
with the appropriate Program Manager, will establish the criteria for
identifying the specific positions described in Sec. 709.4(a)(1)-(8)
that warrant polygraph examination and the order of priority for
conducting polygraph examinations of the DOE and contractor employees
in the eligible positions.
Sec. 709.5 How will an individual know if his or her position will be
eligible for a polygraph examination?
All positions in the programs described in Sec. 709.4(a)(1)-(8) are
eligible for polygraph examination. Any job announcement or posting
with respect to any position in those programs must indicate that the
individual selected for the position is eligible for a polygraph
examination.
Subpart B--Polygraph Examination Protocols and Protection of
National Security
Sec. 709.11 What types of topics are within the scope of a polygraph
examination?
(a) DOE may ask questions that are appropriate to a
counterintelligence-scope examination or that are relevant to the
matter at issue in an exculpatory examination.
(b) A counterintelligence-scope polygraph examination is limited to
topics concerning the examinee's involvement in espionage, sabotage,
terrorism, unauthorized disclosure of classified information,
unauthorized foreign contacts, or deliberate damage to or malicious
misuse of a U.S.
[[Page 45069]]
government information or defense system.
(c) DOE may not ask questions that:
(1) Probe a person's thoughts or beliefs;
(2) Concern conduct that has no security implication; or
(3) Concern conduct that has no direct relevance to an
investigation.
Sec. 709.12 How does DOE determine the wording of questions?
The examiner determines the exact wording of the polygraph
questions based on the examiner's pretest interview of the examinee,
the examinee's understanding of the questions, and other input from the
examinee.
Sec. 709.13 May an individual refuse to take a polygraph examination?
(a) Yes. An individual may refuse to take a polygraph examination,
and an individual being examined may terminate the examination at any
time.
(b) If an individual terminates a polygraph examination prior to
the completion of the examination, the DOE may treat that termination
as a refusal to take a polygraph examination under Sec. 709.14.
Sec. 709.14 What are the consequences of a refusal to take a polygraph
examination?
(a) If the individual is an applicant for employment, assignment,
or detail to one of the positions described in Sec. 709.4(a)(1)-(8) and
the individual refuses to take a polygraph examination, DOE and its
contractors may refuse to employ, assign, or detail the individual to
the identified position.
(b) If the individual is a DOE employee whose current position does
not require a polygraph examination and is an applicant for employment,
assignment, or detail to one of the positions described in
Sec. 709.4(a)(1)-(8), the individual's refusal to take a polygraph
examination will not affect the individual's current employment status.
(c) If the individual is an incumbent in a position described in
Sec. 709.4(a)(1)-(8), and refuses to take a polygraph examination, DOE
may deny that individual access to the information or involvement in
the activities that justified conducting the examination, consistent
with Sec. 709.15. If the individual is a DOE employee, DOE may reassign
or realign the individual's duties or take other action, consistent
with that denial of access.
(d) If an individual refuses to take a polygraph examination as
part of the Accelerated Access Authorization Program, DOE must
terminate the accelerated authorization process and the individual may
continue to be processed for access authorization under the standard
DOE personnel security process.
(e) Since an exculpatory polygraph examination is administered at
the request of an individual, DOE and its contractors may not take any
adverse personnel action against an individual for refusing to request
or take an exculpatory polygraph examination. DOE and its contractors
may not record an individual's refusal to take an exculpatory polygraph
examination in the individual's personnel security file, or any
investigative file. DOE also may not record the fact of that refusal in
the employee's personnel file.
(f) If a DOE employee refuses to take a polygraph examination, DOE
cannot record the fact of that refusal in the employee's personnel
file.
Sec. 709.15 How does DOE use polygraph examination results?
(a) If following the completion of the polygraph test there are any
unresolved issues, the polygraph examiner must conduct an in-depth
interview of the individual to address those unresolved issues.
(b) If, after the polygraph examination, there are remaining
unresolved issues that raise significant questions relevant to the
individual's access to the information or involvement in the activities
that justified the polygraph examination, DOE must so advise the
individual and provide an opportunity for the individual to undergo an
additional polygraph examination. If the additional polygraph
examination is not sufficient to resolve the matter, DOE must undertake
a comprehensive investigation of the individual, using the polygraph
examination as an investigative lead.
(c) DOE will conduct an eligibility evaluation that considers
examination results, the individual's personnel security file, and
other pertinent information. As part of the eligibility evaluation
process, DOE may interview the individual.
(d) Upon completion of the eligibility evaluation, DOE will
determine whether the individual may have or continue to have access to
the information or involvement in the activities that justified the
examination. If DOE decides to discontinue the individual's access to
the information or involvement in the activities that justified the
examination, the following may occur:
(1) DOE may deny the individual access to the information that
justified conducting the examination, and if the individual is a DOE
employee, DOE may reassign the individual or realign the individual's
duties or take other actions consistent with the denial of access.
(2) For an individual applying for DOE access authorization
(including through the AAAP) or already holding DOE access
authorization (including PSAP), DOE may initiate an administrative
review of the individual's access authorization eligibility under the
DOE regulations governing eligibility for access authorization
(security clearance) at 10 CFR part 710.
(3) For cases involving a question of loyalty to the United States,
DOE may refer the matter to the Federal Bureau of Investigation as
required by section 145d of the Atomic Energy Act.
(4) If the individual is an applicant for employment, assignment,
or detail to one of the positions described in Sec. 709.4(a)(1)-(8),
DOE and its contractors may refuse to employ, assign or detail the
individual to the identified position.
(5) For an individual assigned or detailed to DOE, DOE may remove
the individual from access to the information that justified the
polygraph examination and return the individual to the agency of
origin.
Subpart C--Safeguarding Privacy and Employee Rights
Sec. 709.21 When is an individual notified that a polygraph
examination is scheduled?
When a polygraph examination is scheduled, DOE must notify the
individual of the date, time, and place of the polygraph examination,
and the individual's right to obtain and consult with legal counsel or
to secure another representative prior to the examination. DOE must
offer to make a copy of these regulations available to the individual.
The individual must receive the notification at least forty-eight
hours, excluding weekend days and holidays, before the time of the
examination except when good cause is shown or when the individual
waives the advance notice provision.
Sec. 709.22 What rights to counsel or other representation does an
individual have?
At the individual's own expense, an individual has the right to
obtain and consult with legal counsel or another representative prior
to the examination. The counsel or representative may not be present
during the polygraph examination.
[[Page 45070]]
Sec. 709.23 How does DOE obtain an individual's consent to a polygraph
examination?
DOE may not administer a polygraph examination unless DOE has:
(a) Notified the individual of the polygraph examination in
writing;
(b) Offered to the individual a copy of these regulations; and
(c) Obtained voluntary written consent from the individual.
Sec. 709.24 What other information is provided to the individual prior
to a polygraph examination?
Before administering the polygraph examination, the examiner must:
(a) Inform the individual of the use of audio and video recording
devices;
(b) Explain to the individual the characteristics and nature of the
polygraph instrument and examination;
(c) Explain the physical operation of the instrument and the
procedures to be followed during the examination;
(d) Review with the individual the questions to be asked during the
examination; and
(e) Advise the individual of the individual's privilege against
self-incrimination.
Sec. 709.25 Are there limits on use of polygraph examination results
that reflect "deception indicated" or "no opinion'?
DOE or its contractors may not:
(a) Take an adverse personnel action against an individual solely
on the basis of a polygraph examination result of "deception
indicated" or "no opinion" except when the Secretary or the
Secretary's designee makes a written determination that the information
to which the individual has access is of such extreme sensitivity that
access under the circumstances poses an unacceptable risk to national
security or defense; or
(b) Use a polygraph examination that reflects "deception
indicated" or "no opinion" as a substitute for any other required
investigation.
Sec. 709.26 How does DOE protect the confidentiality of polygraph
examination records?
(a) DOE owns all polygraph examination records and reports.
(b) Except as provided in paragraph (c) of this section, the Office
of Counterintelligence maintains all polygraph examination records and
reports in a system of records established under the Privacy Act of
1974, 5 U.S.C. 552a.
(c) The Office of Intelligence also may maintain polygraph
examination reports generated with respect to individuals identified in
Sec. 709.4(a)(2) in a system of records established under the Privacy
Act of 1974.
(d) Polygraph examination records and reports used to make AAAP
determinations or generated as a result of an exculpatory personnel
security polygraph examination will be maintained in a System of
Records.
(e) DOE must afford the full privacy protection provided by law to
information regarding an employee's refusal to take a polygraph
examination.
Subpart D--Polygraph Examination and Examiner Standards
Sec. 709.31 What are the DOE standards for polygraph examinations and
polygraph examiners?
(a) DOE adheres to the procedures and standards established by the
Department of Defense Polygraph Institute (DODPI). DOE only administers
DODPI approved testing formats. The DOE Test Center has been inspected,
approved and/or certified by DODPI, the U.S. Air Force Office of
Special Investigations, American Polygraph Association, and the
American Association of Police Polygraphers
(b) The polygraph examiner must be certified to conduct polygraph
examinations under this part by the DOE Psychophysiological Detection
of Deception/Polygraph Program Quality Control Official.
(c) To be certified under paragraph (b) of this section, an
examiner must have the following minimum qualifications:
(1) The examiner must be an experienced counterintelligence or
criminal investigator with extensive additional training in using
computerized instrumentation in Psychophysiological Detection of
Deception and in psychology, physiology, interviewing, and
interrogation.
(2) The examiner must have a favorably adjudicated Single-scope
Background Investigation and complete a counterintelligence-scope
polygraph examination.
(3) The examiner must receive basic Forensic Psychophysiological
Detection of Deception training from the DODPI.
(4) The examiner must be certified by DOE to conduct the following
tests:
(i) Test for Espionage, Sabotage, and Terrorism;
(ii) Counterintelligence-Scope Polygraph Tests;
(iii) Zone Comparison Tests;
(iv) Modified General Question Tests;
(v) Peak of Tension Tests; and,
(vi) Relevant and Irrelevant and Directed Lie Control Tests.
Sec. 709.32 What are the training requirements for polygraph
examiners?
(a) Examiners must undergo a minimum of forty hours training
annually within the discipline of Forensic Psychophysiological
Detection of Deception.
(b) The following organizations provide acceptable curricula to
meet the training requirement of paragraph (a) of this section:
(1) American Polygraph Association,
(2) American Association of Police Polygraphists, and
(3) Department of Defense Polygraph Institute.
PART 710--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL
2. The authority citation for part 710 continues to read as
follows:
Authority: Sec. 145, 68 Stat. 942 (42 U.S.C. 2165) and sec. 161,
68 Stat. 948 (42 U.S.C. 2201); E.O. 10450, 3 CFR 1949-1953 Comp., p.
936, as amended; E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as
amended, 3 CFR Chap. IV; sec. 104(c), 38 Stat. 1237 (42 U.S.C.
5814); sec. 105(a), 88 Stat. 1238 (42 U.S.C. 5815); secs. 641, 644,
646, 91 Stat. 598, 599 (42 U.S.C. 7251, 7254, and 7256).
3. In Sec. 710.57 (subpart B), paragraphs (f) through (i) are
redesignated as paragraphs (g) through (j) and a new paragraph (f) is
added to read as follows:
Sec. 710.57 Supervisory review.
* * * * *
(f) Applicants tentatively selected for PSAP positions and each
individual occupying a PSAP position, but not yet holding a PSAP access
authorization, must submit to a polygraph examination under 10 CFR part
709.
* * * * *
PART 711--PERSONNEL ASSURANCE PROGRAM (PAP)
4. The authority citation for Part 711 continues to read as
follows:
Authority: 42 U.S.C. 2201(p), 7191.
5. In Sec. 711.5, paragraph (b)(8) is added to read as follows:
Sec. 711.5 General requirements.
* * * * *
(b) * * *
(8) Be eligible for a polygraph examination under 10 CFR part 709.
* * * * *
[FR Doc. 99-21290 Filed 8-17-99; 8:45 am]
BILLING CODE 6450-01-P