[Federal Register: September 29, 2006 (Volume 71, Number 189)]
[Rules and Regulations]
[Page 57386-57397]
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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.
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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
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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
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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]
BILLING CODE 6450-01-P
