Rule: Counterintelligence Evaluation Program Polygraph Examinations Use

57386 Federal Register / Vol. 71, No.
189 / Friday, September 29, 2006 / Rules and Regulations
expected to have little effect on U.S. status in relation to exports. Federal, PART 319—FOREIGN QUARANTINE
marketers and consumers. State, and local governments will not NOTICES
have to expend funds to control the
Alternatives Considered ■ 1. The authority citation for part 319
further spread of the pest. Entities
This rule has been prompted by the located in noninfested areas and continues to read as follows:
need to restrict the importation of PSB engaged in the movement of PSB host Authority: 7 U.S.C. 450, 7701–7772, and
host material into the United States material will not have to deal with 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR
from Canada in order to help prevent domestic movement controls, export 2.22, 2.80, and 371.3.
the introduction of PSB into noninfested restrictions, or inspection and/or ■ 2. In § 319.40–3, paragraph (a)(1)(i) is
areas of the United States. In assessing treatment of the regulated articles before
the need for this rule, we considered revised to read as follows:
they can be moved as is the case in U.S.
several alternatives to the chosen course quarantined areas. § 319.40–3 General permits; articles that
of action. These alternatives are may be imported without a specific permit;
discussed in the ‘‘Regulatory Executive Order 12988 articles that may be imported without either
Flexibility’’ section of the full economic This final rule has been reviewed a general permit or an importer document.
analysis. under Executive Order 12988, Civil (a) * * *
In conclusion, we anticipate limited Justice Reform. This rule: (1) Preempts (1) * * *
costs associated with this rule, which is all State and local laws and regulations (i) From Canada: Regulated articles,
parallel to Canadian restrictions that are inconsistent with this rule; (2) other than the following:
imposed on U.S. exports of PSB host has no retroactive effect; and (3) does (A) Regulated articles of the
material. Some shippers and other not require administrative proceedings subfamilies Aurantioideae, Rutoideae,
importers will be subject to certain costs before parties may file suit in court and Toddalioideae of the botanical
and other inconveniences in securing challenging this rule. family Rutaceae, and;
the proper documentation for (B) Regulated articles of pine (Pinus
importation of affected products. Paperwork Reduction Act spp.) that are not completely free of bark
However, these costs and This final rule contains information from Provinces in Canada that are
inconveniences should be limited where collection requirements that differ from considered to be infested or partially
they are incurred. There is no charge to those in our October 2004 interim rule. infested with pine shoot beetle
obtain a written permit from APHIS, Specifically, there has been a reduction (Tomicus pinniperda), as determined by
and the information required is not of 24 hours in the burden associated the Canadian Food Inspection Agency,
extensive. Obtaining a PC or certificate with import permits for nonpropagative and that are moving to a United States
should cost less than 1 percent of the material that is moving to a destination facility operating under a compliance
shipment value. Inspection costs should other than a U.S. facility operating agreement for specified handling or
range from under 0.3 percent to 3.1 under a compliance agreement for processing under the provisions of
percent of shipment value. Because the specified handling or processing. In § 319.40–8.
movement of pine nursery stock, cut accordance with the Paperwork * * * * *
pine Christmas trees, pine forest Reduction Act of 1995 (44 U.S.C. 3501
products with bark attached, and pine Done in Washington, DC, this 25th day of
et seq.), this information collection
September 2006.
bark from PSB-infested areas within requirement has been approved by the
Canada is already regulated by the Bruce Knight,
Office of Management and Budget
Government of Canada, Canadian (OMB) under OMB control number Under Secretary for Marketing and Regulatory
producers already meeting these Programs.
0579–0257.
standards will incur no additional [FR Doc. E6–16079 Filed 9–28–06; 8:45 am]
burden in providing the additional E-Government Act Compliance BILLING CODE 3410–34–P
declarations for the PC or certificate. The Animal and Plant Health
Hence, we expect little reduction in U.S. Inspection Service is committed to
imports of Canadian products, with compliance with the E-Government Act DEPARTMENT OF ENERGY
small effects on U.S. marketers and to promote the use of the Internet and
consumers. U.S. producers of nursery other information technologies, to 10 CFR Parts 709 and 710
stock, Christmas trees, and pine provide increased opportunities for [Docket No. CN–03–RM–01]
products who are located in the United citizen access to Government
States may benefit slightly to the extent information and services, and for other RIN 1992–AA33
they can market their products at lower purposes. For information pertinent to
Counterintelligence Evaluation
costs than Canadian imported products E-Government Act compliance related
Regulations
subject to PSB restrictions. to this rule, please contact Mrs. Celeste
We expect that gains from reducing Sickles, APHIS’ Information Collection AGENCY: Office of Intelligence and
the risk of further spread of PSB to Coordinator, at (301) 734–7477. Counterintelligence, Department of
outweigh the costs of this action. Energy.
Implementation of this rule will enable List of Subjects in 7 CFR Part 319
ACTION: Final rule.
APHIS to better prevent the movement Coffee, Cotton, Fruits, Imports, Logs,
of infested PSB host material from Nursery stock, Plant diseases and pests, SUMMARY: The Department of Energy
Canada into noninfested areas of the Quarantine, Reporting and (DOE or Department) today is
United States. This action is equivalent recordkeeping requirements, Rice, publishing a final rule to establish new
to what is being done domestically. Vegetables. counterintelligence evaluation
sroberts on PROD1PC70 with RULES
Keeping areas in the United States free ■ Accordingly, the interim rule regulations to minimize the potential for
from PSB will result in avoided amending 7 CFR part 319 that was disclosure of classified information,
damages to forest resources. Growers published at 69 FR 61577–61589 on data, and materials. The rule published
will not have to expend funds to control October 20, 2004, is adopted as a final today, which replaces the current DOE
PSB damage or to maintain PSB free rule with the following changes: polygraph regulations contained at 10
VerDate Aug<31>2005 17:25 Sep 28, 2006 Jkt 208001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\29SER1.SGM 29SER1
Federal Register / Vol. 71, No. 189 / Friday, September 29, 2006 / Rules and Regulations 57387
CFR part 709, requires implemented, * * *’’ section 3154 of The question of whether and to what
counterintelligence evaluations for the National Defense Authorization Act extent DOE should use the polygraph as
applicants of certain high-risk positions for Fiscal Year 2000 (NDAA for FY a tool for screening individuals for
and every five years for incumbents of 2000) (42 U.S.C. 7383h), is repealed by access to our most sensitive information
those positions. operation of law. (42 U.S.C. 7383h–1(c).) is the latest manifestation of this
EFFECTIVE DATE: This rule is effective The repeal of section 3154 would perennial struggle. This particular
October 30, 2006. eliminate the existing authority which chapter begins in 1988, when Congress
FOR FURTHER INFORMATION CONTACT: underlies DOE’s current enacted the Employee Polygraph
Charles Costa, U.S. Department of counterintelligence polygraph Protection Act of 1988. That legislation
Energy, Office of Intelligence and regulations but would not preclude the generally restricted employers from
Counterintelligence, 1000 Independence retention of some or all of those using polygraphs to screen potential
Avenue, SW., Washington, DC 20585, regulations through this rulemaking employees. Congress, however,
(202) 586–5901; or Robert Newton, U.S. pursuant to the later-enacted section included three exceptions that are
Department of Energy, Office of the 3152 of the NDAA for FY 2002. relevant. First, Congress decided that it
General Counsel, GC–53, 1000 On January 7, 2005, DOE published a would not apply any of the legislation’s
Independence Avenue, SW., Supplemental NOPR at 70 FR 1383 to prohibitions to the United States or
Washington, DC 20585, (202) 586–6980. solicit public comments on proposed other governmental employers with
SUPPLEMENTARY INFORMATION: new counterintelligence evaluation respect to their own employees. Second,
regulations, including revised Congress specifically allowed the
I. Introduction regulations governing the use of Federal Government to administer
II. Background Information polygraphs to Department of Defense
III. DOE’s Response to Comments
polygraph examinations. The
A. Response to General Comments Supplemental NOPR requested written contractors and contractor employees,
B. Response to Comments on Specific comments by March 8, 2005, and and Department of Energy contractors
Proposed Regulatory Provisions invited oral comments at a public and contractor employees in connection
IV. Procedural Requirements hearing held in Washington, DC on with the Department’s atomic energy
A. Review Under Executive Order 12866 March 2, 2005. Written comments were defense activities. And finally, Congress
B. Review Under the Regulatory Flexibility received from 10 sources, including specifically provided that the Federal
Act members of the public, current and Government could administer
C. Review Under the Paperwork Reduction former DOE employees and two groups polygraphs to contractors and contractor
Act employees of the intelligence agencies
D. Review Under the National
representing employees at two DOE
Environmental Policy Act national laboratories. No oral comments and any other contractor or contractor
E. Review Under Executive Order 13132 were presented at the public hearing. employee whose duties involve access
F. Review Under Executive Order 12988 Part II of this SUPPLEMENTARY to top secret information or information
G. Review Under the Unfunded Mandates INFORMATION presents background that has been designated as within a
Reform Act of 1995 information useful in understanding the special access program.
H. Treasury and General Government statutory and regulatory background of In February 1998, President Clinton
Appropriations Act, 1999 both DOE’s current counterintelligence issued Presidential Decision Directive-
I. Review Under the Treasury and General 61. In that classified directive, entitled
polygraph examination program,
Government Appropriations Act, 2001
J. Review Under Executive Order 13211 contained in 10 CFR part 709, and the U.S. Department of Energy
K. Congressional Notification new Counterintelligence Evaluation Counterintelligence Program, the
Program set forth in the regulations that Department was ordered to enhance its
I. Introduction DOE publishes in this notice. protections against the loss or
DOE’s existing counterintelligence In Part III of this SUPPLEMENTARY compromise of highly sensitive
polygraph regulations are set forth at 10 INFORMATION DOE responds to the major information associated with certain
CFR part 709. Under section 3152(a) of issues raised in the public comments on defense-related programs by considering
the National Defense Authorization Act the Supplemental NOPR. a variety of improvements to its
for Fiscal Year 2002, Pub. L. 107–107 counterintelligence program. One of
II. Background Information these was the use of polygraph
(NDAA for FY 2002), DOE is obligated
to prescribe revised regulations for a For more than 50 years, DOE, like its examinations to screen individuals with
new counterintelligence polygraph predecessor the Atomic Energy access to this information.
program the stated purpose of which is Commission, has had to balance two In order to carry out this directive,
‘‘* * * to minimize the potential for sets of considerations. On the one hand, after initially proceeding through an
release or disclosure of classified data, we must attract the best minds that we internal order governing only Federal
materials, or information’’ (42 U.S.C. can to do cutting edge scientific work at employees, on August 18, 1999 (64 FR
7383h–1(a).) Section 3152(b) requires the heart of DOE’s national security 45062), the Department proposed a rule,
DOE to ‘‘* * * take into account the mission, and we must allow sufficient entitled ‘Polygraph Examination
results of the Polygraph Review,’’ which dissemination of that work to allow it to Regulation,’ that would govern the use
is defined by section 3152 (e) to mean be put to the various uses that our of the polygraph as a screening tool. It
‘‘* * * the review of the Committee to national security demands. On the other proposed that employees at DOE
Review the Scientific Evidence on the hand, we must take all reasonable steps facilities, contractor employees as well
Polygraph of the National Academy of to prevent our enemies from gaining as Federal employees, with access to
Sciences’’ (42 U.S.C. 7383h–1(b), (e)). access to the work we are doing, lest certain classified information and
Upon promulgation of final that work end up being used to the materials, as well as applicants for such
regulations under section 3152, and detriment rather than the advancement positions, be subject to a
‘‘effective 30 days after the Secretary of our national security. There are no counterintelligence polygraph before
submits to the congressional defense easy answers to the dilemma of how they received initial access to the
committees the Secretary’s certification best to reconcile these competing information and materials and at five-
that the final rule * * * has been fully considerations. year intervals thereafter.
57388 Federal Register / Vol. 71, No. 189 / Friday, September 29, 2006 / Rules and Regulations
In the NDAA for FY 2000, Congress system ‘in light of the current national basis for access determinations. The
directed that the Department administer security environment, the ongoing Supplemental NOPR pointed out that,
a counterintelligence polygraph to all military operations in Iraq, and the war in fact, the NAS Report acknowledges
Department employees, consultants, and on Terrorism.’ At the same time, the that the use of the polygraph
contractor employees in ‘high risk Secretary recognized that in the longer examination as an investigative lead, in
programs’ prior to their being given term some changes might be conjunction with other investigative
access to the program. Congress appropriate. Therefore, the Department tools can ameliorate the problems the
specified that these programs were the explicitly asked for public comment NAS Report attributes to polygraph
‘Special Access Programs’ and during a period which ended on June screening. The NOPR emphasized that
‘Personnel Security and Assurance 13, 2003. The Secretary also personally the proposed rule would make clear that
Programs.’ wrote all laboratory directors inviting polygraph exams are only one element
On January 18, 2000, the Department their comments and views on the to be used in counterintelligence
finalized essentially the rule it had proposed rule. evaluations. Reviews of personnel
proposed, which included individuals DOE received comments that were security files and, as necessary and
with access to these programs and mostly critical of the proposal to retain appropriate, personal interviews and
others in the screening requirement. the existing regulations. The comments review of financial and credit
Thereafter, on October 30, 2000, especially took issue with DOE’s information, net worth analyses,
Congress enacted the NDAA of FY 2001, proposal, despite the NAS Report, to analyses of foreign travel and foreign
which added DOE employees, continue with mandatory employee contacts and connections, would be
consultants, and contractor employees screening in the absence of an event or employed in conjunction with the
in programs that use ‘Sensitive other good cause to administer a polygraph.
Compartmented Information’ and all polygraph examination. Some of the The Supplemental NOPR proposed
others already covered by the comments recommended random that some elements of the mandatory
Department’s prior rule to those to screening as an alternative to mandatory screening population remain essentially
whom the polygraph screening mandate screening. Others complained about the the same as under the current
applied. adequacy of the regulatory protections regulation. DOE also proposed a random
More recently, in the NDAA for FY in 10 CFR part 709 against adverse CI evaluation program including
2002 (Pub. L. 107–107), enacted on personnel-related action resulting from polygraph intended to achieve the
December 28, 2001, Congress required reliance on adverse polygraph objectives of deterrence with the
the Secretary of Energy to carry out, examination results. Some of the minimum reasonable percentage or
under regulations, a new management comments of the DOE number of individuals to which it
counterintelligence polygraph program weapons laboratories expressed concern would apply. In addition to the
for the Department. Congress directed about the effect of the mandatory and random screening
that the purpose of the new program counterintelligence polygraph program programs, DOE also proposed a
should be to minimize the potential for on employee morale and recruitment. provision for conducting ‘‘specific-
release or disclosure of classified data, Following the close of the comment incident’’ polygraph examinations in
materials, or information. Congress period and consideration of public response to specific facts or
further directed that the Secretary, in comments, DOE conducted an extensive circumstances with potential
prescribing the regulation for the new review of the then current polygraph counterintelligence implications with a
program, take into account the results of policy and its implementation history, defined foreign nexus. That proposal
a not-yet-concluded study being done the NAS Report, and the public and also grew out of the NAS Report, which
by the National Academy of Sciences. internal comments resulting from the noted that this kind of use of the
That study was being conducted April 2003 Notice of Proposed polygraph is the one for which the
pursuant to a contract DOE had entered Rulemaking. Following this review, existing scientific literature provides the
into with the National Academy of DOE published a Supplemental NOPR strongest support. The proposed rule
Sciences in November 2000, in which at 70 FR 1383 (January 7, 2005). The also provided for employee-requested
the Department requested the Academy Supplemental NOPR proposed a new polygraph examinations in the context
to conduct a review of the existing mandatory counterintelligence (CI) of a specific incident.
research on the validity and reliability evaluation program including
of polygraph examinations, particularly mandatory polygraph screening for III. DOE’s Response to Comments
as used for personnel security screening. individuals with ‘‘regular and routine The following discussion describes
Congress directed the Department to access’’ to DOE’s most sensitive the major issues raised in the comments
propose a new rule regarding information, in particular all DOE- received from 10 sources, provides
polygraphs no later than six months originated ‘‘Top Secret’’ information, DOE’s response to these comments, and
after publication of the NAS study. including Top Secret ‘‘Restricted Data’’ describes any resulting changes in the
The NAS study, entitled The and Top Secret ‘‘National Security final regulations. The comments
Polygraph and Lie Detection, was Information.’’ The proposed rule, like overwhelmingly focused on the use of
published in October 2002 (hereinafter the current polygraph regulations, the polygraph examination in the
referred to as ‘NAS Report’ or ‘NAS provided for a mandatory CI evaluation proposed new Counterintelligence
Study’). The Department published a and CI-scope polygraph exam prior to Evaluation Program. Only one of the
Notice of Proposed Rulemaking on April initial access being granted, as well as commenters supported DOE’s proposed
14, 2003 (68 FR 17886). In that Notice, periodic CI evaluations at intervals not reliance on the polygraph examination
the Department indicated its then- to exceed five years. In deciding to as an integral part of the
current intent to continue the current propose continued use of mandatory Counterintelligence Evaluation Program.
polygraph program under a new rule. As polygraph screening, the Supplemental The remaining commenters strongly
the Secretary of Energy said upon NOPR noted that the NAS Report’s opposed DOE’s proposal to continue
release of that proposed rule, he conclusion on the use of the polygraph with mandatory polygraph screening.
‘concluded that it was appropriate at the exam as a screening tool only addresses Some of these commenters objected to
present time to’ retain the current the use of polygraph results as the sole the proposed random screening program
and to the use of polygraph testing in permissible to interpret section 3152 as personnel in this extended evaluation is
specific incident investigations. Some of authorizing a new polygraph regulation subject to Executive Order 12333, the
these commenters also raised objections that would provide for the total DOE ‘‘Procedures for Intelligence
with respect to specific elements of the abandonment of polygraph testing. Activities,’’ and other relevant laws,
proposed new polygraph examination Nor have the arguments advanced by guidelines, as may be applicable.
regulations. DOE responds first to the the commenters caused us to change our
The final rule includes, as proposed,
general comments and thereafter to the view that polygraph testing, including
mandatory polygraph screening, may be random counterintelligence evaluations,
specific comments.
both a necessary and effective measure including polygraph screening, to deter
A. Response to General Comments in appropriate circumstances for unauthorized releases or disclosures of
The commenters opposed to DOE’s protecting classified data, information classified information or materials. The
continued reliance on the polygraph and materials. rule also includes provision, as
examination argued principally that Consistent with the practices of the proposed, for conducting specific
polygraph testing is not supported by Intelligence Community, and the NAS incident polygraph examinations to
sound science. Most of these Report, DOE has decided to alter the respond to specific cases presenting
commenters cited the NAS Report to role of polygraph testing as a required facts or circumstances with potential
support their positions, and they element of the counterintelligence counterintelligence implications with a
challenged DOE’s interpretation of the evaluation program by eliminating such defined foreign nexus.
NAS Report’s findings and conclusions. testing for general screening of As proposed in the Supplemental
According to the commenters, because applicants for employment and NOPR, DOE also will retain the policy
polygraph testing lacks scientific incumbent employees without specific in the present rule against taking any
reliability, there is a high probability of cause. The rule published today adverse personnel action solely based
an unacceptable number of ‘‘false requires a counterintelligence on the test results of polygraph
positives’’ and, in part due to what they evaluation for applicants for certain examinations. Finally, we will retain the
perceive as the efficacy of high-risk positions and every five years present policy that no adverse decision
countermeasures, ‘‘false negatives.’’ for incumbents of those positions. A on access to certain information or
[The phenomena of ‘‘false positive’’ and polygraph examination only will be programs will be made solely on the
‘‘false negative’’ examination findings required in five situations: (1) If a basis of such test results.
are described in greater detail in the counterintelligence evaluation of an
Supplemental NOPR at 70 FR 1383– applicant or an incumbent employee B. Response to Comments on Specific
1389.] Because of problems associated reveals foreign nexus issues which Proposed Regulatory Provisions
with examination results that produce warrant a polygraph exam; (2) if an
‘‘false positives’’ and ‘‘false negatives,’’ incumbent employee is to be assigned 1. Random Screening Program
many of the commenters contended that within DOE to activities involving Two of the commenters questioned
continued use of polygraph testing another agency and a polygraph the scientific merits of the proposed
would have a highly negative effect on examination is required as a condition random screening program (section
employee morale, retention of present of access to the activities by the other 709.3(c)), contending, without offering
employees, and recruitment of new agencies; (3) if an incumbent employee support for the proposition, that random
employees. Additionally, commenters is proposed to be assigned or detailed to screening will neither contribute to
asserted that the likelihood of false another agency and the receiving agency good security nor to deterrence. As DOE
negatives undermined any deterrence requests DOE to administer a polygraph
noted in the Supplemental NOPR, the
value of polygraph testing. One examination as a condition of the
NAS Report observed that ‘‘the value, or
commenter urged DOE to reject the use assignment or detail; (4) if, as described
utility, of polygraph testing does not lie
of polygraph testing in its below, an incumbent employee is
Counterintelligence Evaluation Program only in its validity for detecting
selected for a random
and to focus instead on the development counterintelligence evaluation; or (5) if, deception. It may have a deterrent value
of new techniques for the behavioral, as described below, an incumbent * * * ’’ and ‘‘predictable polygraph
psychological, or physiological employee is required to take a specific- testing (e.g. fixed-interval testing of
assessments of individuals in security incident polygraph examination. people in specific job classifications)
and counterintelligence evaluations. These changes to the proposed rule probably has less deterrent value than
In DOE’s view, the commenters’ will significantly reduce the number of random testing.’’ This led DOE to
arguments for eliminating the use of individuals who will undergo a conclude that it is appropriate to
polygraph testing entirely simply cannot polygraph examination. Under the rule, include random testing as a component
be reconciled with the Congress’ a counterintelligence evaluation of the new Counterintelligence
direction to DOE in the NDAA for FY consists of a counterintelligence-based Evaluation Program, to enhance the
2002. In section 3152 of that Act, review of a ‘‘covered person’s’’ deterrent value of the polygraph.
Congress required the Secretary of personnel security file, and review of Another commenter, while expressing
Energy, taking into account the NAS other relevant information available in support for random screening as an
Report, to adopt regulations for a new DOE. If the counterintelligence alternative to the mandatory screening
counterintelligence polygraph program evaluation, including a possible program, urged DOE to ensure that the
to minimize the potential for release or polygraph exam, discloses unresolved system for identifying individuals who
disclosure of classified data, materials foreign nexus issues, DOE may will be subject to random testing is fair.
or information. When enacting section undertake a more comprehensive DOE’s Energy Information
3152, Congress was well aware of the evaluation that may, in appropriate Administration’s Statistics and Methods
controversy with regard to the scientific circumstances, include evaluation of Group has designed the statistical model
basis for polygraph examinations. financial, credit, travel, and other which will be utilized in the random
Nevertheless, Congress’ direction was to relevant information to resolve the screening program, and DOE believes
adopt new polygraph regulations, and issues. Participation by Office of that the EIA model will ensure selection
DOE believes it would not be Intelligence and Counterintelligence fairness.
2. Specific Incident Polygraph following position, which DOE reaffirms to DOE a quality assurance
Examinations today: questionnaire and comments or
Two commenters contended that the DOE will not establish a policy of releasing complaints concerning the examination
likelihood of a certain percentage of the polygraph reports or videotapes of (section 709.24(f)). Examinees also
‘‘false negative’’ and ‘‘false positive’’ examinations or permitting individuals to might submit complaints to the
record all or any portion of the polygraph appropriate line Program Manager or
responses in polygraph examinations,
examination or related interviews. Such laboratory or facility manager. Secondly,
which could impede an investigation, materials contain information concerning
argue against the use of polygraph as noted in the previous section, DOE
investigative procedures and techniques of
testing in specific incident the Department. However, an individual may
polygraph examiners are subject to
investigations. In DOE’s view these file a request for the release of these materials rigorous training requirements and
comments are largely speculative. As under the Freedom of Information Act or the standards (sections 709.31 and 709.32)
DOE noted in the Supplemental NOPR, Privacy Act and the request will be processed and, additionally, as already noted DOE
the proposed provision [section in accordance with applicable regulations. as well as other Federal Departments
709.3(d)] for conducting specific 4. Topics Within the Scope of a and agencies are subject to bi-annual
incident polygraph examinations grew Polygraph Examination; Defining DODPI quality assurance reviews.
out of the NAS Report, which observed Polygraph Examination Questions 6. Accelerated Access Authorization
that this kind of use of the polygraph is Several commenters were critical of Program (AAAP)
one for which the existing scientific the question format DOE uses in
literature provides the strongest One commenter, opposed to DOE’s
polygraph examinations (section use of polygraph examinations,
support. In the absence of a showing 709.11), which is known as the ‘‘Test for
which rebuts the NAS Report, DOE has recommended that DOE terminate its
Espionage and Sabotage Format.’’ One AAAP, which DOE discussed in the
determined not to abandon what the commenter claimed that
NAS Report considers a potentially Supplemental NOPR. As explained in
notwithstanding DOE’s description of the Supplemental NOPR, DOE reviewed
useful investigative tool, employed in the question format in section 709.11,
appropriate circumstances in the use of polygraph examinations in
and section 709.12 (‘‘Defining polygraph the AAAP, in light of the NAS Report,
conjunction with other investigative examination questions’’), the TES
techniques, in specific incident to determine if the AAAP was unduly
methodology actually permits the reliant on the polygraph examination in
investigations, and thus DOE retains the examiner to go beyond national security
proposed provision in the final rule. granting interim access authorizations.
questions and to engage in a ‘‘fishing DOE’s review found that there are
3. Other Information Provided to an expedition’’ in areas potentially sufficient checks and balances in place
Individual Prior to a Polygraph unrelated to the stated scope of DOE’s that the continued use of polygraph
Examination polygraph examination. DOE disagrees. examinations, together with other
The question format and question components of the AAAP, is
One commenter recommended DOE methodology employed by DOE
revise paragraph (a) of proposed section appropriate. In any event, however,
examiners has been approved by the DOE determined not to retain in the
709.24 (Other information provided to Department of Defense Polygraph
the individual prior to a polygraph new counterintelligence evaluation
Institute (DODPI) and is generally used regulations the provision on the use of
examination) in two respects. First, the throughout the Federal government.
commenter noted that the proposed polygraph exams in the AAAP, since the
Additionally, DOE polygraph examiners AAAP is not a component of DOE’s
provision does not actually require are subject to rigorous training
video and audio recording and Counterintelligence Evaluation Program.
requirements and standards (sections The Secretary has approved for
recommended DOE modify the 709.31 and 709.32) and examiners as
provision to require these recordings, as publication this notice of final
well as polygraph program results are rulemaking.
a means of protecting both the subject to bi-annual DODPI quality
individual and the examiner. DOE assurance reviews. DOE does not IV. Procedural Requirements
agrees that such a requirement would believe the commenters have supported
help protect both the individual being A. Review Under Executive Order 12866
the need for changes to the proposed
examined as well as the examiner. provisions pertaining to the topics The Office of Information and
Section 709.24(a), as modified, reads: within the scope of a polygraph Regulatory Affairs of the Office of
(a) Inform the covered person that video examination and defining polygraph Management and Budget (OMB) has
and audio recordings of the examination examination questions, respectively. determined that today’s regulatory
session will be made, and that other action is a ‘‘significant regulatory
observation devices, such as two-way mirrors 5. Need for Independent Oversight action’’ under Executive Order 12866,
and observation rooms, also may be Three commenters who questioned ‘‘Regulatory Planning and Review,’’ 58
employed. the credibility and integrity of DOE’s FR 51735 (October 4, 1993). OMB has
The commenter also recommended polygraph examination process completed its review of this notice of
that section 709.24 be revised to provide recommended that DOE include in the final rulemaking.
that a copy of the videotape be made regulations provision for independent
available to the individual, if not oversight of the examination process by B. Review Under the Regulatory
routinely at least if the individual an independent board. DOE believes Flexibility Act
challenges the Office of Intelligence and that the regulations provide sufficient This rule was reviewed under the
Counterintelligence’s determination safeguards to ensure the integrity of the Regulatory Flexibility Act (5 U.S.C. 601
pursuant to section 709.17 (Final examination process and is not et seq.) which requires preparation of an
disposition of CI evaluation findings persuaded that there is justification or initial regulatory flexibility analysis for
and recommendations). DOE examined need for independent oversight board. any rule that is likely to have a
this issue in the Federal Register notice Following a polygraph examination, significant economic impact on a
(64 FR 70962) publishing the current examinees have the opportunity and are substantial number of small entities.
polygraph regulations and adopted the encouraged to complete and to submit This rulemaking does not directly
regulate small businesses or small 14, 2000, DOE published a statement of impose a Federal mandate requiring
governmental entities. It applies policy describing the intergovernmental preparation of an assessment under the
principally to individuals who are consultation process it will follow in the Unfunded Mandates Reform Act of
employees of, or applicants for development of such regulations (65 FR 1995.
employment by, some of DOE’s prime 13735). DOE has examined today’s rule
H. Treasury and General Government
contractors, which generally are large and has determined that it does not
Appropriations Act, 1999
businesses. There may be some affected preempt State law and does not have a
small businesses that are subcontractors, substantial direct effect on the States, on The Treasury and General
but the rule will not impose the relationship between the national Government Appropriations Act, 1999
unallowable costs. Accordingly, DOE government and the States, or on the (Public Law 105–277) requires Federal
certifies that the rule will not have a distribution of power and agencies to issue a Family Policymaking
significant economic impact on a responsibilities among the various Assessment for any rule that may affect
substantial number of small entities. levels of government. No further action family well-being. This rule would not
is required by Executive Order 13132. have any impact on the autonomy or
C. Review Under the Paperwork integrity of the family as an institution.
Reduction Act F. Review Under Executive Order 12988 Accordingly, DOE has concluded that it
DOE has determined that this With respect to the revision of is not necessary to prepare a Family
rulemaking does not contain any new or existing regulations and the Policymaking Assessment.
amended record keeping, reporting, or promulgation of new regulations,
I. Review Under the Treasury and
application requirements, or any other section 3(a) of Executive Order 12988,
General Government Appropriations
type of information collection ‘‘Civil Justice Reform’’ (61 FR 4729,
Act, 2001
requirements that require the approval February 7, 1996), imposes on Federal
of OMB under the Paperwork Reduction agencies the general duty to adhere to The Treasury and General
Act, 44 U.S.C. 3501 et seq. OMB has the following requirements: (1) Government Appropriations Act, 2001
defined the term ‘‘information’’ to Eliminate drafting errors and ambiguity; (44 U.S.C. 3516, note) provides for
exclude certifications, consents, and (2) write regulations to minimize agencies to review most disseminations
acknowledgments that entail only litigation; and (3) provide a clear legal of information to the public under
minimal burden (5 CFR 1320(h)(1)). standard for affected conduct rather guidelines established by each agency
than a general standard and promote pursuant to general guidelines issued by
D. Review Under the National OMB. OMB’s information quality
simplification and burden reduction.
Environmental Policy Act Section 3(b) of Executive Order 12988 guidelines were published at 67 FR
The final rule published today specifically requires that Executive 8452 (February 22, 2002), and DOE’s
establishes procedures for agencies make every reasonable effort to implementing guidelines were
counterintelligence evaluations to ensure that the regulation: (1) Clearly published at 67 FR 62446 (October 7,
include polygraph examinations and specifies the preemptive effect, if any; 2002). DOE has reviewed today’s notice
therefore will have no impact on the (2) clearly specifies any effect on under the OMB and DOE information
environment. DOE has determined that existing Federal law or regulation; (3) quality guidelines and has concluded
this rule is covered under the provides a clear legal standard for that it is consistent with applicable
Categorical Exclusion in DOE’s National affected conduct while promoting policies in those guidelines. DOE also
Environmental Policy Act regulations in simplification and burden reduction; (4) has concluded that today’s notice is
paragraph a.5 of appendix A to subpart specifies the retroactive effect, if any; (5) consistent with OMB’s ‘‘Information
D, 10 CFR part 1021, which applies to adequately defines key terms; and (6) Quality Bulletin for Peer Review’’
rulemakings amending an existing addresses other important issues applicable to agency disseminations of
regulation that does not change the affecting clarity and general ‘‘influential scientific information’’ and
environmental effect of the regulations draftsmanship under any guidelines ‘‘highly influential scientific
being amended. Accordingly, neither an issued by the Attorney General. Section assessments,’’ published at 70 FR 2664
environmental assessment nor an 3(c) of Executive Order 12988 requires (January 14, 2005). As discussed above,
environmental impact statement is Executive agencies to review regulations today’s final regulations take into
required. in light of applicable standards in account the 2002 report entitled ‘‘The
section 3(a) and section 3(b) to Polygraph and Lie Detection’’ of the
E. Review Under Executive Order 13132
determine whether they are met or it is Committee to Review the Scientific
Executive Order 13132, ‘‘Federalism,’’ unreasonable to meet one or more of Evidence on the Polygraph of the
64 FR 43255 (August 4, 1999) imposes them. DOE has completed the required National Academy of Sciences. OMB’s
certain requirements on agencies review and determined that, to the Peer Review Bulletin permits agencies,
formulating and implementing policies extent permitted by law, this rule meets as an alternative to the Bulletin’s peer
or regulations that preempt State law or the relevant standards of Executive review requirements otherwise
that have federalism implications. The Order 12988. applicable to disseminations of
Executive Order requires agencies to influential scientific information and
examine the constitutional and statutory G. Review Under the Unfunded
highly scientific assessments, to rely on
authority supporting any action that Mandates Reform Act of 1995
the principal findings, conclusions and
would limit the policymaking discretion Title II of the Unfunded Mandates recommendations of a report produced
of the States and carefully assess the Reform Act of 1995, 2 U.S.C. 1531 et by the National Academy of Sciences.
necessity for such actions. The seq., requires a Federal agency to
Executive Order also requires agencies perform a detailed assessment of the J. Review Under Executive Order 13211
to have an accountable process to costs and benefits of any rule imposing Executive Order 13211, ‘‘Actions
ensure meaningful and timely input by a Federal mandate with costs to State, Concerning Regulations That
State and local officials in the local, or tribal government, or to the Significantly Affect Energy Supply,
development of regulatory policies that private sector of $100 million or more. Distribution, or Use,’’ 66 FR 28355 (May
have federalism implications. On March The final rule adopted today does not 22, 2001) requires Federal agencies to
prepare and submit to the Office of 709.16 Application of Counterintelligence denial of employment or promotion, or
Information and Regulatory Affairs Evaluation Review Boards in reaching any other discrimination in regard to
(OIRA), Office of Management and conclusions regarding CI evaluations. hire or tenure of employment or any
709.17 Final disposition of CI evaluation term or condition of employment.
Budget, a Statement of Energy Effects for
findings and recommendations.
any significant energy action under Contractor means any industrial,
Executive Order 12866 that are likely to Subpart C—Safeguarding Privacy and educational, commercial, or other
have a significant adverse effect on the Employee Rights entity, assistance recipient, or licensee,
supply, distribution, or use of energy. 709.21 Requirements for notification of a including an individual who has
This rulemaking, although significant, polygraph examination. executed an agreement with DOE for the
will not have such an effect. 709.22 Right to counsel or other purpose of performing under a contract,
Consequently, DOE has concluded that representation. license, or other agreement, and
709.23 Obtaining consent to a polygraph including any subcontractors of any tier.
there is no need for a Statement of examination.
Energy Effects. Counterintelligence or CI means
709.24 Other information provided to the
covered person prior to a polygraph
information gathered and activities
K. Congressional Notification conducted to protect against espionage,
examination.
As required by 5 U.S.C. 801, DOE will 709.25 Limits on use of polygraph other intelligence activities, sabotage, or
report to Congress promulgation of examination results that reflect assassinations conducted for or on
today’s rule prior to its effective date. ‘‘Significant Response’’ or ‘‘No behalf of foreign powers, organizations
The report will state that it has been Opinion’’. or persons, or international terrorist
determined that the rule is not a ‘‘major 709.26 Protection of confidentiality of CI activities, but not including personnel,
rule’’ as defined by 5 U.S.C. 804(2). evaluation records to include polygraph physical, document or communications
examination records and other pertinent security programs.
List of Subjects documentation. Counterintelligence evaluation or CI
10 CFR Part 709 Subpart D—Polygraph Examination and evaluation means the process, possibly
Examiner Standards including a counterintelligence scope
Lie detector test, Privacy.
709.31 DOE standards for polygraph polygraph examination, used to make
10 CFR Part 710 examiners and polygraph examinations. recommendations as to whether certain
Administrative practice and 709.32 Training requirements for polygraph employees should have access to
examiners. information or materials protected by
procedure, Classified information,
Government contracts, Nuclear Authority: 42 U.S.C. 2011, et seq., 7101, et this part.
materials. seq., 7144b, et seq., 7383h–1; 50 U.S.C. 2401, Counterintelligence program office
et seq. means the Office of Counterintelligence
Issued in Washington, DC, on September in the Office of Intelligence and
25, 2006. Subpart A—General Provisions Counterintelligence (and any successor
Rolf Mowatt-Larssen, office to which that office’s duties and
Director, Office of Intelligence and § 709.1 Purpose.
authorities may be reassigned).
Counterintelligence. This part: Counterintelligence-scope or CI-scope
■ For the reasons stated in the preamble, (a) Describes the categories of
polygraph examination means a
DOE hereby amends Chapter III of Title individuals who are subject for
polygraph examination using questions
10 of the Code of Federal Regulations to counterintelligence evaluation
reasonably calculated to obtain
read as follows: processing;
(b) Provides guidelines for the counterintelligence information,
■ 1. Part 709 is revised to read as including questions relating to
follows: counterintelligence evaluation process,
including the use of counterintelligence- espionage, sabotage, terrorism,
scope polygraph examinations, and for unauthorized disclosure of classified
PART 709—COUNTERINTELLIGENCE information, deliberate damage to or
EVALUATION PROGRAM the use of event-specific polygraph
examinations; and malicious misuse of a United States
Subpart A—General Provisions (c) Provides guidelines for protecting Government information or defense
Sec. the rights of individual DOE employees system, and unauthorized contact with
709.1 Purpose. and DOE contractor employees subject foreign nationals.
709.2 Definitions. to this part. Covered person means an applicant
709.3 Covered persons subject to a CI for employment with DOE or a DOE
evaluation and polygraph. § 709.2 Definitions. contractor, a DOE employee, a DOE
709.4 Notification of a CI evaluation. For purposes of this part: contractor employee, and an assignee or
709.5 Waiver of polygraph examination Access authorization means an detailee to DOE from another agency.
requirements. administrative determination under the DOE means the Department of Energy
Subpart B—CI Evaluation Protocols and Atomic Energy Act of 1954, Executive including the National Nuclear Security
Protection of National Security Order 12968, or 10 CFR part 710 that an Administration (NNSA).
709.10 Scope of a counterintelligence individual is eligible for access to Foreign nexus means specific
evaluation. classified matter or is eligible for access indications that a covered person is or
709.11 Topics within the scope of a to, or control over, special nuclear may be engaged in clandestine or
polygraph examination. material. unreported relationships with foreign
709.12 Defining polygraph examination Adverse personnel action means: powers, organizations or persons, or
questions. (1) With regard to a DOE employee, international terrorists; contacts with
709.13 Implications of refusal to take a foreign intelligence services; or other
the removal, suspension for more than
polygraph examination.
709.14 Consequences of a refusal to 14 days, reduction in grade or pay, or hostile activities directed against DOE
complete a CI evaluation including a a furlough of 30 days or less as facilities, property, personnel, programs
polygraph examination. described in 5 U.S.C. Chapter 75; or or contractors by or on behalf of foreign
709.15 Processing counterintelligence (2) With regard to a contractor powers, organizations or persons, or
evaluation results. employee, the discharge, discipline, or international terrorists.
Human Reliability Program means the Polygraph test means that portion of Top Secret means the security
program under 10 CFR part 712. the polygraph examination during classification that is applied to DOE-
Intelligence means information which the polygraph instrument collects generated information or material the
relating to the capabilities, intentions, or physiological data based upon the unauthorized disclosure of which
activities of foreign governments or individual’s responses to questions from reasonably could be expected to cause
elements thereof, foreign organizations the examiner. exceptionally grave damage to the
or foreign persons. Program Manager means a DOE national security.
Local commuting area means the official designated by the Secretary or Unresolved issues means an opinion
geographic area that usually constitutes the Head of a DOE Element to make an by a CI evaluator that the analysis of the
one area for employment purposes. It access determination under this part. information developed during a CI
includes any population center (or two Random means a statistical process evaluation remains inconclusive and
or more neighboring ones) and the whereby eligible employees have an needs further clarification before a CI
surrounding localities in which people equal probability of selection for a CI access recommendation can be made.
live and can reasonably be expected to evaluation each time the selection
§ 709.3 Covered persons subject to a CI
travel back and forth daily to their usual process occurs. evaluation and polygraph.
employment. Regular and routine means access by
individuals without further permission (a) Mandatory CI evaluation. Except
Materials means any ‘‘nuclear as provided in § 709.5 of this part with
explosive’’ as defined in 10 CFR 712.3, more than two times per calendar
quarter. regard to waivers, a CI evaluation,
and any ‘‘special nuclear material,’’ which may include a CI-scope
hazardous ‘‘source material,’’ and Relevant questions are those
questions used during the polygraph polygraph examination, is required for
hazardous ‘‘byproduct material’’ as any covered person in any category
those terms are defined by the Atomic examination that pertain directly to the
issues for which the examination is under paragraph (b) of this section who
Energy Act of 1954 (42 U.S.C. 2014). will have or has access to classified
National security information means being conducted.
Restricted data means all data information or materials protected
information that has been determined under this paragraph. Such an
concerning the design, manufacture, or
pursuant to Executive Order 12958, as evaluation is required for covered
utilization of atomic weapons; the
amended by Executive Order 13292, or persons who are incumbent employees
production of special nuclear material;
any predecessor order to require at least once every five years. DOE, in
or the use of special nuclear material in
protection against unauthorized its sole discretion, may require a CI-
the production of energy, but does not
disclosure and is marked to indicate its scope polygraph examination:
include data declassified or removed
classified status when in documentary (1) If the CI evaluation reveals foreign
from the restricted data category
form. nexus issues;
pursuant to section 142 of the Atomic
NNSA means DOE’s National Nuclear (2) If a covered person who is an
Energy Act of 1954.
Security Administration. incumbent employee is to be assigned
Secret means the security
No opinion means an evaluation of a within DOE to activities involving
classification that is applied to DOE-
polygraph test by a polygraph examiner another agency and a polygraph
generated information or material the
in which the polygraph examiner examination is required as a condition
unauthorized disclosure of which
cannot render an opinion. of access to the activities by the other
reasonably could be expected to cause
Polygraph examination means all agency; or
serious damage to the national security. (3) If a covered person who is an
activities that take place between a Secretary means the Secretary of
Polygraph Examiner and an examinee incumbent employee is proposed to be
Energy or the Secretary’s designee.
(person taking the test) during a specific assigned or detailed to another agency
Significant response means an
series of interactions, including the and the receiving agency requests DOE
opinion that the analysis of the
pretest interview, the use of the to administer a polygraph examination
polygraph charts reveals consistent,
polygraph instrument to collect as a condition of the assignment or
significant, timely physiological
physiological data from the examinee detail.
responses to the relevant questions. (b) Paragraph (a) of this section
while presenting a series of tests, the Special Access Program or SAP
test data analysis phase, and the post- applies to covered persons:
means a program established under (1) In an intelligence or
test phase. Executive Order 12958 for a specific
Polygraph examination records means counterintelligence program office (or
class of classified information that with programmatic reporting
all records of the polygraph imposes safeguarding and access responsibility to an intelligence or
examination, including the polygraph requirements that exceed those counterintelligence program office)
report, audio-video recording, and the normally required for information at the because of access to classified
polygraph consent form. same classification level. intelligence information, or sources, or
Polygraph instrument means a Suspend means temporarily to methods;
diagnostic instrument used during a withdraw an employee’s access to (2) With access to Sensitive
polygraph examination, which is information or materials protected Compartmented Information;
capable of monitoring, recording and/or under § 709.3 of this part. (3) With access to information that is
measuring at a minimum, respiratory, System Administrator means any protected within a non-intelligence
electrodermal, and cardiovascular individual who has privileged system, Special Access Program (SAP)
activity as a response to verbal or visual data, or software access that permits that designated by the Secretary;
stimuli. individual to exceed the authorization (4) With regular and routine access to
Polygraph report means a document of a normal system user and thereby Top Secret Restricted Data;
that may contain identifying data of the override, alter, or negate integrity (5) With regular and routine access to
examinee, a synopsis of the basis for verification and accountability Top Secret National Security
which the examination was conducted, procedures or other automated and/or Information; and
the relevant questions utilized, and the technical safeguards provided by the (6) Designated, with approval of the
examiner’s conclusion. systems security assets for normal users. Secretary, on the basis of a risk
assessment consistent with paragraphs otherwise determined by the Secretary, § 709.4 Notification of a CI evaluation.
(e) and (f) of this section, by a Program on the recommendation of the (a) If a polygraph examination is
Manager for the following DOE offices appropriate Program Manager, if a scheduled, DOE must notify the covered
and programs (and any successors to covered person with access to DOE person, in accordance with § 709.21 of
those offices and programs): The Office classified information or materials this part.
of the Secretary; the Human Reliability refuses to consent to or take a polygraph (b) Any job announcement or posting
Program; the National Nuclear Security examination under this paragraph, then with respect to any position with access
Administration (including the Office of the Director of the Office of Intelligence to classified information or materials
Emergency Operations); and the Office and Counterintelligence (or, in the case protected under § 709.3(b) and (c) of this
of Health, Safety and Security. of a covered person in NNSA, the part should indicate that DOE may
(c) Random CI evaluation. Except as Administrator of NNSA, after condition the selection of an individual
provided in § 709.5 of this part with consideration of the recommendation of for the position (709.3(b)) or retention in
regard to waivers, DOE may require a CI the Director, Office of Intelligence and that position (709.3(b) and (c)) upon his
evaluation, including a CI-scope Counterintelligence) shall direct the or her successful completion of a CI
polygraph examination, of covered denial of access (if any) to classified evaluation, including a CI-scope
persons who are incumbent employees information and materials protected polygraph examination.
selected on a random basis from the under paragraphs (b) and (c) of this (c) Advance notice will be provided to
following: section, and shall refer the matter to the the affected Program Manager and
(1) All covered persons identified in Office of Health, Safety and Security for laboratory/site/facility director of the
§ 709.3(b); a review of access authorization covered persons who are included in
(2) All employees in the Office of eligibility under 10 CFR part 710. In any random examinations that are
Independent Oversight (or any addition, in the circumstances described administered in accordance with
successor office) within the Office of in this paragraph, any covered person provisions at § 709.3(c).
Health, Safety and Security because of with access to DOE classified
access to classified information § 709.5 Waiver of polygraph examination
information or material may request a requirements.
regarding the inspection and assessment polygraph examination.
of safeguards and security functions, (a) General. Upon a waiver request
(e) Risk assessment. For the purpose
including cyber security, of the DOE; submitted under paragraph (b) of this
of deciding whether to designate or
(3) All employees in other elements of section, DOE may waive the CI-scope
remove employees for mandatory CI
the Office of Health, Safety and Security polygraph examination under § 709.3 of
evaluations under paragraph (b)(6) of
(or any successor office) because of their this part for:
this section, Program Managers may (1) Any covered person based upon
access to classified information;
(4) All employees in the NNSA Office consider: certification from another Federal
of Emergency Operations (OEO or any (1) Access on a non-regular and non- agency that the covered person has
successor office) including DOE field routine basis to Top Secret Restricted successfully completed a full scope or
offices or contractors who support OEO Data or Top Secret National Security CI-scope polygraph examination
because of their access to classified Information or the nature and extent of administered within the previous five
information; access to other classified information; years;
(5) All employees with regular and (2) Unescorted or unrestricted access (2) Any covered person who is being
routine access to classified information to significant quantities or forms of treated for a medical or psychological
concerning: The design and function of special nuclear materials; and condition that, based upon consultation
nuclear weapons use control systems, (3) Any other factors concerning the with the covered person and
features, and their components employee’s responsibilities that are appropriate medical personnel, would
(currently designated as Sigma 15); relevant to determining risk of preclude the covered person from being
vulnerability of nuclear weapons to unauthorized disclosure of classified tested; or
deliberate unauthorized nuclear information or materials. (3) Any covered person in the interest
detonation (currently designated as (f) Based on the risk assessments of national security.
Sigma 14); and improvised nuclear conducted under paragraph (e) of this (b) Submission of Waiver Requests. A
device concepts or designs; and section and in consultation with the covered person may submit a request for
(6) Any system administrator with Director of the Office of Intelligence and waiver under this section, and the
access to a system containing classified Counterintelligence, the Program request shall assert the basis for the
information, as identified by the DOE or Manager shall provide waiver sought and shall be submitted, in
NNSA Chief Information Officer. recommendations as to positions to be writing, to the Director, Office of
(d) Specific incident polygraph designated or removed under paragraph Intelligence and Counterintelligence, at
examinations. In response to specific (b)(6) of this section for approval by the the following address: U.S. Department
facts or circumstances with potential Secretary. Recommendations shall of Energy, Attn: Director, Office of
counterintelligence implications with a include a summary of the basis for Intelligence and Counterintelligence,
defined foreign nexus, the Director of designation or removal of the positions 1000 Independence Avenue, SW.,
the Office of Intelligence and and of the views of the Director of the Washington, DC 20585.
Counterintelligence (or, in the case of a Office of Intelligence and (c) Disposition of Waiver Requests.
covered person in NNSA, the Counterintelligence as to the The Director, Office of Intelligence and
Administrator of NNSA, after recommendations. Counterintelligence, shall issue a
consideration of the recommendation of (g) Not less than once every calendar written decision on a request for waiver
the Director, Office of Intelligence and year quarter, the responsible Program prior to the administration of a
Counterintelligence) may require a Manager must provide a list of all polygraph examination. The Director
covered person with access to DOE incumbent employees who are covered shall obtain the concurrence of the
classified information or materials to persons under paragraphs (b) and (c) of Secretary in his or her decision on a
consent to and take an event-specific this section to the Director of the Office request for waiver under § 709.5(a)(3)
polygraph examination. Except as of Intelligence and Counterintelligence. and shall obtain the concurrence of the
Administrator of NNSA in a decision on (1) Probe a covered person’s thoughts not record the fact of that refusal in the
a waiver request from an NNSA covered or beliefs; employee’s personnel file.
person under § 709.5(a)(1) and (2) Concern conduct that has no CI
implication with a defined foreign § 709.15 Processing counterintelligence
§ 709.5(a)(2). Notification of approval of
evaluation results.
a waiver request will contain nexus; or
information regarding the duration of (3) Concern conduct that has no direct (a) If the reviews under § 709.10 or a
the waiver and any other relevant relevance to a CI evaluation. polygraph examination present
information. Notification of the denial unresolved foreign nexus issues that
§ 709.12 Defining polygraph examination raise significant questions about the
of a waiver request will state the basis questions. covered person’s access to classified
for the denial and state that the covered The examiner determines the exact information or materials protected
person may request reconsideration of wording of the polygraph questions under § 709.3 of this part that justified
the denial by the Secretary under based on the examiner’s pretest the counterintelligence evaluation, DOE
§ 709.5(d). interview of the covered person, the may undertake a more comprehensive
(d) Reconsideration Rights. If a waiver covered person’s understanding of the CI evaluation that, in appropriate
is denied, the covered person may file questions, established test question circumstances, may include evaluation
with the Secretary a request for procedures from the Department of of financial, credit, travel, and other
reconsideration of the denial within 30 Defense Polygraph Institute, and other relevant information to resolve any
days of receipt of the decision, and the input from the covered person. identified issues. Participation by Office
Secretary’s decision will be issued prior
of Intelligence and Counterintelligence
to the administration of a polygraph § 709.13 Implications of refusal to take a
polygraph examination. personnel in any such evaluation is
examination.
(a) Subject to § 709.14 of this part, a subject to Executive Order 12333, the
Subpart B—CI Evaluation Protocols covered person may refuse to take a DOE ‘‘Procedures for Intelligence
and Protection of National Security polygraph examination pursuant to Activities,’’ and other relevant laws,
§ 709.3 of this part, and a covered guidelines, and authorities as may be
§ 709.10 Scope of a counterintelligence applicable with respect to such matters.
evaluation. person being examined may terminate
(b) The Office of Intelligence and
the examination at any time.
A counterintelligence evaluation (b) If a covered person terminates a Counterintelligence, in coordination
consists of a counterintelligence-based polygraph examination prior to the with NNSA with regard to issues
review of the covered person’s completion of the examination, DOE concerning a NNSA covered person,
personnel security file and review of may treat that termination as a refusal may conduct an in-depth interview with
other relevant information available to to complete a CI evaluation under the covered person, may request
DOE in accordance with applicable § 709.14 of this part. relevant information from the covered
guidelines and authorities. As provided person, and may arrange for the covered
in § 709.3(b), DOE also may require a CI- § 709.14 Consequences of a refusal to person to undergo an additional
scope polygraph examination. As complete a CI evaluation including a polygraph examination.
provided for in § 709.3(c), a CI polygraph examination. (c) Whenever information is
evaluation, if conducted on a random (a) If a covered person is an applicant developed by the Office of Health,
basis, will include a CI-scope polygraph for employment or assignment or a Safety and Security indicating
examination. As set forth in § 709.15(b) potential detailee or assignee with counterintelligence issues, the Director
and (c) of this part, a counterintelligence regard to an identified position and the of that Office shall notify the Director,
evaluation may also include other covered person refuses to complete a CI Office of Intelligence and
pertinent measures to address and evaluation including a polygraph Counterintelligence.
resolve counterintelligence issues in examination required by this part as an (d) If, in carrying out a comprehensive
accordance with Executive Order 12333, initial condition of access, DOE and its CI evaluation of a covered person under
the DOE ‘‘Procedures for Intelligence contractors must refuse to employ, this section, there are significant
Activities,’’ and other relevant laws, assign, or detail that covered person unresolved issues, not exclusively
guidelines and authorities, as with regard to the identified position. related to polygraph examination
applicable. (b) If a covered person is an results, indicating counterintelligence
incumbent employee in an identified issues, then the Director, Office of
§ 709.11 Topics within the scope of a position subject to a CI evaluation Intelligence and Counterintelligence
polygraph examination. including a polygraph examination shall notify the DOE national laboratory
(a) DOE may ask questions in a under § 709.3(b), (c), or (d), and the director (if applicable), plant manager (if
specific incident polygraph examination covered person refuses to complete a CI applicable) and program manager(s) for
that are appropriate for a CI-scope evaluation, DOE and its contractors whom the individual works that the
examination or that are relevant to the must deny that covered person access to covered person is undergoing a CI
counterintelligence concerns with a classified information and materials evaluation pursuant to this part and that
defined foreign nexus raised by the protected under § 709.3(b) and (c) and the evaluation is not yet complete.
specific incident. may take other actions consistent with (e) Utilizing the DOE security criteria
(b) A CI-scope polygraph examination the denial of access, including in 10 CFR part 710, the Director, Office
is limited to topics concerning the administrative review of access of Intelligence and Counterintelligence,
covered person’s involvement in authorization under 10 CFR part 710. If makes a determination whether a
espionage, sabotage, terrorism, the covered person is a DOE employee, covered person completing a CI
unauthorized disclosure of classified DOE may reassign or realign the DOE evaluation has made disclosures that
information, unauthorized foreign employee’s duties, or take other action, warrant referral, as appropriate, to the
contacts, and deliberate damage to or consistent with that denial of access and Office of Health, Safety and Security or
malicious misuse of a U.S. government applicable personnel regulations. the Manager of the applicable DOE/
information or defense system. (c) If a DOE employee refuses to take NNSA Site, Operations Office or Service
(c) DOE may not ask questions that: a CI polygraph examination, DOE may Center.
§ 709.16 Application of assignee or detailee from access to the accordance with § 709.21 of this part;
Counterintelligence Evaluation Review information that justified the CI and
Boards in reaching conclusions regarding evaluation and return the assignee or (b) Obtains written consent from the
CI evaluations. detailee to the agency of origin. covered person prior to the polygraph
(a) General. If the results of a (f) Covered persons whose access is examination.
counterintelligence evaluation are not denied or revoked may request
dispositive, the Director of the Office of reconsideration by the head of the § 709.24 Other information provided to a
Intelligence and Counterintelligence relevant DOE element. covered person prior to a polygraph
may convene a Counterintelligence examination.
(g) For cases involving a question of
Evaluation Review Board to obtain the loyalty to the United States, the Director Before administering the polygraph
individual views of each member as of the Office of Intelligence and examination, the examiner must:
assistance in resolving Counterintelligence may refer the matter (a) Inform the covered person that
counterintelligence issues identified to the FBI as required by section 145d audio and video recording of each
during a counterintelligence evaluation. of the Atomic Energy Act of 1954. For polygraph examination session will be
(b) Composition. A cases indicating that classified made, and that other observation
Counterintelligence Evaluation Review information is being, or may have been, devices, such as two-way mirrors and
Board is chaired by the Director of the disclosed in an unauthorized manner to observation rooms, also may be
Office of Intelligence and a foreign power or an agent of a foreign employed;
Counterintelligence (or his/her power, DOE is required by 50 U.S.C. (b) Explain to the covered person the
designee) and includes representation 402a(e) to refer the matter to the Federal characteristics and nature of the
from the appropriate line Program Bureau of Investigation. polygraph instrument and examination;
Managers, lab/site/facility management (c) Explain to the covered person the
(if a contractor employee is involved), Subpart C—Safeguarding Privacy and physical operation of the instrument
NNSA, if the unresolved issues involve Employee Rights and the procedures to be followed
an NNSA covered person, the DOE during the examination;
§ 709.21 Requirements for notification of a (d) Review with the covered person
Office of Health, Safety and Security polygraph examination.
and security directors for the DOE or the relevant questions to be asked
When a polygraph examination is during the examination;
NNSA site or operations office. scheduled, the DOE must notify the
(c) Process. When making a final (e) Advise the covered person of the
covered person, in writing, of the date, covered person right against self-
recommendation under § 709.17 of this
time, and place of the polygraph incrimination; and
part, to a Program Manager, the Director
examination, the provisions for a (f) Provide the covered person with a
of Intelligence and Counterintelligence
medical waiver, and the covered pre-addressed envelope, which may be
shall report on the Counterintelligence
person’s right to obtain and consult with used to submit a quality assurance
Evaluation Review Board’s views,
legal counsel or to secure another questionnaire, comments or complaints
including any consensus
representative prior to the examination. concerning the examination.
recommendation, or if the members are
DOE must provide a copy of this part to
divided, a summary of majority and § 709.25 Limits on use of polygraph
the covered person. The covered person
dissenting views. examination results that reflect ‘‘Significant
must receive the notification at least ten
Response’’ or ‘‘No Opinion’’.
§ 709.17 Final disposition of CI evaluation days, excluding weekend days and
findings and recommendations. holidays, before the time of the DOE or its contractors may not:
examination except when good cause is (a) Take an adverse personnel action
(a) Following completion of a CI
shown or when the covered person against a covered person or make an
evaluation, the Director of the Office of
waives the advance notice provision. adverse access recommendation solely
Intelligence and Counterintelligence
on the basis of a polygraph examination
must recommend, in writing, to the § 709.22 Right to counsel or other result of ‘‘significant response’’ or ‘‘no
appropriate Program Manager that the representation. opinion’’; or
covered person’s access be approved or (a) At the covered person’s own (b) Use a polygraph examination that
retained, or denied or revoked. expense, a covered person has the right reflects ‘‘significant response’’ or ‘‘no
(b) If the Program Manager agrees
to obtain and consult with legal counsel opinion’’ as a substitute for any other
with the recommendation, the Program
or another representative. However, the required investigation.
Manager notifies the covered person
counsel or representative may not be
that the covered person’s access has § 709.26 Protection of confidentiality of CI
present during the polygraph
been approved or retained, or denied or evaluation records to include polygraph
examination. Except for interpreters and examination records and other pertinent
revoked.
signers, no one other than the covered documentation.
(c) If the Program Manager disagrees
person and the examiner may be present
with the recommendation of the (a) DOE owns all CI evaluation
in the examination room during the
Director, Office of Intelligence and records, including polygraph
polygraph examination.
Counterintelligence, the matter is (b) A covered person has the right to examination records and reports and
referred to the Secretary for a final consult with legal counsel or another other evaluation documentation.
decision. representative at any time during an (b) DOE maintains all CI evaluation
(d) If the Program Manager denies or interview conducted in accordance with records, including polygraph
revokes a DOE employee’s access, DOE § 709.15 of this part. examination records and other pertinent
may reassign the employee or realign documentation acquired in conjunction
the employee’s duties within the local § 709.23 Obtaining consent to a polygraph with a counterintelligence evaluation, in
commuting area or take other actions examination. a system of records established under
consistent with the denial of access. DOE may not administer a polygraph the Privacy Act of 1974 (5 U.S.C. 552a).
(e) If the Program Manager revokes the examination unless DOE: (c) DOE must afford the full privacy
access of a covered person assigned or (a) Notifies the covered person of the protection provided by law to
detailed to DOE, DOE may remove the polygraph examination in writing in information regarding a covered
person’s refusal to participate in a CI § 709.32 Training requirements for ACTION: Notice of extension of waiver of
evaluation to include a polygraph polygraph examiners. regulatory provisions.
examination and the completion of (a) Examiners must complete an
other pertinent documentation. initial training course of thirteen weeks, SUMMARY: This notice announces the
(d) With the exception of the or longer, in conformance with the extension of the ‘‘Notice of waiver of
polygraph report, all other polygraph procedures and standards established by regulatory provisions’’ for SBA’s Gulf
examination records are destroyed DODPI. Opportunity Pilot Loan Program (GO
ninety days after the CI evaluation is (b) Examiners must undergo annual Loan Pilot) until September 30, 2007.
completed, provided that a favorable continuing education for a minimum of Due to the scope and magnitude of the
recommendation has been made to grant forty hours training within the devastation to Presidentially-declared
or continue the access to the position. discipline of Forensic disaster areas resulting from Hurricanes
If a recommendation is made to deny or Psychophysiological Detection of Katrina and Rita, the Agency is
revoke access to the information or Deception. extending its full guaranty and
involvement in the activities that (c) The following organizations streamlined and centralized loan
justified conducting the CI evaluation, provide acceptable curricula to meet the processing available through the GO
then all of the polygraph examination training requirement of paragraph (b) of Loan Pilot to the small businesses in the
records are retained until the final this section: eligible parishes/counties through
resolution of any request for (1) American Polygraph Association, September 30, 2007.
reconsideration by the covered person (2) American Association of Police DATES: The waiver of regulatory
or the completion of any ongoing Polygraphists, and provisions published in the Federal
investigation. (3) Department of Defense Polygraph Register on November 17, 2005, is
Institute. extended under this notice until
Subpart D—Polygraph Examination September 30, 2007.
and Examiner Standards PART 710—CRITERIA AND FOR FURTHER INFORMATION CONTACT:
PROCEDURES FOR DETERMINING Charles Thomas, Office of Financial
§ 709.31 DOE standards for polygraph ELIGIBILITY FOR ACCESS TO
examiners and polygraph examinations. Assistance, U.S. Small Business
CLASSIFIED MATTER OR SPECIAL Administration, 409 Third Street, SW.,
(a) DOE adheres to the procedures and NUCLEAR MATERIAL
standards established by the Department Washington, DC 20416; Telephone (202)
of Defense Polygraph Institute (DODPI). ■ 2. The authority citation for part 710 205–6490; charles.thomas@sba.gov.
DOE administers only DODPI approved is revised to read as follows: SUPPLEMENTARY INFORMATION: In
testing formats. November 2005, SBA initiated, on an
Authority: 42 U.S.C. 2165, 2201, 5815,
(b) A polygraph examiner may 7101, et seq., 7383h–1; 50 U.S.C. 2401, et emergency basis, the GO Loan Pilot,
administer no more than five polygraph seq.; E.O. 10450, 3 CFR 1949–1953 comp., p. which was designed to provide
examinations in any twenty-four hour 936, as amended; E.O. 10865, 3 CFR 1959– expedited small business financial
period. This does not include those 1963 comp., p. 398, as amended, 3 CFR Chap. assistance to businesses located in those
instances in which a covered person IV. communities severely impacted by
voluntarily terminates an examination Hurricanes Katrina and Rita. Under this
■ 3. Section 710.6 is amended by re- unique initiative, the Agency provides
prior to the actual testing phase. designating paragraph (a) as paragraph
(c) The polygraph examiner must be its full (85%) guaranty and streamlined
(a)(1) and by adding at the end of re- and centralized loan processing to all
certified to conduct polygraph designated paragraph (a)(1) a new
examinations under this part by the eligible lenders that agree to make
paragraph (a)(2) to read as follows: expedited SBA 7(a) loans available to
DOE Psychophysiological Detection of
Deception/Polygraph Program Quality § 710.6 Cooperation by the individual. small businesses located in, locating to
Control Official. (a) * * * or re-locating in the parishes/counties
(d) To be certified under paragraph (c) (2) It is the responsibility of an that have been Presidentially-declared
of this section, an examiner must have individual subject to § 709.3(d) to as disaster areas resulting from
the following minimum qualifications: consent to and take an event-specific Hurricanes Katrina and Rita, plus any
(1) The examiner must be an polygraph examination. A refusal to contiguous parishes/counties.
experienced CI or criminal investigator consent to or take such an examination To maximize the effectiveness of the
with extensive additional training in may prevent DOE from reaching an GO Loan Pilot, on November 17, 2005,
using computerized instrumentation in affirmative finding required for SBA published a notice in the Federal
Psychophysiological Detection of continuing access authorization. In this Register waiving for the GO Loan Pilot
Deception and in psychology, event, DOE may suspend or terminate certain Agency regulations applicable to
physiology, interviewing, and any access authorization. the 7(a) Business Loan Program. (70 FR
interrogation. 69645) Since the pilot was designed as
* * * * *
(2) The examiner must have a a temporary program scheduled to
favorably adjudicated single-scope [FR Doc. E6–16049 Filed 9–28–06; 8:45 am] expire on September 30, 2006, the
background investigation, complete a BILLING CODE 6450–01–P waiver of certain Agency regulations
CI-scope polygraph examination, and also was due to expire on September 30,
must hold a ‘‘Q’’ access authorization, 2006. However, the Agency believes that
which is necessary for access to Secret SMALL BUSINESS ADMINISTRATION there is a continuing, substantial need
Restricted Data and Top Secret National for the specific SBA assistance provided
Security Information. In addition, he or 13 CFR Part 120 by this pilot in the affected areas. As
she must have been granted SCI access Gulf Opportunity Pilot Loan Program part of a comprehensive federal
approval. (GO Loan Pilot) initiative to assist in the continuing
(3) The examiner must receive basic recovery of these highly devastated
Forensic Psychophysiological Detection AGENCY:U.S. Small Business communities, the Agency believes it is
of Deception training from the DODPI. Administration (SBA). essential that SBA extend this unique

Rule: Counterintelligence Evaluation Program Polygraph Examinations Use

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57386 Federal Register / Vol. 71, No.

189 / Friday, September 29, 2006 / Rules and Regulations

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