CORRECT IT."
THE REMAINING PROBLEM IS WHETHER THE REGULATION RUNS AFOUL OF SOME SPECIFIC FEDERAL CONSTITUTIONAL PROHIBITION. IT SEEMS THAT AN ANALYSIS UNDER THE COMMERCE CLAUSE IS APPROPRIATE TO EXAMINE THIS ISSUE. THE SUPREME COURT HAS, UNDER THE COMMERCE CLAUSE, INVALIDATED STATE LAWS FALLING INTO THREE CATEGORIES: 1) LAWS THAT PURPOSEFULLY OR ARBITRARILY DISCRIMINATE AGAINST INTERSTATE COMMERCE IN FAVOR OF IN-STATE INTERESTS, HUGHES V. OKLAHOMA,441 U.S. 322, 336 (1979); 2) LAWS THAT IMPOSE INCIDENTAL BURDENS ON INTERSTATE AND FOREIGN COMMERCE THAT ARE CLEARLY EXCESSIVE IN COMPARISON TO PUTATIVE LOCAL BENEFITS, MINNESOTA V. CLOVER LEAF CREAMERY CO., 449 U.S. 456 (1981); AND 3) LAWS THAT UNDERMINE THE FEDERAL NEED FOR UNIFORMITY AMONG THE STATES IN PARTICULAR AREAS, SUCH AS FOREIGN TRADE AND INTERSTATE TRANSPORTATION. JAPAN LINE _LTD. V. COUNTY OF LOS ANGELES, 441 U.S. 434, 438 (1979), BIBB V. NAVAJO FREIGHT LINES, INC., 359 U.S. 520, 526-7 (1959).
I BELIEVE THAT AN ANALYSIS OF THE REGULATION IN QUESTION WOULD FALL UNDER THE SECOND CATEGORY MENTIONED ABOVE BECAUSE THE IMPACT OF THE REGULATION ON INTERSTATE COMMERCE, IF ANY, WOULD BE INCIDENTAL. THUS, THE REGULATION IS INVALID ONLY IF THE INCIDENTAL BURDEN ON INTERSTATE COMMERCE IS CLEARLY EXCESSIVE IN RELATION TO THE PUTATIVE LOCAL BENEFITS. SINCE THE PURPOSE OF THE REGULATION IS TO ENSURE THE ACCURACY AND RELIABILITY OF POLYGRAPH TESTS, I AM OF THE OPINION THAT THE REGULATION WOULD BE UPHELD AS CONSTITUTIONAL.
SECTION 8(B)(5) OF THE FEDERAL EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988 BOLSTERS THIS POSITION. THAT SECTION IMPOSES A MAXIMUM OF FIVE (5) TESTS PER CALENDAR DAY FOR TESTS PERFORMED PURSUANT TO THE EXEMPTIONS IN THE ACT. THUS, I BELIEVE THAT SINCE CONGRESS HAS MADE THE DETERMINATION THAT NO MORE THAN FIVE TESTS PER DAY SHOULD BE PERFORMED PURSUANT TO THE ACT, IT SEEMS THAT IT IS NOT UNREASONABLE TO LIMIT A POLYGRAPH EXAMINER IN OKLAHOMA TO TWELVE (12) TESTS PER DAY FOR ALL TYPES OF TESTS.
(RANDY J. MALONE)