[Federal Register Volume 70, Number 5 (Friday, January 7, 2005)]
[Proposed Rules]
[Pages 1383-1396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-248]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 70, No. 5 / Friday, January 7, 2005 / 
Proposed Rules  

[[Page 1383]]


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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 Counterintelligence, Department of Energy.

ACTION: Supplemental notice of proposed rulemaking and opportunity for 
public comment.

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SUMMARY: The Department of Energy (DOE or Department) publishes a 
supplemental notice of proposed rulemaking to establish new 
counterintelligence evaluation regulations, including revised 
regulations governing the use of polygraph examinations. This proposed 
rule substitutes for DOE's April 14, 2003, preliminary proposal to 
retain the existing Polygraph Examination Regulations without 
significant change. The statutory purpose of the regulations, as stated 
by section 3152 of the National Defense Authorization Act of Fiscal 
Year 2002, is ``* * * to minimize the potential for release or 
disclosure of classified data, materials, or information.'' The main 
features of today's supplemental proposal are: Significant reductions 
in the number of individuals now subject to mandatory 
counterintelligence evaluations including polygraph screening; 
initiation of random counterintelligence evaluations including 
polygraph screening to deter unauthorized releases or disclosures; 
strict prohibitions on the use of polygraph examination results as the 
sole basis for adverse actions against employees; and a program 
description showing how polygraph examinations are used as one of a 
broad array of tools to deal with counterintelligence risks.

DATES: Written comments (10 copies) are due March 8, 2005. You may 
present oral views, data, and arguments at the public hearing which 
will be held in Washington, DC on March 2, 2005 at 10 a.m. If you would 
like to speak at this hearing, contact Andi Kasarsky at (202) 586-3012. 
Each oral presentation is limited to 10 minutes. The hearing will last 
as long as there are persons requesting an opportunity to speak.

ADDRESSES: You may choose to address written comments or notification 
of intent to speak at the public hearing to U.S. Department of Energy, 
Office of Counterintelligence (CN-1), Docket No. CN-03-RM-01, 1000 
Independence Avenue. SW., Washington, DC 20585. Alternatively, you may 
e-mail your comments or your notification to: [email protected]. You may 
review or copy the public comments DOE has received in Docket No. CN-
03-RM-01, the public hearing transcript, and any other docket material 
DOE makes available at the DOE Freedom of Information Reading Room, 
Room 1E-190, 1000 Independence Avenue, SW., Washington, DC 20585. This 
notice of proposed rulemaking and supporting documentation are 
available on DOE's Internet home page at the following address: http://www.so.doe.gov. The public hearing for this rulemaking will be held at 
the following address: U.S. Department of Energy, room 1E-245, 1000 
Independence Avenue, SW., Washington, DC. For more information 
concerning public participation in this rulemaking, see Section VI of 
this supplemental notice of proposed rulemaking.

FOR FURTHER INFORMATION CONTACT: Douglas Hinckley, U.S. Department of 
Energy, Office of Counterintelligence, CN-1, 1000 Independence Avenue, 
SW., Washington, DC 20585, (202) 586-5901; or Robert Newton, U.S. 
Department of Energy, Office of General Counsel, GC-53, 1000 
Independence Avenue, SW., Washington, DC 20585, (202) 586-6980. For 
information concerning the public hearing, requests to speak at the 
hearing, submissions of written comments or public file information 
contact: Andi Kasarsky at (202) 586-3012.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    Under section 3152(a) of the National Defense Authorization Act for 
Fiscal Year 2002 (NDAA for FY 2002), DOE is obligated to prescribe 
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), would be 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, which are codified at 10 CFR part 709, 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.
    In Part II of this SUPPLEMENTARY INFORMATION, DOE reviews 
background information useful in understanding the existing statutory 
and regulatory provisions applicable to DOE's current 
counterintelligence polygraph examination program. In Part III of this 
SUPPLEMENTARY INFORMATION, DOE discusses the basis for today's 
supplemental proposed regulations, including DOE's evaluation of the 
NAS Polygraph Review which is entitled ``The Polygraph and Lie 
Detection.'' In Part IV of this SUPPLEMENTARY INFORMATION, DOE provides 
an overview of today's supplemental proposed regulations with specific 
references to critical provisions that should be highlighted for the 
information of potential commenters.
    DOE invites interested members of the public to provide their views 
on the issues in this rulemaking by filing written comments or by 
attending the public hearing scheduled in this notice. With an open 
mind, DOE intends carefully to evaluate the public comments received in 
response to this notice of proposed rulemaking and to respond in a 
notice of final rulemaking.

[[Page 1384]]

II. Background

    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.
    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 (Public Law 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 as a result of 
exclusive 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. DOE's response to the major issues 
presented in these critical comments is reflected in parts II and III 
of this SUPPLEMENTARY INFORMATION. DOE invites those who filed comments 
in response to the April 14, 2003, preliminary notice of proposed 
rulemaking to reconsider their views in light of the substantial 
changes to 10 CFR part 709 that DOE has proposed in this notice.
    Following the close of the comment period and consideration of 
public

[[Page 1385]]

comments, the Secretary then directed the Deputy Secretary of Energy to 
conduct a review of the current policy and its implementation history 
to date, the NAS Report, and the public and internal comments resulting 
from the Notice of Proposed Rulemaking, and to make recommendations 
based on his review. The Deputy Secretary worked closely with the 
Administrator of the National Nuclear Security Administration and the 
three directors of the nuclear weapons labs. He has discussed the 
issues with counterintelligence professionals, polygraph experts, and, 
as part of that review, he has also had access to classified summaries 
prepared by other Federal agencies regarding their use of polygraph as 
a screening tool for highly sensitive national security positions.

III. Basis for Supplemental Proposed Rule

    The NAS report makes very clear how little we actually know--in a 
scientific sense--about the theory and practice of polygraphs, either 
in support of or against the use of polygraphs in a variety of 
contexts. DOE found many of the NAS's concerns about the ``validity'' 
of polygraph testing to be well taken. Some employees feel quite 
strongly that the polygraph is a dangerous tool that either has or will 
deprive us of the kind of talent that is needed to support our 
important national security programs. And, yet, DOE proposes to 
conclude that the utility of polygraphs is strong enough to merit their 
use in certain situations, for certain classes of individuals, and with 
certain protections that minimize legitimate concerns expressed by the 
NAS, employees of the Department and its contractors, and other 
observers.
    DOE is therefore proposing substantial changes to how we use the 
polygraph in the context of the Department's counterintelligence 
program. In preparing today's proposal, DOE carefully weighed 
considerations of fairness to employees with national security 
objectives. DOE weighed the critical need to protect important classes 
of national security information against the reality that such 
information's value is realized in some situations only when shared 
among talented individuals, without which our national security would 
suffer. DOE weighed the possibility that individuals who might 
otherwise be critically important to our national security might not be 
able to contribute to our security if they choose another type of 
employment because they object to taking a polygraph exam. DOE weighed 
the possibility that a polygraph exam that is sensitive enough to raise 
the likelihood of ``catching'' someone who means to do harm to the 
United States is also sensitive enough to raise the risk that many 
``innocent'' employees will have their lives and employment disrupted 
by an examination that is either inconclusive or wrongly indicates 
deception, thereby also potentially depriving the government of their 
services. Throughout, DOE has been guided by the NAS Report, a study of 
considerable rigor and integrity both in the sense of what it tells us 
about what we know and don't know about scientific evidence relating to 
the polygraph, and in its willingness to make clear the limitations 
under which the study was conducted.
    Perhaps the most difficult issue involves the use of a polygraph as 
a screening tool, either as a pre-employment test, or as is the case 
with DOE, as a tool for determining access to certain types of 
information, programs, or materials. The NAS report points out that the 
generic nature of the questions asked in the traditional 
counterintelligence scope exam poses concerns for validity, concerns 
that are present to a lesser degree when a polygraph exam is focused on 
a specific set of facts or circumstances. Thus, the NAS report stated, 
``we conclude that in populations of examinees such as those 
represented in the polygraph research literature, untrained in 
countermeasures, specific-incident polygraph tests can discriminate 
lying from truth telling at rates well above chance, though well below 
perfection.'' By contrast, ``polygraph accuracy for screening purposes 
is almost certainly lower than what can be achieved by specific-
incident polygraph tests in the field.''
    Adding to the difficulty for public policy makers is the NAS' 
conclusion that ``virtually all the available scientific evidence on 
polygraph test validity comes from studies of specific-event 
investigations'' rather than studies of polygraphs used as a screening 
tool, and the ``general quality of the evidence for judging polygraph 
validity is relatively low.'' However, several agencies within the U.S. 
intelligence community have utilized the counterintelligence scope 
polygraph for many years as part of both their hiring process and 
periodic security evaluations of on-board personnel. Those examinations 
have proved to be very valuable.
    Federal agencies deploying the counterintelligence scope polygraph 
as a screening tool for initial hiring or initial access have detected 
applicants for classified positions within those agencies who were 
directed by foreign governments or entities to seek employment with the 
agencies in order to gain successful penetrations within the various 
U.S. Government components.
    U.S. agencies have also benefited from the utilization of the 
polygraph screen as part of periodic security evaluations and re-
investigations of federal employees and contractor personnel. Such 
examinations have resulted in multiple admissions in several different 
areas:
     Knowingly providing classified information to members of 
foreign intelligence services.
     Involvement in various stages of recruitment efforts by 
foreign intelligence services.
     Prior unreported contacts with known foreign intelligence 
officers.
     Efforts by employees to make clandestine contact with 
foreign diplomatic establishments or foreign intelligence officers.
     Serious contemplation of, or plans to commit, acts of 
espionage.
     Knowingly providing classified information to foreign 
nationals and uncleared U.S. persons.
    As a result of admissions and subsequent investigations, federal 
agencies have disrupted on going clandestine relationships between 
employees/contractors and foreign intelligence officers, and stopped 
others in their beginning phases, or even before the clandestine 
relationships began.
    If this were the end of the inquiry, it would be a relatively 
straightforward matter. The probability would be that use of the 
polygraph screen as one tool for counterintelligence would have a value 
that demanded its use in the context of access to information the 
protection of which is critical to our national security, even taking 
into account questions of employee morale and the resources necessary 
to sustain such a program. The value of its use in specific-incident 
investigations would be presumably greater still.
    However, that cannot be the end of the inquiry. As the NAS Report 
makes clear, there are two fundamental issues that must still be 
confronted: problems associated with examination results that produce 
``false positives'' (i.e., where an ``innocent'' person's exam is 
either inconclusive, or wrongly indicates deception or a significant 
response meriting further investigation); or ``false negatives'' (i.e., 
where a ``guilty'' person is judged to have ``passed'' an exam such 
that no follow up investigation is required). ``False positives'' pose 
a serious dilemma. They clearly affect the morale of those for whom 
such a result is reached, and at a certain number can plausibly be 
expected to affect the

[[Page 1386]]

morale of a sizeable portion of the workforce. They risk interrupting 
the careers of valuable contributors to our nation's defense, if only 
to fully investigate and clear someone who has not ``passed'' a 
polygraph. Both ways, therefore, they pose a very serious risk of 
depriving the United States of the vital services of individuals who 
may not be easily replaced. They also risk wasting valuable resources, 
particularly valuable security and counterintelligence resources that 
could more usefully be deployed in other ways. For all these reasons, 
therefore, false positives are a serious issue not only as a matter of 
individual justice but as a matter of the security of the United 
States.
    What this means, in turn, is that the ratio of ``true positives'' 
to ``false positives'' is a very important consideration in evaluating 
the polygraph's utility as a screening tool. Unfortunately, we do not 
really know what that ratio actually is. It largely depends on the 
accuracy of the polygraph used in this way, as to which, as the NAS 
Study explains, for the reasons noted above, we do not have enough hard 
information to make anything more than an educated guess.
    Nonetheless, the NAS's conclusion on this point is stark: 
``Polygraph testing yields an unacceptable choice * * * Its accuracy in 
distinguishing actual or potential security violators from innocent 
test takers is insufficient to justify reliance on its use in employee 
security screening in federal agencies.''
    The NAS analysis underlying this conclusion is very complex and 
varies somewhat depending on the ``sensitivity threshold'' at which the 
polygraph is set. There is no need to detail it fully here. However, 
the bottom line is that DOE found these concerns to be compelling, 
requiring a satisfactory response in order to continue the use of the 
polygraph as a counterintelligence tool for screening decisions.
    The core of DOE's response is twofold. First, DOE believes that 
considerations brought out by the NAS Study strongly counsel in favor 
of ensuring that the types of information that require a screening 
polygraph in order to obtain access to them are the most critical to 
our national security, so that we are only incurring the costs that the 
screening polygraph will inevitably entail in order to protect our most 
vital information. That has led DOE to propose substantially lowering 
the number of persons that would be subject to mandatory polygraph 
screening.
    Even in such cases, however, DOE still believes that the costs of 
allowing bottom-line decisions to be made based solely on a 
``positive'' that stands a substantial chance of being a ``false 
positive'' are unacceptably high. DOE cannot afford them because they 
risk undermining the very national security goals we hope to attain. 
The NAS paragraph quoted above actually only goes to the use of the 
polygraph results as the sole basis for decisionmaking. It does not 
address the polygraph's use as an investigative lead, to be used in 
conjunction with other traditional investigative tools. So used, the 
polygraph seems to be far less problematic because DOE should be able 
to use these other tools to distinguish the false positives from the 
true positives. The NAS Report acknowledges that this approach can 
ameliorate the problems it identifies, noting that ``We believe that 
any agency that uses polygraphs as part of a screening process should, 
in light of the inherent fallibility of the polygraph instrument, use 
the polygraph results only in conjunction with other information, and 
only as a trigger for further testing and investigation.''
    To put the point most simply: DOE knows of no investigative lead 
that is perfect. Most will identify a substantial number of instances 
of misconduct or ``false positives'' that do not check out. For 
example, anonymous tips are the bread and butter of investigations. If 
an anonymous tipster reports wrongdoing on someone's part that 
indicates danger to the national security, the report may be true. But 
it is also possible that the tipster misunderstood something and leapt 
to an unwarranted conclusion. And it is also possible that the tipster 
made up or distorted the report in order to slander the subject out of 
malice, envy, or because of some other grievance or motivation. 
Anonymity provides a cloak to the tipster that may result in the 
government's obtaining some true information it otherwise might not 
get, but it also lowers the costs to the tipster of lying.
    Nevertheless, we do not rule out the use of anonymous tips to 
screen individuals for access to information, or for all kinds of other 
purposes. Rather, we accept them, but we investigate them. What we do 
not do, however, is assume they are true and treat them as the sole 
basis for decisionmaking.
    Similarly, techniques in addition to the polygraph are utilized by 
U.S. Government agencies to determine whether to grant security 
clearances and determine access to classified information. Those 
techniques include, among others, national agency checks; credit and 
criminal checks; and interviews with co-workers. Any of those 
techniques, standing alone, could produce inaccurate information which, 
taken on its face without further verification, could lead to adverse 
consequences to the prospective or current employee. While no 
individual technique is perfect and without some potential for error, 
no one has suggested that we should abandon their use, or that we hire 
people and entrust them with national defense information with no prior 
checks or reviews whatsoever.
    In DOE's view, it is not unreasonable to place the same kind of 
limited credence in a polygraph result that we place in many other 
kinds of information that we receive in the course of evaluating 
whether an individual should be given access to extremely sensitive 
information. Therefore, DOE believes it should continue to use the 
polygraph as one tool to assist in making that determination, but that 
it should not use it as the only tool. That, in turn, leads us to 
propose retaining the policy in the present rule against taking any 
``adverse personnel action'' solely based on the test results of 
polygraph examinations. Moreover, we are proposing to 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.
    The bottom line is we intend that a polygraph screen operate as a 
``trigger'' that may often be useful for subsequent evaluation, but 
standing alone, to be treated as having no conclusive evidentiary 
value. In every case of an adverse personnel action, it is DOE policy 
that such an action or decision is based on other information as well.
    There remains the problem of ``false negatives,'' where a polygraph 
indicates ``no deception'' but the individual is actually being 
deceptive. The NAS report quite correctly highlights this as also a 
very real concern. DOE's review of this question persuades it that it 
is a certainty that any screening polygraph will produce a number of 
false negatives. These could in theory be significantly diminished by 
raising the sensitivity threshold of polygraph exams, but that almost 
certainly raises the numbers of false positives in a population like 
DOE's where virtually everyone is an honest patriot. Moreover, even 
this approach will not solve the problem, as we may still end up with a 
substantial number of false negatives.
    Rather, what we must keep in mind is that every ``clearance'' 
procedure has the problem of ``false negatives.'' It is just as 
dangerous to simply assume that a successfully completed background 
check means that we ``know'' the person is loyal to the United States. 
All that we ``know'' is that we have not found any

[[Page 1387]]

evidence of disloyalty. The same should hold for thinking about what it 
means to ``pass'' a polygraph exam. We actually do not ``know'' that 
the person is not being deceptive. We simply have not found anything 
indicating that he or she is. The real life public policy challenge is 
that we have to make a judgment about how far we go, how many resources 
we expend, in the search for perfection when it comes to 
counterintelligence. Quite obviously, considering the many tens of 
thousands of Americans who have access to information or programs the 
protection of which is absolutely critical, we are forced to make a 
probabilistic judgment on how far is enough. The right way to think 
about this is ``defense in depth.'' One tool alone will not suffice. 
But many tools, among them the polygraph and other well-known tools, 
working together can reduce the risk to the greatest extent practical.

IV. Overview of Proposed Regulations

    DOE is proposing that the new program, like the current program, be 
driven by access needs and apply equally to Federal and contractor 
employees. We will make no distinctions between political appointees or 
career service professionals. The function or information to which 
access is sought will be determinative.
    DOE is proposing (at proposed section 709.3(a)) to retain a 
mandatory CI evaluation program including polygraph screening 
principally for individuals with ``regular and routine access'' to the 
most sensitive information. (The term ``regular and routine access'' is 
defined at proposed section 709.2.) The proposed rule, like the current 
regulation, would provide for a mandatory counterintelligence (CI) 
evaluation (hereafter referred to as CI evaluation), including a CI-
scope polygraph examination prior to initial access being granted, as 
well as periodic CI evaluations at intervals not to exceed five years.
    Overall, DOE's proposal would narrow the range of information, 
access to which will trigger mandatory screening as compared to the 
potential scope of the program under the current legislation. The 
approach in today's proposal would have the effect of reducing the 
number of individuals subject to mandatory screening from in excess of 
potentially 20,000 under the current legislation to approximately 4,500 
under this new program.
    In addition, DOE is proposing that some elements of the mandatory 
screening population remain essentially the same as under the current 
regulation. For example: all counterintelligence employees; all 
employees in the Headquarters Office of Intelligence and at the Field 
Intelligence Elements; and all employees in DOE Special Access Programs 
(and non-DOE Special Access Programs if a requirement of the program 
sponsor) will be included in the mandatory screening program. These 
employees would continue to be subject to mandatory screening because 
they have routine access to highly sensitive information, such as 
foreign intelligence information and other extremely close-hold and 
compartmented information.
    DOE has searched for a test to identify the types of information 
that on balance would overcome the very real concerns about the 
validity of the polygraph screen. Most would agree that the polygraph 
should be reserved for only those programs or information, the 
protection of which is the most critical. As it happens, we have a well 
understood test of how to define the damage disclosure of certain 
information would present: the current classification levels of 
Confidential, Secret, and Top Secret. There are additional categories 
that are also important, but it seems that the definition of Top Secret 
is a better way to capture the information most precious to us: 
``information, the unauthorized disclosure of which reasonably could be 
expected to cause exceptionally grave damage to the national 
security''.
    Thus, DOE is proposing including in the mandatory screening program 
those employees with ``regular and routine access'' to all DOE-
originated ``Top Secret'' information, including Top Secret 
``Restricted Data'' and Top Secret ``National Security Information.'' 
(The terms in quotation marks are defined at proposed section 709.2.) 
Top Secret Restricted Data is a clearly distinguishable criterion that 
identifies the weapons community's most sensitive information assets. 
Other non-weapons-related Top Secret information, categorized as Top 
Secret National Security Information, although not dealing with nuclear 
weapons, includes our most sensitive national security information. 
This category would not include everyone with a ``Q'' or a Top Secret 
clearance, nor would it include all weapons scientists; it would 
include only those employees who require continuing, routine access to 
Top Secret RD or other DOE-originated Top Secret information. This is a 
fairly small population.
    The proposed rule also would include authority for certain 
managers, with input from the Office of Counterintelligence and subject 
to the approval by the Secretary, to include additional individuals 
within their offices or programs in the mandatory screening program. 
This authority would allow designation of individuals within the Office 
of the Secretary, the National Nuclear Security Administration, the 
Office of Security, the Office of Emergency Operations, the Office of 
Independent Oversight and Performance Assurance, and the Human 
Reliability Program (HRP) under 10 CFR part 712. (See proposed section 
709.3(a)(6) and (f).) The criteria for conducting a risk assessment are 
set forth at section 709.3(e). Those criteria are: 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; unescorted or unrestricted access to 
significant quantities or forms of special nuclear materials; and any 
other factors concerning the employee's responsibilities that are 
relevant to determining risk of unauthorized disclosure of classified 
information or materials.
    DOE is proposing not to designate for mandatory CI evaluations 
screening all individuals in the HRP. The NDAA for FY 2000 originally 
mandated that everyone in this program be subject to a screening 
polygraph, and the NDAA for FY 2001 retained that mandate.
    The NDAA for FY 2002, however, directs that the focus of DOE's 
polygraph program be the protection of classified data, materials or 
information. The HRP applies to individuals primarily not by reason of 
their access to classified information but because of their 
responsibilities for nuclear materials. Many, if not most, of the HRP 
individuals do not have routine access to the most sensitive classified 
information.
    DOE envisions, as one element of the new program, that employees 
designated for mandatory screening under the new regulation would be 
allowed to retain access to classified information or materials pending 
scheduling of their first CI evaluation.
    We now turn to an entirely new proposed element of the overall 
program--the random screening program. We have identified a universe of 
employees whose level and frequency of access, while not requiring 
mandatory screening, nevertheless warrants some additional measure of 
deterrence against damaging disclosures. (See proposed section 
709.3(b).)
    In reviewing the public policy dimensions of the polygraph, one is

[[Page 1388]]

struck by the ``either-or'' aspect of the debate: either you are 
subject to a polygraph, or you are not. This strikes DOE as too 
simplistic. The types of information we are concerned with do not 
easily fall into categories where either we fully deploy every tool we 
have to defend against disclosure or we do nothing. The classification 
regime itself acknowledges that there is a continuum, and that these 
determinations are based on less science and more judgment than is 
often admitted. Nonetheless, the problem of targeting is perhaps unique 
to DOE facilities, and especially our three weapons labs, in a way not 
present elsewhere in our national security complex. Nowhere else in 
America can someone--in one location--find not only our most sensitive 
nuclear weapons secrets, but secrets addressing other weapons of mass 
destruction, and special nuclear material.
    There are many ways to deter and detect such targeting, and the 
security and counterintelligence functions at DOE command the full 
attention of DOE's leadership, substantial resources, large and highly 
trained protective forces, and security and access controls that are 
too numerous to list here. Nonetheless, we will do everything we can to 
strengthen our ability to detect and deter activities inimical to our 
interests. Thus, as a policy matter, unless there are very compelling 
countervailing considerations, we should pursue even modest additions 
to the arsenal of tools we deploy to deter dissemination of this 
information to our enemies given the potentially grave consequences of 
failure.
    It is noteworthy that the NAS report, while questioning the 
validity of polygraph screens and their value in ``detection,'' also 
stated that ``polygraph screening may be useful for achieving such 
objectives as deterring security violations, increasing the frequency 
of admissions of such violations, [and] deterring employment 
applications from potentially poor security risks.''
    As the NAS report notes, ``the value, or utility, of polygraph 
testing does not lie only in its validity for detecting deception. It 
may have a deterrent value * * *'' And, as the NAS report also notes, 
``predictable polygraph testing (e.g., fixed-interval testing of people 
in specific job classifications) probably has less deterrent value than 
random testing.'' This leads DOE to conclude that it is appropriate in 
some instances to include some form of screening beyond that routinely 
required to obtain and maintain access to classified information or 
materials that makes some use of the deterrent value of the polygraph. 
The random screening program is intended to meet this need and to 
supplement the mandatory screening program. Under the random screening 
portion of the program, CI evaluations would not be a condition of 
initial entry nor would individuals with access to the information at 
issue be subject to mandatory polygraphs at specific intervals. 
However, they would be subject to random selection for CI evaluations 
at any time, at any frequency. In essence, even though it is possible 
that an individual may never actually be selected through the random 
process, the individual could be subject to a (random) CI evaluation at 
any time, even if the individual recently completed one.
    While the overall goal is one of deterrence, an associated benefit 
is that the random program serves to reduce the number of individuals 
in the mandatory program, allowing us to focus our resources more 
wisely. Thus, it will be DOE's policy to fashion a random CI evaluation 
program including polygraph that achieves the objectives of deterrence 
with the minimum reasonable percentage or number of individuals to 
which it applies. Since we estimate the total number of individuals who 
would be eligible for the random CI evaluations including polygraph to 
be small, the use of a minimum percentage means the total number of 
random polygraphs in any given year would be a much lower number. 
Proposed section 709.3(b) lists individuals whose occasional access to 
classified information or materials would merit screening. Again, the 
population associated with routine access to such information will not 
encompass the entire population of ``Q'' cleared individuals.
    In addition, due to the interconnectedness of DOE sites and cyber 
networks and the volume of sensitive unclassified information, we are 
already taking steps to apply additional security controls (clearance 
requirements, segregation of duties, two-person rules, etc.) to system 
administrators of unclassified systems.
    In addition to the mandatory and random screening programs, DOE is 
proposing a provision for conducting ``specific-incident'' polygraph 
examinations in response to specific facts or circumstances with 
potential counterintelligence implications with a defined foreign 
nexus. (See proposed section 709.3(c).) That recommendation also grows 
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 would provide 
for employee-requested polygraph examinations in the context of a 
specific incident. (See proposed section 709.3(c).)
    The proposed rule would not retain the provision in the existing 
regulations concerning the use of polygraph examinations for the 
Accelerated Access Authorization Program (AAAP). Since AAAP is related 
exclusively to expedited interim access authorizations rather than to 
DOE's Counterintelligence Evaluation Program, it should not be covered 
by part 709. Nevertheless, DOE did undertake a review of the use of 
polygraph examinations as part of the AAAP, in light of the NAS report, 
to determine if it was unduly reliant on such examinations 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 the other components of the AAAP, 
is appropriate. Likewise, the proposed rule deletes the general 
provision in the existing regulations regarding employee requested 
polygraphs.
    As the discussion above makes clear, the Department is strongly 
committed to maximizing protections against potential errors and 
adverse consequences and safeguarding the privacy of the employees who 
are subject to CI evaluations. Therefore the proposed rule would retain 
and enhance the protections already contained in the current 
regulation. The provisions we would retain include: written 
notification by DOE and written consent from the employee are required 
before a polygraph examination can be administered; a prohibition 
against recording a refusal to submit to a polygraph examination in an 
employee's personnel file; audio and video recordings of polygraph 
examination sessions would be made to protect both the employee and the 
polygrapher; all polygraph examination records and reports would be 
maintained in a system of records established under the Privacy Act; 
and strict qualification standards and standards of conduct for 
polygraphers would be established and enforced. Neither the polygrapher 
nor the Office of Counterintelligence would have the authority to make 
a decision to grant or deny access to information covered by part 709. 
That decision would be made by the Program Manager or the Secretary. 
The polygraph examination would be limited to topics concerning the 
individual's involvement in espionage, sabotage, terrorism, 
unauthorized disclosure of classified information, unauthorized foreign

[[Page 1389]]

contacts, and deliberate damage to or malicious misuse of a U.S. 
government information or defense system. The examiner would not be 
permitted to ask ``lifestyle'' questions, e.g., drugs, crimes, and 
falsification of application.
    Perhaps the most important aspect of these safeguards is how we 
address the problem of ``false positives.'' Assuming we adhere to the 
difficult policy choice that the continued use of polygraphs as both a 
screening tool and for resolving specific incidents is appropriate, we 
believe that it is absolutely necessary to ensure that we minimize to 
the greatest extent possible any morale effects of the polygraph, and 
do everything we can to prevent ``false positives'' from producing an 
unfair result to an employee.
    Limiting the population of those subject to mandatory screening 
polygraphs is the most important step we can take to limit these kinds 
of problems. In addition, however, we are proposing a few improvements 
to the current rule. First, we would clarify that the sole purpose for 
which we use the polygraph as a screening tool is to assist us in 
making determinations about whether an individual may be given access 
to specific categories of highly sensitive information. Otherwise, DOE 
does not use it to make employment decisions at all, except to the 
extent that access to this information may be a critical element of 
someone's job.
    The proposed rule also would make clear that it is DOE's policy not 
to base a denial of access solely on the results of a polygraph exam. 
(See proposed section 709.25(a).) This would be consistent with the NAS 
report's recommendation: ``We believe that any agency that uses 
polygraphs as part of a screening process should, in light of the 
inherent fallibility of the polygraph instrument, use the polygraph 
results only in conjunction with other information, and only as a 
trigger for further testing and investigation.''
    The proposed rule also would improve the process for making 
decisions to grant, continue, or deny access to these high-risk 
programs by providing for a counterintelligence evaluation review 
board, including senior DOE officials, that may be convened by the 
Director of the Office of Counterintelligence to consider the results 
of counterintelligence evaluations that are not dispositive and to 
solicit the individual recommendations of the board members. The board 
could include the appropriate weapons laboratory director if the access 
determination involves a laboratory employee.
    Because the policy choices discussed above lead to the conclusion 
that the polygraph should be just one tool of many, the proposed rule 
would make clear that polygraphs are just one element to be used in 
counterintelligence evaluations. The current rule refers to review of 
personnel security files and personal interviews in conjunction with 
the polygraph. The proposed rule would broaden this reference to 
provide that DOE may when appropriate employ other techniques, such as 
review of financial and credit information, net worth analyses, 
analyses of foreign travel and foreign contacts and connections, and 
other relevant information. Any such review by OCI will be conducted in 
accordance with 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.
    In addition to a wider array of tools, better tools are needed to 
increase the reliability and validity of screening processes. The NAS 
report called for basic and applied scientific research into improved 
security screening techniques, and suggested that such an effort could 
be devoted in part to developing knowledge to put the polygraph 
technique on a firmer scientific foundation, which could strengthen its 
acceptance as a tool for detecting and deterring security threats. We 
have also identified a need for basic research into improved screening 
technologies, including but not limited to psychological and behavioral 
assessment techniques. It may be, as the NAS report suggests, that this 
research is best conducted under the auspices of an organization other 
than an agency that invests considerable resources in a 
counterintelligence polygraph program. DOE stands ready to lead or 
assist in such research.

V. Regulatory Review

A. National Environmental Policy Act

    The proposed rule would retain the existing 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.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires 
preparation of an initial regulatory flexibility analysis for every 
rule that must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. This 
rulemaking will not directly regulate small businesses or small 
governmental entities. It will apply principally to individuals who are 
employees of, or applicants for employment by, some of DOE's prime 
contractors, which 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 proposed rule, 
if promulgated, will not have a significant economic impact on a 
substantial number of small entities.

C. Paperwork Reduction Act

    DOE has determined that this proposed rule 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 the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The OMB has defined 
the term ``information'' to exclude certifications, consents, and 
acknowledgments that entail only minimal burden (5 CFR 1320.3(h)(1)).

D. Unfunded Mandates Reform Act of 1995

    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 governments, or to the private sector of $100 
million or more. The proposed rule does not impose a Federal mandate 
requiring preparation of an assessment under the Unfunded Mandates 
Reform Act of 1995.

E. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999, (Public Law 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any proposed rule that may affect 
family well being. This proposed rule will not have any impact on the 
autonomy or

[[Page 1390]]

integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

F. Executive Order 12866

    In accordance with Executive Order 12866, the rule has been 
determined to be significant and has been reviewed by the Office of 
Management and Budget.

G. Executive Order 12988

    Section 3(a) of Executive Order 12988, 61 FR 4729 (February 7, 
1996) imposes on executive agencies the general duty to adhere to the 
following requirements: (1) Eliminate drafting errors and ambiguity; 
(2) write regulations to minimize litigation; and (3) provide a clear 
legal standard for affected conduct rather than a general standard, and 
promote simplification and burden reduction. 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 proposed rule meets the relevant standards of 
Executive Order 12988.

H. Executive Order 13084

    Under Executive Order 13084, 63 FR 27655 (May 19, 1998), DOE may 
not issue a discretionary rule that significantly or uniquely affects 
Indian tribal governments and imposes substantial direct compliance 
costs. This proposed rulemaking would not have such effects. 
Accordingly, Executive Order 13084 does not apply to this rulemaking.

I. Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 10, 1999), requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by state and local officials in the development of 
regulatory policies that have ``federalism implications.'' Policies 
that have federalism implications are defined in the Executive Order to 
include regulations that have ``substantial direct effects 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.'' 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 this proposed rule and determined that it 
would 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 the Executive Order.

J. Executive Review Under Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use), 66 FR 28355 
(May 22, 2001) requires preparation and submission to OMB of a 
Statement of Energy Effects for significant regulatory 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. Treasury and General Government Appropriations Act, 1999

    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 issues by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2001), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this 
notice of proposed rulemaking under the OMB and DOE guidelines, and has 
concluded that it is consistent with applicable policies in those 
guidelines.

VI. Opportunity for Public Comment

A. Written Comments

    Interested members of the public are invited to participate in this 
proceeding by submitting data, views, or comments on this proposed 
rule. Ten copies of written comments should be submitted to the address 
indicated in the ADDRESSES section of this notice of proposed 
rulemaking. Comments should be identified on the outside of the 
envelope and on the comments themselves with the designation 
``Counterintelligence Evaluation Regulation, Docket No. CN-03-RM-01.'' 
If anyone wishing to provide written comments is unable to provide ten 
copies, alternative arrangements can be made in advance with the DOE. 
All comments received on or before the date specified at the beginning 
of this notice, and other relevant information before final action is 
taken on the proposed rule, will be considered.
    All submitted comments will be available for public inspection as 
part of the administrative record on file for this rulemaking in the 
DOE Freedom of Information Reading Room at the address indicated in the 
ADDRESSES section of this notice of proposed rulemaking. Pursuant to 
the provisions of 10 CFR 1004.11, anyone submitting information or data 
that he or she believes to be confidential and exempt by law from 
public disclosure should submit one complete copy of the document, as 
well as two copies, if possible, from which the information has been 
deleted. DOE will make its determination as to the confidentiality of 
the information and treat it accordingly.

B. Public Hearing

    You will find the time and place of the public hearing listed at 
the beginning of this notice of proposed rulemaking. We invite any 
person who has an interest in today's notice of proposed rulemaking, or 
who is a representative of a group or class of persons that has an 
interest in these issues, to request an opportunity to make an oral 
presentation. If you would like to speak at the public hearing, please 
notify Andi Kasarsky at (202) 586-3012. You may also send your 
notification by mail or e-mail to the address given in the ADDRESSES 
section at the beginning of this notice of proposed rulemaking. The 
person making the request should briefly describe the nature of the 
interest in the rulemaking, and provide a telephone number for contact.
    DOE will designate a DOE official to preside at the public hearing. 
The public hearing will not be a judicial or evidentiary-type hearing, 
but DOE will conduct it in accordance with 5 U.S.C. 553 and section 501 
of the Department of Energy Organization Act (42 U.S.C. 7191). Oral 
statements should be limited to 10 minutes. At the conclusion of all 
initial oral statements, each person who

[[Page 1391]]

has made an oral statement will be given the opportunity, if he or she 
so desires, to make a rebuttal or clarifying statement. The statements 
will be given in the order in which the initial statements were made 
and will be subject to time limitations. Only those conducting the 
hearing may ask questions.
    DOE will prepare a transcript of the hearing. DOE will retain the 
transcript and other records of this rulemaking and make them available 
for inspection in DOE's Freedom of Information Reading Room, as 
provided at the beginning of this notice of proposed rulemaking. Any 
person may purchase a copy of the transcript from the transcribing 
reporter.
    The presiding official will announce any further procedural rules 
needed for the proper conduct of the hearing.

List of Subjects

10 CFR Part 709

    Lie detector tests, Privacy.

10 CFR Part 710

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

    Issued in Washington, DC, on December 30, 2004.
Stephen W. Dillard,
Director, Office of Counterintelligence.

    For the reasons stated in the preamble, DOE hereby proposes to 
amend chapter III of title 10 of the Code of Federal Regulations as 
follows:
    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 Individuals 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 Individual rights to counsel or other representation.
709.23 Obtaining individual consent to a polygraph examination.
709.24 Other information provided to the individual 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 that 
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, 
including a counterintelligence scope polygraph examination, employed 
by the Office of Counterintelligence 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 established under section 215 of the Department of 
Energy Organization Act (and any successor office to which that 
office's duties and authorities may be reassigned) and the Office of 
Defense Nuclear Counterintelligence established by section 3232 of the 
National Defense Authorization Act for Fiscal Year 2000 (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 DOE or contractor employment, 
a DOE employee, a DOE contractor employee, and an 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 subject DOE 
employee

[[Page 1392]]

or contractor employee 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.
    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.
    No significant response means an opinion indicating that the 
analysis of the polygraph charts revealed no consistent, significant, 
timely physiological responses to the relevant questions.
    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 without further permission or 
individuals who access such information more than two times per 
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 revealed 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  Individuals 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, including a CI-scope 
polygraph examination, is required for any covered person who will have 
or has access to classified information or materials protected under 
this paragraph. Such an examination is required for covered persons who 
are incumbent employees at least once every five years and at intervals 
determined through random selection. This paragraph applies to covered 
persons:
    (1) In a counterintelligence program office (or with programmatic 
reporting responsibility to a counterintelligence program office) 
because of access to classified information, or counterintelligence 
information, sources, and methods;
    (2) In the DOE Office of Intelligence and all DOE field 
intelligence elements because of the direct, unrestricted nature of 
their employees' access to raw classified intelligence 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

[[Page 1393]]

    (6) Designated, with approval of the Secretary, on the basis of a 
risk assessment consistent with paragraph (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; the Office of Independent Oversight and Performance 
Assurance; the Office of Security; and the Office of Emergency 
Operations (OEO).
    (b) 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 employees in the Office of Security because of their access 
to classified information;
    (2) All employees in the 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;
    (3) All employees in the Office of Independent Oversight and 
Performance Assurance (or any successor office) because of access to 
classified information regarding the inspection and assessment of 
safeguards and security functions, including cyber security, of the 
DOE;
    (4) 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
    (5) Any system administrator with access to a system containing 
classified information, as identified by the DOE or NNSA Chief 
Information Officer.
    (c) 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 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 Counterintelligence will 
direct the denial of access (if any) to classified information and 
materials protected under paragraphs (a) and (b) of this section, and 
will refer the matter to the Office of 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.
    (d) Risk assessment. For the purpose of deciding whether to 
designate or remove employees for mandatory CI evaluations under 
paragraph (a)(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.
    (e) Based on the risk assessments conducted under paragraph (e) of 
this section and in consultation with the Director of the Office of 
Counterintelligence, the Program Manager shall provide recommendations 
as to positions to be designated or removed under paragraph (a)(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 Counterintelligence as to 
the recommendations.
    (f) Not less than once every calendar year quarter, the responsible 
Program Manager must provide a list of all incumbent personnel covered 
above in paragraphs (a) and (b) of this section to the Director of the 
Office of Counterintelligence.


Sec.  709.4  Notification of a CI evaluation.

    (a) If a polygraph examination is scheduled, DOE must notify the 
individual, in accordance with Sec.  709.21of 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(a) and (b) of this part must indicate that the selection of 
an individual for the position (Sec.  709.3(a)) or retention in that 
position (Sec.  709.3(a) and (b)) may be conditioned upon his or her 
successful completion of a CI evaluation, including a CI-scope 
polygraph examination.
    (c) The Office of Counterintelligence provides advance notice to 
the affected Program Manager and laboratory/site/facility director of 
the individuals who are included in any random examinations that are 
administered in accordance with provisions at Sec.  709.3(b).


Sec.  709.5  Waiver of polygraph examination requirements.

    (a) General. The CI-scope polygraph examination requirement under 
Sec.  709.3 of this part does not apply to:
    (1) Any individual for whom the Director of the Office of 
Counterintelligence gives a waiver, based upon certification from 
another Federal agency that the individual has successfully completed a 
full scope or CI-scope polygraph examination administered within the 
previous five years;
    (2) Any individual who is being treated for a medical or 
psychological condition that, based upon consultation with the 
individual and appropriate medical personnel, the Secretary or the 
Director of the Office of Counterintelligence determines would preclude 
the individual from being tested; or
    (3) Any individual for whom the Secretary gives a written waiver in 
the interest of national security.
    (b) Submission of waiver requests. Each request submitted under 
Sec.  709.5(a)(2) shall assert the basis or waiver sought and shall be 
submitted, in writing, to the Director of the Office of 
Counterintelligence at the following address: U.S. Department of 
Energy, Attn: Director, Office of Counterintelligence, 1000 
Independence Avenue, SW., Washington, DC 20585.
    (c) Disposition of waiver requests. Decisions on waivers are issued 
in writing. If a waiver request is approved, the notification contains 
information regarding the duration of the waiver and any other relevant 
instructions, as deemed appropriate. If the waiver is denied, the 
notification explains the basis for the denial.
    (d) Reconsideration rights. If a waiver is denied by the Director 
of the Office of Counterintelligence, the notification informs the 
candidate that a request for reconsideration by the Secretary of Energy 
may be filed within 30 days of receipt of the decision.

[[Page 1394]]

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


Sec.  709.10  Scope of a counterintelligence evaluation.

    At a minimum, a counterintelligence evaluation consists of a 
counterintelligence-scope polygraph examination and a 
counterintelligence-based review of the covered individual's personnel 
security file. 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 to a CI-scope examination or that are 
relevant to the counterintelligence concerns with a defined foreign 
nexus.
    (b) A CI-scope polygraph examination is limited to topics 
concerning the individual'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 an individual'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 individual, 
the individual's understanding of the questions, established test 
question procedures from the Department of Defense Polygraph Institute, 
and other input from the individual.


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

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


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

    (a) If an individual is an applicant for employment or assignment 
or a potential detailee and the individual 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 individual to the identified position.
    (b) If an individual is an incumbent employee subject to a CI 
evaluation including a polygraph examination under Sec.  709.3(a), (b), 
or (c), and the individual refuses to complete a CI evaluation, DOE and 
its contractors must deny that individual access to classified 
information and materials protected under Sec.  709.3(a) and (b) and 
may take other actions consistent with the denial of access, including 
administrative review of access authorization under 10 CFR part 710. If 
the individual is a DOE employee, DOE may reassign or realign the 
individual's duties, or take other action, consistent with that denial 
of access 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) General. A Counterintelligence Evaluation under this part 
consists of three elements:
    (1) CI-scope polygraph examination;
    (2) Review of the personnel security file; and
    (3) Review of other relevant information available to DOE in 
accordance with applicable guidelines and authorities.
    (b) If the polygraph examination and reviews under paragraph (a) of 
this section present unresolved foreign nexus issues that raise 
significant questions about the individual'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 may, in appropriate circumstances, 
include evaluation of financial, credit, travel, and other relevant 
information to resolve any identified issues. Participation by OCI 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.
    (c) The Office of Counterintelligence may conduct an in-depth 
interview with the individual, may request relevant information from 
the individual, and may provide an opportunity for the individual to 
undergo an additional polygraph examination.
    (d) Whenever information is developed by the Office of Security 
indicating counterintelligence issues, the Director of the Office of 
Security shall notify the Director of the Office of 
Counterintelligence.
    (e) If, in carrying out a comprehensive CI evaluation of an 
individual under this section, there are significant unresolved issues, 
not exclusively related to polygraph examination results, indicating 
counterintelligence issues, then the Director of the Office of 
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 individual is undergoing a CI 
evaluation pursuant to this part and that the evaluation is not yet 
complete.


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 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 Counterintelligence (or his/
her designee) and includes representation from the appropriate line 
Program Managers, lab/site/facility management (if a contractor 
employee is involved), the DOE Senior Intelligence Officer, the DOE 
Office of Security and security directors for the DOE or NNSA site or 
operations office.
    (c) When making a final recommendation under Sec.  709.17 of this 
part, to a program manager, the Director of 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.

[[Page 1395]]

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

    (a) Following completion of a CI evaluation, the Director of the 
Office of Counterintelligence must recommend, in writing, to the 
appropriate Program Manager that the individual's access be approved or 
retained, or denied or revoked.
    (b) If the Program Manager agrees with the recommendation, the 
Program Manager will notify the individual that the individual's access 
has been approved or retained, or denied or revoked.
    (c) If the Program Manager disagrees with recommendation of the 
Director of the Office of Counterintelligence, the matter is referred 
to the Secretary for a final decision.
    (d) If the Program Manager denies or revokes the individual's 
access, and the individual is a DOE employee, DOE may reassign the 
individual or realign the individual'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 an individual 
detailed to DOE, DOE may remove the individual from access to the 
information that justified the CI evaluation and return the individual 
to the agency of origin.
    (f) For cases involving a question of loyalty to the United States, 
the Director of the Office of Counterintelligence may refer the matter 
to the FBI as required by section 145d of the AEA. 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.
    (g) Utilizing the DOE security criteria for granting or denying an 
access authorization under 10 CFR part 710, the Office of 
Counterintelligence makes a determination whether an individual 
completing a CI evaluation has made disclosures that warrant referral, 
as appropriate, to the Office of Security or the Manager of the 
applicable DOE/NNSA Site, Operations Office or Service Center. The 
Office of Counterintelligence does not report minor security 
infractions that do not create a serious question as to the 
individual's eligibility for a personnel security clearance.

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 
individual, in writing, of the date, time, and place of the polygraph 
examination, the provisions for a medical waiver, and the individual'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 individual. The individual 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 individual waives the advance notice provision.


Sec.  709.22  Individual rights to counsel or other representation.

    (a) At the individual's own expense, an individual has the right to 
obtain and consult with legal counsel or another representative. The 
counsel or representative may not be present during the polygraph 
examination. Except for interpreters and signers, no one other than the 
individual and the examiner may be present in the examination room 
during the polygraph examination.
    (b) At the individual's own expense, an individual has the right to 
obtain and 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 individual consent to a polygraph examination.

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


Sec.  709.24  Other information provided to the individual prior to a 
polygraph examination.

    Before administering the polygraph examination, the examiner must:
    (a) Inform the individual of the use of audio and video recording 
devices and other observation devices, such as two-way mirrors and 
observation rooms;
    (b) Explain to the individual the characteristics and nature of the 
polygraph instrument and examination;
    (c) Explain the physical operation of the instrument and the 
procedures to be followed during the examination;
    (d) Review with the individual the relevant questions to be asked 
during the examination;
    (e) Advise the individual of the individual's privilege against 
self-incrimination; and
    (f) Provide the individual with a pre-addressed envelope addressed 
to the Director of the Office of Counterintelligence in Washington, DC, 
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 an individual 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) Except as provided in paragraph (c) of this section, the Office 
of Counterintelligence maintains all CI evaluation records to include 
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) The Office of Intelligence also may maintain polygraph 
examination reports generated with respect to individuals identified 
under Sec.  709.3(a)(2) in a system of records established under the 
Privacy Act of 1974.
    (d) DOE must afford the full privacy protection provided by law to 
information regarding an employee's refusal to participate in a CI 
evaluation to include a polygraph examination and the completion of 
other pertinent documentation.
    (e) 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 the 
records are retained at least until the final resolution of any request 
for reconsideration by the individual or the completion of any ongoing 
investigation.

[[Page 1396]]

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 an individual 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

    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. 398, as amended.

    3. Section 710.6 is amended by redesignating paragraph (a) as 
paragraph (a)(1) and by adding a new paragraph (a)(2) which reads as 
follows:


Sec.  710.6  Cooperation by the individual.

    (a) * * *
    (2) It is the responsibility of an individual subject to 10 CFR 
709.3(c) 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. 05-248 Filed 1-6-05; 8:45 am]
BILLING CODE 6450-01-P