Counterintelligence Evaluation Regulations, 1383-1396 [05-248]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 70, Number 5 (Friday, January 7, 2005)]
[Proposed Rules]
[Pages 1383-1396]
From the Federal Register Online via the Government Printing 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

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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: poly@cn.doe.gov. 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: https://
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

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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 examinati