The Secretary of EnergyMEMORANDUM FOR HEADS OF DEPARTMENTAL OFFICES
Washington, D.C. 20585
December 13, 1999
FROM: Bill Richardson
SUBJECT: Counterintelligence Polygraph Implementation Plan
The Department of Energy (DOE) is today sending to the Federal Register for publication, 10 Code of Federal Regulation (CFR) Parts 709, 710, and 711, a new regulation governing the administration of polygraph examinations. The regulation culminates more than three months of public hearings and establishes the procedures for how DOE intends to use polygraph examinations for certain DOE and contractor employees, applicants for employment, and other individuals assigned or detailed to Federal positions at DOE. The regulation describes the eight categories of employees who will be eligible for counterintelligence polygraph testing and the controls on the use of such testing to prevent unwarranted intrusion into the privacy of individuals.
The questions in DOE’s counterintelligence polygraph examination will be limited to the narrowly focused topics of espionage, sabotage, terrorism, intentional unauthorized disclosure of classified information, intentional unauthorized foreign contacts, and deliberate damage or malicious misuse of a U.S. government or defense system. One of the principal objectives of the counterintelligence polygraph is to identify activities involving intent to harm the United States. DOE will not ask questions that probe a person’s thoughts or beliefs, concern conduct that has no counterintelligence implication, or concern conduct that has no direct relevance to an investigation.
This implementation plan applies to political appointees as well as all other DOE and contractor employees with access to DOE’s highly sensitive information or materials. DOE believes that all of its personnel should meet the same standards for access to this information or materials, regardless of position.
This implementation plan identifies the specific positions within the eight counterintelligence categories covered by the regulation that will be subject to polygraph testing. Under this implementation plan, it is expected that approximately 800 individuals throughout the DOE complex will undergo polygraph testing.
The DOE national weapons labs are premier institutions among the world’s government-sponsored scientific research and development organizations. Their discoveries not only helped the United States to prevail in the Cold War, but will continue to provide for the national security by maintaining the safety, security, and reliability of the nuclear stockpile. As the repository of America’s most advanced know-how in nuclear and related armaments and the home of some of America’s finest scientific minds, these labs have been and will continue to be a major target of foreign intelligence services. As a result, strong security and counterintelligence must be better integrated into DOE’s national security mission. DOE’s counterintelligence polygraph program is one means of carrying out that mission.
In February 1998, President Clinton issued PDD-61, “U.S. Department of Energy Counterintelligence Program," a classified document containing the President’s determination that DOE must do more to protect the highly sensitive and classified information at its defense facilities. The President instructed DOE to develop and implement specific measures to reduce the threat of compromise to such information. Such measures may include financial disclosure, reporting of foreign travel, the establishment of Special Access Programs (SAPs) where appropriate and use of polygraph and psychological screening.
DOE has taken steps under PDD-61 to strengthen its protection of information and technologies in connection with DOE’s atomic energy defense activities. Reform has focused on the structure of the counterintelligence program; selection and training of field counterintelligence personnel; counterintelligence analysis; counterintelligence and security awareness; protections against potential insider threats; computer security; improved coordination with the FBI, CIA and NSA; and the establishment of a counterintelligence-scope polygraph program. DOE determined that instituting a counterintelligence-scope polygraph program for individuals in positions with access to the most highly sensitive and classified information and materials in connection with DOE’s atomic energy defense activities is one of several necessary and prudent actions required to fulfill its national security responsibilities.
DOE began developing and implementing a counterintelligence-scope polygraph requirement for sensitive positions by issuing DOE Notice 472.2, “Use of Polygraph Examinations," that establishes a polygraph requirement for Federal employees who occupy or seek to occupy certain sensitive positions.
DOE published a Notice of Proposed Rulemaking (NOPR) on August 18, 1999 (64 FR 45062) that proposed to expand the counterintelligence polygraph program to cover employees at its facilities, contractor employees as well as Federal employees, in positions with access to the most sensitive categories of classified information and materials, as well as applicants for such positions. DOE received over 100 written comments on the proposed rule as well as oral comments during four public hearings. DOE carefully considered all these comments in preparing a final rule.
Today, DOE is sending to the Federal Register for publication, the final rule entitled, “Polygraph Examination Regulation." This regulation for the use of polygraph examinations for certain DOE and contractor employees will protect highly sensitive and classified information and materials to which such employees have access.
The eight counterintelligence categories identified in the regulation as being eligible for potential polygraph examinations are:
(1) Positions that DOE has determined include counterintelligence activities or access to counterintelligence sources and methods;Based on the decisions of the Program Managers, this implementation plan identifies the specific positions within the eight counterintelligence categories that will be polygraphed. In order of their listing above, they are:
(2) Positions that DOE has determined include intelligence activities or access to intelligence sources and methods;
(3) Positions requiring access to information that is protected within a non-intelligence SAP designated by the Secretary of Energy;
(4) Positions that are subject to the Personnel Security Assurance Program (PSAP);
(5) Positions that are subject to the Personnel Assurance Program (PAP);
(6) Positions that DOE has determined have need-to-know or access to information specifically designated by the Secretary regarding the design and operation of nuclear weapons and associated use control features;
(7) Positions within the Office of Independent Oversight and Performance Assurance, or any successor thereto, involved in inspection and assessment of safeguards and security functions, including cyber security, of the Department; and
(8) Positions within the Office of Security and Emergency Operations, or any successor thereto.
1. The Director, Office of Counterintelligence (D/OCI) has determined that all individuals in positions that involve counterintelligence activities or access to counterintelligence sources and methods will be polygraphed. This includes all DOE and contractor employees, applicants for employment, and other individuals assigned or detailed to Federal positions in OCI.In addition, Congress, in section 3154 of the National Defense Authorization Act for Fiscal Year 2000, forbids DOE from providing anyone initial access to a SAP or the PSAP without first signing a consent agreement and then taking a counterintelligence polygraph examination. This statutory requirement will be implemented in accordance with the terms of the polygraph regulation.
2. The Director, Office of Intelligence (D/OI) has determined that DOE employees and contractors who have access to DOE SAPs and have access to Sensitive Compartmented Information (SCI) directly related to those SAPs will be polygraphed.
3. The Executive Secretary of the Special Access Program Oversight Committee (SAPOC) has determined that everyone who has access to an Unacknowledged SAP or multiple Acknowledged SAPs at the “Technical Level" will be polygraphed. (Individuals who have access at the Technical Level have full knowledge of all program details, and complete program access and involvement.) Within these SAPs are included those SAP cleared weapons scientists and engineers with access to some of the most highly classified nuclear weapons information. In addition, individuals who have access, Technical or Non-technical, to more than one Acknowledged or Unacknowledged SAP will be polygraphed.
4. The Director, Office of Safeguards and Security (D/OSS) has determined that individuals in positions in the PSAP who are authorized to transfer unclassified files from classified computers under the Tri-Lab Agreement will be polygraphed.
5. The Deputy Assistant Secretary for Military Application and Stockpile Management has determined that weapons scientists and engineers within the PAP will be polygraphed.
6. The Assistant Secretary for Defense Programs has determined that weapons personnel who fall within the SAP, PSAP or PAP categories described above will be polygraphed.
7. The Director, Office of Independent Oversight and Performance Assurance (D/OA) has determined that all individuals within OA, federal and contractors, who conduct inspections/appraisals in Safeguards and Security or cyber-security will be polygraphed.
8. The Director, Office of Security and Emergency Operations (D/OSEO) has determined that individuals within OSEO who fall within the SAP, PSAP or PAP categories described above will be polygraphed.
Annually, the eight DOE Program Managers identified above will be required to provide the D/OCI with a list of the individuals within the eight counterintelligence categories identified in the regulation, as well as a list with a written justification as to who within the eight counterintelligence categories should be polygraphed. The D/OCI will review the submissions from the Program Managers in order to confirm that all of the incumbents in the identified categories of positions have been included. The D/OCI, based upon the review, may amend the list of those recommended for polygraph by either adding or deleting individuals. All such amendments will be noted on the documentation forwarding the lists of individuals being recommended for polygraph to the Secretary for final approval. Any disagreements between the Program Managers and the D/OCI concerning who should be polygraphed will be resolved by the Secretary.
Every two years, the D/OCI in consultation with the Program Managers will conduct a review to determine if the procedures being utilized by the Program Managers are correctly identifying those individuals within the programs who should be polygraphed. The D/OCI will submit any proposed revisions to this implementation plan, along with a justification, to the Secretary for approval.
The first review of DOE’s counterintelligence polygraph program will commence within twelve months of the issuance of the rule and will include an evaluation of the polygraph program and may identify proposals for change. The report will be submitted by D/OCI to the Secretary for potential action.