9013 Galaxia Way, NE
Albuquerque, NM 87111

September 28, 1999

Mr. Douglas J. Hinkley
Office of Counterintelligence, CN-1
Docket No. CN-RM-99-POLY
U. S. Department of Energy
1000 Independence Avenue, SW
Washington, DC 20585

Enclosed are comments on the Proposed Rulemaking concerning Title 10, Code of Federal Regulations, Parts 709, 710, and 711, regarding the proposed DOE Polygraph Examination Program. I offer these comments in the spirit of strengthening the DOE's overall counterintelligence program for national security, and I look forward to the Department's thoughtful responses to the comments.

To assist in your comment-resolution logistics, I have also enclosed a disk on which this letter and the comment enclosure are saves as Word and WordPerfect files.

Enclosures:

"Comments on Proposed Rule on Polygraph Examination, 10CFR Parts 709, 710, and 711 - Docket CN-RM-99-POLY - Comments Offered by Robert R. Richards"

Computer disk containing following files

Polyglttr.doc -- Word file of this letter
PolyglttrWP.doc -- WordPerfect file of this letter
PolygrCmmt.doc -- Word file of comment enclosure
PolygrCmmtWP.doc -- WordPerfect file of comment enclosure

The following comments pertain to portions of Section II, Background, of the Supplementary Information provided in the Notice of Proposed Rulemaking:

1. In the third paragraph, the following statement is made, "DOE believes that requiring counterintelligence-scope polygraph examinations for individuals in positions with access to the most sensitive information in connection with DOE's atomic energy defense activities is a necessary, prudent measure to fulfill DOE's national security responsibilities."

Comment: While DOE may believe that a polygraph examination program of the type proposed is necessary and prudent, it would be of much more utility for DOE to establish that, in fact, such a program is truly necessary and prudent. The background information does not establish that such a program is actually necessary (i.e., the DOE counterintelligence program has no hope of succeeding without it) or prudent (that the effects of such a program would surely be more beneficial than detrimental).

2. In the ninth paragraph, the following statement appears, "DOE is aware of no scientific studies that establish that polygraph examination results are unreliable for use as an investigative tool, as DOE has today proposed to use them."

Comment: This statement is probably no longer true, following on-site hearings at Sandia National Laboratories, where several scientific studies that cast doubt on polygraphy as an reliable tool were cited to hearing officials. Aside from that, however, this portion of the background information, and therefore the case for a polygraphy program, would be strengthened if, rather than stating that DOE is aware of no adverse studies, the statement could be made that DOE has identified a large number of scientific studies that support polygraphy as it is proposed to be used. In the absence of a large body of such studies, the DOE should reconsider whether a polygraph examination program would not simply be a waste of time and money as well as a morale disaster.

3. Also in the ninth paragraph, the following appears, "As an investigative tool, polygraph examinations results are superior to random interviews relying on purely subjective evaluations."

Comment: This argument is flawed in a variety of ways. First, counterintelligence efforts do not consist of "random interviews." Rather, they are planned efforts which use a variety of information inputs in a structured effort. Additionally, the results of counterintelligence interviews are not evaluated in a "purely subjective" manner, since those evaluations are made by trained, experienced personnel. In any case, they are no more "subjective" that the subjective evaluations of the output of a polygraph device made by polygraphers.

4. In the cited text for both of the two previous comments, polygraph examinations are referred to as "investigative."

Comment: The proposed rule calls for polygraph examinations to be used in a broadly-applied, counterintelligence-scope manner. Yet the majority of the ninth paragraph defends the use of polygraphy as an investigative tool, that is, when applied in a specific case with specific facts and targeted on one or a few specific individuals, rather than in a broad-based, untargeted manner.

The ninth paragraph of the background information goes from meaningless argument ("aware of no studies") to flawed logic ("superiior to randompurely subjective") in presenting information that is not actually pertinent to the proposed use of polygraph examinations. The proposal would be stronger without this entire paragraph.

The following comments pertain to portions of Section III, Description of Proposal, of the Supplementary Information provided in the Notice of Proposed Rulemaking:

5. In Section 709.4, there are eight categories of employees who are specified as eligible for polygraph examination. These categories are fairly clear, allowing identification of such employees based on the nature of their work and information access. However, in that section, the polygraph examination program is also statred to be applicable to applicants for employment.

Comment: This seems to be inconsistent, since applicants for employment are often considered for hiring into a general job category or classification. Such general categories or classifications normally do not have specific access requirements associated with them, making applicability to applicants meaningless.

6. In Section 709.4 and elsewhere, employees are referred to as being "eligible" for polygraph examination.

Comment: It is suggested that the word "eligible," which implies that some honor or reward is involved, be replaced, at all its occurrences, with the more accurate phrase, "subject to."

7. In section 709.14, the statement is made that, "All polygraph examinations administered by DOE are voluntary."

Comment: This is a ludicrous statement which should be, in all its forms, deleted from the proposed rule and associated text. The examinations cannot be considered to be or presented as "voluntary" when there are apparently adverse effects that result from declining to be examined. The DOE should be honest with themselves, as well as the employees subject to the examinations, by simply stating that they are required as a condition of continued employment.

The following comments refer to the content of the rules, themselves.

8. General. The intent of the comments associated with numbers 5 through 7, above, apply to the text of the associated rule sections,
9. Subpart C, overall: On a positive note, the provisions for safeguarding privacy and employee rights appear to be fair and appropriate.
10. General. A reading of the rule does not reveal how the DOE proposes to actually implement the polygraph examination program. Answers to the following questions, for example, are not clear:
    When or under what conditions are examinations to be administered? Randomly? As part of each individual's periodic clearance reinvestigation? Entirely separately from and not associated with those reinvestigations? Prior to, or after, moving from a "not eligible" to an "eligible" position?
    Without specifics about program administration that addresses such questions , the program is inadequately defined.
11. Polygraph qualification/calibration. Subpart D appears to provide adequate standards to assure qualification of the polygraph examiner. However, nowhere appear requirements for the qualification or calibration of the polygraph device, to assure that it is as capable of producing accurate outputs as the examiner is capable of evaluating them.
12. Polygraphy procedure. Nowhere does there appear adequate requirements for the content and the qualification process for a written polygraphy procedure. To assure the quality and consistency of something as important as polygraphy results, three elements must coexist - a qualified polygrapher (provided for by Subpart D), an instrument which has proven itself capable [been qualified] (mentioned above), and a written procedure which, itself, has been proven to be "qualified" (capable, when adhered to by a qualified polygrapher using a qualified instrument, to produce acceptable results).
13. General. Information presented in the public hearings concerning this rule have convinced this writer that a broadly-applied, "counterintelligence-scope" polygraph examination screening program may be, at best, wasteful of resources, and, at worst, truly detrimental to security. Polygraphy examination programs have proven to be of some worth, however, when used as an investigative tool when dealing with specific facts and with either one or a very small number of subjects (individuals). It is recommended, therefore, that this entire proposed rule be rewritten, to provide for a polygraphy program used only in specific counterintelligence investigative cases. That should allow the DOE to meet its political commitment to "initiate a polygraph examination program," while concurrently avoiding the multitude of adverse effects described in the public hearings and applying polygraphy in a way that would have a greater probability of benefiting national security.
    

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