Congressional Record: October 3, 2001 (Senate)
Page S10168-S10252



        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2002

  On October 2, 2001, the Senate passed S. 1438, as follows:

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    SEC. 3152. DEPARTMENT OF ENERGY COUNTERINTELLIGENCE POLYGRAPH
                   PROGRAM.

       (a) Interim Counterintelligence Polygraph Program.--(1) Not
     later than 120 days after the date of enactment of this Act,
     the Secretary of Energy shall submit to the congressional
     defense committees a plan for conducting, as part of the
     Department of Energy personnel assurance programs, an interim
     counterintelligence polygraph program consisting of polygraph
     examinations of Department of Energy employees, or contractor
     employees, at Department facilities. The purpose of
     examinations under the interim program is to minimize the
     potential for release or disclosure of classified data,
     materials, or information until the program required under
     subsection (b) is in effect.
       (2) The Secretary may exclude from examinations under the
     interim program any position or class of positions (as
     determined by the Secretary) for which the individual or
     individuals in such position or class of positions--
       (A) either--
       (i) operate in a controlled environment that does not
     afford an opportunity, through action solely by the
     individual or individuals, to inflict damage on or impose
     risks to national security; and
       (ii) have duties, functions, or responsibilities which are
     compartmentalized or supervised such that the individual or
     individuals do not impose risks to national security; or
       (B) do not have routine access to top secret Restricted
     Data.
       (3) The plan shall ensure that individuals who undergo
     examinations under the interim program receive protections as
     provided under part 40 of title 49, Code of Federal
     Regulations.
       (4) To ensure that administration of the interim program
     does not disrupt safe operations of a facility, the plan
     shall insure notification of the management of the facility
     at least 14 days in advance of any examination scheduled
     under the interim program for any employees of the facility.
       (5) The plan shall include procedures under the interim
     program for--
       (A) identifying and addressing so-called "false positive"
     results of polygraph examinations; and
       (B) ensuring that adverse personnel actions not be taken
     against an individual solely by reason of the individual's
     physiological reaction to a question in a polygraph
     examination, unless reasonable efforts are first made to
     independently determine through alternative means the
     veracity of the individual's response to the question.
       (b) New Counterintelligence Polygraph Program.--(1) Not
     later than six months after obtaining the results of the
     Polygraph Review, the Secretary shall prescribe a proposed
     rule containing requirements for a counterintelligence
     polygraph program for the Department of Energy. The purpose
     of the program is to minimize the potential for release or
     disclosure of classified data, materials, or information.
       (2) The Secretary shall prescribe the proposed rule under
     this subsection in accordance with the provisions of
     subchapter II of chapter 5 of title 5, United States Code
     (commonly referred to as the Administrative Procedures Act).
       (3) In prescribing the proposed rule under this subsection,
     the Secretary may include in requirements under the proposed
     rule any requirement or exclusion provided for in paragraphs
     (2) through (5) of subsection (a).
       (4) In prescribing the proposed rule under this subsection,
     the Secretary shall take into account the results of the
     Polygraph Review.
       (c) Repeal of Existing Polygraph Program.--Section 3154 of
     the Department of Energy Facilities Safeguards, Security, and
     Counterintelligence Enhancement Act of 1999 (subtitle D of
     title XXXI of Public Law 106-65; 42 U.S.C. 7383h) is
     repealed.
       (d) Report on Further Enhancement of Personnel Security
     Program.--(1) Not later than December 31, 2002, the
     Administrator for Nuclear Security shall submit to Congress a
     report setting forth the recommendations of the Administrator
     for any legislative action that the Administrator considers
     appropriate in order to enhance the personnel security
     program of the Department of Energy.
       (2) Any recommendations under paragraph (1) regarding the
     use of polygraphs shall take into account the results of the
     Polygraph Review.
       (e) Definitions.--In this section:
       (1) The term "Polygraph Review" means the review of the
     Committee to Review the Scientific Evidence on the Polygraph
     of the National Academy of Sciences.
       (2) The term "Restricted Data" has the meaning given that
     term in section 11 y. of the Atomic Energy Act of 1954 (42
     U.S.C. 2014(y)).

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