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: [...] 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)). [...]