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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