[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1276 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                S. 1276

To provide for the establishment of a new counterintelligence polygraph 
     program for the Department of Energy, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2001

 Mr. Domenici (for himself and Mr. Bingaman) introduced the following 
   bill; which was read twice and referred to the Committee on Armed 
                                Services

_______________________________________________________________________

                                 A BILL


 
To provide for the establishment of a new counterintelligence polygraph 
     program for the Department of Energy, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. DEPARTMENT OF ENERGY COUNTERINTELLIGENCE POLYGRAPH PROGRAM.

    (a) Findings.--Congress makes the following findings:
            (1) Section 3135 of the Floyd D. Spence National Defense 
        Authorization Act for Fiscal Year 2001 (as enacted by Public 
        Law 106-398) amended 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) to increase the requirements for polygraphs of 
        Department of Energy employees and contractors under the 
        Department counterintelligence polygraph program.
            (2) On January 26, 2001, the Division of Behavioral and 
        Social Sciences and Education of the National Research Council 
        of the National Academy of Sciences organized the initial 
        meeting of the Committee to Review the Scientific Evidence on 
        the Polygraph. The results of that review will address the 
        scientific validity of the polygraph for counterintelligence 
        screening purposes. Those results are expected in June 2002.
            (3) On June 28, 2000, the first Administrator of the 
        National Nuclear Security Administration of the Department of 
        Energy began work. Personnel security is one of the 
        responsibilities of the Administrator. The review referred to 
        in paragraph (2) will provide invaluable guidance to the 
        Administrator in implementing the optimal personnel security 
        system for the national security programs of the Department.
            (4) The widespread use of polygraphs, in the absence of 
        confidence in their scientific validity, is of great concern to 
        many Department of Energy employees and contractors. Such 
        concern could seriously undermine the morale of those employees 
        and contractors and could significantly affect the ability of 
        the Department and its contractors to recruit and retain the 
        scientific staff required to accomplish the national security 
        mission of the Department.
            (5) Any polygraphs under the Department of Energy 
        counterintelligence polygraph program require a high level of 
        rigor in administration and careful attention to the protection 
        of individual rights commensurate with the rigor in such 
        matters under drug testing programs of the Department of 
        Transportation.
    (b) New Counterintelligence Polygraph Program.--(1)(A) 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 periodic polygraph examinations of Department of Energy employees, 
or contractor employees, at Department facilities who have, or may 
have, access to Restricted Data or Sensitive Compartmented Information. 
The purpose of examinations under the interim program is to minimize 
the potential for release or disclosure of classified data, materials, 
or information.
    (B) The plan shall exclude from examinations under the interim 
program any position or class of positions for which the individual or 
individuals in such position or class of positions--
            (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.
    (C) The plan shall assure that individuals who undergo examinations 
under the interim program receive protections as provided under part 40 
of title 49, Code of Federal Regulations.
    (D) 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.
    (E) The plan shall include procedures under the interim program 
for--
                    (i) identifying and addressing so-called ``false 
                positive'' results of polygraph examinations; and
                    (ii) 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.
    (2)(A) Not later than six months after obtaining the results of the 
Polygraph Review, the Secretary prescribe requirements for a 
counterintelligence polygraph program for the Department of Energy. The 
purpose of the program shall be the same as the purpose of the interim 
program under paragraph (1).
    (B) The Secretary shall prescribe requirements under this paragraph 
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).
    (C) In prescribing requirements under this paragraph, the Secretary 
may include in such requirements any requirement or exclusion provided 
for in subparagraphs (B) through (E) of paragraph (1).
    (D) In prescribing requirements under this paragraph, 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 ``congressional defense committees'' means--
                    (A) the Committee on Armed Services and the 
                Committee on Appropriations of the Senate; and
                    (B) the Committee on Armed Services and the 
                Committee on Appropriations of the House of 
                Representatives.
            (2) The term ``Polygraph Review'' means the review of the 
        Committee to Review the Scientific Evidence on the Polygraph of 
        the National Academy of Sciences.
            (3) 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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