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)).