II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. DEPARTMENT OF ENERGY COUNTERINTEL4 LIGENCE POLYGRAPH PROGRAM.

5 (a) FINDINGS.—Congress makes the following find6 ings:

7 (1) Section 3135 of the Floyd D. Spence Na8 tional Defense Authorization Act for Fiscal Year

9 2001 (as enacted by Public Law 106–398) amended

10 section 3154 of the Department of Energy Facilities
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1 Safeguards, Security, and Counterintelligence En2 hancement Act of 1999 (subtitle D of title XXXI of

3 Public Law 106–65) to increase the requirements

4 for polygraphs of Department of Energy employees

5 and contractors under the Department counterintel6 ligence polygraph program.

7 (2) On January 26, 2001, the Division of Be8 havioral and Social Sciences and Education of the

9 National Research Council of the National Academy

10 of Sciences organized the initial meeting of the Com11 mittee to Review the Scientific Evidence on the

12 Polygraph. The results of that review will address

13 the scientific validity of the polygraph for counter14 intelligence screening purposes. Those results are ex15 pected in June 2002.

16 (3) On June 28, 2000, the first Administrator

17 of the National Nuclear Security Administration of

18 the Department of Energy began work. Personnel

19 security is one of the responsibilities of the Adminis20 trator. The review referred to in paragraph (2) will

21 provide invaluable guidance to the Administrator in

22 implementing the optimal personnel security system

23 for the national security programs of the Depart24 ment.
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1 (4) The widespread use of polygraphs, in the

2 absence of confidence in their scientific validity, is of

3 great concern to many Department of Energy em4 ployees and contractors. Such concern could seri5 ously undermine the morale of those employees and

6 contractors and could significantly affect the ability

7 of the Department and its contractors to recruit and

8 retain the scientific staff required to accomplish the

9 national security mission of the Department.

10 (5) Any polygraphs under the Department of

11 Energy counterintelligence polygraph program re12 quire a high level of rigor in administration and

13 careful attention to the protection of individual

14 rights commensurate with the rigor in such matters

15 under drug testing programs of the Department of

16 Transportation.

17 (b) NEW COUNTERINTELLIGENCE POLYGRAPH PRO18 GRAM.—(1)(A) Not later than 120 days after the date of

19 enactment of this Act, the Secretary of Energy shall sub20 mit to the congressional defense committees a plan for

21 conducting, as part of the Department of Energy per22 sonnel assurance programs, an interim counterintelligence

23 polygraph program consisting of periodic polygraph exami24 nations of Department of Energy employees, or contractor

25 employees, at Department facilities who have, or may
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1 have, access to Restricted Data or Sensitive Compart2 mented Information. The purpose of examinations under

3 the interim program is to minimize the potential for re4 lease or disclosure of classified data, materials, or infor5 mation.

6 (B) The plan shall exclude from examinations under

7 the interim program any position or class of positions for

8 which the individual or individuals in such position or class

9 of positions—

10 (i) operate in a controlled environment that

11 does not afford an opportunity, through action solely

12 by the individual or individuals, to inflict damage on

13 or impose risks to national security; and

14 (ii) have duties, functions, or responsibilities

15 which are compartmentalized or supervised such

16 that the individual or individuals do not impose risks

17 to national security.

18 (C) The plan shall assure that individuals who under19 go examinations under the interim program receive protec20 tions as provided under part 40 of title 49, Code of Fed21 eral Regulations.

22 (D) To ensure that administration of the interim pro23 gram does not disrupt safe operations of a facility, the

24 plan shall insure notification of the management of the

25 facility at least 14 days in advance of any examination
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1 scheduled under the interim program for any employees

2 of the facility.

3 (E) The plan shall include procedures under the in4 terim program for—

5 (i) identifying and addressing so-called

6 ‘‘false positive’’ results of polygraph examina7 tions; and

8 (ii) ensuring that adverse personnel actions

9 not be taken against an individual solely by rea10 son of the individual’s physiological reaction to

11 a question in a polygraph examination, unless

12 reasonable efforts are first made to independ13 ently determine through alternative means the

14 veracity of the individual’s response to the ques15 tion.

16 (2)(A) Not later than six months after obtaining the

17 results of the Polygraph Review, the Secretary prescribe

18 requirements for a counterintelligence polygraph program

19 for the Department of Energy. The purpose of the pro20 gram shall be the same as the purpose of the interim pro21 gram under paragraph (1).

22 (B) The Secretary shall prescribe requirements under

23 this paragraph in accordance with the provisions of sub24 chapter II of chapter 5 of title 5, United States Code
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1 (commonly referred to as the Administrative Procedures

2 Act).

3 (C) In prescribing requirements under this para4 graph, the Secretary may include in such requirements

5 any requirement or exclusion provided for in subpara6 graphs (B) through (E) of paragraph (1).

7 (D) In prescribing requirements under this para8 graph, the Secretary shall take into account the results

9 of the Polygraph Review.

10 (c) REPEAL OF EXISTING POLYGRAPH PROGRAM.—

11 Section 3154 of the Department of Energy Facilities Safe12 guards, Security, and Counterintelligence Enhancement

13 Act of 1999 (subtitle D of title XXXI of Public Law 106–

14 65; 42 U.S.C. 7383h) is repealed.

15 (d) REPORT ON FURTHER ENHANCEMENT OF PER16 SONNEL SECURITY PROGRAM.—(1) Not later than De17 cember 31, 2002, the Administrator for Nuclear Security

18 shall submit to Congress a report setting forth the rec19 ommendations of the Administrator for any legislative ac20 tion that the Administrator considers appropriate in order

21 to enhance the personnel security program of the Depart22 ment of Energy.

23 (2) Any recommendations under paragraph (1) re24 garding the use of polygraphs shall take into account the

25 results of the Polygraph Review.
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1 (e) DEFINITIONS.—In this section:

2 (1) The term ‘‘congressional defense commit3 tees’’ means—

4 (A) the Committee on Armed Services and

5 the Committee on Appropriations of the Senate;

6 and

7 (B) the Committee on Armed Services and

8 the Committee on Appropriations of the House

9 of Representatives.

10 (2) The term ‘‘Polygraph Review’’ means the

11 review of the Committee to Review the Scientific

12 Evidence on the Polygraph of the National Academy

13 of Sciences.

14 (3) The term ‘‘Restricted Data’’ has the mean15 ing given that term in section 11 y. of the Atomic

16 Energy Act of 1954 (42 U.S.C. 2014(y)).

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