§7383h. Counterintelligence polygraph program
(a) Program required
The Secretary of Energy, acting through the Director of Counterintelligence, shall carry out a counterintelligence polygraph program for the defense-related activities of the Department. The counterintelligence polygraph program shall consist of the administration of counterintelligence polygraph examinations to each covered person who has access to high-risk programs.
(b) Covered persons
(1) Subject to paragraph (2), for purposes of this section, a covered person is one of the following:
(A) An officer or employee of the Department.
(B) An expert or consultant under contract to the Department.
(C) An officer or employee of a contractor of the Department.
(D) An individual assigned or detailed to the Department.
(E) An applicant for a position in the Department.
(2) A person described in paragraph (1) is a covered person for purposes of this section only if the position of the person, or for which the person is applying, under that paragraph is a position in one of the categories of positions listed in section 709.4(a) of title 10, Code of Federal Regulations.
(c) High-risk programs
For purposes of this section, high-risk programs are the following:
(1) Programs using information known as Sensitive Compartmented Information.
(2) The programs known as Special Access Programs and Personnel Security and Assurance Programs.
(3) Any other program or position category specified in section 709.4(a) of title 10, Code of Federal Regulations.
(d) Initial testing and consent
(1) The Secretary may not permit a covered person to have initial access to any high-risk program unless that person first undergoes a counterintelligence polygraph examination and consents in a signed writing to the counterintelligence polygraph examinations required by this section.
(2) Subject to paragraph (3), the Secretary may, after consultation with appropriate security personnel, waive the applicability of paragraph (1) to a covered person-
(A) if-
(i) the Secretary determines that the waiver is important to the national security interests of the United States;
(ii) the covered person has an active security clearance; and
(iii) the covered person acknowledges in a signed writing that the capacity of the covered person to perform duties under a high-risk program after the expiration of the waiver is conditional upon meeting the requirements of paragraph (1) within the effective period of the waiver;
(B) if another Federal agency certifies to the Secretary that the covered person has completed successfully a full-scope or counterintelligence-scope polygraph examination during the 5-year period ending on the date of the certification; or
(C) if the Secretary determines, after consultation with the covered person and appropriate medical personnel, that the treatment of a medical or psychological condition of the covered person should preclude the administration of the examination.
(3)(A) The Secretary may not commence the exercise of the authority under paragraph (2) to waive the applicability of paragraph (1) to any covered persons until 15 days after the date on which the Secretary submits to the appropriate committees of Congress a report setting forth the criteria to be used by the Secretary for determining when a waiver under paragraph (2)(A) is important to the national security interests of the United States. The criteria shall not include the need to maintain the scientific vitality of the laboratory. The criteria shall include an assessment of counterintelligence risks and programmatic impacts.
(B) Any waiver under paragraph (2)(A) shall be effective for not more than 120 days, and a person who is subject to a waiver under paragraph (2)(A) may not ever be subject to another waiver under paragraph (2)(A).
(C) Any waiver under paragraph (2)(C) shall be effective for the duration of the treatment on which such waiver is based.
(4) The Secretary shall submit to the appropriate committees of Congress on a semi-annual basis a report on any determinations made under paragraph (2)(A) during the 6-month period ending on the date of such report. The report shall include a national security justification for each waiver resulting from such determinations.
(5) In this subsection, the term "appropriate committees of Congress" means the following:
(A) The Committee on Armed Services and the Select Committee on Intelligence of the Senate.
(B) The Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
(6) It is the sense of Congress that the waiver authority in paragraph (2) not be used by the Secretary to exempt from the applicability of paragraph (1) any covered persons in the highest risk categories, such as persons who have access to the most sensitive weapons design information and other highly sensitive programs, including special access programs.
(7) The authority under paragraph (2) to waive the applicability of paragraph (1) to a covered person shall expire on September 30, 2002.
(e) Additional testing
The Secretary may not permit a covered person to have continued access to any high-risk program unless that person undergoes a counterintelligence polygraph examination within five years after that person has initial access, and thereafter-
(1) not less frequently than every five years; and
(2) at any time at the direction of the Director of Counterintelligence.
(f) Counterintelligence polygraph examination
For purposes of this section, the term "counterintelligence polygraph examination" means a polygraph examination using questions reasonably calculated to obtain counterintelligence information, including questions relating to espionage, sabotage, terrorism, unauthorized disclosure of classified information, deliberate damage to or malicious misuse of a United States Government information or defense system, and unauthorized contact with foreign nationals.
(g) Regulations
The Secretary shall prescribe any regulations necessary to carry out this section. Those regulations shall include procedures, to be developed in consultation with the Federal Bureau of Investigation, for-
(1) identifying and addressing "false positive" results of polygraph examinations; and
(2) ensuring that adverse personnel actions not be taken against an individual solely by reason of that 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 that individual's response to that question.
(h) Plan for extension of program
Not later than 180 days after October 5, 1999, the Secretary shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a plan on extending the program required by this section. The plan shall provide for the administration of counterintelligence polygraph examinations in accordance with the program to each covered person who has access to-
(1) the programs known as Personnel Assurance Programs; and
(2) the information identified as Sensitive Compartmented Information.
(
Amendments
2000-Subsec. (b).
"(1) An officer or employee of the Department.
"(2) An expert or consultant under contract to the Department.
"(3) An officer or employee of a contractor of the Department."
Subsec. (c).
"(1) Special Access Programs; and
"(2) Personnel Security and Assurance Programs."
Subsec. (d).
Subsec. (f).