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Section 3152 of Defense Authorization Act for Fiscal Year 2002 modifies the Department of Energy's polygraph policy. The following is the text of that section, as agreed upon by House and Senate conferees:
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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