SARFA Act

II 118TH CONGRESS 1ST SESSION S. 1734 To enhance the research security protocols of the Department of Energy for the purpose of preventing theft of government research by nationals of foreign countries of concern, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 18, 2023 Mr. BARRASSO introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To enhance the research security protocols of the Depart- ment of Energy for the purpose of preventing theft of government research by nationals of foreign countries of concern, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Securing American Re- 4 search from Foreign Adversaries Act’’ or the ‘‘SARFA 5 Act’’. 6 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1734 IS SEC. 2. RESEARCH SECURITY. 1 Section 10114(a)(2) of the Research and Develop- 2 ment, Competition, and Innovation Act (42 U.S.C. 3 18912(a)(2)) is amended by striking ‘‘authorized’’ and all 4 that follows through the period at the end and inserting 5 ‘‘administered or provided, as applicable, by the Depart- 6 ment of Energy, including National Laboratories (as de- 7 fined in section 2 of the Energy Policy Act of 2005 (42 8 U.S.C. 15801)).’’. 9 SEC. 3. POLYGRAPH EXAMINATIONS FOR CERTAIN FOR- 10 EIGN NATIONALS WITH ACCESS TO NON- 11 PUBLIC NATIONAL LABORATORY AREAS OR 12 INFORMATION. 13 (a) DEFINITIONS.—In this section: 14 (1) COVERED FOREIGN NATIONAL.— 15 (A) IN GENERAL.—The term ‘‘covered for- 16 eign national’’ means a foreign national who— 17 (i) is a citizen or national of, or other- 18 wise owes allegiance to, a country that, as 19 of the date described in subparagraph (B), 20 is a foreign country of concern (as defined 21 in section 10612(a) of the Research and 22 Development, Competition, and Innovation 23 Act (42 U.S.C. 19221(a))); and 24 (ii) is not— 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1734 IS (I) a national of the United 1 States; or 2 (II) lawfully admitted for perma- 3 nent residence. 4 (B) DATE DESCRIBED.—The date referred 5 to in subparagraph (A)(i) is, as applicable— 6 (i) the date on which the foreign na- 7 tional begins work— 8 (I) in a position at a National 9 Laboratory; or 10 (II) in any other position at the 11 Department in which the foreign na- 12 tional will have access to nonpublic 13 areas, data, or information of a Na- 14 tional Laboratory; or 15 (ii) the date on which the foreign na- 16 tional is initially granted access to non- 17 public areas, data, or information of a Na- 18 tional Laboratory under a contract or 19 agreement with the Department. 20 (2) DEPARTMENT.—The term ‘‘Department’’ 21 means the Department of Energy. 22 (3) LAWFULLY ADMITTED FOR PERMANENT 23 RESIDENCE.—The term ‘‘lawfully admitted for per- 24 manent residence’’ has the meaning given the term 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1734 IS in section 101(a) of the Immigration and Nationality 1 Act (8 U.S.C. 1101(a)). 2 (4) NATIONAL OF THE UNITED STATES.—The 3 term ‘‘national of the United States’’ has the mean- 4 ing given the term in section 101(a) of the Immigra- 5 tion and Nationality Act (8 U.S.C. 1101(a)). 6 (5) NATIONAL LABORATORY.—The term ‘‘Na- 7 tional Laboratory’’ has the meaning given the term 8 in section 2 of the Energy Policy Act of 2005 (42 9 U.S.C. 15801). 10 (6) QUALIFYING POLYGRAPH EXAMINATION.— 11 The term ‘‘qualifying polygraph examination’’ means 12 a polygraph examination that is carried out in a 13 manner that, as determined by the Secretary, is con- 14 sistent with Intelligence Community Policy Guidance 15 704.6 published by the Director of National Intel- 16 ligence and entitled ‘‘Conduct of Polygraph Exami- 17 nations for Personnel Security Vetting’’ (or suc- 18 cessor guidance). 19 (7) SECRETARY.—The term ‘‘Secretary’’ means 20 the Secretary of Energy, acting through the Director 21 of the Office of Intelligence and Counterintelligence. 22 (b) QUALIFYING POLYGRAPH EXAMINATIONS.— 23 (1) POTENTIAL EMPLOYEES OF THE DEPART- 24 MENT.—Before a covered foreign national is hired 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1734 IS by the Department to work in a position at a Na- 1 tional Laboratory or in any position in which the 2 covered foreign national will have access to non- 3 public areas, data, or information of a National Lab- 4 oratory, the Secretary shall administer a qualifying 5 polygraph examination to the covered foreign na- 6 tional. 7 (2) EXISTING EMPLOYEES OF THE DEPART- 8 MENT.— 9 (A) IN GENERAL.—Before an employee of 10 the Department who is a covered foreign na- 11 tional may be transferred to a position at a Na- 12 tional Laboratory or to any other position at 13 the Department in which the employee will have 14 access to nonpublic areas, data, or information 15 of a National Laboratory, the Secretary shall 16 administer a qualifying polygraph examination 17 to the employee. 18 (B) CERTAIN EXISTING EMPLOYEES WITH 19 ACCESS TO NONPUBLIC INFORMATION.— 20 (i) EXISTING EMPLOYEES WHO ARE 21 COVERED FOREIGN NATIONALS.—Each em- 22 ployee of the Department who, as of the 23 date of enactment of this Act, is a covered 24 foreign national who works in a position at 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1734 IS a National Laboratory or in any other po- 1 sition at the Department in which the em- 2 ployee has access to nonpublic areas, data, 3 or information of a National Laboratory 4 shall be required to submit to a qualifying 5 polygraph examination by a date deter- 6 mined by the Secretary, but not later than 7 1 year after the date of enactment of this 8 Act, to remain in that position. 9 (ii) EXISTING EMPLOYEES WHO BE- 10 COME COVERED FOREIGN NATIONALS.—An 11 employee of the Department who works in 12 a position at a National Laboratory or in 13 any other position at the Department in 14 which the employee has access to nonpublic 15 areas, data, or information of a National 16 Laboratory shall be required to submit to 17 a qualifying polygraph examination— 18 (I) as soon as practicable after 19 becoming a covered foreign national; 20 and 21 (II) before being transferred, 22 promoted, or otherwise hired into an- 23 other position at the Department in 24 which the employee will have access to 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1734 IS nonpublic areas, data, or information 1 of a National Laboratory if the em- 2 ployee is a covered foreign national as 3 of the date of the transfer, promotion, 4 or hiring. 5 (3) CONTRACTORS AND OTHER INDIVIDUALS 6 WITH ACCESS TO NONPUBLIC INFORMATION.—Be- 7 fore a covered foreign national is initially granted 8 access to nonpublic areas, data, or information of a 9 National Laboratory under a contract or agreement 10 with the Department, the Secretary shall administer 11 a qualifying polygraph examination to the covered 12 foreign national. 13 (c) SPECIFIC ISSUE POLYGRAPH EXAMINATIONS.— 14 The Secretary may require a covered foreign national to 15 submit to a Specific Issue Polygraph examination (within 16 the meaning of Intelligence Community Policy Guidance 17 704.6 published by the Director of National Intelligence 18 and entitled ‘‘Conduct of Polygraph Examinations for Per- 19 sonnel Security Vetting’’ (or successor guidance)) at any 20 time during which the covered foreign national is employed 21 by the Department. 22 (d) REEXAMINATION.—The Secretary shall require 23 each employee of the Department who is a covered foreign 24 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1734 IS national to be reexamined with an appropriate polygraph 1 examination— 2 (1) not less frequently than once every 5 years 3 while employed by the Department; and 4 (2) in a manner consistent with other members 5 of the intelligence community (as defined in section 6 3 of the National Security Act of 1947 (50 U.S.C. 7 3003)) that require reexamination every 5 years. 8 (e) REFUSAL OF EXAMINATION; TERMINATION OF 9 EMPLOYMENT.— 10 (1) IN GENERAL.—If a covered foreign national 11 refuses to submit to a polygraph examination under 12 this section— 13 (A) the covered foreign national shall not 14 be granted access to any nonpublic areas, data, 15 or information of a National Laboratory, and 16 any existing grant of access to such areas, data, 17 or information shall be immediately revoked; 18 and 19 (B) if the covered foreign national is an 20 employee of the Department, the employment of 21 the covered foreign national at the Department 22 shall be terminated. 23 (2) CERTAIN EMPLOYEES OF THE DEPART- 24 MENT.— 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1734 IS (A) EMPLOYEES UNDER CONSIDERATION 1 FOR TRANSFER TO CERTAIN POSITIONS.—Para- 2 graph (1)(B) shall apply to an employee of the 3 Department described in subsection (b)(2)(A) 4 who does not have access to nonpublic areas, 5 data, or information of the Department but is 6 under consideration for a transfer to a position 7 described in that paragraph such that, if the 8 employee refuses to submit to a polygraph ex- 9 amination under this section— 10 (i) the employee shall be ineligible for 11 the transfer; and 12 (ii) the employment of the employee 13 at the Department shall be terminated. 14 (B) EMPLOYEES WITH ACCESS TO NON- 15 PUBLIC AREAS OR INFORMATION.—Paragraph 16 (1)(B) shall apply to any employee of the De- 17 partment who is a covered foreign national and 18 works in a position at a National Laboratory or 19 in any other position at the Department in 20 which the employee has access to nonpublic 21 areas, data, or information of a National Lab- 22 oratory such that, if the employee refuses to 23 submit to a polygraph examination under this 24 section, the employment of the employee at the 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1734 IS Department, including at any National Labora- 1 tory, shall be terminated. 2 (3) POTENTIAL EMPLOYEES OF THE DEPART- 3 MENT.—A covered foreign national who is under 4 consideration for employment in a position described 5 in subsection (b)(1) and refuses to submit to a poly- 6 graph examination under this section— 7 (A) shall be removed from consideration 8 for employment in that position; and 9 (B) in accordance with paragraph (4), 10 shall not be eligible for employment at the De- 11 partment, including at any National Labora- 12 tory. 13 (4) SUBSEQUENT EMPLOYMENT AT THE DE- 14 PARTMENT.— 15 (A) IN GENERAL.—A covered foreign na- 16 tional shall not be eligible for employment at 17 the Department, including at any National Lab- 18 oratory, if the covered foreign national pre- 19 viously refused to submit to a polygraph exam- 20 ination under this section. 21 (B) CHANGE IN STATUS.—A foreign na- 22 tional who is lawfully admitted for permanent 23 residence shall not be eligible for employment at 24 the Department, including at any National Lab- 25 VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1734 IS oratory, if the foreign national previously re- 1 fused to submit to a polygraph examination 2 under this section at a time when the foreign 3 national was a covered foreign national. 4 (f) SAVINGS PROVISION.—Nothing in this section au- 5 thorizes the Secretary to require an individual who is not 6 a covered foreign national to submit to a polygraph exam- 7 ination. 8 Æ VerDate Sep 11 2014 05:06 Jun 02, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S1734.IS S1734 kjohnson on DSK79L0C42PROD with BILLS