118 S1734 IS: Securing American Research from Foreign Adversaries Act
U.S. Senate
2023-05-18
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II
118th CONGRESS
1st Session
S. 1734
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 Department of Energy for the purpose of preventing theft of government research by nationals of foreign countries of concern, and for other purposes.
1.

Short title
This Act may be cited as the “Securing American Research from Foreign Adversaries Act” or the “SARFA Act”.
2.

Research security
Section 10114(a)(2) of the Research and Development, Competition, and Innovation Act (42 U.S.C. 18912(a)(2)) is amended by striking “authorized” and all that follows through the period at the end and inserting “administered or provided, as applicable, by the Department of Energy, including National Laboratories (as defined in section 2 of the Energy Policy Act of 2005 (42 U.S.C. 15801)).”.
3.

Polygraph examinations for certain foreign nationals with access to nonpublic National Laboratory areas or information
(a)

Definitions
In this section:
(1)

Covered foreign national
(A)

In general
The term covered foreign national means a foreign national who—
(i)
is a citizen or national of, or otherwise owes allegiance to, a country that, as of the date described in subparagraph (B), is a foreign country of concern (as defined in section 10612(a) of the Research and Development, Competition, and Innovation Act (42 U.S.C. 19221(a))); and
(ii)
is not—
(I)
a national of the United States; or
(II)
lawfully admitted for permanent residence.
(B)

Date described
The date referred to in subparagraph (A)(i) is, as applicable—
(i)
the date on which the foreign national begins work—
(I)
in a position at a National Laboratory; or
(II)
in any other position at the Department in which the foreign national will have access to nonpublic areas, data, or information of a National Laboratory; or
(ii)
the date on which the foreign national is initially granted access to nonpublic areas, data, or information of a National Laboratory under a contract or agreement with the Department.
(2)

Department
The term Department means the Department of Energy.
(3)

Lawfully admitted for permanent residence
The term lawfully admitted for permanent residence has the meaning given the term in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)).
(4)

National of the United States
The term national of the United States has the meaning given the term in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)).
(5)

National Laboratory
The term National Laboratory has the meaning given the term in section 2 of the Energy Policy Act of 2005 (42 U.S.C. 15801).
(6)

Qualifying polygraph examination
The term qualifying polygraph examination means a polygraph examination that is carried out in a manner that, as determined by the Secretary, is consistent with Intelligence Community Policy Guidance 704.6 published by the Director of National Intelligence and entitled “Conduct of Polygraph Examinations for Personnel Security Vetting” (or successor guidance).
(7)

Secretary
The term Secretary means the Secretary of Energy, acting through the Director of the Office of Intelligence and Counterintelligence.
(b)

Qualifying polygraph examinations
(1)

Potential employees of the Department
Before a covered foreign national is hired by the Department to work in a position at a National Laboratory or in any position in which the covered foreign national will have access to nonpublic areas, data, or information of a National Laboratory, the Secretary shall administer a qualifying polygraph examination to the covered foreign national.
(2)

Existing employees of the Department
(A)

In general
Before an employee of the Department who is a covered foreign national may be transferred to a position at a National Laboratory or to any other position at the Department in which the employee will have access to nonpublic areas, data, or information of a National Laboratory, the Secretary shall administer a qualifying polygraph examination to the employee.
(B)

Certain existing employees with access to nonpublic information
(i)

Existing employees who are covered foreign nationals
Each employee of the Department who, as of the date of enactment of this Act, is a covered foreign national who works in a position at a National Laboratory or in any other position at the Department in which the employee has access to nonpublic areas, data, or information of a National Laboratory shall be required to submit to a qualifying polygraph examination by a date determined by the Secretary, but not later than 1 year after the date of enactment of this Act, to remain in that position.
(ii)

Existing employees who become covered foreign nationals
An employee of the Department who works in a position at a National Laboratory or in any other position at the Department in which the employee has access to nonpublic areas, data, or information of a National Laboratory shall be required to submit to a qualifying polygraph examination—
(I)
as soon as practicable after becoming a covered foreign national; and
(II)
before being transferred, promoted, or otherwise hired into another position at the Department in which the employee will have access to nonpublic areas, data, or information of a National Laboratory if the employee is a covered foreign national as of the date of the transfer, promotion, or hiring.
(3)

Contractors and other individuals with access to nonpublic information
Before a covered foreign national is initially granted access to nonpublic areas, data, or information of a National Laboratory under a contract or agreement with the Department, the Secretary shall administer a qualifying polygraph examination to the covered foreign national.
(c)

Specific Issue Polygraph examinations
The Secretary may require a covered foreign national to submit to a Specific Issue Polygraph examination (within the meaning of Intelligence Community Policy Guidance 704.6 published by the Director of National Intelligence and entitled “Conduct of Polygraph Examinations for Personnel Security Vetting” (or successor guidance)) at any time during which the covered foreign national is employed by the Department.
(d)

Reexamination
The Secretary shall require each employee of the Department who is a covered foreign national to be reexamined with an appropriate polygraph examination—
(1)
not less frequently than once every 5 years while employed by the Department; and
(2)
in a manner consistent with other members of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)) that require reexamination every 5 years.
(e)

Refusal of examination; termination of employment
(1)

In general
If a covered foreign national refuses to submit to a polygraph examination under this section—
(A)
the covered foreign national shall not be granted access to any nonpublic areas, data, or information of a National Laboratory, and any existing grant of access to such areas, data, or information shall be immediately revoked; and
(B)
if the covered foreign national is an employee of the Department, the employment of the covered foreign national at the Department shall be terminated.
(2)

Certain employees of the Department
(A)

Employees under consideration for transfer to certain positions
Paragraph (1)(B) shall apply to an employee of the Department described in subsection (b)(2)(A) who does not have access to nonpublic areas, data, or information of the Department but is under consideration for a transfer to a position described in that paragraph such that, if the employee refuses to submit to a polygraph examination under this section—
(i)
the employee shall be ineligible for the transfer; and
(ii)
the employment of the employee at the Department shall be terminated.
(B)

Employees with access to nonpublic areas or information
Paragraph (1)(B) shall apply to any employee of the Department who is a covered foreign national and works in a position at a National Laboratory or in any other position at the Department in which the employee has access to nonpublic areas, data, or information of a National Laboratory such that, if the employee refuses to submit to a polygraph examination under this section, the employment of the employee at the Department, including at any National Laboratory, shall be terminated.
(3)

Potential employees of the Department
A covered foreign national who is under consideration for employment in a position described in subsection (b)(1) and refuses to submit to a polygraph examination under this section—
(A)
shall be removed from consideration for employment in that position; and
(B)
in accordance with paragraph (4), shall not be eligible for employment at the Department, including at any National Laboratory.
(4)

Subsequent employment at the Department
(A)

In general
A covered foreign national shall not be eligible for employment at the Department, including at any National Laboratory, if the covered foreign national previously refused to submit to a polygraph examination under this section.
(B)

Change in status
A foreign national who is lawfully admitted for permanent residence shall not be eligible for employment at the Department, including at any National Laboratory, if the foreign national previously refused to submit to a polygraph examination under this section at a time when the foreign national was a covered foreign national.
(f)

Savings provision
Nothing in this section authorizes the Secretary to require an individual who is not a covered foreign national to submit to a polygraph examination.