Congressional Record: October 6, 2000 (House)
Page H9053-H9103
CONFERENCE REPORT ON H.R. 5408, FLOYD D. SPENCE NATIONAL DEFENSE Sec. 1071 Limitation on Granting of Security Clearances
AUTHORIZATION ACT FOR FISCAL YEAR 2001Excerpts on Secrecy and Security Policy
With Report Language (from H.Rept. 106-945) in Italics
Sec. 1072 Process for Prioritizing Background Investigations
Sec. 1073 Authority to Withhold Certain Sensitive Information from Public Disclosure
Sec. 1074 Expansion of Authority to Exempt Geodetic Products from Public Disclosure
Sec. 1075 Expenditures for Declassification Activities
Sec. 1076 Enhanced Access to Criminal History Information
Sec. 1077 Extension of Authority to Engage in Commercial Activities as Security for Intelligence Activities
Sec. 1078 Coordination of Nuclear Weapons Secrecy Policies and Consideration of Health of Workers
Sec. 3135 Modification of Counterintelligence Polygraph Program
Sec. 3193 Frequency of Reports on Inadvertent Disclosures of Restricted Data
Provisions Not Adopted: FOIA Exemption for the Defense Intelligence Agency
[...] TITLE X--GENERAL PROVISIONS Subtitle H--Security Matters SEC. 1071. LIMITATION ON GRANTING OF SECURITY CLEARANCES. (a) In General.--Chapter 49 of title 10, United States Code, is amended by adding at the end the following new section: "Sec. 986. Security clearances: limitations "(a) Prohibition.--After the date of the enactment of this section, the Department of Defense may not grant or renew a security clearance for a person to whom this section applies who is described in subsection (c). "(b) Covered Persons.--This section applies to the following persons: "(1) An officer or employee of the Department of Defense. "(2) A member of the Army, Navy, Air Force, or Marine Corps who is on active duty or is in an active status. "(3) An officer or employee of a contractor of the Department of Defense. "(c) Persons Disqualified From Being Granted Security Clearances.--A person is described in this subsection if any of the following applies to that person: "(1) The person has been convicted in any court of the United States of a crime and sentenced to imprisonment for a term exceeding one year. "(2) The person is an unlawful user of, or is addicted to, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)). "(3) The person is mentally incompetent, as determined by a mental health professional approved by the Department of Defense. "(4) The person has been discharged or dismissed from the Armed Forces under dishonorable conditions. "(d) Waiver Authority.--In a meritorious case, the Secretary of Defense or the Secretary of the military department concerned may authorize an exception to the prohibition in subsection (a) for a person described in paragraph (1) or (4) of subsection (c). The authority under the preceding sentence may not be delegated. "(e) Annual Report.--Not later than February 1 each year, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report identifying each waiver issued under subsection (d) during the preceding year with an explanation for each case of the disqualifying factor in subsection (c) that applied, and the reason for the waiver of the disqualification.''. (b) Clerical Amendment.--The table of sections at the beginning of such chapter is amended by adding at the end the following new item: "986. Security clearances: limitations.''. Limitation on granting of security clearances (sec. 1071) The Senate amendment contained a provision (sec. 1074) that would prohibit any officer, employee, or contractor of the Department of Defense, or any member of the armed forces, from receiving a security clearance if that person: (1) has been convicted in any court within the United States and sentenced to imprisonment for a term exceeding 1 year; (2) is an unlawful user of, or addicted to any controlled substance; (3) is currently mentally incompetent; or (4) has been discharged from the armed forces under dishonorable conditions. The House bill contained no similar provision. The House recedes with an amendment that would authorize the Secretary of Defense or the secretaries of the military departments to waive this provision in meritorious cases for persons who would otherwise be prohibited from receiving a security clearance. SEC. 1072. PROCESS FOR PRIORITIZING BACKGROUND INVESTIGATIONS FOR SECURITY CLEARANCES FOR DEPARTMENT OF DEFENSE PERSONNEL AND DEFENSE CONTRACTOR PERSONNEL. (a) Establishment of Process.--Chapter 80 of title 10, United States Code, is amended by adding after section 1563, as added by section 542(a), the following new section: "Sec. 1564. Security clearance investigations "(a) Expedited Process.--The Secretary of Defense shall prescribe a process for expediting the completion of the background investigations necessary for granting security clearances for Department of Defense personnel and Department of Defense contractor personnel who are engaged in sensitive duties that are critical to the national security. "(b) Required Features.--The process developed under subsection (a) shall provide for the following: "(1) Quantification of the requirements for background investigations necessary for grants of security clearances for Department of Defense personnel and Department of Defense contractor personnel. "(2) Categorization of personnel on the basis of the degree of sensitivity of their duties and the extent to which those duties are critical to the national security. "(3) Prioritization of the processing of background investigations on the basis of the categories of personnel determined under paragraph (2). "(c) Annual Review.--The Secretary shall conduct an annual review of the process prescribed under subsection (a) and shall revise that process as determined necessary in relation to ongoing Department of Defense missions. "(d) Consultation Requirement.--The Secretary shall consult with the Secretaries of the military departments and the heads of Defense Agencies in carrying out this section. "(e) Sensitive Duties.--For the purposes of this section, it is not necessary for the performance of duties to involve classified activities or classified matters in order for the duties to be considered sensitive and critical to the national security.''. (b) Clerical Amendment.--The table of sections at the beginning of such chapter is amended by adding after the item relating to section 1563, as added by section 542(b), the following new item: "1564. Security clearance investigations.''. (c) Deadline for Prescribing Process for Prioritizing Background Investigations for Security Clearances.--The process required by section 1564(a) of title 10, United States Code, as added by subsection (a), for expediting the completion of the background investigations necessary for granting security clearances for certain persons shall be prescribed not later than January 1, 2001. Process for prioritizing background investigations for security clearances for Department of Defense personnel and defense contractor personnel (sec. 1072) The Senate amendment contained a provision (sec. 1043) that would require the Secretary of Defense to establish a process for prioritizing background investigations for security clearances for Department of Defense personnel. The House bill contained no similar provision. The House recedes with an amendment that would require the Secretary of Defense to establish a process for prioritizing background investigations for security clearances for Department of Defense personnel and contractors of the Department of Defense. SEC. 1073. AUTHORITY TO WITHHOLD CERTAIN SENSITIVE INFORMATION FROM PUBLIC DISCLOSURE. (a) In General.--Chapter 3 of title 10, United States Code, is amended by inserting after section 130b the following new section: "Sec. 130c. Nondisclosure of information: certain sensitive information of foreign governments and international organizations "(a) Exemption From Disclosure.--The national security official concerned (as defined in subsection (h)) may withhold from public disclosure otherwise required by law sensitive information of foreign governments in accordance with this section. "(b) Information Eligible for Exemption.--For the purposes of this section, information is sensitive information of a foreign government only if the national security official concerned makes each of the following determinations with respect to the information: "(1) That the information was provided by, otherwise made available by, or produced in cooperation with, a foreign government or international organization. "(2) That the foreign government or international organization is withholding the information from public disclosure (relying for that determination on the written representation of the foreign government or international organization to that effect). "(3) That any of the following conditions are met: "(A) The foreign government or international organization requests, in writing, that the information be withheld. "(B) The information was provided or made available to the United States Government on the condition that it not be released to the public. "(C) The information is an item of information, or is in a category of information, that the national security official concerned has specified in regulations prescribed under subsection (f) as being information the release of which would have an adverse effect on the ability of the United States Government to obtain the same or similar information in the future. "(c) Information of Other Agencies.--If the national security official concerned provides to the head of another agency sensitive information of a foreign government, as determined by that national security official under subsection (b), and informs the head of the other agency of that determination, then the head of the other agency shall withhold the information from any public disclosure unless that national security official specifically authorizes the disclosure. "(d) Limitations.--(1) If a request for disclosure covers any sensitive information of a foreign government (as described in subsection (b)) that came into the possession or under the control of the United States Government before the date of the enactment of the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 and more than 25 years before the request is received by an agency, the information may be withheld only as set forth in paragraph (3). "(2)(A) If a request for disclosure covers any sensitive information of a foreign government (as described in subsection (b)) that came into the possession or under the control of the United States Government on or after the date referred to in paragraph (1), the authority to withhold the information under this section is subject to the provisions of subparagraphs (B) and (C). "(B) Information referred to in subparagraph (A) may not be withheld under this section after-- "(i) the date that is specified by a foreign government or international organization in a request or expression of a condition described in paragraph (1) or (2) of subsection (b) that is made by the foreign government or international organization concerning the information; or "(ii) if there are more than one such foreign governments or international organizations, the latest date so specified by any of them. "(C) If no date is applicable under subparagraph (B) to a request referred to in subparagraph (A) and the information referred to in that subparagraph came into possession or under the control of the United States more than 10 years before the date on which the request is received by an agency, the information may be withheld under this section only as set forth in paragraph (3). "(3) Information referred to in paragraph (1) or (2)(C) may be withheld under this section in the case of a request for disclosure only if, upon the notification of each foreign government and international organization concerned in accordance with the regulations prescribed under subsection (g)(2), any such government or organization requests in writing that the information not be disclosed for an additional period stated in the request of that government or organization. After the national security official concerned considers the request of the foreign government or international organization, the official shall designate a later date as the date after which the information is not to be withheld under this section. The later date may be extended in accordance with a later request of any such foreign government or international organization under this paragraph. "(e) Information Protected Under Other Authority.--This section does not apply to information or matters that are specifically required in the interest of national defense or foreign policy to be protected against unauthorized disclosure under criteria established by an Executive order and are classified, properly, at the confidential, secret, or top secret level pursuant to such Executive order. "(f) Disclosures Not Affected.--Nothing in this section shall be construed to authorize any official to withhold, or to authorize the withholding of, information from the following: "(1) Congress. "(2) The Comptroller General, unless the information relates to activities that the President designates as foreign intelligence or counterintelligence activities. "(g) Regulations.--(1) The national security officials referred to in subsection (h)(1) shall [[Page H9133]] each prescribe regulations to carry out this section. The regulations shall include criteria for making the determinations required under subsection (b). The regulations may provide for controls on access to and use of, and special markings and specific safeguards for, a category or categories of information subject to this section. "(2) The regulations shall include procedures for notifying and consulting with each foreign government or international organization concerned about requests for disclosure of information to which this section applies. "(h) Definitions.--In this section: "(1) The term `national security official concerned' means the following: "(A) The Secretary of Defense, with respect to information of concern to the Department of Defense, as determined by the Secretary. "(B) The Secretary of Transportation, with respect to information of concern to the Coast Guard, as determined by the Secretary, but only while the Coast Guard is not operating as a service in the Navy. "(C) The Secretary of Energy, with respect to information concerning the national security programs of the Department of Energy, as determined by the Secretary. "(2) The term `agency' has the meaning given that term in section 552(f) of title 5. "(3) The term `international organization' means the following: "(A) A public international organization designated pursuant to section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) as being entitled to enjoy the privileges, exemptions, and immunities provided in such Act. "(B) A public international organization created pursuant to a treaty or other international agreement as an instrument through or by which two or more foreign governments engage in some aspect of their conduct of international affairs. "(C) An official mission, except a United States mission, to a public international organization referred to in subparagraph (A) or (B).''. (b) Clerical Amendment.--The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 130b the following new item: "130c. Nondisclosure of information: certain sensitive information of foreign governments and international organizations.''. Authority to withhold certain sensitive information from public disclosure (sec. 1073) The Senate amendment contained a provision (sec. 1044) that would authorize the Secretary of Defense, the Secretary of Transportation, and the Secretary of Energy to withhold from public disclosure otherwise authorized by law sensitive information provided by a foreign government or an international organization which is itself protecting the information from disclosure. The provision would not authorize the withholding of information from Congress or, except in the case of foreign intelligence or counterintelligence activities, the Comptroller General. The House bill contained no similar provision. The House recedes with a technical amendment. SEC. 1074. EXPANSION OF AUTHORITY TO EXEMPT GEODETIC PRODUCTS OF THE DEPARTMENT OF DEFENSE FROM PUBLIC DISCLOSURE. Section 455(b)(1)(C) of title 10, United States Code, is amended by striking "or reveal military operational or contingency plans'' and inserting ", reveal military operational or contingency plans, or reveal, jeopardize, or compromise military or intelligence capabilities''. Expansion of authority to exempt geodetic products of the Department of Defense from public disclosure (sec. 1074) The Senate amendment contained a provision (sec. 916) that would expand the authority of the Secretary of Defense to exempt geodetic products from public disclosure. The House bill contained no similar provision. The House recedes. SEC. 1075. EXPENDITURES FOR DECLASSIFICATION ACTIVITIES. (a) Identification in Budget Materials of Amounts for Declassification Activities.--Section 230 of title 10, United States Code, is amended-- (1) by striking ", as a budgetary line item,''; and (2) by adding at the end the following new sentence: "Identification of such amounts in such budget justification materials shall be in a single display that shows the total amount for the Department of Defense and the amount for each military department and Defense Agency.''. (b) Limitation on Expenditures.--The total amount expended by the Department of Defense during fiscal year 2001 to carry out declassification activities under the provisions of sections 3.4, 3.5, and 3.6 of Executive Order 12958 (50 U.S.C. 435 note) and for special searches (including costs for document search, copying, and review and imagery analysis) may not exceed $30,000,000. (c) Compilation and Organization of Records.--The Department of Defense may not be required, when conducting a special search, to compile or organize records that have already been declassified and placed into the public domain. (d) Special Searches.--For the purpose of this section, the term "special search'' means the response of the Department of Defense to any of the following: (1) A statutory requirement to conduct a declassification review on a specified set of agency records. (2) An Executive order to conduct a declassification review on a specified set of agency records. (3) An order from the President or an official with delegated authority from the President to conduct a declassification review on a specified set of agency records. Expenditures for declassification activities (sec. 1075) The House bill contained a provision (sec. 1035) that would: (1) Clarify section 230 of Title 10, United States Code; (2) limit the amount of funds expended during fiscal year 2001 by the Department of Defense to carry out declassification activities; and (3) prohibit the Department of Defense, as part of a special search, from being required to compile records that have already been declassified. The Senate amendment contained no similar provision. The Senate recedes. SEC. 1076. ENHANCED ACCESS TO CRIMINAL HISTORY RECORD INFORMATION FOR NATIONAL SECURITY AND OTHER PURPOSES (a) Coverage of Department of Transportation.--Section 9101 of title 5, United States Code, is amended-- (1) by adding at the end of subsection (a) the following new paragraph: "(6) The term `covered agency' means any of the following: "(A) The Department of Defense. "(B) The Department of State. "(C) The Department of Transportation. "(D) The Office of Personnel Management. "(E) The Central Intelligence Agency. "(F) The Federal Bureau of Investigation.''; (2) in subsection (b)(1)-- (A) by striking "by the Department of Defense'' and all that follows through "Federal Bureau of Investigation'' and inserting "by the head of a covered agency''; and (B) by striking "such department, office, agency, or bureau'' and inserting "that covered agency''; and (3) in subsection (c), by striking "The Department of Defense'' and all that follows through "Federal Bureau of Investigation'' and inserting "A covered agency''. (b) Repeal of Expired Provision.--Subsection (b) of such section is amended by striking paragraph (3). (c) Expanded Purposes for Access to Criminal History Information.--Subsection (b) of such section is further amended-- (1) by redesignating paragraph (2) as paragraph (4); (2) in the first sentence of paragraph (1)-- (A) by inserting "any of the following:'' after "eligibility for''; and (B) by striking "(A) access to classified information'' and all that follows through the end of the sentence and inserting the following: "(A) Access to classified information. "(B) Assignment to or retention in sensitive national security duties. "(C) Acceptance or retention in the armed forces. "(D) Appointment, retention, or assignment to a position of public trust or a critical or sensitive position while either employed by the Government or performing a Government contract.''; (3) by designating the second sentence of paragraph (1) as paragraph (2); and (4) by designating the third sentence of paragraph (1) as paragraph (3) and in that sentence by striking ", nor shall'' and all that follows through the end of the sentence and inserting a period. (d) Use of Automated Information Delivery Systems.--Such section is further amended-- (1) by redesignating subsection (e) as subsection (f); and (2) by inserting after subsection (d) the following new subsection (e): "(e)(1) Automated information delivery systems shall be used to provide criminal history record information to a covered agency under subsection (b) whenever available. "(2) Fees, if any, charged for automated access through such systems may not exceed the reasonable cost of providing such access. "(3) The criminal justice agency providing the criminal history record information through such systems may not limit disclosure on the basis that the repository is accessed from outside the State. "(4) Information provided through such systems shall be the full and complete criminal history record. "(5) Criminal justice agencies shall accept and respond to requests for criminal history record information through such systems with printed or photocopied records when requested.''. (e) Technical Amendments.--Subsection (a) of such section is amended-- (1) in paragraph (1), by striking "includes'' and all that follows through "thereof which'' and inserting "means (A) any Federal, State, or local court, and (B) any Federal, State, or local agency, or any subunit thereof, which''; and (2) in paragraph (4)-- (A) by inserting "the Commonwealth of'' before "the Northern Mariana Islands''; and (B) by striking "the Trust Territory of the Pacific Islands,'. (f) Conforming Amendments.--(1)(A) The heading for chapter 91 of title 5, United States Code, is amended to read as follows: "CHAPTER 91--ACCESS TO CRIMINAL HISTORY RECORDS FOR NATIONAL SECURITY AND OTHER PURPOSES''. (B) The item relating to chapter 91 in the table of chapters at the beginning of part III of such title is amended to read as follows: "91. Access to Criminal History Records for National Security and Other Purposes..........................................9101''..... (2)(A) The heading of section 9101 of such title is amended to read as follows: "Sec. 9101. Access to criminal history records for national security and other purposes''. (B) The item relating to that section in the table of sections at the beginning of chapter 91 of such title is amended to read as follows: "9101. Access to criminal history records for national security and other purposes.''. (g) Repeal of Superseded Provision.--(1) Section 520a of title 10, United States Code, is repealed. (2) The table of sections at the beginning of chapter 31 of such title is amended by striking the item relating to section 520a. Enhanced access to criminal history record information for national security and other purposes (sec. 1076) The Senate amendment contained a provision (sec. 1057) that would amend section 9101 of title 5, United States Code, to provide expanded access to criminal history information by the Department of Defense and certain other executive departments and agencies. The provision would expand the authority to cover acceptance or retention in the armed forces, and appointment, retention, or assignment to a position of public trust or a critical employee. It would also authorize the Federal Government to obtain the information through the use of common identifiers, such as names, and would prohibit states and localities from conditioning the provision of such information on indemnification agreements. The House bill contained no similar provision. The House recedes with an amendment that would strike the authorization of the use of common identifiers and the prohibition on the requirement of indemnification agreements, and would repeal a superseded provision of law. SEC. 1077. TWO-YEAR EXTENSION OF AUTHORITY TO ENGAGE IN COMMERCIAL ACTIVITIES AS SECURITY FOR INTELLIGENCE COLLECTION ACTIVITIES. Section 431(a) of title 10, United States Code, is amended in the second sentence by striking "December 31, 2000'' and inserting "December 31, 2002''. Two-year extension of authority to engage in commercial activities as security for intelligence collection activities (sec. 1077) The Senate amendment contained a provision (sec. 1071) that would extend the authority provided by section 431(a) of Title 10, United States Code, by two years. The House bill contained no similar provision. The House recedes. SEC. 1078. COORDINATION OF NUCLEAR WEAPONS SECRECY POLICIES AND CONSIDERATION OF HEALTH OF WORKERS AT FORMER DEPARTMENT OF DEFENSE NUCLEAR FACILITIES. (a) Review of Secrecy Policies.--(1) The Secretary of Defense shall review classification and security policies of the Department of Defense in order to ensure that, within appropriate national security constraints, those policies do not prevent or discourage former defense nuclear weapons facility employees who may have been exposed to radioactive or other hazardous substances associated with nuclear weapons from discussing such exposures with appropriate health care providers and with other appropriate officials. (2) The policies reviewed under paragraph (1) shall include the policy to neither confirm nor deny the presence of nuclear weapons as that [[Page H9134]] policy is applied to former defense nuclear weapons facilities. (b) Definitions.--For purposes of this section: (1) The term "former defense nuclear weapons facility employees'' means employees and former employees of the Department of Defense who are or were employed at a site that, as of the date of the enactment of this Act, is a former defense nuclear weapons facility. (2) The term "former defense nuclear weapons facility'' means a current or former Department of Defense site in the United States which at one time was a defense nuclear weapons facility but which no longer contains nuclear weapons or materials and otherwise is no longer used for such purpose. (3) The term "defense nuclear weapons facility'' means a Department of Defense site in the United States at which nuclear weapons or materials are stored, assembled, disassembled, or maintained. (c) Notification of Affected Employees.--(1) The Secretary of Defense shall seek to identify individuals-- (A) who are former defense nuclear weapons facility employees; and (B) who, while employed at a defense nuclear weapons facility, may have been exposed to radioactive or hazardous substances associated with nuclear weapons. (2) Upon identification of any individual under paragraph (1), the Secretary of Defense shall notify that individual, by mail or other individual means, of any such exposure to radioactive or hazardous substances associated with nuclear weapons that has been identified by the Secretary. The notification shall include an explanation of how (or the degree to which) that individual can discuss any such exposure with a health care provider who does not hold a security clearance without violating security or classification procedures and, if necessary, provide guidance to facilitate the ability of that individual to contact a health care provider with appropriate security clearances or otherwise to discuss such exposures with other officials who are determined by the Secretary of Defense to be appropriate. (d) Report.--Not later than May 1, 2001, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report setting forth-- (1) the results of the review conducted under subsection (a), including any changes made or recommendations for legislation; and (2) the status of the notifications required by subsection (b) and an anticipated date by which the identification and notification of individuals under that subsection will be completed. (e) Consultation with Secretary of Energy.--The Secretary of Defense shall carry out the review under subsection (a) and the identification of individuals under subsection (b), and shall prepare the report under subsection (c), in consultation with the Secretary of Energy. Coordination of nuclear weapons secrecy policies and consideration of health of workers at former Department of Defense nuclear facilities (sec. 1078) The Senate amendment contained a provision (sec. 1077) that would: (1) Require the Secretary of Defense, in consultation with the Secretary of Energy, to ensure that secrecy policies do not prevent or discourage employees at former nuclear weapons facilities who may have been exposed to radioactive or other hazardous substances from discussing such exposures with appropriate health care providers; and (2) seek to identify individuals who are or were employed at sites that no longer store, assemble, disassemble, or maintain nuclear weapons, and, upon determination that such individuals may have been exposed to radioactive or hazardous substances, notify such individuals about any such exposure, including an explanation of how employees can discuss exposures with health care providers. The House bill contained no similar provision. The House recedes with a clarifying amendment. The conferees note that the Department of Defense operates a number of sites not engaged in the manufacture or storage of nuclear weapons that may nonetheless have exposed workers to hazardous substances. The conferees agree that the Secretary of Defense shall address in the review and notifications described in this provision workers exposed to radioactive or other hazardous materials at all such facilities where secrecy policies may otherwise pose an obstacle to seeking medical advice and treatment. [...] TITLE XXXI--DEPARTMENT OF ENERGY NATIONAL SECURITY PROGRAMS [...] Subtitle C--Program Authorizations, Restrictions, and Limitations [...] SEC. 3135. MODIFICATION OF COUNTERINTELLIGENCE POLYGRAPH PROGRAM. (a) Covered Persons.--Subsection (b) of 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; 113 Stat. 941; 42 U.S.C. 7383h) is amended to read as follows: "(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.''. (b) High-Risk Programs.--Subsection (c) of that section is amended to read as follows: "(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.''. (c) Authority To Waive Examination Requirement.--Subsection (d) of that section is amended-- (1) by inserting "(1)'' before "The Secretary''; and (2) by adding at the end the following new paragraphs: "(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.''. (d) Scope of Counterintelligence Polygraph Examination.-- Subsection (f) of that section is amended-- (1) by inserting "terrorism,'' after "sabotage,''; and (2) by inserting "deliberate damage to or malicious misuse of a United States Government information or defense system,'' before "and''. Modification of counterintelligence polygraph program (sec. 3135) The Senate amendment contained a provision (sec. 3154) that would amend section 3154 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65) by authorizing the Secretary of Energy to waive the requirement that certain Department of Energy (DOE) employees and DOE contractor employees successfully pass a counterintelligence polygraph exam before such employees can be granted access to high-risk programs. The provision would allow the Secretary to waive this requirement for any individual for a period not to exceed 120 days, if the Secretary determines that: (1) such a waiver is in the national security interests of the United States; (2) the covered employee has been granted a security clearance; and (3) the covered employee signs a written acknowledgment that the employment is conditioned upon successfully passing a counterintelligence polygraph exam within 120 days of the date of signing such an acknowledgment. The provision would also allow the Secretary to waive this requirement for any individual who the Secretary determines: (1) has completed successfully a full- scope counterintelligence polygraph exam while employed with another federal agency; or (2) should not be examined because of treatment for a medical or psychological condition. The House bill contained no similar provision. The House recedes with an amendment that would authorize the Secretary to waive polygraph requirements on a one-time basis [[Page H9446]] for any individual employee and would prohibit the Secretary from using the need to maintain the scientific viability of a DOE laboratory as a criteria for approving any such waivers. The amendment would further require that employees holding a sensitive compartmented information clearance be subject to these requirements. [...] SEC. 3193. FREQUENCY OF REPORTS ON INADVERTENT RELEASES OF RESTRICTED DATA AND FORMERLY RESTRICTED DATA. (a) Frequency of Reports.--Section 3161(f)(2) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Public Law 105-261; 112 Stat. 2261; 50 U.S.C. 435 note) is amended to read as follows: "(2) The Secretary of Energy shall, on a quarterly basis, submit a report to the committees and Assistant to the President specified in subsection (d). The report shall state whether any inadvertent releases described in paragraph (1) occurred during the immediately preceding quarter and, if so, shall identify each such release.''. (b) Effective Date.--The amendment made by subsection (a) apply with respect to inadvertent releases of Restricted Data and Formerly Restricted Data that are discovered on or after the date of the enactment of this Act. Frequency of reports on inadvertent releases of restricted data and formerly restricted data (sec. 3193) The Senate amendment contained a provision (sec. 3173) that would amend section 3161 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65) to require the Secretary of Energy to report inadvertent releases of restricted data and formerly restricted data on a quarterly basis rather than 30 days after any such release. The House bill contained no similar provision. The House recedes with a clarifying amendment that would make the quarterly report mandatory, regardless of whether there is a reportable incident during the period by the report. [...] LEGISLATIVE PROVISIONS NOT ADOPTED Protection of operational files of the Defense Intelligence Agency The Senate amendment contained a provision (sec. 1045) that would authorize the Secretary of Defense to withhold from public disclosure the operational files of the Defense Intelligence Agency (DIA). These files would be protected from disclosure to the same extent as provided for under section 701 of the National Security Act of 1947 (50 U.S.C. 431). The provision would also make applicable to these files the decennial review of provisions of section 702 of that Act (50 U.S.C. 432), with the Secretary exercising the authority granted to the Director of Central Intelligence under that section. The House bill contained no similar provision. The Senate recedes.