(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 (g)) 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 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 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.'.

NATIONAL DEFENSE AUTHORIZATION
ACT FOR FISCAL YEAR 2001

SENATE REPORT 106-292

[to accompany s. 2549]

[...]

Authority to withhold certain sensitive information from public disclosure (sec. 1044)

The committee recommends a provision that would protect from unauthorized disclosure two categories of sensitive unclassified information. Many allied and other friendly nations, and some international organizations, have a category of unclassified information that is subject to certain special controls and protected from release outside the government or organization. In addition, many governments have a category of classified information, "restricted", that is not used by the United States. "Restricted" information is normally provided at a level of protection less than that protection afforded to "confidential" in the U.S. classification system.

Information falling into one of these categories is frequently provided to the United States by foreign governments or international organizations under the condition that it be protected from unauthorized release. Under the present U.S. system, the only way that the United States can do so is to classify the information in the interests of national security under Executive Order 12958. This requires that the security requirements for classified information apply, including security clearances, safes, and precautions in transmission. This situation frequently imposes unnecessary costs and has caused problems for cooperative defense programs.

This provision would authorize the Secretary of Defense, the Secretary of Transportation (with respect to the Coast Guard when not operating in the Navy), and the Secretary of Energy (with respect to that Department's national security programs) 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 information must be the subject of a written request from the government or organization that it be withheld, or have been provided on the condition that it be withheld, or fall within a category specified in regulations as being information the release of which would have an adverse effect on the ability of the United States to obtain similar information in the future. If the secretary of the department having the information transfers it to another agency, that agency shall withhold it from disclosure unless specifically authorized by the secretary of the department transferring it. The prohibition on disclosure will normally extend for the period specified by the country or organization providing the information, or for ten years if no period is so stated. The ten-year rule may be extended at the written request of the entity providing the information, as may the 25 year period applicable to certain information obtained by the United States prior to the enactment of this provision.

This provision does not authorize the withholding of information from Congress, or (except in the case of foreign intelligence or counterintelligence activities) the Comptroller General. The Secretary of Defense, the Secretary of Transportation, and the Secretary of Energy are to prescribe regulations to carry out this provision.

(a) AUTHORITY- Subchapter I of chapter 21 of title 10, United States Code, is amended by adding at the end the following:

`Sec. 426. Protection of sensitive information: operational files of the Defense Intelligence Agency

`(a) AUTHORITY TO WITHHOLD OPERATIONAL FILES- The Secretary of Defense may withhold from public disclosure operational files described in subsection (b) to the same extent that operational files may be withheld under section 701 of the National Security Act of 1947 (50 U.S.C. 431), subject to judicial review under the same circumstances and to the same extent as is provided in subsection (f) of such section.

`(b) DECENNIAL REVIEW OF EXEMPTED OPERATIONAL FILES- Section 702 of the National Security Act of 1947 (50 U.S.C. 432), setting forth requirements for decennial review of exemptions from public disclosure and related provisions for judicial review shall apply with respect to the exemptions from public disclosure that are in force under subsection (a), subject to the following requirements:

`(1) The Secretary of Defense shall conduct the decennial review under this subsection.

`(2) In the application of the judicial review provisions under subsection (c) of such section 702--

`(A) the references to the Central Intelligence Agency shall be deemed to refer to the Secretary of Defense; and

`(B) the reference in paragraph (1) of that subsection to the period for the first review shall be deemed to refer to the 10-year period beginning on the day after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2001.

`(c) OPERATIONAL FILES DEFINED- In this section, the term `operational files' has the meaning given that term in section 701(b) of the National Security Act of 1947 (50 U.S.C. 431(b)), except that the references to elements of the Central Intelligence Agency do not apply.'.

(b) CLERICAL AMENDMENT- The table of sections at the beginning of such subchapter is amended by adding at the end the following:

`426. Protection of sensitive information: operational files of the Defense Intelligence Agency.'.

Protection of operational files of the Defense Intelligence Agency (sec. 1045)

The committee recommends a provision that would authorize the Secretary of Defense to withhold from public disclosure the operational files of the Defense Intelligence Agency. These files would be protected from disclosure, under the Freedom of Information Act or otherwise, to the same extent as provided for under section 701 of the National Security Act of 1947 (50 U.S.C 431). The provision also makes applicable to these files the decennial review provisions of section 702 of that Act (50 U.S.C. 432), with the Secretary of Defense exercising the authority granted to the Director of Central Intelligence in that section.

[...]

(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 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) The programs known as Special Access Programs and Personnel Security and Assurance Programs.

`(2) Any other program or position category specified in section 709.4 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 waive the applicability of paragraph (1) to a covered person--

`(A) if--

`(i) the Secretary determines that the waiver is in the national security interests of the United States;

`(ii) the covered person previously has been granted a 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, that the treatment of a medical or psychological condition of the covered person should preclude the administration of the examination.

`(3)(A) Any waiver under paragraph (2)(A) shall be effective for not more than 120 days.

`(B) Any waiver under paragraph (2)(C) shall be effective for the duration of the treatment on which such waiver is based.'.

(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. 3154)

The committee recommends a provision 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 conditional 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 by reason of treatment for a medical or psychological condition.

[...]

(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, notify the committees and Assistant to the President specified in subsection (d) of inadvertent releases described in paragraph (1) that are discovered after the date of the enactment of this Act.'.

(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply with respect to inadvertent releases of Restricted Data and Formerly Restricted Data that are discovered on or after that date.

Frequency of reports on inadvertent releases of restricted data and formerly restricted data (sec. 3173)

The committee recommends a provision that would amend section 3161 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 2000 (Public Law 106 65) by requiring 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.