“(2) Carrier designated as cvn–79.—The total amount obligated from funds appropriated or otherwise made available for Shipbuilding and Conversion, Navy, or for any other procurement account, for the aircraft carrier designated as CVN–79 may not exceed $11,398,000,000 (as adjusted pursuant to subsection (b)).
“(3) Follow-on ships.—The total amount obligated from funds appropriated or otherwise made available for Shipbuilding and Conversion, Navy, or for any other procurement account, for any ship that is constructed in the CVN–78 class of aircraft carriers after the aircraft carrier designated as CVN–79 may not exceed $12,568,000,000 (as adjusted pursuant to subsection (b)).”
“(1) The amounts of increases or decreases in costs attributable to economic inflation—
“(A) after September 30, 2013, in the case of the aircraft carrier designated as CVN–79; and
“(B) after September 30, 2017, in the case of any ship that is constructed in the CVN–78 class of aircraft carriers after the aircraft carrier designated as CVN–79.”
; and
“(g) Exclusion of Battle and Interim Spares From Cost Limitation.—The Secretary of the Navy shall exclude from the determination of the amounts set forth in paragraphs (2) and (3) of subsection (a), the costs of the following items:
“(1) CVN–78 class battle spares.
“(2) Interim spares.”
“(i)
(1) During the period beginning on October 1, 2017, and ending on October 1, 2022, the Secretary of the Air Force shall maintain a total aircraft inventory of fighter aircraft of not less than 1,970 aircraft, and a total primary mission aircraft inventory (combat-coded) of not less than 1,145 fighter aircraft.
“(2) In this subsection:
“(A) The term ‘fighter aircraft’ means an aircraft that—
“(i) is designated by a mission design series prefix of F– or A–;
“(ii) is manned by one or two crewmembers; and
“(iii) executes single-role or multi-role missions, including air-to-air combat, air-to-ground attack, air interdiction, suppression or destruction of enemy air defenses, close air support, strike control and reconnaissance, combat search and rescue support, or airborne forward air control.
“(B) The term ‘primary mission aircraft inventory’ means aircraft assigned to meet the primary aircraft authorization to a unit for the performance of its wartime mission.”
“(b) Solicitations.—The Secretary of Defense shall—
“(1) ensure that any solicitation issued for a Common Data Link described in subsection (a), regardless of whether the solicitation is issued by a military department or a contractor with respect to a subcontract—
“(A) conforms to a Department of Defense specification standard, including interfaces and waveforms, existing as of the date of the solicitation; and
“(B) does not include any proprietary or undocumented waveforms or control interfaces or data interfaces as a requirement or criterion for evaluation; and
“(2) notify the congressional defense committees not later than 15 days after issuing a solicitation for a Common Data Link to be sunset (CDL–TBS) waveform.”
; and
“(d) Preservation of Certain Retired C–5 Aircraft.—
“(1) In general.—The Secretary of the Air Force shall preserve eight retired C–5 aircraft until the date that is 30 days after the date on which the briefing under section 144(b) of the National Defense Authorization Act for Fiscal Year 2018 is provided to the congressional defense committees.
“(2) Manner of preservation.—The retired C–5 aircraft preserved under paragraph (1) shall be preserved such that each aircraft—
“(A) can be returned to service; and
“(B) is not used to supply parts to other aircraft unless specifically authorized by the Secretary of Defense upon a request by the Secretary of the Air Force.”
“(3) No prize competition may result in the award of a solely nonmonetary prize with a fair market value of more than $10,000 without the approval of the Under Secretary of Defense for Research and Engineering.”
“(f) Use of Prize Authority.—Use of prize authority under this section shall be considered the use of competitive procedures for the purposes of section 2304 of this title.”
“(c) Responsibilities.—In carrying out the program required by subsection (b), the Office shall do the following:
“(1) Expedite testing, evaluation, and acquisition of hypersonic weapon systems to meet the stated needs of the warfighter, including flight testing, ground-based-testing, and underwater launch testing.
“(2) Coordinate and integrate current and future research, development, test, and evaluation programs and system demonstration programs of the Department of Defense on hypersonics.
“(3) Undertake appropriate actions to ensure—
“(A) close and continuous integration of the programs on hypersonics of the military departments and the Defense Agencies with the programs on hypersonics across the Federal Government and with appropriate private sector and foreign organizations; and
“(B) that both foundational research and developmental and operational testing resources are adequate and well funded, and that facilities are made available in a timely manner to support hypersonics research, demonstration programs, and system development.
“(4) Approve prototyping demonstration programs on hypersonic systems to speed the maturation and deployment of the systems to the warfighter,.
“(5) Ensure that any demonstration program on hypersonic systems that is carried out in any year after its approval under paragraph (3) is carried out only if certified under subsection (e) as being consistent with the roadmap under subsection (d).
“(6) Develop strategies and roadmaps for hypersonic technologies to transition to operational capabilities for the warfighter.
“(7) Coordinate with relevant stakeholders and agencies to support United States technological advantage in developing hypersonics.”
“(c) Prototyping and Demonstration Program.—
“(1) Establishment.—The Secretary of Defense, acting through the Under Secretary, shall establish a program on the prototyping and demonstration of directed energy weapon systems to build and maintain the military superiority of the United States by—
“(A) accelerating, when feasible, the fielding of directed energy weapon prototypes that would help counter technological advantages of potential adversaries of the United States; and
“(B) supporting the military departments, the combatant commanders, and other relevant defense agencies and entities in developing prototypes and demonstrating operational utility of high energy lasers and high powered microwave weapon systems.
“(2) Guidelines.—
(A) Not later than 180 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018, the Under Secretary shall issue guidelines for the operation of the program established under paragraph (1), including the following:
“(i) Criteria required for an application for funding by a military department, defense agency or entity, or a combatant command.
“(ii) The priorities, based on validated requirements or capability gaps, for fielding prototype directed energy weapon system technologies developed by research funding of the Department or industry.
“(iii) Criteria for evaluation of an application for funding or changes to policies or acquisition and business practices by such a department, agency, or command for purposes of improving the effectiveness and efficiency of the program.
“(B) Funding for a military department, defense agency, or combatant command under the program established under paragraph (1) may only be available for advanced technology development, prototyping, and demonstrations in which the Department of Defense maintains management of the technical baseline and a primary emphasis on technology transition and evaluating military utility to enhance the likelihood that the particular directed energy weapon system will meet the Department end user’s need.
“(3) Applications for funding.—
(A) Not less frequently than once each year, the Under Secretary shall solicit from the heads of the military departments, the defense agencies, and the combatant commands applications for funding under the program established under paragraph (1) to be used to enter into contracts, cooperative agreements, or other transaction agreements entered into pursuant to section 2371b of title 10, United States Code, with appropriate entities for the prototyping or commercialization of technologies.
“(B) Nothing in this section shall be construed to require any official of the Department of Defense to provide funding under the program to any congressional earmark as defined pursuant to clause 9 of rule XXI of the Rules of the House of Representatives or any congressionally directed spending item as defined pursuant to paragraph 5 of rule XLIV of the Standing Rules of the Senate.
“(4) Funding.—
(A) Except as provided in subparagraph (B) and subject to the availability of appropriations for such purpose, of the funds authorized to be appropriated by the National Defense Authorization Act for Fiscal Year 2018 or otherwise made available for fiscal year 2018 for research, development, test, and evaluation, defense-wide, up to $100,000,000 may be available to the Under Secretary to allocate to the military departments, the defense agencies, and the combatant commands to carry out the program established under paragraph (1).
“(B) Not more than half of the amounts made available under subparagraph (A) may be allocated as described in such paragraph until the Under Secretary—
“(i) develops the strategic plan required by subsection (a)(2)(A); and
“(ii) submits such strategic plan to the congressional defense committees.
“(5) Under secretary defined.—In this subsection, the term ‘Under Secretary’ means the Under Secretary of Defense for Research and Engineering in the Under Secretary’s capacity as the official with principal responsibility for the development and demonstration of directed energy weapons pursuant to subsection (a)(1).”
“(C) new interpretations of existing statutes and regulations that would enhance the ability of a director of a science and technology reinvention laboratory to manage the facility and discharge the mission of the laboratory;”
“(3)
(A) Each panel described in paragraph (1), (2), or (3) of subsection (b) shall submit to the panel described in paragraph (4) of such subsection (relating to governance and oversight processes) the following:
“(i) The findings of the panel with respect to the review conducted by the panel under subsection (a)(1)(C).
“(ii) The recommendations made by the panel under such subsection.
“(iii) Such comments, findings, and recommendations as the panel may have received by a science and technology reinvention laboratory with respect to—
“(I) the review conducted by the panel under such subsection; or
“(II) recommendations made by the panel under such subsection.
“(B)
(i) The panel described in subsection (b)(4) shall review and refashion such recommendations as the panel may receive under subparagraph (A).
“(ii) In reviewing and refashioning recommendations under clause (i), the panel may, as the panel considers appropriate, consult with the science and technology executive of the affected service.
“(C) The panel described in subsection (b)(4) shall submit to the Under Secretary of Defense for Research and Engineering the recommendations made by the panel under subsection (a)(1)(C) and the recommendations refashioned by the panel under subparagraph (B) of this paragraph.”
“(e) Interpretation of Provisions of Law.—
(1) The Under Secretary of Defense for Research and Engineering, acting under the guidance of the Secretary, shall issue regulations regarding the meaning, scope, implementation, and applicability of any provision of a statute relating to a science and technology reinvention laboratory.
“(2) In interpreting or defining under paragraph (1), the Under Secretary shall, to the degree practicable, emphasize providing the maximum operational flexibility to the directors of the science and technology reinvention laboratories to discharge the missions of their laboratories.
“(3) In interpreting or defining under paragraph (1), the Under Secretary shall, to the extent practicable, consult and coordinate with the secretaries of the military departments and such other agencies or entities as the Under Secretary considers relevant, on any proposed revision to regulations under paragraph (1).
“(4) In interpreting or defining under paragraph (1), the Under Secretary shall seek recommendations from the panel described in subsection (b)(4).”
“(1) To increase the number of university researchers in eligible States capable of performing science and engineering research responsive to the needs of the Department of Defense.”
; and
“(3) To provide assistance to science and engineering researchers at institutions of higher education in eligible States through collaboration between Department of Defense laboratories and such researchers.”
“(3) The Under Secretary shall not remove a designation of a State under paragraph (2) because the State exceeds the funding levels specified under subparagraph (A) of such paragraph unless the State has exceeded such funding levels for at least two consecutive years.”
“Sec. 257. Defense established program to stimulate competitive research.”.
Ҥ 2363. Mechanisms to provide funds for defense laboratories for research and development of technologies for military missions
“(a) Mechanisms to Provide Funds.—
(1) The Secretary of Defense, in consultation with the Secretaries of the military departments, shall establish mechanisms under which the director of a defense laboratory may use an amount of funds equal to not less than two percent and not more than four percent of all funds available to the defense laboratory for the following purposes:
“(A) To fund innovative basic and applied research that is conducted at the defense laboratory and supports military missions.
“(B) To fund development programs that support the transition of technologies developed by the defense laboratory into operational use.
“(C) To fund workforce development activities that improve the capacity of the defense laboratory to recruit and retain personnel with necessary scientific and engineering expertise that support military missions.
“(D) To fund the repair or minor military construction of the laboratory infrastructure and equipment, in accordance with subsection (b).
“(2) The mechanisms established under paragraph (1) shall provide that funding shall be used under paragraph (1) at the discretion of the director of a defense laboratory in consultation with the science and technology executive of the military department concerned.
“(3) The science and technology executive of a military department may develop policies and guidance to leverage funding and promote cross-laboratory collaboration, including with laboratories of other military departments.
“(4) After consultation with the science and technology executive of the military department concerned, the director of a defense laboratory may charge customer activities a fixed percentage fee, in addition to normal costs of performance, in order to obtain funds to carry out activities authorized by this subsection. The fixed fee may not exceed four percent of costs.
“(b) Availability of Funds for Infrastructure Projects.—Funds shall be available in accordance with subsection (a)(1)(D) only if—
“(1) the Secretary notifies the congressional defense committees of the total cost of the project before the date on which the Secretary uses the mechanism under such subsection for such project; and
“(2) the Secretary ensures that the project complies with the applicable cost limitations in—
“(A) section 2805(d) of this title, with respect to revitalization and recapitalization projects; and
“(B) section 2811 of this title, with respect to repair projects.
“(c) Annual Report on Use of Authority.—
(1) Not later than March 1 of each year until March 1, 2025, the Secretary of Defense shall submit to the congressional defense committees a report on the use of the authority under subsection (a) during the preceding year.
“(2) Each report under paragraph (1) shall include, with respect to the year covered by the report, the following:
“(A) A description of the mechanisms used to provide funding under subsection (a)(1).
“(B) A statement of the amount of funding made available to each defense laboratory for research described under such subsection.
“(C) A description of the investments made by each defense laboratory using funds under such subsection.
“(D) A description and assessment of any improvements in the performance of the defense laboratories as a result of investments under such subsection.
“(E) A description and assessment of the contributions to the development of needed military capabilities provided by research using funds under such subsection.
“(F) A description of any modification to the mechanisms under subsection (a) that would improve the efficiency of the authority under such subsection to support military missions.”
“2363. Mechanisms to provide funds for defense laboratories for research and development of technologies for military missions.”.
the agency unit that was involved in such assignment shall be considered to be a laboratory for purposes of this section.
Ҥ 183a. Military Aviation and Installation Assurance Clearinghouse for review of mission obstructions
“(a) Establishment.—
(1) The Secretary of Defense shall establish a Military Aviation and Installation Assurance Siting Clearinghouse (in this section referred to as the ‘Clearinghouse’).
“(2) The Clearinghouse shall be—
“(A) organized under the authority, direction, and control of an Assistant Secretary of Defense designated by the Secretary; and
“(B) assigned such personnel and resources as the Secretary considers appropriate to carry out this section.
“(b) Functions.—
(1) The Clearinghouse shall coordinate Department of Defense review of applications for energy projects filed with the Secretary of Transportation pursuant to section 44718 of title 49 and received by the Department of Defense from the Secretary of Transportation. In performing such coordination, the Clearinghouse shall provide procedures to ensure affected local military installations are consulted.
“(2) The Clearinghouse shall accelerate the development of planning tools necessary to determine the acceptability to the Department of Defense of proposals included in an application for an energy project submitted pursuant to such section.
“(3) The Clearinghouse shall perform such other functions as the Secretary of Defense assigns.
“(c) Review of Proposed Actions.—
(1) Not later than 60 days after receiving from the Secretary of Transportation a proper application for an energy project under section 44718 of title 49 that may have an adverse impact on military operations and readiness, the Clearinghouse shall conduct a preliminary review of such application. The review shall—
“(A) assess the likely scope, duration, and level of risk of any adverse impact of such energy project on military operations and readiness; and
“(B) identify any feasible and affordable actions that could be taken by the Department, the developer of such energy project, or others to mitigate the adverse impact and to minimize risks to national security while allowing the energy project to proceed with development.
“(2) If the Clearinghouse finds under paragraph (1) that an energy project will have an adverse impact on military operations and readiness, the Clearinghouse shall issue to the applicant a notice of presumed risk that describes the concerns identified by the Department in the preliminary review and requests a discussion of possible mitigation actions.
“(3) At the same time that the Clearinghouse issues to the applicant a notice of presumed risk under paragraph (2), the Clearinghouse shall provide the same notice to the governor of the State in which the project is located and request that the governor provide the Clearinghouse any comments the governor believes of relevance to the application. The Secretary of Defense shall consider the comments of the governor in the Secretary’s evaluation of whether the project presents an unacceptable risk to the national security of the United States and shall include the comments with the finding provided to the Secretary of Transportation pursuant to section 44718(f) of title 49.
“(4) The Clearinghouse shall develop, in coordination with other departments and agencies of the Federal Government, an integrated review process to ensure timely notification and consideration of energy projects filed with the Secretary of Transportation pursuant to section 44718 of title 49 that may have an adverse impact on military operations and readiness.
“(5) The Clearinghouse shall establish procedures for the Department of Defense for the coordinated consideration of and response to a request for a review received from another Federal agency, a State government, an Indian tribal government, a local government, a landowner, or the developer of an energy project, including guidance to personnel at each military installation in the United States on how to initiate such procedures and ensure a coordinated Department response.
“(6) The Clearinghouse shall develop procedures for conducting early outreach to parties carrying out energy projects that could have an adverse impact on military operations and readiness and to clearly communicate to such parties actions being taken by the Department of Defense under this section. The procedures shall provide for filing by such parties of a project area and preliminary project layout at least one year before expected construction of any project proposed within a military training route or within line-of-sight of any air route surveillance radar or airport surveillance radar operated or used by the Department of Defense in order to provide adequate time for analysis and negotiation of mitigation options. Material marked as proprietary or competition sensitive by a party filing for this preliminary review shall be protected from public release by the Department of Defense.
“(d) Comprehensive Review.—
(1) The Secretary of Defense shall develop a comprehensive strategy for addressing the impacts upon the military of projects filed with the Secretary of Transportation pursuant to section 44718 of title 49.
“(2) In developing the strategy required by paragraph (1), the Secretary shall—
“(A) assess the magnitude of interference posed by projects filed with the Secretary of Transportation pursuant to section 44718 of title 49;
“(B) solely for the purpose of informing preliminary reviews under subsection (c)(1) and early outreach efforts under subsection (c)(5), identify distinct geographic areas selected as proposed locations for projects filed, or for projects that are reasonably expected to be filed in the near future, with the Secretary of Transportation pursuant to section 44718 of title 49 where the Secretary of Defense can demonstrate such projects could have an adverse impact on military operations and readiness, including military training routes, and categorize the risk of adverse impact in such areas;
“(C) develop procedures for the initial identification of such geographic areas identified under subparagraph (B), to include a process to provide notice and seek public comment prior to making a final designation of the geographic areas, including maps of the area and the basis for identification;
“(D) develop procedures to periodically review and modify, consistent with the notice and public comment process under subparagraph (C), geographic areas identified under subparagraph (B) and to solicit and identify additional geographic areas as appropriate;
“(E) at the conclusion of the notice and public comment period conducted under subparagraph (C), make a final finding on the designation of a geographic area of concern or delegate the authority to make such finding to a Deputy Secretary of Defense, an Under Secretary of Defense, or a Principal Deputy Under Secretary of Defense; and
“(F) specifically identify feasible and affordable long-term actions that may be taken to mitigate adverse impacts of projects filed, or which may be filed in the future, with the Secretary of Transportation pursuant to section 44718 of title 49, on military operations and readiness, including—
“(i) investment priorities of the Department of Defense with respect to research and development;
“(ii) modifications to military operations to accommodate applications for such projects;
“(iii) recommended upgrades or modifications to existing systems or procedures by the Department of Defense;
“(iv) acquisition of new systems by the Department and other departments and agencies of the Federal Government and timelines for fielding such new systems; and
“(v) modifications to the projects for which such applications are filed with the Secretary of Transportation pursuant to section 44718 of title 49, including changes in size, location, or technology.
“(3) The Clearinghouse shall make access to data reflecting geographic areas identified under subparagraph (B) of paragraph (2) and reviewed and modified under subparagraph (C) of such paragraph available online.
“(e) Department of Defense Finding of Unacceptable Risk.—
(1) The Secretary of Defense may not object to an energy project filed with the Secretary of Transportation pursuant to section 44718 of title 49, except in a case in which the Secretary of Defense determines, after giving full consideration to mitigation actions identified pursuant to this section, that such project, in isolation or cumulatively with other projects, would result in an unacceptable risk to the national security of the United States. The Secretary of Defense’s finding of unacceptable risk to national security shall be transmitted to the Secretary of Transportation for inclusion in the report required under section 44718(b)(2) of title 49.
“(2)
(A) Not later than 30 days after making a finding of unacceptable risk under paragraph (1), the Secretary of Defense shall submit to the congressional defense committees, the Committee on Commerce, Science, and Transportation of the Senate, and the Committee on Transportation and Infrastructure of the House of Representatives a report on such finding and the basis for such finding. Such report shall include an explanation of the operational impact that led to the finding, a discussion of the mitigation options considered, and an explanation of why the mitigation options were not feasible or did not resolve the conflict. The report may include a classified annex. Unclassified reports shall also be provided to the project proponent. The Secretary of Defense may provide public notice through the Federal Register of the finding.
“(B) The Secretary of Defense shall notify the appropriate State agency of a finding made under paragraph (1).
“(3) The Secretary of Defense may only delegate the responsibility for making a finding of unacceptable risk under paragraph (1) to the Deputy Secretary of Defense, an under secretary of defense, or a deputy under secretary of defense.
“(4) The Clearinghouse shall develop procedures for making a finding of unacceptable risk, including with respect to how to implement cumulative effects analysis. Such procedures shall be subject to public comment prior to finalization.
“(f) Authority to Accept Contributions of Funds.—The Secretary of Defense is authorized to request and accept a voluntary contribution of funds from an applicant for a project filed with the Secretary of Transportation pursuant to section 44718 of title 49. Amounts so accepted shall remain available until expended for the purpose of offsetting the cost of measures undertaken by the Secretary of Defense to mitigate adverse impacts of such a project on military operations and readiness or to conduct studies of potential measures to mitigate such impacts.
“(g) Effect of Department of Defense Hazard Assessment.—An action taken pursuant to this section shall not be considered to be a substitute for any assessment or determination required of the Secretary of Transportation under section 44718 of title 49.
“(h) Definitions.—In this section:
“(1) The term ‘adverse impact on military operations and readiness’ means any adverse impact upon military operations and readiness, including flight operations, research, development, testing, and evaluation, and training, that is demonstrable and is likely to impair or degrade the ability of the armed forces to perform their warfighting missions.
“(2) The term ‘energy project’ means a project that provides for the generation or transmission of electrical energy.
“(3) The term ‘landowner’ means a person that owns a fee interest in real property on which a proposed energy project is planned to be located.
“(4) The term ‘military installation’ has the meaning given that term in section 2801(c)(4) of this title.
“(5) The term ‘military readiness’ includes any training or operation that could be related to combat readiness, including testing and evaluation activities.
“(6) The term ‘military training route’ means a training route developed as part of the Military Training Route Program, carried out jointly by the Federal Aviation Administration and the Secretary of Defense, for use by the armed forces for the purpose of conducting low-altitude, high-speed military training.
“(7) The term ‘unacceptable risk to the national security of the United States’ means the construction, alteration, establishment, or expansion, or the proposed construction, alteration, establishment, or expansion, of a structure or sanitary landfill, that the Secretary of Defense can demonstrate would—
“(A) endanger safety in air commerce directly related to the activities of the Department of Defense;
“(B) interfere with the efficient use of the navigable airspace directly related to the activities of the Department of Defense; or
“(C) significantly impair or degrade the capability of the Department of Defense to conduct training, research, development, testing, and evaluation, and operations or to maintain military readiness.”
“183a. Military Aviation and Installation Assurance Siting Clearinghouse for review of mission obstructions.”.
“(g) Special Rule for Identified Geographic Areas.—In the case of a proposed structure to be located within a geographic area identified under section 183a(d)(2)(B) of title 10, the Secretary of Transportation may not issue a determination pursuant to this section until the Secretary of Defense issues a finding under section 183a(e) of title 10, the Secretary of Defense advises the Secretary of Transportation that no finding under section 183a(e) of title 10 will be forthcoming, or 180 days have lapsed since the project was filed with the Secretary of Transportation pursuant to this section, whichever occurs first.”
“(13) Opportunities to leverage financing provided by a non-Department entity to address installation energy needs.”
“(j) Remedial Actions.—A report for the first or third quarter of a calendar year shall include—
“(1) a description of the mitigation plans of the Secretary to address readiness shortfalls and operational deficiencies identified in the report submitted for the preceding calendar quarter; and
“(2) for each such shortfall or deficiency, a timeline for resolution, the cost necessary for such resolution, the mitigation strategy the Department will employ until the resolution is in place, and any legislative remedies required.”
“(4) Any workload shortfalls at any work breakdown structure category designated as a lower-level category pursuant to Department of Defense Instruction 4151.20, or any successor instruction.
“(5) A description of any workload executed at a category designated as a first-level category pursuant to such Instruction, or any successor instruction, that could be used to mitigate shortfalls in similar categories.
“(6) A description of any progress made on implementing mitigation plans developed pursuant to paragraph (3).
“(7) A description of core capability requirements and corresponding workloads at the first level category.
“(8) In the case of any shortfall that is identified, a description of the shortfall and an identification of the subcategory of the work breakdown structure in which the shortfall occurred.
“(9) In the case of any work breakdown structure category designated as a special interest item or other pursuant to such Instruction, or any successor instruction, an explanation for such designation.
“(10) Whether the core depot-level maintenance and repair capability requirements described in the report submitted under this subsection for the preceding fiscal year have been executed.”
“(2) The annual report required by paragraph (1)”
; and
“(b) Annual Report on Non-federalized Service National Guard Personnel, Training, and Equipment Requirements.—
(1) Not later than January 31 of each of calendar years 2018 through 2020, the Chief of the National Guard Bureau, in coordination with the Secretary of Defense, shall submit to the recipients described in paragraph (3) a report that identifies the personnel, training, and equipment required by the non-Federalized National Guard—
“(A) to support civilian authorities in connection with natural and man-made disasters during the covered period; and
“(B) to carry out prevention, protection, mitigation, response, and recovery activities relating to such disasters during the covered period.
“(2) In preparing each report under paragraph (1), the Chief of the National Guard Bureau shall—
“(A) consult with the chief executive of each State, the Council of Governors, and other appropriate civilian authorities;
“(B) collect and validate information from each State relating to the personnel, training, and equipment requirements described in paragraph (1);
“(C) set forth separately the personnel, training, and equipment requirements for—
“(i) each of the emergency support functions of the National Response Framework; and
“(ii) each of the Federal Emergency Management Agency regions;
“(D) assess core civilian capability gaps relating to natural and man-made disasters, as identified by States in submissions to the Department of Homeland Security;
“(E) take into account threat and hazard identifications and risk assessments of the Department of Defense, the Department of Homeland Security, and the States; and
“(F) assess the budgets of each State to support the personnel, training, and equipment requirements of the non-Federalized National Guard.
“(3) The annual report required by paragraph (1) shall be submitted to the following officials:
“(A) The congressional defense committees, the Committee on Homeland Security of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate.
“(B) The Secretary of Defense.
“(C) The Secretary of Homeland Security.
“(D) The Council of Governors.
“(E) The Secretary of the Army.
“(F) The Secretary of the Air Force.
“(G) The Commander of the United States Northern Command.
“(H) The Commander of the United States Pacific Command.
“(I) The Commander of the United States Cyber Command.
“(4) In this subsection, the term ‘covered period’ means the fiscal year beginning after the date on which a report is submitted under paragraph (1).”
“§ 10504. Chief of National Guard Bureau: annual reports”
“10504. Chief of National Guard Bureau: annual reports.”.
“(b) Oversight by Secretaries of the Military Departments.—The Secretaries of the military departments shall provide research, development, test, evaluation, and manufacturing oversight for energetic materials supporting military requirements.”
“172. Explosive safety board.”.
“(i) Authorized Navy Transfers.—
(1) Notwithstanding subsections (a) and (b), the Secretary of the Navy may transfer to the corporation, in accordance with the procedures prescribed in this subchapter, M–1 Garand and caliber .22 rimfire rifles held within the inventories of the United States Navy and the United States Marine Corps and stored at Defense Distribution Depot, Anniston, Alabama, or Naval Surface Warfare Center, Crane, Indiana, as of the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018.
“(2) The items specified for transfer under paragraph (1)—
“(A) shall be used as awards for competitors in marksmanship competitions held by the United States Marine Corps or the United States Navy and may not be resold; and
“(B) shall be rendered inoperable prior to award and transfer to marksmanship competitors.”
“(1) For the Army, 483,500.
“(2) For the Navy, 327,900.
“(3) For the Marine Corps, 186,000.
“(4) For the Air Force, 325,100.”
“(1) In the case of an action under subsection (b)(2), the total number of officers described in that subsection that a selection board convened under section 611(b) of this title pursuant to the authority of that subsection may recommend for early retirement may not be more than 30 percent of the number of officers considered in each grade in each competitive category.”
; and
“(2) The total number of officers to be recommended for discharge by a selection board convened pursuant to subsection (b)(3) may not be more than 30 percent of the number of officers considered.”
“(tt) Retention of Grade of Incumbents in Positions on Effective Date.—The grade of service of an officer serving as of the date of the enactment of this Act in a position whose statutory grade is affected by an amendment made by this section may not be reduced after that date by reason of such amendment as long as the officer remains in continuous service in such position after that date.”
“(2) If the Secretary of the Navy elects to convene a selection board under section 611(a) of this title to consider eligible officers for selection to appointment as Staff Judge Advocate, the Secretary may, in connection with such consideration for selection—
“(A) treat any section in chapter 36 of this title referring to promotion to the next higher grade as if such section referred to promotion to a higher grade; and
“(B) waive section 619(a)(2) of this title if the Secretary determines that the needs of the Marine Corps require the waiver.”
“(3) If the Secretary of the Navy elects to convene a selection board under section 611(a) of this title to consider eligible officers for selection to appointment as Deputy Judge Advocate General, the Secretary may, in connection with such consideration for selection—
“(A) treat any section in chapter 36 of this title referring to promotion to the next higher grade as if such section referred to promotion to a higher grade; and
“(B) waive section 619(a)(2) of this title if the Secretary determines that the needs of the Navy require the waiver.”
“(2) If the Secretary of the Air Force elects to convene a selection board under section 611(a) of this title to consider eligible officers for selection to appointment as Deputy Judge Advocate General, the Secretary may, in connection with such consideration for selection—
“(A) treat any section in chapter 36 of this title referring to promotion to the next higher grade as if such section referred to promotion to a higher grade; and
“(B) waive section 619(a)(2) of this title if the Secretary determines that the needs of the Air Force require the waiver.”
“(e)
(1) Under regulations prescribed by the Secretary of Defense, if the Secretary of a military department determines that the number of commissioned officers with cyberspace-related experience or advanced education in reserve active-status in an armed force under the jurisdiction of such Secretary is critically below the number needed, such Secretary may credit any person receiving an original appointment as a reserve commissioned officer with a period of constructive service for the following:
“(A) Special experience or training in a particular cyberspace-related field if such experience or training is directly related to the operational needs of the armed force concerned.
“(B) Any period of advanced education in a cyberspace-related field beyond the baccalaureate degree level if such advanced education is directly related to the operational needs of the armed force concerned.
“(2) Constructive service credited an officer under this subsection shall not exceed one year for each year of special experience, training, or advanced education, and not more than three years total constructive service may be credited.
“(3) Constructive service credited an officer under this subsection is in addition to any service credited that officer under subsection (a) and shall be credited at the time of the original appointment of the officer.
“(4) The authority to award constructive service credit under this subsection expires on December 31, 2023.”
; and
“(c) Attributes of Alternate Approach.—The Secretary of Defense shall ensure the alternate approach described in subsection (b)—
“(1) reduces the number of statutory authorities by which members of the reserve components of the Armed Forces may be ordered to perform duty to not more than 8 statutory authorities grouped into 4 duty categories to which specific pay and benefits may be aligned, which categories shall include—
“(A) one duty category that shall generally reflect active service performed in support of contingency type operations or other military actions in support of the commander of a combatant command;
“(B) a second duty category that shall—
“(i) generally reflect active service not described in subparagraph (A); and
“(ii) consist of training, administration, operational support, and full-time support of the reserve components;
“(C) a third duty category that shall—
“(i) generally reflect duty performed under direct military supervision while not in active service; and
“(ii) include duty characterized by partial-day service; and
“(D) a fourth duty category that shall—
“(i) generally reflect remote duty completed while not under direct military supervision; and
“(ii) include completion of correspondence courses and telework;
“(2) distinguishes among duty performed under titles 10, 14, and 32, United States Code, and ensures that the reasons the members of the reserve components are utilized under the statutory authorities which exist prior to the alternate approach are preserved and can be tracked as separate and distinct purposes;
“(3) minimizes, to the maximum extent practicable, disruptions in pay and benefits for members, and adheres to the principle that a member should receive pay and benefits commensurate with the nature and performance of the member’s duties;
“(4) ensures the Secretary has the flexibility to meet emerging requirements and to effectively manage the force; and
“(5) aligns Department of Defense programming and budgeting to the types of duty members perform.”
“(h)
(1) This subsection applies to a former member of the armed forces whose claim under this section for review of a discharge or dismissal is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, and whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned.
“(2) In the case of a claimant described in paragraph (1), a board established under subsection (a)(1) shall—
“(A) review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the claimant; and
“(B) review the claim with liberal consideration to the claimant that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant’s discharge or dismissal.”
“(4) The number and disposition of claims decided during the calendar quarter preceding the calendar quarter in which such information is made available in which sexual assault is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the former member.”
“(4) The number and disposition of claims decided during the calendar quarter preceding the calendar quarter in which such information is made available in which sexual assault is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the former member.”
“§ 1554b. Confidential review of characterization of terms of discharge of members of the armed forces who are victims of sex-related offenses”
; and
“1554b. Confidential review of characterization of terms of discharge of members of the armed forces who are victims of sex-related offenses.”.
“(3)
(A) The Secretary concerned may extend by up to an additional 365 days the period of extension under paragraph (2) for a person who enlisted before October 1, 2017, under section 504(b)(2) of this title if the Secretary determines that the period of extension under this paragraph is required for the performance of adequate background and security reviews of that person.
“(B) A person whose period of extension under paragraph (2) is extended under this paragraph shall undergo all security and suitability screening requirements and receive a favorable military security suitability determination before entering into service in a regular or reserve component. Screening priority shall be given to those persons who were enlisted for a military occupational specialty that requires specialized language or medical skills that are vital to the national interest.
“(C) The authority to make an extension under this paragraph shall expire one year after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018. The expiration of such authority shall not effect the validity of any extension made in accordance with this paragraph on or before that date.”
“(1) The period beginning on December 2, 2002, and ending on December 31, 2011.
“(2) The period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018 and ending on December 31, 2022.”
“(B) To the extent practicable, a petition for a writ of mandamus described in this subsection shall have priority over all other proceedings before the Court of Criminal Appeals.
“(C) Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces.”
“(D) Pre-referral matters under subsection (c) or (e) of section 806b of this title (article 6b).”
“(4) is prohibited by law; or
“(5) is contrary to, or is inconsistent with, a regulation prescribed by the President with respect to terms, conditions, or other aspects of plea agreements.”
; and
“§ 858a. Art. 58a. Sentences: reduction in enlisted grade”
“858a. 58a. Sentences: reduction in enlisted grade.”.
“(5) Reports.—With respect to each review and assessment under this subsection, the Panel shall submit a report to the Committees on Armed Services of the Senate and the House of Representatives. Each report—
“(A) shall set forth the results of the review and assessment concerned, including the findings and recommendations of the Panel; and
“(B) shall be submitted not later than December 31 of the calendar year in which the review and assessment is concluded.”
“(c) Use of Civilian Employees to Advise Less Experienced Judge Advocates in Prosecution and Defense.—The Secretary concerned may use highly qualified experts and other civilian employees who are under the jurisdiction of the Secretary concerned, are available, and are experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process.”
“(4) Elements.—Each pilot program shall include the following:
“(A) A military justice career track for judge advocates that leads to judge advocates with military justice expertise in the grade of colonel, or in the grade of captain in the case of judge advocates of the Navy.
“(B) The use of skill identifiers to identify judge advocates for participation in the pilot program from among judge advocates having appropriate skill and experience in military justice matters.
“(C) Guidance for promotion boards considering the selection for promotion of officers participating in the pilot program in order to ensure that judge advocates who are participating in the pilot program have the same opportunity for promotion as all other judge advocate officers being considered for promotion by such boards.
“(D) Such other matters as the Secretary concerned considers appropriate.”
Ҥ 917a. Art. 117a. Wrongful broadcast or distribution of intimate visual images
“(a) Prohibition.—Any person subject to this chapter—
“(1) who knowingly and wrongfully broadcasts or distributes an intimate visual image of another person or a visual image of sexually explicit conduct involving a person who—
“(A) is at least 18 years of age at the time the intimate visual image or visual image of sexually explicit conduct was created;
“(B) is identifiable from the intimate visual image or visual image of sexually explicit conduct itself, or from information displayed in connection with the intimate visual image or visual image of sexually explicit conduct; and
“(C) does not explicitly consent to the broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct;
“(2) who knows or reasonably should have known that the intimate visual image or visual image of sexually explicit conduct was made under circumstances in which the person depicted in the intimate visual image or visual image of sexually explicit conduct retained a reasonable expectation of privacy regarding any broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct;
“(3) who knows or reasonably should have known that the broadcast or distribution of the intimate visual image or visual image of sexually explicit conduct is likely—
“(A) to cause harm, harassment, intimidation, emotional distress, or financial loss for the person depicted in the intimate visual image or visual image of sexually explicit conduct; or
“(B) to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; and
“(4) whose conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment,
“(b) Definitions.—In this section:
“(1) Broadcast.—The term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons.
“(2) Distribute.—The term ‘distribute’ means to deliver to the actual or constructive possession of another person, including transmission by mail or electronic means.
“(3) Intimate visual image.—The term ‘intimate visual image’ means a visual image that depicts a private area of a person.
“(4) Private area.—The term ‘private area’ means the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.
“(5) Reasonable expectation of privacy.—The term ‘reasonable expectation of privacy’ means circumstances in which a reasonable person would believe that a private area of the person, or sexually explicit conduct involving the person, would not be visible to the public.
“(6) Sexually explicit conduct.—The term ‘sexually explicit conduct’ means actual or simulated genital-genital contact, oral-genital contact, anal-genital contact, or oral-anal contact, whether between persons of the same or opposite sex, bestiality, masturbation, or sadistic or masochistic abuse.
“(7) Visual image.—The term ‘visual image’ means the following:
“(A) Any developed or undeveloped photograph, picture, film, or video.
“(B) Any digital or computer image, picture, film, or video made by any means, including those transmitted by any means, including streaming media, even if not stored in a permanent format.
“(C) Any digital or electronic data capable of conversion into a visual image.”
“917a. 117a. Wrongful broadcast or distribution of intimate visual images.”.
“(l) Garnishment To Satisfy a Judgment Rendered for Physically, Sexually, or Emotionally Abusing a Child.—
(1) Subject to paragraph (2), any payment of retired pay that would otherwise be made to a member shall be paid (in whole or in part) by the Secretary concerned to another person if and to the extent expressly provided for in the terms of a child abuse garnishment order.
“(2) A court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, shall be given priority over a child abuse garnishment order. The total amount of the disposable retired pay of a member payable under a child abuse garnishment order shall not exceed 25 percent of the member’s disposable retired pay.
“(3) In this subsection, the term ‘court order’ includes a child abuse garnishment order.
“(4) In this subsection, the term ‘child abuse garnishment order’ means a final decree issued by a court that—
“(A) is issued in accordance with the laws of the jurisdiction of that court; and
“(B) provides in the nature of garnishment for the enforcement of a judgment rendered against the member for physically, sexually, or emotionally abusing a child.
“(5) For purposes of this subsection, a judgment rendered for physically, sexually, or emotionally abusing a child is any legal claim perfected through a final enforceable judgment, which claim is based in whole or in part upon the physical, sexual, or emotional abuse of an individual under 18 years of age, whether or not that abuse is accompanied by other actionable wrongdoing, such as sexual exploitation or gross negligence.
“(6) If the Secretary concerned is served with more than one court order with respect to the retired pay of a member, the disposable retired pay of the member shall be available to satisfy such court orders on a first-come, first-served basis, subject to the order of precedence specified in paragraph (2), with any such process being satisfied out of such monies as remain after the satisfaction of all such processes which have been previously served.
“(7) The Secretary concerned shall not be required to vary normal pay and disbursement cycles for retired pay in order to comply with a child abuse garnishment order.”
“(13) Information and data collected through formal and informal reports of sexual harassment involving members of the Armed Forces during the year covered by the report, as follows:
“(A) The number of substantiated and unsubstantiated reports.
“(B) A synopsis of each substantiated report.
“(C) The action taken in the case of each substantiated report, including the type of disciplinary or administrative sanction imposed, if any, such as—
“(i) conviction and sentence by court-martial;
“(ii) imposition of non-judicial punishment under section 815 of title 10, United States Code (article 15 of the Uniform Code of Military Justice); or
“(iii) administrative separation or other type of administrative action imposed.
“(14) Information and data collected during the year covered by the report on each reported incident involving the nonconsensual distribution by a person subject to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), of a private sexual image of another person, including the following:
“(A) The number of substantiated and unsubstantiated reports.
“(B) A synopsis of each substantiated report.
“(C) The action taken in the case of each substantiated report, including the type of disciplinary or administrative sanction imposed, if any, such as—
“(i) conviction and sentence by court-martial;
“(ii) imposition of non-judicial punishment under section 815 of title 10, United States Code (article 15 of the Uniform Code of Military Justice); or
“(iii) administrative separation or other type of administrative action imposed.”
“(18) A description, developed in consultation with the Secretary of Veterans Affairs, of the assistance and support services for family caregivers of eligible veterans under the program conducted by the Secretary of Veterans Affairs pursuant to section 1720G of title 38, including the veterans covered by the program, the caregivers eligible for assistance and support through the program, and the assistance and support available through the program.”
“(2) In order to improve the accuracy and completeness of a certification or verification of job skills and experience required by paragraph (1), the Secretary of Defense shall—
“(A) establish a database to record all training performed by members of the Army, Navy, Air Force, and Marine Corps that may have application to employment in the civilian sector; and
“(B) make unclassified information regarding such information available to States and other potential employers referred to in subsection (c) so that State and other entities may allow military training to satisfy licensing or certification requirements to engage in a civilian profession.”
“(3) The Secretary of Defense shall ensure that a certification or verification of job skills and experience required by paragraph (1) is rendered in such a way that States and other potential employers can confirm the accuracy and authenticity of the certification or verification.”
“(2)
(A) A State may—
“(i) use a certification or verification of job skills and experience provided to a member of the armed forces under subsection (a); and
“(ii) in the case of members of the Army, Navy, Air Force, and Marine Corps, request the Department of Defense to confirm the accuracy and authenticity of the certification or verification.
“(B) A response confirming or denying the information shall be provided within five business days.”
“(5) That the cadet—
“(A) will not seek release from the cadet’s commissioned service obligation to obtain employment as a professional athlete following graduation until the cadet completes a period of at least two consecutive years of commissioned service; and
“(B) understands that the appointment alternative described in paragraph (3) will not be used to allow the cadet to obtain such employment until at least the end of that two-year period.”
“(5) That the midshipman—
“(A) will not seek release from the midshipman’s commissioned service obligation to obtain employment as a professional athlete following graduation until the midshipman completes a period of at least two consecutive years of commissioned service; and
“(B) understands that the appointment alternative described in paragraph (3) will not be used to allow the midshipman to obtain such employment until at least the end of that two-year period.”
“(5) That the cadet—
“(A) will not seek release from the cadet’s commissioned service obligation to obtain employment as a professional athlete following graduation until the cadet completes a period of at least two consecutive years of commissioned service; and
“(B) understands that the appointment alternative described in paragraph (2) will not be used to allow the cadet to obtain such employment until at least the end of that two-year period.”
“§ 1788a. Family support programs: immediate family members of members of special operations forces”
; and
“(d) Annual Report.—
“(1) Report required.—Not later than March 1, 2019, and each March 1 thereafter, the Commander, in coordination with the Under Secretary of Defense for Personnel and Readiness, shall submit to the congressional defense committees a report describing the progress made in achieving the goals of the family support programs conducted under this section.
“(2) Elements of reports.—Each report under this subsection shall include the following:
“(A) A detailed description of the programs conducted under this section to address family support requirements for family members of members of the armed forces assigned to special operations forces.
“(B) An assessment of the impact of the programs on military readiness and on family members of members of the armed forces assigned to special operations forces.
“(C) A description of the special operations-peculiar aspects of the programs and a comparison and differentiation of these programs with other programs conducted by the Secretaries of the military departments to provide family support services to immediate family members of members of the armed forces.
“(D) Recommendations for incorporating lessons learned into other family support programs.
“(E) Any other matters the Commander considers appropriate regarding the programs.”
“1788a. Family support programs: immediate family members of members of special operations forces.”.
“(p)
(1) From amounts otherwise made available for a fiscal year to provide travel and transportation allowances under this chapter, the Secretary concerned may reimburse a member of the armed forces for qualified relicensing costs of the spouse of the member when—
“(A) the member is reassigned, either as a permanent change of station or permanent change of assignment, from a duty station in one State to a duty station in another State; and
“(B) the movement of the member’s dependents is authorized at the expense of the United States under this section as part of the reassignment.
“(2) Reimbursement provided to a member under this subsection may not exceed $500 in connection with each reassignment described in paragraph (1).
“(3) Not later than December 31, 2021, the Secretary of Defense, in consultation with the Secretary of Homeland Security with respect to the Coast Guard, shall submit to the congressional defense committees, the Committee on Homeland Security and Government Affairs of the Senate, and the Committee on Oversight and Government Reform of the House of Representatives a report—
“(A) describing the extent to which the reimbursement authority provided by this subsection has been used; and
“(B) containing a recommendation by the Secretaries regarding whether the authority should be extended beyond the date specified in paragraph (4).
“(4) No reimbursement may be provided under this subsection for qualified relicensing costs paid or incurred after December 31, 2022.
“(5) In this subsection, the term ‘qualified relicensing costs’ means costs, including exam and registration fees, that—
“(A) are imposed by the State of the new duty station to secure a license or certification to engage in the same profession that the spouse of the member engaged in while in the State of the original duty station; and
“(B) are paid or incurred by the member or spouse to secure the license or certification from the State of the new duty station after the date on which the orders directing the reassignment described in paragraph (1) are issued.”
“(b) Covered Private Sector Employee Defined.—
(1) In this section, the term ‘covered private sector employee’ means—
“(A) an individual employed by a private firm that is engaged in providing to the Department of Defense significant and substantial defense-related systems, products, or services; or
“(B) an individual employed by a private firm in one of the critical infrastructure sectors identified in Presidential Policy Directive 21 (Critical Infrastructure Security and Resilience).
“(2) A covered private sector employee admitted for instruction at the United States Air Force Institute of Technology remains eligible for such instruction only so long as the person remains employed by the same firm.”
“§ 9314a. United States Air Force Institute of Technology: admission of certain private sector civilians”
“9314a. United States Air Force Institute of Technology: admission of certain private sector civilians.”.
“(13) Explosive Ordnance Disposal Corps; and”
Ҥ 2886. Prohibiting collection of amounts in addition to rent from members assigned to units
“(a) Prohibition.—An agreement for acquiring or constructing a military family housing unit or military unaccompanied housing unit under this subchapter which is entered into between the Secretary and an eligible entity shall prohibit the entity from imposing on a member of the armed forces who occupies the unit a supplemental payment, such as an out-of-pocket fee, in addition to the amount of rent the eligible entity charges for a unit of similar size and composition, without regard to whether or not the amount of the member’s basic allowance for housing is less than the amount of the rent.
“(b) Permitting Certain Additional Payments.—Nothing in this section shall be construed to prohibit an eligible entity from imposing an additional payment for optional services provided to residents, such as access to a gym or a parking space, or an additional payment for non-essential utility services, as determined in accordance with regulations promulgated by the Secretary.
“(c) No Effect on Rental Guarantees or Differential Lease Payments.—Nothing in this section shall be construed to limit or otherwise affect the authority of the Secretary to enter into rental guarantee agreements under section 2876 of this title or to make differential lease payments under section 2877 of this title, so long as such agreements or payments do not require a member of the armed forces who is assigned to a military family housing unit or military unaccompanied housing unit under this subchapter to pay an out-of-pocket fee or payment in addition to the member’s basic housing allowance.”
“2886. Prohibiting collection of amounts in addition to rent from members assigned to units.”.
Ҥ 403a. Housing treatment for certain members of the armed forces, and their spouses and other dependents, undergoing a permanent change of station within the United States
“(a) Housing Treatment for Certain Members Who Have a Spouse or Other Dependents.—
“(1) Housing treatment regulations.—The Secretary of Defense shall prescribe regulations that permit a member of the armed forces described in paragraph (2) who is undergoing a permanent change of station within the United States to request the housing treatment described in subsection (b) during the covered relocation period of the member.
“(2) Eligible members.—A member described in this paragraph is any member who—
“(A) has a spouse who is gainfully employed or enrolled in a degree, certificate or license granting program at the beginning of the covered relocation period;
“(B) has one or more dependents attending an elementary or secondary school at the beginning of the covered relocation period;
“(C) has one or more dependents enrolled in the Exceptional Family Member Program; or
“(D) is caring for an immediate family member with a chronic or long-term illness at the beginning of the covered relocation period.
“(b) Housing Treatment.—
“(1) Continuation of housing for the spouse and other dependents.—If a spouse or other dependent of a member whose request under subsection (a) is approved resides in Government-owned or Government-leased housing at the beginning of the covered relocation period, the spouse or other dependent may continue to reside in such housing during a period determined in accordance with the regulations prescribed pursuant to this section.
“(2) Early housing eligibility.—If a spouse or other dependent of a member whose request under subsection (a) is approved is eligible to reside in Government-owned or Government-leased housing following the member’s permanent change of station within the United States, the spouse or other dependent may commence residing in such housing at any time during the covered relocation period.
“(3) Temporary use of government-owned or government-leased housing intended for members without a spouse or dependent.—If a spouse or other dependent of a member relocates at a time different from the member in accordance with a request approved under subsection (a), the member may be assigned to Government-owned or Government-leased housing intended for the permanent housing of members without a spouse or dependent until the member’s detachment date or the spouse or other dependent’s arrival date, but only if such Government-owned or Government-leased housing is available without displacing a member without a spouse or dependent at such housing.
“(4) Equitable basic allowance for housing.—If a spouse or other dependent of a member relocates at a time different from the member in accordance with a request approved under subsection (a), the amount of basic allowance for housing payable may be based on whichever of the following areas the Secretary concerned determines to be the most equitable:
“(A) The area of the duty station to which the member is reassigned.
“(B) The area in which the spouse or other dependent resides, but only if the spouse or other dependent resides in that area when the member departs for the duty station to which the member is reassigned, and only for the period during which the spouse or other dependent resides in that area.
“(C) The area of the former duty station of the member, but only if that area is different from the area in which the spouse or other dependent resides.
“(c) Rule of Construction Related to Certain Basic Allowance for Housing Payments.—Nothing in this section shall be construed to limit the payment or the amount of basic allowance for housing payable under section 403(d)(3)(A) of this title to a member whose request under subsection (a) is approved.
“(d) Housing Treatment Education.—The regulations prescribed pursuant to this section shall ensure the relocation assistance programs under section 1056 of title 10 include, as part of the assistance normally provided under such section, education about the housing treatment available under this section.
“(e) Definitions.—In this section:
“(1) Covered relocation period.—
(A) Subject to subparagraph (B), the term ‘covered relocation period’, when used with respect to a permanent change of station of a member of the armed forces, means the period that—
“(i) begins 180 days before the date of the permanent change of station; and
“(ii) ends 180 days after the date of the permanent change of station.
“(B) The regulations prescribed pursuant to this section may provide for a shortening or lengthening of the covered relocation period of a member for purposes of this section.
“(2) Dependent.—The term ‘dependent’ has the meaning given that term in section 401 of this title.
“(3) Permanent change of station.—The term ‘permanent change of station’ means a permanent change of station described in section 452(b)(2) of this title.”
“403a. Housing treatment for certain members of the armed forces, and their spouses and other dependents, undergoing a permanent change of station within the United States.”.
Ҥ 334a. Special aviation incentive pay and bonus authorities: enlisted members who operate remotely piloted aircraft
“(a) Aviation Incentive Pay.—
“(1) Incentive pay authorized.—The Secretary concerned may pay aviation incentive pay under this section to an enlisted member in a regular or reserve component of a uniformed service who—
“(A) is entitled to basic pay under section 204 of this title or compensation under 206 of this title;
“(B) is designated as a remotely piloted aircraft pilot, or is in training leading to such a designation;
“(C) engages in, or is in training leading to, frequent and regular performance of operational flying duty or proficiency flying duty;
“(D) engages in or remains in aviation service for a specified period; and
“(E) meets such other criteria as the Secretary concerned determines appropriate.
“(2) Enlisted members not currently engaged in flying duty.—The Secretary concerned may pay aviation incentive pay under this section to an enlisted member who is otherwise qualified for such pay but who is not currently engaged in the performance of operational flying duty or proficiency flying duty if the Secretary determines, under regulations prescribed under section 374 of this title, that payment of aviation pay to that enlisted member is in the best interests of the service.
“(b) Aviation Bonus.—The Secretary concerned may pay an aviation bonus under this section to an enlisted member in a regular or reserve component of a uniformed service who—
“(1) is entitled to aviation incentive pay under subsection (a);
“(2) is within one year of completing the enlistment of the member;
“(3) reenlists or voluntarily extends the enlistment of the member—
“(A) for a period of at least one year; or
“(B) in the case of an enlisted member serving pursuant to an indefinite reenlistment, executes a written agreement—
“(i) to remain on active duty for a period of at least one year; or
“(ii) to remain in an active status in a reserve component for a period of at least one year; and
“(4) meets such other criteria as the Secretary concerned determines appropriate.
“(c) Maximum Amount and Method of Payment.—
“(1) Maximum amount.—The Secretary concerned shall determine the amount of a bonus or incentive pay to be paid under this section, except that—
“(A) aviation incentive pay under subsection (a) shall be paid at a monthly rate not to exceed $1,000 per month; and
“(B) an aviation bonus under subsection (b) may not exceed $35,000 for each 12-month period of obligated service agreed to under subsection (d).
“(2) Lump sum or installments.—A bonus under this section may be paid in a lump sum or in periodic installments, as determined by the Secretary concerned.
“(3) Fixing bonus amount.—Upon acceptance by the Secretary concerned of the written agreement required by subsection (d), the total amount of the bonus to be paid under the agreement shall be fixed.
“(d) Written Agreement for Bonus.—To receive an aviation bonus under this section, an enlisted member determined to be eligible for the bonus shall enter into a written agreement with the Secretary concerned that specifies—
“(1) the amount of the bonus;
“(2) the method of payment of the bonus under subsection (c)(2);
“(3) the period of obligated service; and
“(4) the type or conditions of the service.
“(e) Reserve Component Enlisted Members Performing Inactive Duty Training.—An enlisted member of reserve component who is entitled to compensation under section 206 of this title and who is authorized aviation incentive pay under this section may be paid an amount of incentive pay that is proportionate to the compensation received under section 206 of this title for inactive-duty training.
“(f) Relationship to Other Pay and Allowances.—
“(1) Aviation incentive pay.—Aviation incentive pay paid to an enlisted member under subsection (a) shall be in addition to any other pay and allowance to which the enlisted member is entitled, except that an enlisted member may not receive a payment under such subsection and section 351(a)(2) or 353(a) of this title for the same skill and period of service.
“(2) Aviation bonus.—An aviation bonus paid to an enlisted member under subsection (b) shall be in addition to any other pay and allowance to which the enlisted member is entitled, except that an enlisted member may not receive a bonus payment under such subsection and section 331 or 353(b) of this title for the same skill and period of service.
“(g) Repayment.—An enlisted member who receives aviation incentive pay or an aviation bonus under this section and who fails to fulfill the eligibility requirements for the receipt of the incentive pay or bonus or complete the period of service for which the incentive pay or bonus is paid, as specified in the written agreement under subsection (d) in the case of a bonus, shall be subject to the repayment provisions of section 373 of this title.
“(h) Definitions.—In this section:
“(1) Aviation service.—The term ‘aviation service’ means participation in aerial flight performed, under regulations prescribed by the Secretary concerned, by an eligible enlisted member who is a remotely piloted aircraft pilot.
“(2) Operational flying duty.—The term ‘operational flying duty’ means flying performed under competent orders by enlisted members of the regular or reserve components while serving in assignments in which basic flying skills are normally maintained in the performance of assigned duties as determined by the Secretary concerned, and flying duty performed by members in training that leads to designation as a remotely piloted aircraft pilot by the Secretary concerned.
“(3) Proficiency flying duty.—The term ‘proficiency flying duty’ means flying performed under competent orders by enlisted members of the regular or reserve components while serving in assignments in which such skills would normally not be maintained in the performance of assigned duties.
“(i) Termination of Authority.—No agreement may be entered into under this section after December 31, 2018.”
“334a. Special aviation incentive pay and bonus authorities: enlisted members who operate remotely piloted aircraft.”.
“(I) for months from October 2016 through December 2018, $310; and
“(J) for months during any calendar year after 2018, the amount determined in accordance with paragraph (6).”
; and
“(6) Cost-of-living adjustments after 2018.—
“(A) In general.—The amount of the allowance payable under paragraph (1) for months during any calendar year beginning after 2018 shall be—
“(i) the amount payable pursuant to paragraph (2) for months during the preceding calendar year, plus
“(ii) an amount equal to the percentage of the amount determined pursuant to clause (i) which percentage is equal to the percentage increase in retired pay of members and former members of the armed forces for such calendar year under section 1401a of this title.
“(B) Public notice on amount of allowance payable.—The Secretary of Defense shall publish in the Federal Register each year the amount of the allowance payable under paragraph (1) for months in such year by reason of the operation of this paragraph.”
“(B) For purposes of subparagraph (A), in the case of a division of property as part of a final decree of divorce, dissolution, annulment, or legal separation that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be—
“(i) in the case of a member not described in clause (ii), the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title, whichever is applicable, increased by the sum of the cost-of-living adjustments that—
“(I) would have occurred under section 1401a(b) of this title between the date of the decree of divorce, dissolution, annulment, or legal separation and the time of the member’s retirement using the adjustment provisions under section 1401a of this title applicable to the member upon retirement; and
“(II) occur under 1401a of this title after the member’s retirement; or
“(ii) in the case of a member who becomes entitled to retired pay pursuant to chapter 1223 of this title, the amount of retired pay to which the member would have been entitled using the member’s retired pay base and creditable service points on the date of the decree of divorce, dissolution, annulment, or legal separation, as computer under chapter 1223 of this title, increased by the sum of the cost-of-living adjustments as described in clause (i) that apply with respect to the member.”
; and
“(8) A division of property award computed as a percentage of a member’s disposable retired pay shall be increased by the same percentage as any cost-of-living adjustment made under section 1401a after the member’s retirement.”
“(10) In the case of a decedent under the jurisdiction of a Secretary of a military department at the time of death, enduring care of remains interred in a foreign cemetery if the burial location was designated by such Secretary.”
“(4) This subsection does not apply to the furnishing of athletic footwear to members of the Army, the Navy, the Air Force, or the Marine Corps upon their initial entry into the armed forces, or prohibit the provision of a cash allowance to such members for such purpose, if the Secretary of Defense determines that compliance with paragraph (2) would result in a sole source contract for procurement of athletic footwear for the purpose stated in paragraph (1) because there would be only a sole certified source of supply for such footwear.
“(5) The Secretary of Defense shall ensure that all procurements of athletic footwear to which this subsection applies are made using firm fixed price contracts.”
“(2) The term ‘TRICARE Reserve Select’ means—
“(A) medical care at facilities of the uniformed services to which a dependent described in section 1076(a)(2) of this title is entitled; and
“(B) health benefits under the TRICARE Select self-managed, preferred provider network option under section 1075 of this title made available to beneficiaries by reason of this section and subject to the cost-sharing requirements set forth in such section 1075.”
“(2) The term ‘TRICARE Retired Reserve’ means—
“(A) medical care at facilities of the uniformed services to which a dependent described in section 1076(a)(2) of this title is entitled; and
“(B) health benefits under the TRICARE Select self-managed, preferred provider network option under section 1075 of this title made available to beneficiaries by reason of this section and subject to the cost-sharing requirements set forth in such section 1075.”
“(6)
(A) In the case of any of the years 2018 through 2027, the cost-sharing amounts under this subsection for eligible covered beneficiaries shall be determined in accordance with the following table:
| “For: | The cost-sharing amount for a 30-day supply of a retail generic is: | The cost-sharing amount for a 30-day supply of a retail formulary is: | The cost-sharing amount for a 90-day supply of a mail order generic is: | The cost-sharing amount for a 90-day supply of a mail order formulary is: | The cost-sharing amount for a 90-day supply of a mail order non-formulary is: |
|---|---|---|---|---|---|
| 2018 | $11 | $28 | $7 | $24 | $53 |
| 2019 | $11 | $28 | $7 | $24 | $53 |
| 2020 | $13 | $33 | $10 | $29 | $60 |
| 2021 | $13 | $33 | $10 | $29 | $60 |
| 2022 | $14 | $38 | $12 | $34 | $68 |
| 2023 | $14 | $38 | $12 | $34 | $68 |
| 2024 | $16 | $43 | $13 | $38 | $76 |
| 2025 | $16 | $43 | $13 | $38 | $76 |
| 2026 | $16 | $48 | $14 | $44 | $85 |
| 2027 | $16 | $48 | $14 | $44 | $85 |
“(B) For any year after 2027, the cost-sharing amounts under this subsection for eligible covered beneficiaries shall be equal to the cost-sharing amounts for the previous year adjusted by an amount, if any, determined by the Secretary to reflect changes in the costs of pharmaceutical agents and prescription dispensing, rounded to the nearest dollar.
“(C) Notwithstanding subparagraphs (A) and (B), the cost-sharing amounts under this subsection for a dependent of a member of the uniformed services who dies while on active duty, a member retired under chapter 61 of this title, or a dependent of a member retired under such chapter shall be equal to the cost-sharing amounts, if any, for 2017.”
“(10) Notwithstanding paragraphs (2), (5), and (6), in order to encourage the use by covered beneficiaries of pharmaceutical agents that provide the best clinical effectiveness to covered beneficiaries and the Department of Defense (as determined by the Secretary, including considerations of better care, healthier people, and smarter spending), the Secretary may, upon the recommendation of the Pharmacy and Therapeutics Committee established under subsection (b) and review by the Uniform Formulary Beneficiary Advisory Panel established under subsection (c)—
“(A) exclude from the pharmacy benefits program any pharmaceutical agent that the Secretary determines provides very little or no clinical effectiveness to covered beneficiaries and the Department under the program; and
“(B) give preferential status to any non-generic pharmaceutical agent on the uniform formulary by treating it, for purposes of cost-sharing under paragraph (6), as a generic product under the TRICARE retail pharmacy program and mail order pharmacy program.”
“(q) In the case of any pharmaceutical agent (as defined in section 1074g(g) of this title) provided under a contract entered into under this section by a physician, in an outpatient department of a hospital, or otherwise as part of any medical services provided under such a contract, the Secretary of Defense may, under regulations prescribed by the Secretary, adopt special reimbursement methods, amounts, and procedures to encourage the use of high-value products and discourage the use of low-value products, as determined by the Secretary.”
Ҥ 1074o. Provision of hyperbaric oxygen therapy for certain members
“(a) In General.—The Secretary may furnish hyperbaric oxygen therapy available at a military medical treatment facility to a covered member if such therapy is prescribed by a physician to treat post-traumatic stress disorder or traumatic brain injury.
“(b) Covered Member Defined.—In this section, the term ‘covered member’ means a member of the armed forces who is—
“(1) serving on active duty; and
“(2) diagnosed with post-traumatic stress disorder or traumatic brain injury.”
“1074o. Provision of hyperbaric oxygen therapy for certain members.”.
“(d) Physical Examinations for Certain Members of a Reserve Component.—
(1) The Secretary concerned shall provide a physical examination pursuant to subsection (a)(5) to each member of a reserve component who—
“(A) during the two-year period before the date on which the member is scheduled to be separated from the armed forces served on active duty in support of a contingency operation for a period of more than 30 days;
“(B) will not otherwise receive such an examination under such subsection; and
“(C) elects to receive such a physical examination.
“(2) The Secretary concerned shall—
“(A) provide the physical examination under paragraph (1) to a member during the 90-day period before the date on which the member is scheduled to be separated from the armed forces; and
“(B) issue orders to such a member to receive such physical examination.
“(3) A member may not be entitled to health care benefits pursuant to subsection (a), (b), or (c) solely by reason of being provided a physical examination under paragraph (1).
“(4) In providing to a member a physical examination under paragraph (1), the Secretary concerned shall provide to the member a record of the physical examination.”
“(e) Maintenance of Inpatient Capabilities at Military Medical Treatment Facilities Located Outside the United States.—
(1) In carrying out subsection (a), the Secretary of Defense shall ensure that each covered facility maintains, at a minimum, inpatient capabilities that the Secretary determines are similar to the inpatient capabilities of such facility on September 30, 2016.
“(2) The Secretary may not eliminate the inpatient capabilities of a covered facility until the day that is 180 days after the Secretary provides a briefing to the Committees on Armed Services of the Senate and the House of Representatives regarding the proposed elimination. During any such briefing, the Secretary shall certify the following:
“(A) The Secretary has entered into agreements with hospitals or medical centers in the host nation of such covered facility that—
“(i) replace the inpatient capabilities the Secretary proposes to eliminate; and
“(ii) ensure members of the armed forces and covered beneficiaries who receive health care from such covered facility, have, within a distance the Secretary determines is reasonable, access to quality health care, including case management and translation services.
“(B) The Secretary has consulted with the commander of the geographic combatant command in which such covered facility is located to ensure that the proposed elimination would have no impact on the operational plan for such geographic combatant command.
“(C) Before the Secretary eliminates the inpatient capabilities of such covered facility, the Secretary shall provide each member of the armed forces or covered beneficiary who receives health care from the covered facility with—
“(i) a transition plan for continuity of health care for such member or covered beneficiary; and
“(ii) a public forum to discuss the concerns of the member or covered beneficiary regarding the proposed reduction.
“(3) In this subsection, the term ‘covered facility’ means a military medical treatment facility located outside the United States.”
“(b) Priority of Covered Beneficiaries.—
“(1) In general.—Except as provided in paragraph (2), the evaluation and treatment of covered beneficiaries at military treatment facilities shall be prioritized ahead of the evaluation and treatment of veterans and civilians at such facilities under subsection (a).
“(2) Waiver.—The Secretary may waive the requirement under paragraph (1) in order to provide timely evaluation and treatment for individuals who are—
“(A) severely wounded or injured by acts of terror that occur in the United States; or
“(B) residents of the United States who are severely wounded or injured by acts of terror outside the United States.”
“(4) If the Secretary of Defense determines it appropriate, a military director (or any other senior military officer or officers) of a military medical treatment facility may be a commanding officer for purposes of chapter 47 of this title (the Uniform Code of Military Justice) with respect to military personnel assigned to the military medical treatment facility.”
“(3) With respect to the TRICARE retail pharmacy program described in subsection (a)(2)(E)(ii), the Secretary shall ensure that a contract entered into with a TRICARE pharmacy program contractor includes requirements described in section 1860D–12(b)(6) of the Social Security Act (42 U.S.C. 1395w–112(b)(6)) to ensure the provision of information regarding the pricing standard for prescription drugs.”
“(b) Execution of Contracting Responsibility.—With respect to any acquisition of managed care support services under the TRICARE program initiated after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2018, the Under Secretary of Defense for Acquisition and Sustainment shall be responsible for—
“(1) decisions relating to such acquisition;
“(2) approving the acquisition strategy; and
“(3) conducting pre-solicitation, pre-award, and post-award acquisition reviews.”
“(d) Additional Authority to Reduce Deaths and Severity of Injuries Caused by Agents of War.—
(1) In a case in which an emergency use of an unapproved product or an emergency unapproved use of an approved product cannot be authorized under section 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb–3) because the emergency does not involve an actual or threatened attack with a biological, chemical, radiological, or nuclear agent or agents, the Secretary of Defense may authorize an emergency use outside the United States of the product to reduce the number of deaths or the severity of harm to members of the armed forces (or individuals associated with deployed members of the armed forces) caused by a risk or agent of war.
“(2) Except as otherwise provided in this subsection, an authorization by the Secretary under paragraph (1) shall have the same effect with respect to the armed forces as an emergency use authorization under section 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb–3).
“(3) The Secretary may issue an authorization under paragraph (1) with respect to the emergency use of an unapproved product or the emergency unapproved use of an approved product only if—
“(A) the committee established under paragraph (5) has recommended that the Secretary issue the authorization; and
“(B) the Assistant Secretary of Defense for Health Affairs makes a written determination, after consultation with the Commissioner of Food and Drugs, that, based on the totality of scientific evidence available to the Assistant Secretary, criteria comparable to those specified in section 564(c) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb–3(c)) have been met.
“(4) With respect to the emergency use of an unapproved product or the emergency unapproved use of an approved product under this subsection, the Secretary of Defense shall establish such scope, conditions, and terms under this subsection as the Secretary considers appropriate, including scope, conditions, and terms comparable to those specified in section 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb–3).
“(5)
(A) There is established in the Department of Defense a Department of Defense Emergency Use Authorization Committee (in this paragraph referred to as the ‘Committee’) to advise the Assistant Secretary of Defense for Health Affairs on proposed authorizations under this subsection.
“(B) Members of the Committee shall be appointed by the Secretary of Defense and shall consist of prominent health care professionals who are not employees of the Department of Defense (other than for purposes of serving as a member of the Committee).
“(C) The Committee may be established as a subcommittee of another Federal advisory committee.
“(6) In this subsection:
“(A) The term ‘biological product’ has the meaning given that term in section 351(i) of the Public Health Service Act (42 U.S.C. 262(i)).
“(B) The terms ‘device’ and ‘drug’ have the meanings given those terms in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321).
“(C) The term ‘product’ means a drug, device, or biological product.
“(D) The terms ‘unapproved product’ and ‘unapproved use of an approved product’ have the meanings given those terms in section 564(a)(4) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb–3(a)(4)).”
“(2) Determination.—In carrying out paragraph (1), the Secretary shall determine the average wait time to display under such paragraph by using a formula derived from best practices in the health care industry.”
“(2) Determination.—In carrying out paragraph (1), the Secretary shall determine the average wait time to display under such paragraph by using a formula derived from best practices in the health care industry.”
“(15) The term ‘TRICARE Standard’ means the TRICARE program made available prior to January 1, 2018, covering health benefits contracted for under the authority of section 1079(a) or 1086(a) of this title and subject to the same rates and conditions as apply to persons covered under those sections.”
“(4) The cost-sharing requirements applicable to services not specifically addressed in the table set forth in paragraph (1) shall be established by the Secretary.”
“(4) The cost-sharing requirements applicable to services not specifically addressed in the table set forth in paragraph (1) shall be established by the Secretary.”
“(4) Inpatient care at a residential treatment center.”
Ҥ 2322. Management of intellectual property matters within the Department of Defense
“(a) Policy Required.—The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall develop policy on the acquisition or licensing of intellectual property—
“(1) to enable coordination and consistency across the military departments and the Department of Defense in strategies for acquiring or licensing intellectual property and communicating with industry;
“(2) to ensure that program managers are aware of the rights afforded the Federal Government and contractors in intellectual property and that program managers fully consider and use all available techniques and best practices for acquiring or licensing intellectual property early in the acquisition process; and
“(3) to encourage customized intellectual property strategies for each system based on, at a minimum, the unique characteristics of the system and its components, the product support strategy for the system, the organic industrial base strategy of the military department concerned, and the commercial market.
“(b) Cadre of Intellectual Property Experts.—
(1) The Secretary of Defense, acting through the Under Secretary of Defense for Acquisition and Sustainment, shall establish a cadre of personnel who are experts in intellectual property matters. The purpose of the cadre is to ensure a consistent, strategic, and highly knowledgeable approach to acquiring or licensing intellectual property by providing expert advice, assistance, and resources to the acquisition workforce on intellectual property matters, including acquiring or licensing intellectual property.
“(2) The Under Secretary shall establish an appropriate leadership structure and office within which the cadre shall be managed, and shall determine the appropriate official to whom members of the cadre shall report.
“(3) The cadre of experts shall be assigned to a program office or an acquisition command within a military department to advise, assist, and provide resources to a program manager or program executive officer on intellectual property matters at various stages of the life cycle of a system. In performing such duties, the experts shall—
“(A) interpret and provide counsel on laws, regulations, and policies relating to intellectual property;
“(B) advise and assist in the development of an acquisition strategy, product support strategy, and intellectual property strategy for a system;
“(C) conduct or assist with financial analysis and valuation of intellectual property;
“(D) assist in the drafting of a solicitation, contract, or other transaction;
“(E) interact with or assist in interactions with contractors, including communications and negotiations with contractors on solicitations and awards; and
“(F) conduct or assist with mediation if technical data delivered pursuant to a contract is incomplete or does not comply with the terms of agreements.
“(4)
(A) In order to achieve the purpose set forth in paragraph (1), the Under Secretary shall ensure the cadre has the appropriate number of staff and such staff possesses the necessary skills, knowledge, and experience to carry out the duties under paragraph (2), including in relevant areas of law, contracting, acquisition, logistics, engineering, financial analysis, and valuation. The Under Secretary, in coordination with the Defense Acquisition University and in consultation with academia and industry, shall develop a career path, including development opportunities, exchanges, talent management programs, and training, for the cadre. The Under Secretary may use existing authorities to staff the cadre, including those in subparagraphs (B), (C), (D), and (F).
“(B) Civilian personnel from within the Office of the Secretary of Defense, Joint Staff, military departments, Defense Agencies, and combatant commands may be assigned to serve as members of the cadre, upon request of the Director.
“(C) The Under Secretary may use the authorities for highly qualified experts under section 9903 of title 5, to hire experts as members of the cadre who are skilled professionals in intellectual property and related matters.
“(D) The Under Secretary may enter into a contract with a private-sector entity for specialized expertise to support the cadre. Such entity may be considered a covered Government support contractor, as defined in section 2320 of this title.
“(E) In establishing the cadre, the Under Secretary shall give preference to civilian employees of the Department of Defense, rather than members of the armed forces, to maintain continuity in the cadre.
“(F) The Under Secretary is authorized to use amounts in the Defense Acquisition Workforce Development Fund for the purpose of recruitment, training, and retention of the cadre, including paying salaries of newly hired members of the cadre for up to three years.”
“2322. Management of intellectual property matters within the Department of Defense.”.
“(12) Intellectual property.”
Ҥ 2313b. Performance of incurred cost audits
“(a) Compliance With Standards of Risk and Materiality.—Not later than October 1, 2020, the Secretary of Defense shall comply with commercially accepted standards of risk and materiality in the performance of each incurred cost audit of costs associated with a contract of the Department of Defense.
“(b) Conditions for the Use of Qualified Auditors to Perform Incurred Cost Audits.—
(1) To support the need of the Department of Defense for timely and effective incurred cost audits, and to ensure that the Defense Contract Audit Agency is able to allocate resources to higher-risk and more complex audits, the Secretary of Defense shall use qualified private auditors to perform a sufficient number of incurred cost audits of contracts of the Department of Defense to—
“(A) eliminate, by October 1, 2020, any backlog of incurred cost audits of the Defense Contract Audit Agency;
“(B) ensure that incurred cost audits are completed not later than one year after the date of receipt of a qualified incurred cost submission;
“(C) maintain an appropriate mix of Government and private sector capacity to meet the current and future needs of the Department of Defense for the performance of incurred cost audits;
“(D) ensure that qualified private auditors perform incurred cost audits on an ongoing basis to improve the efficiency and effectiveness of the performance of incurred cost audits; and
“(E) limit multiyear auditing to ensure that multiyear auditing is conducted only—
“(A) to address outstanding incurred cost audits for which a qualified incurred cost submission was submitted to the Defense Contract Audit Agency more than 12 months before the date of the enactment of this section; or
“(B) when the contractor being audited submits a written request, including a justification for the use of multiyear auditing, to the Under Secretary of Defense (Comptroller).
“(2) The Secretary of Defense shall consult with Federal agencies that have awarded contracts or task orders to qualified private auditors to ensure that the Department of Defense is using, as appropriate, best practices relating to contracting with qualified private auditors.
“(3) The Secretary of Defense shall ensure that a qualified private auditor performing an incurred cost audit under this section—
“(A) has no conflict of interest in performing such an audit, as defined by generally accepted government auditing standards;
“(B) possesses the necessary independence to perform such an audit, as defined by generally accepted government auditing standards;
“(C) signs a nondisclosure agreement, as appropriate, to protect proprietary or nonpublic data;
“(D) accesses and uses proprietary or nonpublic data furnished to the qualified private auditor only for the purposes stated in the contract;
“(E) takes all reasonable steps to protect proprietary and nonpublic data furnished during the audit; and
“(F) does not use proprietary or nonpublic data provided to the qualified private auditor under the authority of this section to compete for Government or nongovernment contracts.
“(c) Procedures for the Use of Qualified Private Auditors.—
(1) Not later than October 1, 2018, the Secretary of Defense shall submit to the congressional defense committees a plan to implement the requirements of subsection (b). Such plan shall include, at a minimum—
“(A) a description of the incurred cost audits that the Secretary determines are appropriate to be conducted by qualified private auditors, including the approximate number and dollar value of such incurred cost audits;
“(B) an estimate of the number and dollar value of incurred cost audits to be conducted by qualified private auditors for each of the fiscal years 2019 through 2025 necessary to meet the requirements of subsection (b); and
“(C) all other elements of an acquisition plan as required by the Federal Acquisition Regulation.
“(2) Not later than April 1, 2019, the Secretary of Defense or a Federal department or agency authorized by the Secretary shall award a contract or issue a task order under an existing contract to two or more qualified private auditors to perform incurred cost audits of costs associated with contracts of the Department of Defense. The Defense Contract Management Agency or a contract administration office of a military department shall use a contract or a task order awarded or issued pursuant to this paragraph for the performance of an incurred cost audit, if doing so will assist the Secretary in meeting the requirements in subsection (b).
“(3) To improve the quality of incurred cost audits and reduce duplication of performance of such audits, the Secretary of Defense may provide a qualified private auditor with information on past or ongoing audit results or other relevant information on the entities the qualified private auditor is auditing.
“(4) The Secretary of Defense shall consider the results of an incurred cost audit performed under this section without regard to whether the Defense Contract Audit Agency or a qualified private auditor performed the audit.
“(5) The contracting officer for a contract that is the subject of an incurred cost audit shall have the sole discretion to determine what action should be taken based on an audit finding on direct costs of the contract.
“(d) Qualified Private Auditor Requirements.—
(1) A qualified private auditor awarded a contract or issued an task order under subsection (c)(2) shall conduct an incurred cost audit in accordance with the generally accepted government auditing standards.
“(2) A qualified private auditor awarded a contract or issued an task order under subsection (c)(2) shall develop and maintain complete and accurate working papers on each incurred cost audit. All working papers and reports on the incurred cost audit prepared by such qualified private auditor shall be the property of the Department of Defense, except that the qualified private auditor may retain a complete copy of all working papers to support such reports made pursuant to this section.
“(3) A breach of contract by a qualified private auditor with respect to use of proprietary or nonpublic data may subject the qualified private auditor to—
“(A) criminal, civil, administrative, and contractual actions for penalties, damages, and other appropriate remedies by the United States; and
“(B) civil actions for damages and other appropriate remedies by the contractor or subcontractor whose data are affected by the breach.
“(e) Peer Review.—
(1) Effective October 1, 2022, the Defense Contract Audit Agency may issue unqualified audit findings for an incurred cost audit only if the Defense Contract Audit Agency is peer reviewed by a commercial auditor and passes such peer review. Such peer review shall be conducted in accordance with the peer review requirements of generally accepted government auditing standards, including the requirements related to frequency of peer reviews, and shall be deemed to meet the requirements of the Defense Contract Audit Agency for a peer review under such standards.
“(2) Not later than October 1, 2019, the Secretary of Defense shall provide to the Committees on Armed Services of the Senate and the House of Representatives an update on the process of securing a commercial auditor to perform the peer review referred to in paragraph (1).
“(f) Numeric Materiality Standards for Incurred Cost Audits.—
(1) Not later than October 1, 2020, the Department of Defense shall implement numeric materiality standards for incurred cost audits to be used by auditors that are consistent with commercially accepted standards of risk and materiality.
“(2) Not later than October 1, 2019, the Secretary of Defense shall submit to the congressional defense committees a report containing proposed numeric materiality standards required under paragraph (1). In developing such standards, the Secretary shall consult with commercial auditors that conduct incurred cost audits, the advisory panel authorized under section 809 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 129 Stat. 889), and other governmental and nongovernmental entities with relevant expertise.
“(g) Timeliness of Incurred Cost Audits.—
(1) The Secretary of Defense shall ensure that all incurred cost audits performed by qualified private auditors or the Defense Contract Audit Agency are performed in a timely manner.
“(2) The Secretary of Defense shall notify a contractor of the Department of Defense within 60 days after receipt of an incurred cost submission from the contractor whether the submission is a qualified incurred cost submission.
“(3) With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.
“(4) Not later than October 1, 2020, and subject to paragraph (5), if audit findings are not issued within one year after the date of receipt of a qualified incurred cost submission, the audit shall be considered to be complete and no additional audit work shall be conducted.
“(5) The Under Secretary of Defense (Comptroller) may waive the requirements of paragraph (4) on a case-by-case basis if the Director of the Defense Contract Audit Agency submits a written request. The Director of the Defense Contract Audit Agency shall include in the report required under section 2313a of this title the total number of waivers issued and the reasons for issuing each such waiver.
“(h) Review of Audit Performance.—Not later than April 1, 2025, the Comptroller General of the United States shall submit to the congressional defense committees a report that evaluates for the period beginning on October 1, 2019, and ending on August 31, 2023—
“(1) the timeliness, individual cost, and quality of incurred cost audits, set forth separately by incurred cost audits performed by the Defense Contract Audit Agency and by qualified private auditors;
“(2) the cost to contractors of the Department of Defense for incurred cost audits, set forth separately by incurred cost audits performed by the Defense Contract Audit Agency and by qualified private auditors;
“(3) the effect, if any, on other types of audits conducted by the Defense Contract Audit Agency that results from incurred cost audits conducted by qualified private auditors; and
“(4) the capability and capacity of qualified private auditors to conduct incurred cost audits for the Department of Defense.
“(i) Definitions.—In this section:
“(1) The term ‘commercial auditor’ means a private entity engaged in the business of performing audits.
“(2) The term ‘incurred cost audit’ means an audit of charges to the Government by a contractor under a flexibly priced contract.
“(3) The term ‘flexibly priced contract’ has the meaning given the term ‘flexibly-priced contracts and subcontracts’ in part 30 of the Federal Acquisition Regulation (section 30.001 of title 48, Code of Federal Regulations).
“(4) The term ‘generally accepted government auditing standards’ means the generally accepted government auditing standards of the Comptroller General of the United States.
“(5) The term ‘numeric materiality standard’ means a dollar amount of misstatements, including omissions, contained in an incurred cost audit that would be material if the misstatements, individually or in the aggregate, could reasonably be expected to influence the economic decisions of the Government made on the basis of the incurred cost audit.
“(6) The term ‘qualified incurred cost submission’ means a submission by a contractor of costs incurred under a flexibly priced contract that has been qualified by the Department of Defense as sufficient to conduct an incurred cost audit.
“(7) The term ‘qualified private auditor’ means a commercial auditor—
“(A) that performs audits in accordance with generally accepted government auditing standards; and
“(B) that has received a passing peer review rating, as defined by generally accepted government auditing standards.”
“2313b. Performance of incurred cost audits.”.
“(E) improve the efficiency of the contract auditing process, including through the development of risk-based materiality standards; and”
; and
“(D) the sustained questioned costs, set forth separately by type of audit, both as a total value and as a percentage of the total questioned costs for the audit;”
“(E) the total number and dollar value of incurred cost audits completed, and the method by which such incurred cost audits were completed;
“(F) the aggregate cost of performing audits, set forth separately by type of audit;
“(G) the ratio of sustained questioned costs to the aggregate costs of performing audits, set forth separately by type of audit; and
“(H) the total number and dollar value of audits that are pending for a period longer than one year as of the end of the fiscal year covered by the report, and the fiscal year in which the qualified submission was received, set forth separately by type of audit;”
; and
“(d) Definitions.—
“(1) The terms ‘incurred cost audit’ and ‘qualified incurred cost submission’ have the meaning given those terms in section 2313b of this title.
“(2) The term ‘sustained questioned costs’ means questioned costs that were recovered by the Federal Government as a result of contract negotiations related to such questioned costs.”
“(2) Determination of same or similar product.—The Secretary of Defense and the Secretary of State shall jointly determine whether a product is considered to be a similar product for the purposes of this pilot program.
“(3) Waiver of cost or pricing certification.—The Secretary of Defense may waive the certification requirement under section 2306a(a)(2) of title 10, United States Code, if the Secretary determines that the Federal Government has sufficient data and information regarding the reasonableness of the price.”
“(5) Chemical weapons antidote.—Subsections (a)(2) and (b)(2) shall cease to be effective on October 1, 2018.”
“(c) Limitation on Unilateral Definitization by Contracting Officer.—With respect to any undefinitized contractual action with a value greater than $50,000,000, if agreement is not reached on contractual terms, specifications, and price within the period or by the date provided in subsection (b)(1), the contracting officer may not unilaterally definitize those terms, specifications, or price over the objection of the contractor until—
“(1) the service acquisition executive for the military department that awarded the contract, or the Under Secretary of Defense for Acquisition and Sustainment if the contract was awarded by a Defense Agency or other component of the Department of Defense, approves the definitization in writing;
“(2) the contracting officer provides a copy of the written approval to the contractor; and
“(3) a period of 30 calendar days has elapsed after the written approval is provided to the contractor.”
“(d) Use of Program Income.—
“(1) An eligible entity that earned income in a specified fiscal year from activities carried out pursuant to a procurement technical assistance program funded under this chapter may expend an amount of such income, not to exceed 25 percent of the cost of furnishing procurement technical assistance in such specified fiscal year, during the fiscal year following such specified fiscal year, to carry out a procurement technical assistance program funded under this chapter.
“(2) An eligible entity that does not enter into a cooperative agreement with the Secretary for a fiscal year—
“(A) shall notify the Secretary of the amount of any income the eligible entity carried over from the previous fiscal year; and
“(B) may retain an amount of such income equal to 10 percent of the value of assistance furnished by the Secretary under this section during the previous fiscal year.
“(3) In determining the value of assistance furnished by the Secretary under this section for any fiscal year, the Secretary shall account for the amount of any income the eligible entity carried over from the previous fiscal year.”
“(vii) an opportunity for a disappointed offeror to submit, within two business days after receiving a post-award debriefing, additional questions related to the debriefing.”
; and
“(C) The agency shall respond in writing to any additional question submitted under subparagraph (B)(vii) within five business days after receipt of the question. The agency shall not consider the debriefing to be concluded until the agency delivers its written responses to the disappointed offeror.”
“(B) For procurements conducted by any component of the Department of Defense, the 5-day period described in subparagraph (A)(ii) does not commence until the day the Government delivers to a disappointed offeror the written responses to any questions submitted pursuant to section 2305(b)(5)(B)(vii) of title 10.”
“(7) the Department of Defense would realize no, or minimal, additional innovation or future technological advantage by using a different methodology; and
“(8) with respect to a contract for procurement of goods, the goods procured are predominantly expendable in nature, nontechnical, or have a short life expectancy or short shelf life.”
“(1) the solicitation is issued pursuant to a indefinite delivery-indefinite quantity contract for design-build construction; or
“(2)
(A) the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity, approves the contracting officer’s justification with respect to an individual solicitation that a maximum number greater than 5 is in the interest of the Federal Government; and
“(B) the contracting officer provides written documentation of how a maximum number greater than 5 is consistent with the purposes and objectives of the two-phase selection procedures.”
“(c) Total Cost Overrun Penalty.—Notwithstanding the amount of a cost overrun penalty determined in (b), the total cost overrun penalty for a military department (including any cost overrun penalty for joint programs of military departments) for a fiscal year may not exceed $50,000,000.”
; and
“(A) Annual meeting.—Except as provided in subparagraph (B), the Secretary”
; and
“(B) Exception.—If the service acquisition executive of the military department concerned determines, in writing, that there have been no changes to the program requirements of a major defense acquisition program during the preceding year, the Configuration Steering Board for such major defense acquisition program is not required to meet as described in subparagraph (A).”
“(A) an acquisition program”
; and
“(B) an acquisition program for a defense business system (as defined in section 2222(i)(1) of this title) carried out using the acquisition guidance issued pursuant to section 883(e) of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114–92; 10 U.S.C. 2223a note).”
Ҥ 2442. Prohibition on use of lowest price technically acceptable source selection process
“(a) In General.—The Department of Defense shall not use a lowest price technically acceptable source selection process for the engineering and manufacturing development contract of a major defense acquisition program.
“(b) Definitions.—In this section:
“(1) Lowest price technically acceptable source selection process.—The term ‘lowest price technically acceptable source selection process’ has the meaning given that term in part 15 of the Federal Acquisition Regulation.
“(2) Major defense acquisition program.—The term ‘major defense acquisition program’ has the meaning given that term in section 2430 of this title.
“(3) Engineering and manufacturing development contract.—The term ‘engineering and manufacturing development contract’ means a prime contract for the engineering and manufacturing development of a major defense acquisition program.”
“2442. Prohibition on use of lowest price technically acceptable source selection process.”.
“(2) Consistent with the performance of duties under subsection (a), the Chief of the armed force concerned, or in the case of a joint program the chiefs of the armed forces concerned, with respect to major defense acquisition programs, shall—
“(A) concur with the need for a material solution as identified in the Material Development Decision Review prior to entry into the Material Solution Analysis Phase under Department of Defense Instruction 5000.02;
“(B) concur with the cost, schedule, technical feasibility, and performance trade-offs that have been made with regard to the program before Milestone A approval is granted under section 2366a of this title;
“(C) concur that appropriate trade-offs among cost, schedule, technical feasibility, and performance objectives have been made to ensure that the program is affordable when considering the per unit cost and the total life-cycle cost before Milestone B approval is granted under section 2366b of this title; and
“(D) concur that the requirements in the program capability document are necessary and realistic in relation to program cost and fielding targets as required by paragraph (1) before Milestone C approval is granted.”
Ҥ 2443. Sustainment factors in weapon system design
“(a) In General.—The Secretary of Defense shall ensure that the defense acquisition system gives ample emphasis to sustainment factors, particularly those factors that are affected principally by the design of a weapon system, in the development of a weapon system.
“(b) Requirements Process.—The Secretary shall ensure that reliability and maintainability are included in the performance attributes of the key performance parameter on sustainment during the development of capabilities requirements.
“(c) Solicitation and Award of Contracts.—
“(1) Requirement.—The program manager of a weapon system shall include in the solicitation for and terms of a covered contract for the weapon system clearly defined and measurable requirements for engineering activities and design specifications for reliability and maintainability.
“(2) Exception.—If the program manager determines that engineering activities and design specifications for reliability or maintainability should not be a requirement in a covered contract or a solicitation for such a contract, the program manager shall document in writing the justification for the decision.
“(3) Source selection criteria.—The Secretary shall ensure that sustainment factors, including reliability and maintainability, are given ample emphasis in the process for source selection. The Secretary shall encourage the use of objective reliability and maintainability criteria in the evaluation of competitive proposals.
“(d) Contract Performance.—
“(1) In general.—The Secretary shall ensure that the Department of Defense uses best practices for responding to the positive or negative performance of a contractor in meeting the sustainment requirements of a covered contract for a weapon system. The Secretary shall encourage the use of incentive fees and penalties as appropriate and authorized in paragraph (2) in all covered contracts for weapons systems.
“(2) Authority for incentive fees and penalties.—The Secretary of Defense is authorized to include in any covered contract provisions for the payment of incentive fees to the contractor based on achievement of design specification requirements for reliability and maintainability of weapons systems under the contract, or the imposition of penalties to be paid by the contractor to the Government for failure to achieve such design specification requirements. Information about such fees or penalties shall be included in the solicitation for any covered contract that includes such fees or penalties.
“(3) Measurement of reliability and maintainability.—In carrying out paragraph (2), the program manager shall base determinations of a contractor’s performance on reliability and maintainability data collected during the program. Such data collection and associated evaluation metrics shall be described in detail in the covered contract. To the maximum extent practicable, such data shall be shared with appropriate contractor and government organizations.
“(4) Notification.—The Secretary of Defense shall notify the congressional defense committees upon entering into a covered contract that includes incentive fees or penalties authorized in paragraph (2).
“(e) Covered Contract Defined.—In this section, the term ‘covered contract’, with respect to a weapon system, means a contract—
“(1) for the engineering and manufacturing development of a weapon system, including embedded software; or
“(2) for the production of a weapon system, including embedded software.”
“2443. Sustainment factors in weapon system design.”.
Ҥ 2439. Negotiation of price for technical data before development or production of major weapon systems
“The Secretary of Defense shall ensure that the Department of Defense, before selecting a contractor for the engineering and manufacturing development of a major weapon system, or for the production of a major weapon system, negotiates a price for technical data to be delivered under a contract for such development or production.”
“2439. Negotiation of price for technical data before development or production of major weapon systems.”.
“(O) appropriate actions have been taken to negotiate and enter into a contract or contract options for the technical data required to support the program; and”
“(f) Preference for Specially Negotiated Licenses.—The Secretary of Defense shall, to the maximum extent practicable, negotiate and enter into a contract with a contractor for a specially negotiated license for technical data to support the product support strategy of a major weapon system or subsystem of a major weapon system. In performing the assessment and developing the corresponding strategy required under subsection (e) for such a system or subsystem, a program manager shall consider the use of specially negotiated licenses to acquire customized technical data appropriate for the particular elements of the product support strategy.”
Ҥ 2337a. Assessment, management, and control of operating and support costs for major weapon systems
“(a) Guidance Required.—The Secretary of Defense shall issue and maintain guidance on actions to be taken to assess, manage, and control Department of Defense costs for the operation and support of major weapon systems.
“(b) Elements.—The guidance required by subsection (a) shall, at a minimum—
“(1) be issued in conjunction with the comprehensive guidance on life-cycle management and the development and implementation of product support strategies for major weapon systems required by section 2337 of this title;
“(2) require the military departments to retain each estimate of operating and support costs that is developed at any time during the life cycle of a major weapon system, together with supporting documentation used to develop the estimate;
“(3) require the military departments to update estimates of operating and support costs periodically throughout the life cycle of a major weapon system, to determine whether preliminary information and assumptions remain relevant and accurate, and identify and record reasons for variances;
“(4) establish policies and procedures for the collection, organization, maintenance, and availability of standardized data on operating and support costs for major weapon systems in accordance with section 2222 of this title;
“(5) establish standard requirements for the collection and reporting of data on operating and support costs for major weapon systems by contractors performing weapon system sustainment functions in an appropriate format, and develop contract clauses to ensure that contractors comply with such requirements;
“(6) require the military departments—
“(A) to collect and retain data from operational and developmental testing and evaluation on the reliability and maintainability of major weapon systems; and
“(B) to use such data to inform system design decisions, provide insight into sustainment costs, and inform estimates of operating and support costs for such systems;
“(7) require the military departments to ensure that sustainment factors are fully considered at key life-cycle management decision points and that appropriate measures are taken to reduce operating and support costs by influencing system design early in development, developing sound sustainment strategies, and addressing key drivers of costs;
“(8) require the military departments to conduct an independent logistics assessment of each major weapon system prior to key acquisition decision points (including milestone decisions) to identify features that are likely to drive future operating and support costs, changes to system design that could reduce such costs, and effective strategies for managing such costs;
“(9) include—
“(A) reliability metrics for major weapon systems; and
“(B) requirements on the use of metrics under subparagraph (A) as triggers—
“(i) to conduct further investigation and analysis into drivers of those metrics; and
“(ii) to develop strategies for improving reliability, availability, and maintainability of such systems at an affordable cost; and
“(10) require the military departments to conduct periodic reviews of operating and support costs of major weapon systems after such systems achieve initial operational capability to identify and address factors resulting in growth in operating and support costs and adapt support strategies to reduce such costs.
“(c) Retention of Data on Operating and Support Costs.—
“(1) In general.—The Director of Cost Assessment and Program Evaluation shall be responsible for developing and maintaining a database on operating and support estimates, supporting documentation, and actual operating and support costs for major weapon systems.
“(2) Support.—The Secretary of Defense shall ensure that the Director, in carrying out such responsibility—
“(A) promptly receives the results of all cost estimates and cost analyses conducted by the military departments with regard to operating and support costs of major weapon systems;
“(B) has timely access to any records and data of the military departments (including classified and proprietary information) that the Director considers necessary to carry out such responsibility; and
“(C) with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment, may direct the military departments to collect and retain information necessary to support the database.
“(d) Major Weapon System Defined.—In this section, the term ‘major weapon system’ has the meaning given that term in section 2379(f) of title 10, United States Code.”
“2337a. Assessment, management, and control of operating and support costs for major weapon systems.”.
“(G) An assessment of the sufficiency of developmental test and evaluation plans, including the use of automated data analytics or modeling and simulation tools and methodologies.”
“(4) An assessment of the sufficiency of the developmental test and evaluation completed, including the use of automated data analytics or modeling and simulation tools and methodologies.”
“(D) The Secretary of Defense may adjust the amount specified in subparagraph (C) for a fiscal year if the Secretary determines that the amount is greater or less than reasonably needed for purposes of the Fund for such fiscal year. The Secretary may not adjust the amount for a fiscal year to an amount that is more than $600,000,000 or less than $400,000,000.”
“(B) Amounts in the Fund also may be used to pay salaries of personnel at the Office of the Secretary of Defense, military departments, and Defense Agencies to manage the Fund.”
; and
“(E) describing the amount from the Fund that may be used to pay salaries of personnel at the Office of the Secretary of Defense, military departments, and Defense Agencies to manage the Fund and the circumstances under which such amounts may be used for such purpose.”
“(b) Items Previously Acquired Using Commercial Item Acquisition Procedures.—
“(1) Determinations.—A contract for an item acquired using commercial item acquisition procedures under part 12 of the Federal Acquisition Regulation shall serve as a prior commercial item determination with respect to such item for purposes of this chapter unless the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 determines in writing that it is no longer appropriate to acquire the item using commercial item acquisition procedures.
“(2) Limitation.—
(A) Except as provided under subparagraph (B), funds appropriated or otherwise made available to the Department of Defense may not be used for the procurement under part 15 of the Federal Acquisition Regulation of an item that was previously acquired under a contract using commercial item acquisition procedures under part 12 of the Federal Acquisition Regulation.
“(B) The limitation under subparagraph (A) does not apply to the procurement of an item that was previously acquired using commercial item acquisition procedures under part 12 of the Federal Acquisition Regulation following—
“(i) a written determination by the head of contracting activity pursuant to section 2306a(b)(4)(B) of this title that the use of such procedures was improper; or
“(ii) a written determination by the senior procurement executive of the military department or the Department of Defense as designated for purposes of section 1702(c) of title 41 that it is no longer appropriate to acquire the item using such procedures.”
Ҥ 2329. Procurement of services: data analysis and requirements validation
“(a) In General.—The Secretary of Defense shall ensure that—
“(1) appropriate and sufficiently detailed data are collected and analyzed to support the validation of requirements for services contracts and inform the planning, programming, budgeting, and execution process of the Department of Defense;
“(2) requirements for services contracts are evaluated appropriately and in a timely manner to inform decisions regarding the procurement of services; and
“(3) decisions regarding the procurement of services consider available resources and total force management policies and procedures.
“(b) Specification of Amounts Requested in Budget.—Effective October 1, 2022, the Secretary of Defense shall annually submit to Congress information on services contracts that clearly and separately identifies the amount requested for each category of services to be procured for each Defense Agency, Department of Defense Field Activity, command, or military installation. Such information shall—
“(1) be submitted at or about the time of the budget submission by the President under section 1105(a) of title 31;
“(2) cover the fiscal year covered by such budget submission by the President;
“(3) be consistent with total amounts of estimated expenditures and proposed appropriations necessary to support the programs, projects, and activities of the Department of Defense included in such budget submission by the President for that fiscal year; and
“(4) be organized using a common enterprise data structure developed under section 2222 of this title.
“(c) Data Analysis.—
(1) Each Secretary of a military department shall regularly analyze past spending patterns and anticipated future requirements with respect to the procurement of services within such military department.
“(2)
(A) The Secretary of Defense shall regularly analyze past spending patterns and anticipated future requirements with respect to the procurement of services—
“(i) within each Defense Agency and Department of Defense Field Activity; and
“(ii) across military departments, Defense Agencies, and Department of Defense Field Activities.
“(B) The Secretaries of the military departments shall make data on services contracts available to the Secretary of Defense for purposes of conducting the analysis required under subparagraph (A).
“(3) The analyses conducted under this subsection shall—
“(A) identify contracts for similar services that are procured for three or more consecutive years at each Defense Agency, Department of Defense Field Activity, command, or military installation;
“(B) evaluate patterns in the procurement of services, to the extent practicable, at each Defense Agency, Department of Defense Field Activity, command, or military installation and by category of services procured;
“(C) be used to validate requirements for services contracts entered into after the date of the enactment of this subsection; and
“(D) be used to inform decisions on the award of and funding for such services contracts.
“(d) Requirements Evaluation.—Each Services Requirements Review Board shall evaluate each requirement for a services contract, taking into consideration total force management policies and procedures, available resources, the analyses conducted under subsection (c), and contracting efficacy and efficiency. An evaluation of a services contract for compliance with contracting policies and procedures may not be considered to be an evaluation of a requirement for such services contract.
“(e) Timely Planning to Avoid Bridge Contracts.—
(1) Effective October 1, 2018, the Secretary of Defense shall ensure that a requirements owner shall, to the extent practicable, plan appropriately before the date of need of a service at a Defense Agency, Department of Defense Field Activity, command, or military installation to avoid the use of a bridge contract to provide for continuation of a service to be performed through a services contract. Such planning shall include allowing time for a requirement to be validated, a services contract to be entered into, and funding for the services contract to be secured.
“(2)
(A) Upon the first use, due to inadequate planning (as determined by the Secretary of Defense), of a bridge contract to provide for continuation of a service to be performed through a services contract, the requirements owner, along with the contracting officer or a designee of the contracting officer for the contract, shall—
“(i) for a services contract in an amount less than $10,000,000, provide an update on the status of the bridge contract (including the rationale for using the bridge contract) to the commander or the senior civilian official of the Defense Agency concerned, Department of Defense Field Activity concerned, command concerned, or military installation concerned, as applicable; or
“(ii) for a services contract in an amount equal to or greater than $10,000,000, provide an update on the status of the bridge contract (including the rationale for using the bridge contract) to the service acquisition executive for the military department concerned, the head of the Defense Agency concerned, the combatant commander concerned, or the Under Secretary of Defense for Acquisition and Sustainment, as applicable.
“(B) Upon the second use, due to inadequate planning (as determined by the Secretary of Defense), of a bridge contract to provide for continuation of a service to be performed through a services contract in an amount less than $10,000,000, the commander or senior civilian official referred to in subparagraph (A)(i) shall provide notification of such second use to the Vice Chief of Staff of the armed force concerned and the service acquisition executive of the military department concerned, the head of the Defense Agency concerned, the combatant commander concerned, or the Under Secretary of Defense for Acquisition and Sustainment, as applicable.
“(f) Exception.—Except with respect to the analyses required under subsection (c), this section shall not apply to—
“(1) services contracts in support of contingency operations, humanitarian assistance, or disaster relief;
“(2) services contracts in support of a national security emergency declared with respect to a named operation; or
“(3) services contracts entered into pursuant to an international agreement.
“(g) Definitions.—In this section:
“(1) The term ‘bridge contact’ means—
“(A) an extension to an existing contract beyond the period of performance to avoid a lapse in service caused by a delay in awarding a subsequent contract; or
“(B) a new short-term contract awarded on a sole-source basis to avoid a lapse in service caused by a delay in awarding a subsequent contract.
“(2) The term ‘requirements owner’ means a member of the armed forces (other than the Coast Guard) or a civilian employee of the Department of Defense responsible for a requirement for a service to be performed through a services contract.
“(3) The term ‘Services Requirements Review Board’ has the meaning given in Department of Defense Instruction 5000.74, titled ‘Defense Acquisition of Services’ and dated January 5, 2016, or a successor instruction.”
“2329. Procurement of services: data analysis and requirements validation.”.
Ҥ 2302e. Contract authority for advanced development of initial or additional prototype units
“(a) Authority.—A contract initially awarded from the competitive selection of a proposal resulting from a general solicitation referred to in section 2302(2)(B) of this title may contain a contract line item or contract option for—
“(1) the provision of advanced component development, prototype, or initial production of technology developed under the contract; or
“(2) the delivery of initial or additional items if the item or a prototype thereof is created as the result of work performed under the contract.
“(b) Limitations.—
“(1) Minimal amount.—A contract line item or contract option described in subsection (a)(2) shall require the delivery of the minimal amount of initial or additional items to allow for the timely competitive solicitation and award of a follow-on development or production contract for those items.
“(2) Term.—A contract line item or contract option described in subsection (a) shall be for a term of not more than 2 years.
“(3) Dollar value of work.—The dollar value of the work to be performed pursuant to a contract line item or contract option described in subsection (a) may not exceed $100,000,000, in fiscal year 2017 constant dollars.
“(4) Applicability.—The authority provided in subsection (a) applies only to the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force.”
“2302e. Contract authority for advanced development of initial or additional prototype units.”.
“(5) by transactions (other than contracts, cooperative agreements, and grants) entered into pursuant to section 2371 or 2371b of this title; or
“(6) by purchases through procurement for experimental purposes pursuant to section 2373 of this title.”
“(g) Education and Training.—The Secretary of Defense shall—
“(1) ensure that management, technical, and contracting personnel of the Department of Defense involved in the award or administration of transactions under this section or other innovative forms of contracting are afforded opportunities for adequate education and training; and
“(2) establish minimum levels and requirements for continuous and experiential learning for such personnel, including levels and requirements for acquisition certification programs.”
“(9) Unmanned ground logistics and unmanned air logistics capabilities enhancement.”
Ҥ 2322a. Requirement for consideration of certain matters during acquisition of noncommercial computer software
“(a) Consideration Required.—As part of any negotiation for the acquisition of noncommercial computer software, the Secretary of Defense shall ensure that such negotiations consider, to the maximum extent practicable, acquisition, at the appropriate time in the life cycle of the noncommercial computer software, of all software and related materials necessary—
“(1) to reproduce, build, or recompile the software from original source code and required libraries;
“(2) to conduct required computer software testing; and
“(3) to deploy working computer software system binary files on relevant system hardware.
“(b) Delivery of Software and Related Materials.—Any noncommercial computer software or related materials required to be delivered as a result of considerations in subsection (a) shall, to the extent appropriate as determined by the Secretary—
“(1) include computer software delivered in a useable, digital format;
“(2) not rely on external or additional software code or data, unless such software code or data is included in the items to be delivered; and
“(3) in the case of negotiated terms that do not allow for the inclusion of dependent software code or data, sufficient documentation to support maintenance and understanding of interfaces and software revision history.”
“2322a. Requirement for consideration of certain matters during acquisition of noncommercial computer software.”.
“(g) Termination of Panel.—The advisory panel shall terminate 180 days after the date on which the final report of the panel is transmitted pursuant to subsection (e)(1).”
“(2) The Under Secretary of Defense (Comptroller) shall be appointed from among persons who have significant budget, financial management, or audit experience in complex organizations.”
“(d) In addition to any duties under subsection (c), the Under Secretary of Defense (Comptroller) shall, subject to the authority, direction, and control of the Secretary of Defense, do the following:
“(1) Provide guidance and instruction on annual performance plans and evaluations to the following:
“(A) The Assistant Secretaries of the military departments for financial management.
“(B) Any other official of an agency, organization, or element of the Department of Defense with responsibility for financial management.
“(2) Give directions to the military departments, Defense Agencies, and other organizations and elements of the Department of Defense regarding their financial statements and the audit and audit readiness of such financial statements.”
“(1) One of the Deputy Under Secretaries is the Deputy Under Secretary of Defense for Research and Engineering.
“(2) One of the Deputy Under Secretaries is the Deputy Under Secretary of Defense for Acquisition and Sustainment.”
“(6) The Deputy Under Secretaries of Defense.”
“§ 137a. Deputy Under Secretaries of Defense”
“137a. Deputy Under Secretaries of Defense.”.
“(2)
(A) The Secretary of Defense, acting through the Under Secretary of Defense (Comptroller), shall require the Secretaries of the military departments and the heads of the Defense Agencies with responsibilities associated with any activity specified in paragraph (1) to transmit the proposed budget for such activities for a fiscal year and for the period covered by the future-years defense program submitted to Congress under section 221 of this title for that fiscal year to the Chief Information Officer for review under subparagraph (B) before submitting the proposed budget to the Under Secretary of Defense (Comptroller).
“(B) The Chief Information Officer shall review each proposed budget transmitted under subparagraph (A) and, not later than January 31 of the year preceding the fiscal year for which the budget is proposed, shall submit to the Secretary of Defense a report containing the comments of the Chief Information Officer with respect to all such proposed budgets, together with the certification of the Chief Information Officer regarding whether each proposed budget is adequate.
“(C) Not later than March 31 of each year, the Secretary of Defense shall submit to Congress a report specifying each proposed budget contained in the most-recent report submitted under subparagraph (B) that the Chief Information Officer did not certify to be adequate. The report of the Secretary shall include the following matters:
“(i) A discussion of the actions that the Secretary proposes to take, together with any recommended legislation that the Secretary considers appropriate, to address the inadequacy of the proposed budgets specified in the report.
“(ii) Any additional comments that the Secretary considers appropriate regarding the inadequacy of the proposed budgets.
“(3)
(A) The Secretary of a military department or head of a Defense Agency may not develop or procure information technology (as defined in section 11101 of title 40) that does not fully comply with such standards as the Chief Information Officer may establish.
“(B) The Chief Information Officer shall implement and enforce a process for—
“(i) developing, adopting, or publishing standards for information technology, networking, or cyber capabilities to which any military department or defense agency would need to adhere in order to run such capabilities on defense networks; and
“(ii) certifying on a regular and ongoing basis that any capabilities being developed or procured meets such standards as have been published by the Department at the time of certification.
“(C) The Chief Information Officer shall identify gaps in standards and mitigation plans for operating in the absence of acceptable standards.”
“(c) The Chief Information Officer of the Department of Defense shall report directly to the Secretary of Defense in the performance of duties under this section.
“(d) The Chief Information Officer of the Department of Defense takes precedence in the Department of Defense with the officials serving in positions specified in section 131(b)(4) of this title. The officials serving in positions specified in such section and the Chief Information Officer take precedence among themselves in the order prescribed by the Secretary of Defense.”
Ҥ 132a. Chief Management Officer
“(a) Appointment and Qualifications.—
(1) There is a Chief Management Officer of the Department of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate.
“(2) The Chief Management Officer shall be appointed from among persons who have an extensive management or business background and experience with managing large or complex organizations. A person may not be appointed as Chief Management Officer within seven years after relief from active duty as a commissioned officer of a regular component of an armed force.
“(b) Responsibilities.—Subject to the authority, direction, and control of the Secretary of Defense and the Deputy Secretary of Defense, the Chief Management Officer shall perform such duties and exercise such powers as the Secretary or the Deputy Secretary may prescribe, including the following:
“(1) Serving as the chief management officer of the Department of Defense with the mission of managing enterprise business operations and shared services of the Department of Defense.
“(2) Serving as the principal advisor to the Secretary and the Deputy Secretary on establishing policies for, and directing, all enterprise business operations of the Department, including planning and processes, business transformation, performance measurement and management, and business information technology management and improvement activities and programs, including the allocation of resources for enterprise business operations and unifying business management efforts across the Department.
“(3) Exercising authority, direction, and control over the Defense Agencies and Department of Defense Field Activities providing shared business services for the Department that are designated by the Secretary or the Deputy Secretary for purposes of this paragraph.
“(4) As of January 1, 2019—
“(A) serving as the Chief Information Officer of the Department for purposes of section 2222 of this title;
“(B) administering the responsibilities and duties specified in sections 11315 and 11319 of title 40, section 3506(a)(2) of title 44, and section 2223(a) of this title for business systems and management; and
“(C) Exercising any responsibilities, duties, and powers relating to business systems or management that are exercisable by a chief information officer for the Department, other than those responsibilities, duties, and powers of a chief information officer that are vested in the Chief Information Officer of the Department of Defense by section 142 of this title.
“(5) Serving as the official with principal responsibility in the Department for providing for the availability of common, usable, Defense-wide data sets with applications such as improving acquisition outcomes and personnel management.
“(6) Authority to direct the Secretaries of the military departments and the heads of all other elements of the Department with regard to matters for which the Chief Management Officer has responsibility under this section.
“(c) Precedence.—The Chief Management Officer takes precedence in the Department of Defense after the Secretary of Defense and the Deputy Secretary of Defense.
“(d) Enterprise Business Operation Defined.—In this section, the term ‘enterprise business operations’ means those activities that constitute the cross-cutting business operations used by multiple components of the Department of Defense, but not those activities that are directly tied to a single military department or Department of Defense component. The term includes business-support functions designated by the Secretary of Defense or the Deputy Secretary of Defense for purposes of this section, such as aspects of financial management, healthcare, acquisition and procurement, supply chain and logistics, certain information technology, real property, and human resources operations.”
“132a. Chief Management Officer.”.
“(2) The Chief Management Officer of the Department of Defense.”
“(5) Common enterprise data.—The defense business enterprise shall include enterprise data that may be automatically extracted from the relevant systems to facilitate Department of Defense-wide analysis and management of its business operations.
“(6) Roles and responsibilities.—
“(A) The Chief Management Officer of the Department of Defense shall have primary decision-making authority with respect to the development of common enterprise data. In consultation with the Defense Business Council, the Chief Management Officer shall—
“(i) develop an associated data governance process; and
“(ii) oversee the preparation, extraction, and provision of data across the defense business enterprise.
“(B) The Chief Management Officer and the Under Secretary of Defense (Comptroller) shall—
“(i) in consultation with the Defense Business Council, document and maintain any common enterprise data for their respective areas of authority;
“(ii) participate in any related data governance process;
“(iii) extract data from defense business systems as needed to support priority activities and analyses;
“(iv) when appropriate, ensure the source data is the same as that used to produce the financial statements subject to annual audit;
“(v) in consultation with the Defense Business Council, provide access, except as otherwise provided by law or regulation, to such data to the Office of the Secretary of Defense, the Joint Staff, the military departments, the combatant commands, the Defense Agencies, the Department of Defense Field Activities, and all other offices, agencies, activities, and commands of the Department of Defense; and
“(vi) ensure consistency of the common enterprise data maintained by their respective organizations.
“(C) The Director of Cost Assessment and Program Evaluation shall have access to data for the purpose of executing missions as designated by the Secretary of Defense.
“(D) The Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Secretaries of the military departments, commanders of combatant commands, the heads of the Defense Agencies, the heads of the Department of Defense Field Activities, and the heads of all other offices, agencies, activities, and commands of the Department of Defense shall provide access to the relevant system of such department, combatant command, Defense Agency, Defense Field Activity, or office, agency, activity, and command organization, as applicable, and data extracted from such system, for purposes of automatically populating data sets coded with common enterprise data.”
“(10) Common enterprise data.—The term ‘common enterprise data’ means business operations or management-related data, generally from defense business systems, in a usable format that is automatically accessible by authorized personnel and organizations.
“(11) Data governance process.—The term ‘data governance process’ means a system to manage the timely Department of Defense-wide sharing of data described under subsection (a)(6)(A).”
“(9) Performing the duties assigned to the Director in section 2222 of this title.”
“(C) The principal responsibility of the Assistant Secretary shall be”
; and
“(B) The Assistant Secretary shall be appointed from among persons who have significant budget, financial management, or audit experience in complex organizations.”
“(C) The principal responsibility of the Assistant Secretary shall be”
; and
“(B) The Assistant Secretary shall be appointed from among persons who have significant budget, financial management, or audit experience in complex organizations.”
“(C) The principal responsibility of the Assistant Secretary shall be”
; and
“(B) The Assistant Secretary shall be appointed from among persons who have significant budget, financial management, or audit experience in complex organizations.”
“(5) Manner of carrying out reductions.—
“(A) In general.—The Secretary of Defense shall implement the headquarters reduction plan referred to in paragraph (1), as modified pursuant to that paragraph, so that reductions in major Department of Defense headquarters activities pursuant to the plan are carried out only after consideration of—
“(i) the current manpower levels of major Department of Defense headquarters activities;
“(ii) the historic manpower levels of major Department of Defense headquarters activities;
“(iii) the mission requirements of major Department of Defense headquarters activities; and
“(iv) the anticipated staffing needs of major Department of Defense headquarters activities necessary to meet national defense objectives.
“(B) Conforming modification of plan for achievement of cost savings.—The Secretary of Defense shall modify the plan for achievement of cost savings required by subsection (a) to take into account the requirement specified in subparagraph (A).”
“(6) Certifications on cost savings achieved.—Not later than 120 days after the date of the enactment of this paragraph, and not later than 60 days after the end of each of fiscal years 2018 through 2020, the Director of Cost Assessment and Program Evaluation shall certify to the Secretary of Defense, and to the congressional defense committees, the following:
“(A) The validity of the cost savings achieved for each major Department of Defense headquarters activity during the previous fiscal year, including the cost of personnel detailed by another Department entity to the headquarters activity.
“(B) Whether the cost savings achieved for each major Department of Defense headquarters activity during that fiscal year met the savings objective for the headquarters activity for that fiscal year, as established pursuant to paragraph (1).”
“(b) Qualifications.—Any individual designated as a corrosion control and prevention executive of a military department pursuant to subsection (a) shall—
“(1) have a working knowledge of corrosion prevention and control;
“(2) have strong program management and communication skills; and
“(3) understand the acquisition, research, development, test, and evaluation, and sustainment policies and procedures of the military department, including for the sustainment of infrastructure.”
“(D) A civilian operating force structure sized for operational effectiveness that is manned, equipped, and trained to support deployment time and rotation ratios that sustain the readiness and needed retention levels of the regular and reserve components of the Armed Forces.
“(E) The hiring authorities and other actions that the Secretary of Defense or the Secretaries of the military departments will take to eliminate any gaps between desired programmed civilian workforce levels and the current size of the civilian workforce, set forth by mission and functional area.”
“(h) Legislative Advisory Committee.—The Commission shall operate as a legislative advisory committee and shall not be subject to the provisions of the Federal Advisory Committee Act (Public Law 92–463; 5 U.S.C. App.) or section 552b of title 5, United States Code (commonly known as the Government in the Sunshine Act).”
“CHAPTER 9A— AUDIT
“Sec.
“251. Audit of Department of Defense financial statements.
“252. Financial Improvement and Audit Remediation Plan.
“253. Audit: consolidated corrective action plan; centralized reporting system.
“254. Audits: audit of financial statements of Department of Defense components by independent external auditors.
“254a. Audits: use of commercial data integration and analysis products in preparing audits.
“254b. Audits: selection of service providers for audit services.”.
“9A. Audit 251”.
Ҥ 251. Audit of Department of Defense financial statements
“(a) Annual Audit Required.—The Secretary of Defense shall ensure that a full audit is performed on the financial statements of the Department of Defense for each fiscal year as required by section 3521(e) of title 31.
“(b) Annual Report on Audit.—The Secretary shall submit to Congress the results of the audit performed in accordance with subsection (a) for a fiscal year by not later than March 31 of the following fiscal year.”
“§ 252. Financial Improvement and Audit Remediation Plan”
; and
“(A) describe specific actions to be taken, including interim milestones with a detailed description of the subordinate activities required, and estimate the costs associated with—”
“(iii) achieving an unqualified audit opinion for each major element of the statement of budgetary resources of the Department of Defense; and
“(iv) addressing the existence and completeness of each major category of Department of Defense assets; and”
“(b) Report and Briefing Requirements.—
“(1) Annual report.—
“(A) In general.—Not later than June 30, 2019, and annually thereafter, the Under Secretary of Defense (Comptroller) shall submit to the congressional defense committees a report on the status of the implementation by the Department of Defense of the Financial Improvement and Audit Remediation Plan under subsection (a).
“(B) Elements.—Each report under subparagraph (A) shall include the following:
“(i) An analysis of the consolidated corrective action plan management summary prepared pursuant to section 253a of this title.
“(ii) Current Department of Defense-wide information on the status of corrective actions plans related to critical capabilities and material weaknesses, including the standard data elements recommended in the implementation guide for Office of Management and Budget Circular A–123, for the armed forces, military departments, and Defense Agencies.
“(iii) A current description of the work undertaken and planned to be undertaken by the Department of Defense, and the military departments, Defense Agencies, and other organizations and elements of the Department, to test and verify transaction data pertinent to obtaining an unqualified audit of their financial statements, including from feeder systems.
“(iv) A current projected timeline of the Department in connection with the audit of the full financial statements of the Department, to be submitted to Congress annually not later than six months after the submittal to Congress of the budget of the President for a fiscal year under section 1105 of title 31, including the following:
“(I) The date on which the Department projects the beginning of an audit of the full financial statements of the Department, and the military departments, Defense Agencies, and other organizations and elements of the Department, for a fiscal year.
“(II) The date on which the Department projects the completions of audits of the full financial statements of the Department, and the military departments, Defense Agencies, and other organizations and elements of the Department, for a fiscal year.
“(III) The dates on which the Department estimates it will obtain an unqualified audit opinion on the full financial statements of the Department, the military departments, the Defense Agencies, and other organizations and elements of the Department for a fiscal year.
“(v) A current estimate of the anticipated annual costs of maintaining an unqualified audit opinion on the full financial statements of the Department, the military departments, the Defense Agencies, and other organizations and elements of the Department for a fiscal year after an unqualified audit opinion on such full financial statements for a fiscal year is first obtained.
“(vi) A certification of the results of the audit of the financial statements of the Department performed for the preceding fiscal year, and a statement summarizing, based on such results, the current condition of the financial statements of the Department.
“(2) Semiannual briefings.—Not later than January 31 and June 30 each year, the Under Secretary of Defense (Comptroller) and the comptrollers of the military departments shall provide a briefing to the congressional defense committees on the status of the corrective action plan.
“(3) Critical capabilities defined.—In this subsection, the term ‘critical capabilities’ means the critical capabilities described in the Department of Defense report titled ‘Financial Improvement and Audit Readiness (FIAR) Plan Status Report’ and dated May 2016.”
“§ 253. Audit: consolidated corrective action plan; centralized reporting system”
; and
“(1) on a bimonthly basis, prepare a consolidated corrective action plan management summary on the status of key corrective actions plans related to critical capabilities for the armed forces and for the components of the Department of Defense that support the armed forces; and
“(2) develop and maintain a centralized monitoring and reporting process that captures and maintains up-to-date information, including the standard data elements recommended in the implementation guide for Office of Management and Budget Circular A–123, for key corrective action plans and findings and recommendations Department-wide that pertain to critical capabilities.”
“§ 254. Audits: audit of financial statements of Department of Defense components by independent external auditors”
; and
“(C) the head of each component audited; and”
; and
“§ 254a. Audits: use of commercial data integration and analysis products in preparing audits”
; and
“§ 254b. Audits: selection of service providers for audit services”
; and
“(b) Venue.—A person violating section 70503 or 70508—
“(1) shall be tried in the district in which such offense was committed; or
“(2) if the offense was begun or committed upon the high seas, or elsewhere outside the jurisdiction of any particular State or district, may be tried in any district.”
“(4) Any other funds made available to the Department of Defense to carry out any of the purposes described in subsection (c).”
“(3)
(A) Notwithstanding the limitations under subsection (c)(1)(E) and paragraph (1), the Secretary of Defense may, as part of a program to recapitalize the Ready Reserve Force component of the national defense reserve fleet and the Military Sealift Command surge fleet, purchase any used vessel, regardless of where such vessel was constructed if such vessel—
“(i) participated in the Maritime Security Fleet; and
“(ii) is available for purchase at a reasonable cost, as determined by the Secretary.
“(B) If the Secretary determines that no used vessel meeting the requirements under clauses (i) and (ii) of subparagraph (A) is available, the Secretary may purchase a used vessel comparable to a vessel described in clause (i) of subparagraph (A), regardless of the source of the vessel or where the vessel was constructed, if such vessel is available for purchase at a reasonable cost, as determined by the Secretary.
“(C) The Secretary may not use the authority under this paragraph to purchase more than two foreign constructed ships.
“(D) The Secretary shall ensure that the initial conversion, or modernization of any vessel purchased under the authority of subparagraph (A) occurs in a shipyard located in the United States.
“(E) Not later than 30 days after the purchase of any vessel using the authority under this paragraph, the Secretary, in consultation with the Maritime Administrator, shall submit to the congressional defense committees a report that contains each of the following with respect to such purchase:
“(i) The date of the purchase.
“(ii) The price at which the vessel was purchased.
“(iii) The anticipated cost of modernization of the vessel.
“(iv) The proposed military utility of the vessel.
“(v) The proposed date on which the vessel will be available for use by the Ready Reserve.
“(vi) The contracting office responsible for the completion of the purchase.
“(vii) Certification that—
“(I) there was no vessel available for purchase at a reasonable price that was constructed in the United States; and
“(II) the used vessel purchased supports the recapitalization of the Ready Reserve Force component of the National Defense Reserve Fleet or the Military Sealift Command surge fleet.”
“(5) The term ‘Maritime Security Fleet’ means the fleet established under section 53102(a) of title 46.”
“(A) Combatant and support vessels.
“(B) Auxiliary vessels.”
; and
“(B) A detailed program for the construction of auxiliary vessels for the Navy over the next 30 fiscal years.”
; and
“(5) The term ‘auxiliary vessel’ means any ship designed to operate in the open ocean in a variety of sea states to provide general support to either combatant forces or shore based establishments.”
“(3) The term ‘critical component’ means any of the following:
“(A) A common missile compartment component.
“(B) A spherical air flask.
“(C) An air induction diesel exhaust valve.
“(D) An auxiliary seawater valve.
“(E) A hovering valve.
“(F) A missile compensation valve.
“(G) A main seawater valve.
“(H) A launch tube.
“(I) A trash disposal unit.
“(J) A logistics escape trunk.
“(K) A torpedo tube.
“(L) A weapons shipping cradle weldment.
“(M) A control surface.
“(N) A launcher component.
“(O) A propulsor.”
“(2)
(A) Notwithstanding paragraph (1) and subject to subparagraph (B), in the case of a naval vessel classified as a Littoral Combat Ship and operating on deployment, corrective and preventive maintenance or repair (whether intermediate or depot level) and facilities maintenance may be performed on the vessel—
“(i) in a foreign shipyard;
“(ii) at a facility outside of a foreign shipyard; or
“(iii) at any other facility convenient to the vessel.
“(B)
(i) Corrective and preventive maintenance or repair may be performed on a vessel as described in subparagraph (A) if the work is performed by United States Government personnel or United States contractor personnel.
“(ii) Facilities maintenance may be performed by a foreign contractor on a vessel as described in subparagraph (A) only as approved by the Secretary of the Navy.
“(C) In this paragraph:
“(i) The term ‘corrective and preventive maintenance or repair’ means—
“(I) maintenance or repair actions performed as a result of a failure in order to return or restore equipment to acceptable performance levels; and
“(II) scheduled maintenance or repair actions to prevent or discover functional failures.
“(ii) The term ‘facilities maintenance’ means preservation or corrosion control efforts and cleaning services.
“(D) This paragraph shall expire on September 30, 2020.”
“(g) Oversight by ASD for SOLIC.—The Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict shall have primary responsibility within the Office of the Secretary of Defense for oversight of policies and programs for support authorized by this section.”
“(e) Termination.—The requirement to submit a budget justification display under this section shall terminate on December 31, 2020.”
“(4)
(A) Notwithstanding paragraph (1), funds may not be obligated or expended in an amount in excess of $100,000 under the authority of subsection (a) or (b) for intelligence or counter-intelligence activities until the Secretary of Defense has notified the congressional defense committees and the congressional intelligence committees of the intent to obligate or expend the funds and 15 days have elapsed since the date of the notification.
“(B) The Secretary of Defense may waive subparagraph (A) if the Secretary determines that such a waiver is necessary due to extraordinary circumstances that affect the national security of the United States. If the Secretary issues a waiver under this subparagraph, the Secretary shall submit to the congressional defense and congressional intelligence committees, by not later than 48 hours after issuing the waiver, written notice of and justification for the waiver.”
“(A) to the congressional defense committees a report on all expenditures during the preceding fiscal year under subsections (a) and (b); and
“(B) to the congressional intelligence committees a report on expenditures relating to intelligence and counter-intelligence during the preceding fiscal year under subsections (a) and (b).
“(2) Each report required to be submitted under paragraph (1) shall include a detailed explanation, by category of activity and approving authority (the Secretary of Defense, the Inspector General of the Department of Defense, and the Secretary of a military department), of the expenditures during the preceding fiscal year.”
“(e) Definition of Congressional Intelligence Committees.—In this section, the term ‘congressional intelligence committees’ means the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.”
“(d)
(1) The Secretary of Defense shall make available to Congress, the Congressional Budget Office, the Comptroller General of the United States, and the Congressional Research Service each future-years defense program under this section as follows:
“(A) By making such program available electronically in the form of an unclassified electronic database.
“(B) By delivering printed copies of such program to the congressional defense committees.
“(2) In the event inclusion of classified material in a future-years defense program would otherwise render the totality of the program classified for purposes of this subsection—
“(A) such program shall be made available to Congress in unclassified form, with such material attached as a classified annex; and
“(B) such annex shall be submitted to the congressional defense committees, the Congressional Budget Office, the Comptroller General of the United States, and the Congressional Research Service.”
“(e) Each future-years defense program under this subsection shall be accompanied by a certification by the Under Secretary of Defense (Comptroller), in the case of the Department of Defense, and the comptroller of each military department, in the case of such military department, that any information entered into the Standard Data Collection System of the Department of Defense, the Comptroller Information System, or any other data system, as applicable, for purposes of assembling such future-years defense program was accurate.”
Ҥ 2652. Prohibition on charge of certain tariffs on aircraft traveling through channel routes
“The United States Transportation Command may not charge a tariff by reason of the use by a military service of an aircraft of that military service on a route designated by the United States Transportation Command as a channel route.”
“2652. Prohibition on charge of certain tariffs on aircraft traveling through channel routes.”.
“(b) Numerical Limitations for Nonimmigrant Workers.—
“(1) In general.—
“(A) Nonimmigrant workers generally.—An alien, if otherwise qualified, may seek admission to Guam or to the Commonwealth during the transition program as a nonimmigrant worker under section 101(a)(15)(H) of the Immigration and Nationality Act (8 USC 1101(a)(15)(H)) without counting against the numerical limitations set forth in section 214(g) of such Act (8 USC 1184(g)).
“(B) H-2B workers.—In the case of such an alien who seeks admission under section 101(a)(15)(H)(ii)(b) of such Act, such alien, if otherwise qualified, may, before October 1, 2023, be admitted under such section for a period of up to 3 years to perform service or labor on Guam or the Commonwealth pursuant to any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contact or subcontract for construction, repairs, renovations, or facility services that is directly connected to, or associated with, the military realignment occurring on Guam and the Commonwealth, notwithstanding the requirement of such section that the service or labor be temporary.
“(2) Limitations.—
“(A) Numerical limitation.—For any fiscal year, not more 4,000 aliens may be admitted to Guam and the Commonwealth pursuant to paragraph (1)(B).
“(B) Location.—Paragraph (1)(B) does not apply with respect to the performance of services or labor at a location other than Guam or the Commonwealth.”
“(a) Strategic Sourcing Plan of Action Defined.—In this section, the term ‘Strategic Sourcing Plan of Action’ means a Strategic Sourcing Plan of Action for the Department of Defense (as identified in the Department of Defense Interim Guidance dated February 29, 2000, or any successor Department of Defense guidance or directive) in effect for a fiscal year.”
“(b) Purpose of Guidance.—The guidance prescribed pursuant to subsection (a)”
“(d) Program Assessment.—If the Secretary”
; and
“(64) Section 10504(b).”
“(65) Section 235.”
“(66) Section 115a.”
“(67) Section 2193b(g).”
“(18) Section 1209(d) (128 Stat. 3542).”
“(35) Section 1022(c) of the National Defense Authorization Act for 2004 (Public Law 108–136; 10 U.S.C. 371 note).”
“2431b. Risk management and mitigation in major defense acquisition programs and major systems.”.
“(5)
(A) For purposes of sections 203, 205, 207, 208, and 209 of title 18, the term ‘special Government employee’ shall include a judge of the Court appointed under paragraph (3).
“(B) A person appointed as a judge of the Court under paragraph (3) shall be considered to be an officer or employee of the United States with respect to such person’s status as a judge, but only during periods in which such person is performing the duties of such a judge. Any provision of law that prohibits or limits the political or business activities of an employee of the United States shall only apply to such a judge during such periods.”
“(5)
(A) Except as provided in subparagraph (B), the Special Counsel, in carrying out this subchapter, is authorized to—
“(i) have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry conducted under—
“(I) section 1213, 1214, 1215, or 1216 of this title; or
“(II) section 4324(a) of title 38;
“(ii) request from any agency the information or assistance that may be necessary for the Special Counsel to carry out the duties and responsibilities of the Special Counsel under this subchapter; and
“(iii) require, during an investigation, review, or inquiry of an agency, the agency to provide to the Special Counsel any record or other information that relates to an investigation, review, or inquiry conducted under—
“(I) section 1213, 1214, 1215, or 1216 of this title; or
“(II) section 4324(a) of title 38.
“(B)
(i) The authorization of the Special Counsel under subparagraph (A) shall not apply with respect to any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003), unless the Special Counsel is investigating, or otherwise carrying out activities relating to the enforcement of, an action under subchapter III of chapter 73.
“(ii) An Inspector General may withhold from the Special Counsel material described in subparagraph (A) if the Inspector General determines that the material contains information derived from, or pertaining to, intelligence activities.
“(iii) The Attorney General or an Inspector General may withhold from the Special Counsel material described in subparagraph (A) if—
“(I)
(aa) disclosing the material could reasonably be expected to interfere with a criminal investigation or prosecution that is ongoing as of the date on which the Special Counsel submits a request for the material; or
“(bb) the material—
“(AA) may not be disclosed pursuant to a court order; or
“(BB) has been filed under seal under section 3730 of title 31; and
“(II) the Attorney General or the Inspector General, as applicable, submits to the Special Counsel a written report that describes—
“(aa) the material being withheld; and
“(bb) the reason that the material is being withheld.
“(C)
(i) A claim of common law privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described in subparagraph (A)(i) with respect to the agency.
“(ii) The submission of material described in subparagraph (A)(i) by an agency to the Special Counsel may not be deemed to waive any assertion of privilege by the agency against a non-Federal entity or against an individual in any other proceeding.
“(iii) With respect to any record or other information made available to the Special Counsel by an agency under subparagraph (A), the Special Counsel may only disclose the record or information for a purpose that is in furtherance of any authority provided to the Special Counsel under this subchapter.
“(6) The Special Counsel shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and each committee of Congress with jurisdiction over the applicable agency a report regarding any case of contumacy or failure to comply with a request submitted by the Special Counsel under paragraph (5)(A).”
“(c)
(1) In this subsection—
“(A) the term ‘new employee’ means an individual—
“(i) appointed to a position as an employee on or after the date of enactment of this subsection; and
“(ii) who has not previously served as an employee; and
“(B) the term ‘whistleblower protections’ means the protections against and remedies for a prohibited personnel practice described in paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of subsection (b).
“(2) The head of each agency shall be responsible for—
“(A) preventing prohibited personnel practices;
“(B) complying with and enforcing applicable civil service laws, rules, and regulations and other aspects of personnel management; and
“(C) ensuring, in consultation with the Special Counsel and the Inspector General of the agency, that employees of the agency are informed of the rights and remedies available to the employees under this chapter and chapter 12, including—
“(i) information with respect to whistleblower protections available to new employees during a probationary period;
“(ii) the role of the Office of Special Counsel and the Merit Systems Protection Board with respect to whistleblower protections; and
“(iii) the means by which, with respect to information that is otherwise required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs, an employee may make a lawful disclosure of the information to—
“(I) the Special Counsel;
“(II) the Inspector General of an agency;
“(III) Congress; or
“(IV) another employee of the agency who is designated to receive such a disclosure.
“(3) The head of each agency shall ensure that the information described in paragraph (2) is provided to each new employee of the agency not later than 180 days after the date on which the new employee is appointed.
“(4) The head of each agency shall make available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency and on any online portal that is made available only to employees of the agency, if such portal exists.
“(5) Any employee to whom the head of an agency delegates authority for any aspect of personnel management shall, within the limits of the scope of the delegation, be responsible for the activities described in paragraph (2).”
“(F) the disclosure was made before the date on which the individual was appointed or applied for appointment to a position; or”
; and
“(2) If a disclosure is made during the normal course of duties of an employee, the principal job function of whom is to regularly investigate and disclose wrongdoing (referred to in this paragraph as the ‘disclosing employee’), the disclosure shall not be excluded from subsection (b)(8) if the disclosing employee demonstrates that an employee who has the authority to take, direct other individuals to take, recommend, or approve any personnel action with respect to the disclosing employee took, failed to take, or threatened to take or fail to take a personnel action with respect to the disclosing employee in reprisal for the disclosure made by the disclosing employee.”
“(2) Upon receipt of any report that the head of an agency is required to submit under subsection (c), the Special Counsel shall review the report and determine whether—
“(A) the findings of the head of the agency appear reasonable; and
“(B) if the Special Counsel requires the head of the agency to submit a supplemental report under paragraph (5), the reports submitted by the head of the agency collectively contain the information required under subsection (d).”
“(5) If, after conducting a review of a report under paragraph (2), the Special Counsel concludes that the Special Counsel requires additional information or documentation to determine whether the report submitted by the head of an agency is reasonable and sufficient, the Special Counsel may request that the head of the agency submit a supplemental report—
“(A) containing the additional information or documentation identified by the Special Counsel; and
“(B) that the head of the agency shall submit to the Special Counsel within a period of time specified by the Special Counsel.”
“(E) If the Board grants a stay under subparagraph (A), the head of the agency employing the employee who is the subject of the action shall give priority to a request for a transfer submitted by the employee.”
“(k) If the Board grants a stay under subsection (c) and the employee who is the subject of the action is in probationary status, the head of the agency employing the employee shall give priority to a request for a transfer submitted by the employee.”
“(i) The Special Counsel may petition the Board to order corrective action, including fees, costs, or damages reasonably incurred by an employee due to an investigation of the employee by an agency, if the investigation by an agency was commenced, expanded, or extended in retaliation for a disclosure or protected activity described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9), without regard to whether a personnel action, as defined in section 2302(a)(2)(A), is taken.”
“(b)
(1) The head of each agency, in consultation with the Director of the Office of Personnel Management and the Special Counsel, shall develop criteria that—
“(A) the head of the agency shall use as a critical element for establishing the job requirements of a supervisory employee; and
“(B) promote the protection of whistleblowers.
“(2) The criteria required under paragraph (1) shall include—
“(A) principles for the protection of whistleblowers, such as the degree to which supervisory employees—
“(i) respond constructively when employees of the agency make disclosures described in subparagraph (A) or (B) of section 2302(b)(8);
“(ii) take responsible actions to resolve the disclosures described in clause (i); and
“(iii) foster an environment in which employees of the agency feel comfortable making disclosures described in clause (i) to supervisory employees or other appropriate authorities; and
“(B) for each supervisory employee—
“(i) whether the agency entered into an agreement with an individual who alleged that the supervisory employee committed a prohibited personnel practice; and
“(ii) if the agency entered into an agreement described in clause (i), the number of instances in which the agency entered into such an agreement with respect to the supervisory employee.
“(3) In this subsection—
“(A) the term ‘agency’ means any entity the employees of which are covered under paragraphs (8) and (9) of section 2302(b), without regard to whether any other provision of this section is applicable to the entity;
“(B) the term ‘prohibited personnel practice’ has the meaning given the term in section 2302(a)(1);
“(C) the term ‘supervisory employee’ means an employee who would be a supervisor, as defined in section 7103(a), if the agency employing the employee was an agency for purposes of chapter 71; and
“(D) the term ‘whistleblower’ means an employee who makes a disclosure described in section 2302(b)(8).”
“(6) protecting whistleblowers, as described in section 4302(b)(2).”
Ҥ 7515. Discipline of supervisors based on retaliation against whistleblowers
“(a) Definitions.—In this section—
“(1) the term ‘agency’—
“(A) has the meaning given the term in section 2302(a)(2)(C), without regard to whether any other provision of this chapter is applicable to the entity; and
“(B) does not include any entity that is an element of the intelligence community, as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003);
“(2) the term ‘prohibited personnel action’ means taking or failing to take an action in violation of paragraph (8), (9), or (14) of section 2302(b) against an employee of an agency; and
“(3) the term ‘supervisor’ means an employee who would be a supervisor, as defined in section 7103(a), if the entity employing the employee was an agency.
“(b) Proposed Disciplinary Actions.—
“(1) In general.—Subject to section 1214(f), if the head of the agency in which a supervisor is employed, an administrative law judge, the Merit Systems Protection Board, the Special Counsel, a judge of the United States, or the Inspector General of the agency in which a supervisor is employed has determined that the supervisor committed a prohibited personnel action, the head of the agency in which the supervisor is employed, consistent with the procedures required under paragraph (2)—
“(A) for the first prohibited personnel action committed by the supervisor—
“(i) shall propose suspending the supervisor for a period that is not less than 3 days; and
“(ii) may propose an additional action determined appropriate by the head of the agency, including a reduction in grade or pay; and
“(B) for the second prohibited personnel action committed by the supervisor, shall propose removing the supervisor.
“(2) Procedures.—
“(A) Notice.—A supervisor against whom an action is proposed to be taken under paragraph (1) is entitled to written notice that—
“(i) states the specific reasons for the proposed action; and
“(ii) informs the supervisor about the right of the supervisor to review the material that is relied on to support the reasons given in the notice for the proposed action.
“(B) Answer and evidence.—
“(i) In general.—A supervisor who receives notice under subparagraph (A) may, not later than 14 days after the date on which the supervisor receives the notice, submit an answer and furnish evidence in support of that answer.
“(ii) No evidence furnished; insufficient evidence furnished.—If, after the end of the 14-day period described in clause (i), a supervisor does not furnish any evidence as described in that clause, or if the head of the agency in which the supervisor is employed determines that the evidence furnished by the supervisor is insufficient, the head of the agency shall carry out the action proposed under subparagraph (A) or (B) of paragraph (1), as applicable.
“(C) Scope of procedures.—An action carried out under this section—
“(i) except as provided in clause (ii), shall be subject to the same requirements and procedures, including those with respect to an appeal, as an action under section 7503, 7513, or 7543; and
“(ii) shall not be subject to—
“(I) paragraphs (1) and (2) of section 7503(b);
“(II) paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7513; and
“(III) paragraphs (1) and (2) of subsection (b) and subsection (c) of section 7543.
“(3) Non-delegation.—If the head of an agency is responsible for determining whether a supervisor has committed a prohibited personnel action for purposes of paragraph (1), the head of the agency may not delegate that responsibility.”
“7515. Discipline of supervisors based on retaliation against whistleblowers.”.
“(6)
(A) Notwithstanding any other provision of this section, not later than 30 days after the date on which the Special Counsel receives an allegation of a prohibited personnel practice under paragraph (1), the Special Counsel may terminate an investigation of the allegation without further inquiry if the Special Counsel determines that—
“(i) the same allegation, based on the same set of facts and circumstances, had previously been—
“(I)
(aa) made by the individual; and
“(bb) investigated by the Special Counsel; or
“(II) filed by the individual with the Merit Systems Protection Board;
“(ii) the Special Counsel does not have jurisdiction to investigate the allegation; or
“(iii) the individual knew or should have known of the alleged prohibited personnel practice on or before the date that is 3 years before the date on which the Special Counsel received the allegation.
“(B) Not later than 30 days after the date on which the Special Counsel terminates an investigation under subparagraph (A), the Special Counsel shall provide a written notification to the individual who submitted the allegation of a prohibited personnel practice that states the basis of the Special Counsel for terminating the investigation.”
“(i) The Special Counsel shall enter into at least 1 agreement with the Inspector General of an agency under which—
“(1) the Inspector General shall—
“(A) receive, review, and investigate allegations of prohibited personnel practices or wrongdoing filed by employees of the Office of Special Counsel; and
“(B) develop a method for an employee of the Office of Special Counsel to communicate directly with the Inspector General; and
“(2) the Special Counsel—
“(A) may not require an employee of the Office of Special Counsel to seek authorization or approval before directly contacting the Inspector General in accordance with the agreement; and
“(B) may reimburse the Inspector General for services provided under the agreement.”
Ҥ 1218. Annual report
“The Special Counsel shall submit to Congress, on an annual basis, a report regarding the activities of the Special Counsel, which shall include, for the year preceding the submission of the report—
“(1) the number, types, and disposition of allegations of prohibited personnel practices filed with the Special Counsel and the costs of resolving such allegations;
“(2) the number of investigations conducted by the Special Counsel;
“(3) the number of stays and disciplinary actions negotiated with agencies by the Special Counsel;
“(4) the number of subpoenas issued by the Special Counsel;
“(5) the number of instances in which the Special Counsel reopened an investigation after the Special Counsel had made an initial determination with respect to the investigation;
“(6) the actions that resulted from reopening investigations, as described in paragraph (5);
“(7) the number of instances in which the Special Counsel did not make a determination before the end of the 240-day period described in section 1214(b)(2)(A)(i) regarding whether there were reasonable grounds to believe that a prohibited personnel practice had occurred, existed, or was to be taken;
“(8) a description of the recommendations and reports made by the Special Counsel to other agencies under this subchapter and the actions taken by the agencies as a result of the recommendations or reports;
“(9) the number of—
“(A) actions initiated before the Merit Systems Protection Board, including the number of corrective action petitions and disciplinary action complaints initiated; and
“(B) stays and extensions of stays obtained from the Merit Systems Protection Board;
“(10) the number of prohibited personnel practice complaints that resulted in a favorable action for the complainant, other than a stay or an extension of a stay, organized by actions in—
“(A) complaints dealing with reprisals against whistleblowers; and
“(B) all other complaints;
“(11) the number of prohibited personnel practice complaints that were resolved by an agreement between an agency and an individual, organized by agency and agency components in—
“(A) complaints dealing with reprisals against whistleblowers; and
“(B) all other complaints;
“(12) the number of corrective actions that the Special Counsel required an agency to take after a finding by the Special Counsel of a prohibited personnel practice, as defined in section 2302(a)(1); and
“(13) the results for the Office of Special Counsel of any employee viewpoint survey conducted by the Office of Personnel Management or any other agency.”
“(1) a list of any noncriminal matters referred to the head of an agency under section 1213(c), together with—
“(A) a copy of the information transmitted to the head of the agency under section 1213(c)(1);
“(B) any report from the agency under section 1213(c)(1)(B) relating to the matter;
“(C) if appropriate, not otherwise prohibited by law, and consented to by the complainant, any comments from the complainant under section 1213(e)(1) relating to the matter; and
“(D) the comments or recommendations of the Special Counsel under paragraph (3) or (4) of section 1213(e);”
“(a) In General.—The Special Counsel”
; and
“(b) Additional Report Required.—
“(1) In general.—If an allegation submitted to the Special Counsel is resolved by an agreement between an agency and an individual, the Special Counsel shall submit to Congress and each congressional committee with jurisdiction over the agency a report regarding the agreement.
“(2) Contents.—Any report required under paragraph (1) shall identify, with respect to an agreement described in that paragraph—
“(A) the agency that entered into the agreement;
“(B) the position and employment location of the employee who submitted the allegation that formed the basis of the agreement, provided the information is not so specific as to be reasonably likely to identify the employee;
“(C) the position and employment location of any employee alleged by an employee described in subparagraph (B) to have committed a prohibited personnel practice, as defined in section 2302(a)(1);
“(D) a description of the allegation described in subparagraph (B); and
“(E) whether the agency that entered into the agreement has agreed to pursue any disciplinary action as a result of the allegation described in subparagraph (B).”
Ҥ 7326. Penalties
“An employee or individual who violates section 7323 or 7324 shall be subject to—
“(1) disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, or reprimand;
“(2) an assessment of a civil penalty not to exceed $1,000; or
“(3) any combination of the penalties described in paragraph (1) or (2).”
“(c) Permission of Next of Kin.—The head of the agency shall only make a referral under subsection (a) regarding an employee after receiving written permission from the next of kin, as such term is defined in section 6381 of title 5, United States Code, of the employee.”
“(20) The Naval Medical Research Center.
“(21) The Joint Warfighting Analysis Center.
“(22) The Naval Facilities Engineering and Expeditionary Warfare Center.”
“(f) Department of Defense Component Defined.—In this section, the term ‘Department of Defense component’ means the following:
“(1) A Defense Agency.
“(2) The Office of the Chairman of the Joint Chiefs of Staff.
“(3) The Joint Staff.
“(4) A combatant command.
“(5) The Office of the Inspector General of the Department of Defense.
“(6) A Field Activity of the Department of Defense.
“(7) The Department of the Army.
“(8) The Department of the Navy.
“(9) The Department of the Air Force.”
“(B) The test and evaluation positions described in paragraph (1) may be filled, and shall be managed, by the director of the Major Range and Test Facility Base, in the case of a position at a facility of the Major Range and Test Facility Base, and the director of the Defense Test Resource Management Center, in the case of a position at such center, under criteria established pursuant to section 342(b) of the National Defense Authorization Act for Fiscal Year 1995 (Public Law 103–337; 10 U.S.C. 2358 note), relating to personnel demonstration projects at laboratories of the Department of Defense, except that the director involved shall determine the number of such positions at each facility of the Major Range and Test Facility Base and the Defense Test Resource Management Center, not to exceed two percent of the number of scientists and engineers, but at least one position, employed at the Major Range and Test Facility Base or the Defense Test Resource Management Center, as the case may be, as of the close of the last fiscal year before the fiscal year in which any appointments subject to those numerical limitations are made.”
; and
“(1) The term ‘Defense Test Resource Management Center’ means the Department of Defense Test Resource Management Center established under section 196 of this title.”
; and
“(3) The term ‘Major Range and Test Facility Base’ means the test and evaluation facilities and resources that are designated by the Secretary of Defense as facilities and resources comprising the Major Range and Test Facility Base.”
“(4) Regulations.—
“(A) In general.—The Secretary of Defense shall prescribe regulations for payment of incremental expenses under subsection (a). Not later than 120 days after the date of the enactment of this paragraph, the Secretary shall submit the regulations to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.
“(B) Procedures to be included.—The regulations required under subparagraph (A) shall include procedures—
“(i) to require reimbursement of incremental expenses from non-developing countries determined pursuant to subsection (c) to be eligible for the provision of training under subsection (a); and
“(ii) to provide for a waiver of the requirement of reimbursement of incremental expenses under clause (i), on a case-by-case basis, if the Secretary of Defense determines special circumstances exist to provide for the waiver.
“(C) Quarterly report.—The Secretary of Defense shall submit to the congressional defense committees and the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, on a quarterly basis, a report that includes a description of each waiver of the requirement of reimbursement of incremental expenses under subparagraph (B)(i) that was in effect at any time during the preceding calendar quarter.
“(D) Non-developing country defined.—In this paragraph, the term ‘non-developing country’ means a country that is not a developing country, as such term is defined in section 301(4) of title 10, United States Code.”
“(1) is in addition”
“(2) shall not be construed to include authority for the training of irregular forces, groups, or individuals.”
“(12) An assessment of—
“(A) security in liberated areas in Iraq;
“(B) the extent to which security forces trained and equipped, directly or indirectly, by the United States are prepared to provide post-conflict stabilization and security in such liberated areas; and
“(C) the effectiveness of security forces in the post-conflict environment and an identification of which such forces will provide post-conflict stabilization and security in such liberated areas.”
“(m) Limitation on Aggregate Cost of Construction, Repair, and Renovation Projects.—The aggregate amount of construction, repair, and renovation projects carried out under this section in any fiscal year may not exceed $30,000,000.
“(n) Approval and Notice Before Certain Construction, Repair, and Renovation Projects.—
“(1) Approval.—A construction, repair, or renovation project costing more than $1,000,000 may not be carried out under this section unless approved in advance by the Commander of the United States Central Command.
“(2) Notice.—When a decision is made to carry out a construction, repair, or renovation project to which paragraph (1) applies, the Commander of the United States Central Command shall notify in writing the appropriate committees of Congress of that decision, including the justification for the project and the estimated cost of the project. The project may be carried out only after the end of the 21-day period beginning on the date the notification is received by the committees or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of title 10, United States Code.”
“(8) A list of new projects for construction, repair, or renovation commenced during the period covered by such progress report, and a list of projects for construction, repair, or renovation continuing from the period covered by the preceding progress report.”
“SEC. 1236. AUTHORITY TO PROVIDE ASSISTANCE TO COUNTER THE ISLAMIC STATE OF IRAQ AND SYRIA.”
.
“(C) A description of any material use of assistance provided under subsection (a) by an appropriately vetted recipient of such assistance for a purpose other than the purposes specified in subsection (a) that occurred since the most recent reprogramming or transfer request of the Secretary pursuant to this subsection, which description shall set forth, for each such material misuse, the following:
“(i) The details of such material misuse.
“(ii) The recipient or recipients responsible for such material misuse.
“(iii) The consequences of such material misuse.
“(iv) The actions taken by the Secretary to remediate the causes and effects of such material misuse.”
“(l) Limitation on Aggregate Cost of Construction and Repair Projects.—The aggregate amount of construction and repair projects carried out under this section in any fiscal year may not exceed $10,000,000.”
“(m) Approval and Notice Before Certain Construction and Repair Projects.—
“(1) Approval.—A construction or repair project costing more than $1,000,000 may not be carried out under this section unless approved in advance by the Commander of the United States Central Command.
“(2) Notice.—When a decision is made to carry out a construction or repair project to which paragraph (1) applies, the Commander of the United States Central Command shall notify in writing the appropriate committees of Congress of that decision, including the justification for the project and the estimated cost of the project. The project may be carried out only after the end of the 21-day period beginning on the date the notification is received by the committees or, if earlier, the end of the 14-day period beginning on the date on which a copy of the notification is provided in an electronic medium pursuant to section 480 of title 10, United States Code.”
“(A) Defense institution building to mitigate capability gaps and promote effective and sustainable defense institutions.
“(B) Professionalization, strategic planning and reform, financial management, manpower management, and logistics management of military and other security forces with a national security mission.”
; and
“(6) An assessment of the use of civilian transportation assets and infrastructure, including commercial aircraft, airports, commercial vessels, and seaports, used to transport illicit military cargo to or from Iran, including military personnel, military goods, weapons, military-related electric parts, and related components.
“(7) An assessment of military-to-military cooperation between Iran and foreign counties, including Cuba, North Korea, Pakistan, Sudan, Syria, Venezuela, and any other country designated by the Secretary of Defense with additional reference to cooperation and collaboration on the development of nuclear, biological, chemical, and advanced conventional weapons, weapon systems, and delivery vehicles.
“(8) An assessment of the extent to which the commercial aviation sector of Iran knowingly provides financial, material, or technological support to the Islamic Revolutionary Guard Corps, the Ministry of Defense and Armed Forces Logistics of Iran, the Bashar al-Assad regime, Hezbollah, Hamas, Kata’ib Hezbollah, or any other foreign terrorist organization.”
“(12) Treatment of wounded Ukrainian soldiers in the United States in medical treatment facilities through the Secretarial Designee Program, including transportation, lodging, meals, and other appropriate non-medical support in connection with such treatment, and education and training for Ukrainian healthcare specialists such that they can provide continuing care and rehabilitation services for wounded Ukrainian soldiers.
“(13) Air defense and coastal defense radars.
“(14) Naval mine and counter-mine capabilities.
“(15) Littoral-zone and coastal defense vessels.”
“(3) For fiscal year 2018, $350,000,000.”
; and
“(J) support joint exercises, operations, and patrols and mutual defense planning with India;
“(K) work with representatives of the Government of the Islamic Republic of Afghanistan and the Government of India to promote stability and development in Afghanistan; and
“(L) support such other matters with respect to defense and security cooperation with India that the Secretary of Defense or the Secretary of State consider appropriate.”
“(3) Report form.—The report required by paragraph (2) shall be submitted in unclassified form, but may include a classified annex.”
“(iii) to promote United States defense trade with India for the benefit of job creation and commercial competitiveness in the United States;”
“(23) Any Chinese laws, regulations, or policies that could jeopardize the economic security of the United States.”
“(4) For each country identified under paragraph (1), the types of any excessive maritime claims by such country that have not been challenged by the United States under the program referred to in subsection (a).
“(5) A list of each country, other than a country identified under paragraph (1), making excessive maritime claims that have not been challenged by the United States under the program referred to in subsection (a) and the types and natures of such claims.”
“(c) Quarterly Submittal to Congress and GAO of Certain Reports on Costs.—Not later than 45 days after the end of each fiscal year quarter, the Secretary of Defense shall submit to the congressional defense committees and the Comptroller General of the United States the Department of Defense Supplemental and Cost of War Execution report for such fiscal year quarter.”
“(14) An assessment of Russia’s hybrid warfare strategy and capabilities, including—
“(A) Russia’s information warfare strategy and capabilities, including the use of misinformation, disinformation, and propaganda in social and traditional media;
“(B) Russia’s financing of political parties, think tanks, media organizations, and academic institutions;
“(C) Russia’s malicious cyber activities;
“(D) Russia’s use of coercive economic tools, including sanctions, market access, and differential pricing, especially in energy exports; and
“(E) Russia’s use of criminal networks and corruption to achieve political objectives.
“(15) An assessment of attempts by Russia, or any foreign person acting as an agent of or on behalf of Russia, during the preceding year to knowingly disseminate Russian-supported disinformation or propaganda, through social media applications or related Internet-based means, to members of the Armed Forces with probable intent to cause injury to the United States or advantage the Government of the Russian Federation.”
“(5) Use of certain amounts for rdt&e activities in the united states.—Of the amount provided by the United States in support under paragraph (1), not less than 50 percent of such amount shall be used for research, development, test, and evaluation activities in the United States in connection with such support.”
“(4) serve at the pleasure of the Secretary of Defense.”
Ҥ 2279c. Air Force Space Command
“(a) Commander.—
(1) The head of the Air Force Space Command shall be the Commander of the Air Force Space Command, who shall be appointed in accordance with section 601 of this title. The officer serving as Commander, while so serving, has the grade of general without vacating the permanent grade of the officer.
“(2) The Commander shall be appointed to serve a term of six years. The Secretary may propose to promote the individual serving as the Commander during that term of appointment.
“(3) The incumbent Commander may serve as the first Commander after the date of the enactment of this Act.
“(b) Authorities.—In addition to the authorities and responsibilities assigned to the Commander before the date of the enactment of this section, the Commander has the sole authority with respect to each of the following:
“(1) Organizing, training, and equipping personnel and operations of the space forces of the Air Force.
“(2) Subject to the direction of the Secretary of the Air Force, serving as the service acquisition executive under section 1704 of this title for defense space acquisitions.
“(3) In consultation with the Chief Information Officer of the Department of Defense, procurement of commercial satellite communications services for the Department of Defense for such services entered into on or after the date that is one year after the date of the enactment of this section.”
“2279c. Air Force Space Command.”.
“2273a. Space Rapid Capabilities Office.”.
Ҥ 2279c. Limitation on construction on United States territory of satellite positioning ground monitoring stations of certain foreign governments.
“(b) Exception.—The limitation in subsection (a) shall not apply to foreign governments that are allies of the United States.
“(c) Sunset.—The limitation in subsection (a) shall terminate on December 31, 2023.”
“(3) entering into such contract would create an unacceptable cybersecurity risk for the Department of Defense.”
“(b) Launches and Manufacturers.—
“(1) Limitation.—In addition to the prohibition in subsection (a), and except as provided in paragraph (2) and in subsection (c), the Secretary may not enter into a contract for satellite services with any entity if the Secretary reasonably believes that such satellite services will be provided using satellites that will be—
“(A) designed or manufactured in a covered foreign country, or by an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country; or
“(B) launched using a launch vehicle that is designed or manufactured in a covered foreign country, or that is provided by the government of a covered foreign country or by an entity controlled in whole or in part by, or acting on behalf of, the government of a covered foreign country, regardless of the location of the launch (unless such location is in the United States).
“(2) Exception.—The limitation in paragraph (1) shall not apply with respect to—
“(A) a launch that occurs prior to December 31, 2022; or
“(B) a contract or other agreement relating to launch services that, prior to the date that is 180 days after the date of the enactment of this subsection, was either fully paid for by the contractor or covered by a legally binding commitment of the contractor to pay for such services.
“(3) Launch vehicle defined.—In this subsection, the term ‘launch vehicle’ means a fully integrated space launch vehicle.”
“(f) Definitions.—In this section:
“(1) The term ‘covered foreign country’ means any of the following:
“(A) A country described in section 1261(c)(2) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112–239; 126 Stat. 2019).
“(B) The Russian Federation.
“(2) The term ‘cybersecurity risk’ means threats to and vulnerabilities of information or information systems and any related consequences caused by or resulting from unauthorized access, use, disclosure, degradation, disruption, modification, or destruction of such information or information systems, including such related consequences caused by an act of terrorism.”
“2279. Foreign commercial satellite services and foreign launches.”.
“(3) Appropriate congressional committees defined.—In this subsection, the term ‘appropriate congressional committees’ means—
“(A) the Committees on Armed Services of the Senate and the House of Representatives; and
“(B) the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.”
Ҥ 2410s. Security clearances for facilities of certain companies.
“(a) Authority.—If the senior management official of a covered company does not have a security clearance, the Secretary of Defense may grant a security clearance to a facility of such company only if the following criteria are met:
“(1) The company has appointed a senior officer, director, or employee of the company who has a security clearance at the level of the security clearance of the facility to act as the senior management official of the company with respect to such facility.
“(2) Any senior management official, senior officer, or director of the company who does not have such a security clearance will not have access to any classified information, including with respect to such facility.
“(3) The company has certified to the Secretary that the senior officer, director, or employee appointed under paragraph (1) has the authority to act on behalf of the company with respect to such facility independent of any senior management official, senior officer, or director described in paragraph (2).
“(4) The facility meets all of the requirements to be granted a security clearance other than any requirement relating to the senior management official of the company having an appropriate security clearance.
“(b) Covered Company.—In this section, the term ‘covered company’ means a company that has entered into a contract or agreement with the Department of Defense, assists the Department, or requires a facility to process classified information.”
“2410s. Security clearances for facilities of certain companies”.
“(3) Career tenure.—In the case of an individual whose appointment to a position in the excepted service is converted to a career or career-conditional appointment under paragraph (1)(B), the period of service described in such paragraph shall be treated, for purposes of the service requirements for career tenure under title 5, United States Code, as if it were service in a position under a career or career-conditional appointment.”
Ҥ 130j. Notification requirements for sensitive military cyber operations
“(a) In General.—Except as provided in subsection (d), the Secretary of Defense shall promptly submit to the congressional defense committees notice in writing of any sensitive military cyber operation conducted under this title no later than 48 hours following such operation.
“(b) Procedures.—
(1) The Secretary of Defense shall establish and submit to the congressional defense committees procedures for complying with the requirements of subsection (a) consistent with the national security of the United States and the protection of operational integrity. The Secretary shall promptly notify the congressional defense committees in writing of any changes to such procedures at least 14 days prior to the adoption of any such changes.
“(2) The congressional defense committees shall ensure that committee procedures designed to protect from unauthorized disclosure classified information relating to national security of the United States are sufficient to protect the information that is submitted to the committees pursuant to this section.
“(3) In the event of an unauthorized disclosure of a sensitive military cyber operation covered by this section, the Secretary shall ensure, to the maximum extent practicable, that the congressional defense committees are notified immediately of the sensitive military cyber operation concerned. The notification under this paragraph may be verbal or written, but in the event of a verbal notification a written notification shall be provided by not later than 48 hours after the provision of the verbal notification.
“(c) Sensitive Military Cyber Operation Defined.—
(1) In this section, the term ‘sensitive military cyber operation’ means an action described in paragraph (2) that—
“(A) is carried out by the armed forces of the United States; and
“(B) is intended to cause cyber effects outside a geographic location—
“(i) where the armed forces of the United States are involved in hostilities (as that term is used in section 1543 of title 50, United States Code); or
“(ii) with respect to which hostilities have been declared by the United States.
“(2) The actions described in this paragraph are the following:
“(A) An offensive cyber operation.
“(B) A defensive cyber operation outside the Department of Defense Information Networks to defeat an ongoing or imminent threat.
“(d) Exceptions.—The notification requirement under subsection (a) does not apply—
“(1) to a training exercise conducted with the consent of all nations where the intended effects of the exercise will occur; or
“(2) to a covert action (as that term is defined in section 3093 of title 50, United States Code).
“(e) Rule of Construction.—Nothing in this section shall be construed to provide any new authority or to alter or otherwise affect the War Powers Resolution (50 U.S.C. 1541 et seq.), the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note), or any requirement under the National Security Act of 1947 (50 U.S.C. 3001 et seq.).
Ҥ 130k. Notification requirements for cyber weapons
“(a) In General.—Except as provided in subsection (c), the Secretary of Defense shall promptly submit to the congressional defense committees notice in writing of the following:
“(1) With respect to a cyber capability that is intended for use as a weapon, on a quarterly basis, the aggregated results of all reviews of the capability for legality under international law pursuant to Department of Defense Directive 5000.01 carried out by any military department concerned.
“(2) The use as a weapon of any cyber capability that has been approved for such use under international law by a military department no later than 48 hours following such use.
“(b) Procedures.—
(1) The Secretary of Defense shall establish and submit to the congressional defense committees procedures for complying with the requirements of subsection (a) consistent with the national security of the United States and the protection of operational integrity. The Secretary shall promptly notify the congressional defense committees in writing of any changes to such procedures at least 14 days prior to the adoption of any such changes.
“(2) The congressional defense committees shall ensure that committee procedures designed to protect from unauthorized disclosure classified information relating to national security of the United States are sufficient to protect the information that is submitted to the committees pursuant to this section.
“(3) In the event of an unauthorized disclosure of a cyber capability covered by this section, the Secretary shall ensure, to the maximum extent practicable, that the congressional defense committees are notified immediately of the cyber capability concerned. The notification under this paragraph may be verbal or written, but in the event of a verbal notification a written notification shall be provided by not later than 48 hours after the provision of the verbal notification.
“(c) Exceptions.—The notification requirement under subsection (a) does not apply—
“(1) to a training exercise conducted with the consent of all nations where the intended effects of the exercise will occur; or
“(2) to a covert action (as that term is defined in section 3093 of title 50, United States Code).
“(d) Rule of Construction.—Nothing in this section shall be construed to provide any new authority or to alter or otherwise affect the War Powers Resolution (50 U.S.C. 1541 et seq.), the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note), or any requirement under the National Security Act of 1947 (50 U.S.C. 3001 et seq.).”
“130j. Notification requirements for sensitive military cyber operations
“130k. Notification requirements for cyber weapons”.
“(a) Briefings Required.—The Secretary of Defense shall provide to the congressional defense committees”
; and
“(b) Elements.—Each briefing under subsection (a) shall include, with respect to the military operations in cyberspace described in such subsection, the following:
“(1) An update, set forth separately for each geographic and functional command, that describes the operations carried out by the command and any hostile cyber activity directed at the command.
“(2) An overview of authorities and legal issues applicable to the operations, including any relevant legal limitations.
“(3) An outline of any interagency activities and initiatives relating to the operations.
“(4) Any other matters the Secretary determines to be appropriate.”
“(E) to assess the strategic benefits derived from, and the challenges associated with, isolating military infrastructure from the national electric grid and the use of microgrids.”
“(c) Name of Program.—The programs authorized under this chapter shall be known as the ‘Cyber Scholarship Program’.”
“(2) Not less than five percent of the amount available for financial assistance under this section for a fiscal year shall be available for providing financial assistance for the pursuit of an associate degree at an institution described in paragraph (1).”
Ҥ 2200e. Definitions
“In this chapter:
“(1) The term ‘cyber’ includes the following:
“(A) Offensive cyber operations.
“(B) Defensive cyber operations.
“(C) Department of Defense information network operations and defense.
“(D) Any other information technology that the Secretary of Defense considers to be related to the cyber activities of the Department of Defense.
“(2) The term ‘institution of higher education’ has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).
“(3) The term ‘Center of Academic Excellence in Cyber Education’ means an institution of higher education that is designated by the Director of the National Security Agency as a Center of Academic Excellence in Cyber Education.”
“2200c. Centers of Academic Excellence in Cyber Education.”.
“(3) prioritize the employment placement of at least 80 percent of scholarship recipients in an executive agency (as defined in section 105 of title 5, United States Code); and
“(4) provide awards to improve cybersecurity education at the kindergarten through grade 12 level—
“(A) to increase interest in cybersecurity careers;
“(B) to help students practice correct and safe online behavior and understand the foundational principles of cybersecurity;
“(C) to improve teaching methods for delivering cybersecurity content for kindergarten through grade 12 computer science curricula; and
“(D) to promote teacher recruitment in the field of cybersecurity.”
“(d) Post-award Employment Obligations.—Each scholarship recipient, as a condition of receiving a scholarship under the program, shall enter into an agreement under which the recipient agrees to work for a period equal to the length of the scholarship, following receipt of the student’s degree, in the cybersecurity mission of—
“(1) an executive agency (as defined in section 105 of title 5, United States Code);
“(2) Congress, including any agency, entity, office, or commission established in the legislative branch;
“(3) an interstate agency;
“(4) a State, local, or Tribal government; or
“(5) a State, local, or Tribal government-affiliated non-profit that is considered to be critical infrastructure (as defined in section 1016(e) of the USA Patriot Act (42 U.S.C. 5195c(e)).”
“(3) have demonstrated a high level of competency in relevant knowledge, skills, and abilities, as defined by the national cybersecurity awareness and education program under section 401;”
; and
“(4) be a full-time student in an eligible degree program at a qualified institution of higher education, as determined by the Director of the National Science Foundation, except that in the case of a student who is enrolled in a community college, be a student pursuing a degree on a less than full-time basis, but not less than half-time basis; and”
; and
“(m) Public Information.—
“(1) Evaluation.—The Director of the National Science Foundation, in coordination with the Director of the Office of Personnel Management, shall periodically evaluate and make public, in a manner that protects the personally identifiable information of scholarship recipients, information on the success of recruiting individuals for scholarships under this section and on hiring and retaining those individuals in the public sector cyber workforce, including information on—
“(A) placement rates;
“(B) where students are placed, including job titles and descriptions;
“(C) salary ranges for students not released from obligations under this section;
“(D) how long after graduation students are placed;
“(E) how long students stay in the positions they enter upon graduation;
“(F) how many students are released from obligations; and
“(G) what, if any, remedial training is required.
“(2) Reports.—The Director of the National Science Foundation, in coordination with the Office of Personnel Management, shall submit, not less frequently than once every 3 years, to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology of the House of Representatives a report, including the results of the evaluation under paragraph (1) and any recent statistics regarding the size, composition, and educational requirements of the Federal cyber workforce.
“(3) Resources.—The Director of the National Science Foundation, in coordination with the Director of the Office of Personnel Management, shall provide consolidated and user-friendly online resources for prospective scholarship recipients, including, to the extent practicable—
“(A) searchable, up-to-date, and accurate information about participating institutions of higher education and job opportunities related to the field of cybersecurity; and
“(B) a modernized description of cybersecurity careers.”
“(5) the term ‘mathematics and science teacher’ means a science, technology, engineering, mathematics, or computer science, including cybersecurity, teacher at the elementary school or secondary school level;”
; and
“(7) the term ‘science, technology, engineering, or mathematics professional’ means an individual who holds a baccalaureate, master’s, or doctoral degree in science, technology, engineering, mathematics, or computer science, including cybersecurity, and is working in or had a career in such field or a related area; and”
Ҥ 499. Annual assessment of cyber resiliency of nuclear command and control system
“(a) In General.—Not less frequently than annually, the Commander of the United States Strategic Command and the Commander of the United States Cyber Command (in this section referred to collectively as the ‘Commanders’) shall jointly conduct an assessment of the cyber resiliency of the nuclear command and control system.
“(b) Elements.—In conducting the assessment required by subsection (a), the Commanders shall—
“(1) conduct an assessment of the sufficiency and resiliency of the nuclear command and control system to operate through a cyber attack from the Russian Federation, the People’s Republic of China, or any other country or entity the Commanders identify as a potential threat; and
“(2) develop recommendations for mitigating any concerns of the Commanders resulting from the assessment.
“(c) Report Required.—
(1) The Commanders shall jointly submit to the Chairman of the Joint Chiefs of Staff, for submission to the Council on Oversight of the National Leadership Command, Control, and Communications System established under section 171a of this title, a report on the assessment required by subsection (a) that includes the following:
“(A) The recommendations developed under subsection (b)(2).
“(B) A statement of the degree of confidence of each of the Commanders in the mission assurance of the nuclear deterrent against a top tier cyber threat.
“(C) A detailed description of the approach used to conduct the assessment required by subsection (a) and the technical basis of conclusions reached in conducting that assessment.
“(D) Any other comments of the Commanders.
“(2) The Council shall submit to the Secretary of Defense the report required by paragraph (1) and any comments of the Council on the report.
“(3) The Secretary of Defense shall submit to the congressional defense committees the report required by paragraph (1), any comments of the Council on the report under paragraph (2), and any comments of the Secretary on the report.
“(d) Quarterly Briefings.—Not less than once every quarter, the Deputy Secretary of Defense and the Vice Chairman of the Joint Chiefs of Staff shall jointly provide to the Committees on Armed Services of the House of Representatives and the Senate a briefing on any known or suspected critical intelligence parameter breaches that were identified during the previous quarter, including an assessment of any known or suspected impacts of such breaches to the mission effectiveness of military capabilities as of the date of the briefing or thereafter.
“(e) Termination.—The requirements of this section shall terminate on December 31, 2027.”
“499. Annual assessment of cyber resiliency of nuclear command and control system.”.
Ҥ 499a. Collection, storage, and sharing of data relating to nuclear security enterprise and nuclear forces
“(a) In General.—The Secretary of Defense, acting through the Director of Cost Assessment and Program Evaluation, and the Administrator for Nuclear Security, acting through the Director for Cost Estimating and Program Evaluation, shall collect and store cost, programmatic, and technical data relating to programs and projects of the nuclear security enterprise and nuclear forces.
“(b) Sharing of Data.—If the Director of Cost Assessment and Program Evaluation or the Director for Cost Estimating and Program Evaluation requests data relating to programs or projects from any element of the Department of Defense or from any element of the nuclear security enterprise of the National Nuclear Security Administration, that element shall provide that data in a timely manner.
“(c) Storage of Data.—
(1) Data collected by the Director of Cost Assessment and Program Evaluation and the Director for Cost Estimating and Program Evaluation under this section shall be—
“(A) stored in the data storage system of the Defense Cost and Resource Center, or successor center, or in a data storage system of the National Nuclear Security Administration that is comparable to the data storage system of the Defense Cost and Resource Center; and
“(B) made accessible to other Federal agencies as such Directors consider appropriate.
“(2) The Secretary and the Administrator shall ensure that the Director of Cost Assessment and Program Evaluation and the Director for Cost Estimating and Program Evaluation have sufficient information system support, as determined by such Directors, to facilitate the timely hosting, handling, and sharing of data relating to programs and projects of the nuclear security enterprise under this section at the appropriate level of classification.
“(3) The Deputy Administrator for Naval Reactors of the National Nuclear Security Administration may coordinate with the Director of Cost Assessment and Program Evaluation and the Director for Cost Estimating and Program Evaluation to ensure that, at the discretion of the Deputy Administrator, data relating to programs and projects of the Office of Naval Reactors are correctly represented in the data storage system pursuant to paragraph (1)(A).
“(d) Contract Requirements.—The Secretary and the Administrator shall ensure that any relevant contract relating to a program or project of the nuclear security enterprise and nuclear forces that is entered into on or after the date of the enactment of this section appropriately includes—
“(1) requirements and standards for data collection; and
“(2) requirements for reporting on cost, programmatic, and technical data using procedures, standards, and formats approved by the Director of Cost Assessment and Program Evaluation and the Director for Cost Estimating and Program Evaluation.
“(e) Nuclear Security Enterprise Defined.—In this section, the term ‘nuclear security enterprise’ has the meaning given that term in section 4002 of the Atomic Energy Defense Act (50 U.S.C. 2501).”
“499a. Collection, storage, and sharing of data relating to nuclear security enterprise and nuclear forces.”.
“(6) If a House of Congress adopts a bill authorizing or appropriating funds for the Department of Defense that, as determined by the Council, provides funds in an amount that will result in a delay in the nuclear certification or delivery of F–35A dual-capable aircraft, the Council shall notify the congressional defense committees of the determination.”
“(k) Status of Acquisition Programs.—
(1) On a quarterly basis, each program manager of a covered acquisition program shall transmit to the co-chairs of the Council, acting through the senior steering group of the Council, a report that identifies—
“(A) the covered acquisition program;
“(B) the requirements of the program;
“(C) the development timeline of the program; and
“(D) the status of the program, including whether the program is delayed and, if so, whether such delay will result in a program schedule delay.
“(2) Not later than seven days after the end of each semiannual period, the co-chairs of the Council shall submit to the congressional defense committees a report that identifies, with respect to the reports transmitted to the Council under paragraph (1) for the two quarters in such period—
“(A) each covered acquisition program that is delayed more than 180 days; and
“(B) any covered acquisition program that should have been included in such reports but was excluded, and the reasons for such exclusion.
“(3) In this subsection, the term ‘covered acquisition program’ means each acquisition program of the Department of Defense that materially contributes to—
“(A) the nuclear command, control, and communications systems of the United States; or
“(B) the continuity of government systems of the United States.”
Ҥ 239a. Missile defense and defeat programs: major force program and budget assessment
“(a) Establishment of Major Force Program.—The Secretary of Defense shall establish a unified major force program for missile defense and defeat programs pursuant to section 222(b) of this title to prioritize missile defense and defeat programs in accordance with the requirements of the Department of Defense and national security.
“(b) Budget Assessment.—
(1) The Secretary shall include with the defense budget materials for each of fiscal years 2019 through 2023 a report on the budget for missile defense and defeat programs of the Department of Defense.
“(2) Each report on the budget for missile defense and defeat programs of the Department under paragraph (1) shall include the following:
“(A) An overview of the budget, including—
“(i) a comparison between that budget, the previous budget, the most recent and prior future-years defense program submitted to Congress under section 221 of this title (such comparison shall exclude the responsibility for research and development of the continuing improvement of such missile defense and defeat program), and the amounts appropriated for such missile defense and defeat programs during the previous fiscal year; and
“(ii) the specific identification, as a budgetary line item, for the funding under such programs.
“(B) An assessment of the budget, including significant changes, priorities, challenges, and risks.
“(C) Any additional matters the Secretary determines appropriate.
“(3) Each report under paragraph (1) shall be submitted in unclassified form, but may include a classified annex.
“(c) Definitions.—In this section:
“(1) The term ‘budget’, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.
“(2) The term ‘defense budget materials’, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.
“(3) The term ‘missile defense and defeat programs’ means active and passive ballistic missile defense programs, cruise missile defense programs for the homeland, and missile defeat programs.”
“239a. Missile defense and defeat programs: major force program and budget assessment.”.
Ҥ 205. Missile Defense Agency
“(a) Term of Director.—The Director of the Missile Defense Agency shall be appointed for a six-year term.
“(b) Reporting.—The Missile Defense Agency shall be under the authority, direction, and control of the Under Secretary of Defense for Research and Engineering.”
“205. Missile Defense Agency.”.
Ҥ 130i Protection of certain facilities and assets from unmanned aircraft
“(a) Authority.—Notwithstanding section 46502 of title 49, or any provision of title 18, the Secretary of Defense may take, and may authorize members of the armed forces and officers and civilian employees of the Department of Defense with assigned duties that include safety, security, or protection of personnel, facilities, or assets, to take, such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Defense, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.
“(b) Actions Described.—
(1) The actions described in this paragraph are the following:
“(A) Detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire communication, an oral communication, or an electronic communication used to control the unmanned aircraft system or unmanned aircraft.
“(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.
“(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.
“(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.
“(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.
“(F) Use reasonable force to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.
“(2) The Secretary of Defense shall develop the actions described in paragraph (1) in coordination with the Secretary of Transportation.
“(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary of Defense is subject to forfeiture to the United States.
“(d) Regulations and Guidance.—
(1) The Secretary of Defense and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary to carry out this section.
“(2)
(A) The Secretary of Defense and the Secretary of Transportation shall coordinate in the development of guidance under paragraph (1).
“(B) The Secretary of Defense shall coordinate with the Secretary of Transportation and the Administrator of the Federal Aviation Administration before issuing any guidance or otherwise implementing this section if such guidance or implementation might affect aviation safety, civilian aviation and aerospace operations, aircraft airworthiness, or the use of airspace.
“(e) Privacy Protection.—The regulations prescribed or guidance issued under subsection (d) shall ensure that—
“(1) the interception or acquisition of, or access to, communications to or from an unmanned aircraft system under this section is conducted in a manner consistent with the fourth amendment to the Constitution and applicable provisions of Federal law;
“(2) communications to or from an unmanned aircraft system are intercepted, acquired, or accessed only to the extent necessary to support a function of the Department of Defense;
“(3) records of such communications are not maintained for more than 180 days unless the Secretary of Defense determines that maintenance of such records—
“(A) is necessary to support one or more functions of the Department of Defense; or
“(B) is required for a longer period to support a civilian law enforcement agency or by any other applicable law or regulation; and
“(4) such communications are not disclosed outside the Department of Defense unless the disclosure—
“(A) would fulfill a function of the Department of Defense;
“(B) would support a civilian law enforcement agency or the enforcement activities of a regulatory agency of the Federal Government in connection with a criminal or civil investigation of, or any regulatory action with regard to, an action described in subsection (b)(1); or
“(C) is otherwise required by law or regulation.
“(f) Budget.—The Secretary of Defense shall submit to Congress, as a part of the defense budget materials for each fiscal year after fiscal year 2018, a consolidated funding display that identifies the funding source for the actions described in subsection (b)(1) within the Department of Defense. The funding display shall be in unclassified form, but may contain a classified annex.
“(g) Semiannual Briefings.—
(1) On a semiannual basis during the five-year period beginning March 1, 2018, the Secretary of Defense and the Secretary of Transportation, shall jointly provide a briefing to the appropriate congressional committees on the activities carried out pursuant to this section. Such briefings shall include—
“(A) policies, programs, and procedures to mitigate or eliminate impacts of such activities to the National Airspace System;
“(B) a description of instances where actions described in subsection (b)(1) have been taken;
“(C) how the Secretaries have informed the public as to the possible use of authorities under this section; and
“(D) how the Secretaries have engaged with Federal, State, and local law enforcement agencies to implement and use such authorities.
“(2) Each briefing under paragraph (1) shall be in unclassified form, but may be accompanied by an additional classified briefing.
“(h) Rule of Construction.—Nothing in this section may be construed to—
“(1) vest in the Secretary of Defense any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration under title 49; and
“(2) vest in the Secretary of Transportation or the Administrator of the Federal Aviation Administration any authority of the Secretary of Defense under this title.
“(i) Partial Termination.—
(1) Except as provided by paragraph (2), the authority to carry out this section with respect to the covered facilities or assets specified in clauses (iv) through (viii) of subsection (j)(3) shall terminate on December 31, 2020.
“(2) The President may extend by 180 days the termination date specified in paragraph (1) if before November 15, 2020, the President certifies to Congress that such extension is in the national security interests of the United States.
“(j) Definitions.—In this section:
“(1) The term ‘appropriate congressional committees’ means—
“(A) the congressional defense committees;
“(B) the Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Commerce, Science, and Transportation of the Senate; and
“(C) the Permanent Select Committee on Intelligence, the Committee on the Judiciary, and the Committee on Transportation and Infrastructure of the House of Representatives.
“(2) The term ‘budget’, with respect to a fiscal year, means the budget for that fiscal year that is submitted to Congress by the President under section 1105(a) of title 31.
“(3) The term ‘covered facility or asset’ means any facility or asset that—
“(A) is identified by the Secretary of Defense, in consultation with the Secretary of Transportation with respect to potentially impacted airspace, through a risk-based assessment for purposes of this section;
“(B) is located in the United States (including the territories and possessions of the United States); and
“(C) directly relates to the missions of the Department of Defense pertaining to—
“(i) nuclear deterrence, including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;
“(ii) missile defense;
“(iii) national security space;
“(iv) assistance in protecting the President or the Vice President (or other officer immediately next in order of succession to the office of the President) pursuant to the Presidential Protection Assistance Act of 1976 (18 U.S.C. 3056 note);
“(v) air defense of the United States, including air sovereignty, ground-based air defense, and the National Capital Region integrated air defense system;
“(vi) combat support agencies (as defined in paragraphs (1) through (4) of section 193(f) of this title);
“(vii) special operations activities specified in paragraphs (1) through (9) of section 167(k) of this title;
“(viii) production, storage, transportation, or decommissioning of high-yield explosive munitions, by the Department; or
“(ix) a Major Range and Test Facility Base (as defined in section 196(i) of this title).
“(4) The term ‘defense budget materials’, with respect to a fiscal year, means the materials submitted to Congress by the Secretary of Defense in support of the budget for that fiscal year.
“(5) The terms ‘electronic communication’, ‘intercept’, ‘oral communication’, and ‘wire communication’ have the meanings given those terms in section 2510 of title 18.
“(6) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).”
“(p) Qualified HUBZone Small Business Concern.—In this Act, the term ‘qualified HUBZone small business concern’ has the meaning given such term in section 31(b).”
“(i) In general.—The term ‘qualified census tract’ means a census tract that is covered by the definition of ‘qualified census tract’ in section 42(d)(5)(B)(ii) of the Internal Revenue Code of 1986 and that is reflected in an online tool prepared by the Administrator described under subsection (d)(7).”
; and
“(ii) Limitation.—A census tract or nonmetropolitan county described in clause (i) shall be considered to be a base closure area for a period beginning on the date on which the Administrator designates such census tract or nonmetropolitan county as a base closure area and ending on the date on which the base closure area ceases to be a qualified census tract under subparagraph (A) or a qualified nonmetropolitan county under subparagraph (B) in accordance with the online tool prepared by the Administrator described under subsection (d)(7), except that such period may not be less than 8 years.”
; and
“(E) Qualified disaster area.—
“(i) In general.—Subject to clause (ii), the term ‘qualified disaster area’ means any census tract or nonmetropolitan county located in an area where a major disaster has occurred or an area in which a catastrophic incident has occurred if such census tract or nonmetropolitan county ceased to be qualified under subparagraph (A) or (B), as applicable, during the period beginning 5 years before the date on which the President declared the major disaster or the catastrophic incident occurred.
“(ii) Duration.—A census tract or nonmetropolitan county shall be considered to be a qualified disaster area under clause (i) only for the period of time ending on the date the area ceases to be a qualified census tract under subparagraph (A) or a qualified nonmetropolitan county under subparagraph (B), in accordance with the online tool prepared by the Administrator described under subsection (d)(7) and beginning—
“(I) in the case of a major disaster, on the date on which the President declared the major disaster for the area in which the census tract or nonmetropolitan county, as applicable, is located; or
“(II) in the case of a catastrophic incident, on the date on which the catastrophic incident occurred in the area in which the census tract or nonmetropolitan county, as applicable, is located.
“(iii) Definitions.—In this subparagraph:
“(I) Major disaster.—The term ‘major disaster’ means a major disaster declared by the President under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170).
“(II) Other definitions.—The terms ‘census tract’ and ‘nonmetropolitan county’ have the meanings given such terms in subparagraph (D)(iii).”
“(C) Redesignated area.—The term ‘redesignated area’ means any census tract that ceases to be qualified under subparagraph (A) and any nonmetropolitan county that ceases to be qualified under subparagraph (B) for a period of 3 years after the date on which the census tract or nonmetropolitan county ceased to be so qualified.”
“(G) a Governor-designated covered area.”
“(F) Governor-designated covered area.—
“(i) In general.—A ‘Governor-designated covered area’ means a covered area that the Administrator has designated by approving a petition described under clause (ii).
“(ii) Petition.—For a covered area to receive a designation as a Governor-designated covered area, the Governor of the State in which the covered area is wholly contained shall include such covered area in a petition to the Administrator requesting such a designation. In reviewing a request for designation included in such a petition, the Administrator may consider—
“(I) the potential for job creation and investment in the covered area;
“(II) the demonstrated interest of small business concerns in the covered area to be designated as a Governor-designated covered area;
“(III) how State and local government officials have incorporated the covered area into an economic development strategy; and
“(IV) if the covered area was a HUBZone before becoming the subject of the petition, the impact on the covered area if the Administrator did not approve the petition.
“(iii) Limitations.—Each calendar year, a Governor may submit not more than 1 petition described under clause (ii). Such petition shall include all covered areas in a State for which the Governor seeks designation as a Governor-designated covered area, except that the total number of covered areas included in such petition may not exceed 10 percent of the total number of covered areas in the State.
“(iv) Certification.—If the Administrator grants a petition described under clause (ii), the Governor of the Governor-designated covered area shall, not less frequently than annually, submit data to the Administrator certifying that each Governor-designated covered area continues to meet the requirements of clause (v)(I).
“(v) Definitions.—In this subparagraph:
“(I) Covered area.—The term ‘covered area’ means an area in a State—
“(aa) that is located outside of an urbanized area, as determined by the Bureau of the Census;
“(bb) with a population of not more than 50,000; and
“(cc) for which the average unemployment rate is not less than 120 percent of the average unemployment rate of the United States or of the State in which the covered area is located, whichever is less, based on the most recent data available from the American Community Survey conducted by the Bureau of the Census.
“(II) Governor.—The term ‘Governor’ means the chief executive of a State.
“(III) State.—The term ‘State’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and American Samoa.”
“(4) Qualified hubzone small business concern.—The term ‘qualified HUBZone small business concern’ means a HUBZone small business concern that has been certified by the Administrator in accordance with the procedures described in this section.”
“(d) Eligibility Requirements; Enforcement.—
“(1) Certification.—In order to be eligible for certification by the Administrator as a qualified HUBZone small business concern, a HUBZone small business concern shall submit documentation to the Administrator stating that—
“(A) at the time of certification and at each examination conducted pursuant to paragraph (4), the principal office of the concern is located in a HUBZone and not fewer than 35 percent of its employees reside in a HUBZone;
“(B) the concern will attempt to maintain the applicable employment percentage under subparagraph (A) during the performance of any contract awarded to such concern on the basis of a preference provided under subsection (c); and
“(C) the concern will ensure that the requirements of section 46 are satisfied with respect to any subcontract entered into by such concern pursuant to a contract awarded under this section.
“(2) Verification.—In carrying out this section, the Administrator shall establish procedures relating to—
“(A) the filing, investigation, and disposition by the Administration of any challenge to the eligibility of a HUBZone small business concern to receive assistance under this section (including a challenge, filed by an interested party, relating to the veracity of documentation provided to the Administration by such a concern under paragraph (1)); and
“(B) verification by the Administrator of the accuracy of any documentation provided by a HUBZone small business concern under paragraph (1).
“(3) Timing.—The Administrator shall verify the eligibility of a HUBZone small business concern using the procedures described in paragraph (2) within a reasonable time and not later than 60 days after the date on which the Administrator receives sufficient and complete documentation from a HUBZone small business concern under paragraph (1).
“(4) Recertification.—Not later than 3 years after the date that such HUBZone small business concern was certified as a qualified HUBZone small business concern, and every 3 years thereafter, the Administrator shall verify the accuracy of any documentation provided by a HUBZone small business concern under paragraph (1) to determine if such HUBZone small business concern remains a qualified HUBZone small business concern.
“(5) Examinations.—The Administrator shall conduct program examinations of qualified HUBZone small business concerns, using a risk-based analysis to select which concerns are examined, to ensure that any concern examined meets the requirements of paragraph (1).
“(6) Loss of certification.—A HUBZone small business concern that, based on the results of an examination conducted pursuant to paragraph (5) no longer meets the requirements of paragraph (1), shall have 30 days to submit documentation to the Administrator to be eligible to be certified as a qualified HUBZone small business concern. During the 30-day period, such concern may not compete for or be awarded a contract under this section. If such concern fails to meet the requirements of paragraph (1) by the last day of the 30-day period, the Administrator shall not certify such concern as a qualified HUBZone small business concern.
“(7) Hubzone online tool.—
“(A) In general.—The Administrator shall develop a publicly accessible online tool that depicts HUBZones. Such online tool shall be updated—
“(i) with respect to HUBZones described under subparagraphs (A) and (B) of subsection (b)(3), beginning on January 1, 2020, and every 5 years thereafter;
“(ii) with respect to a HUBZone described under subsection (b)(3)(C), immediately after the area becomes, or ceases to be, a redesignated area; and
“(iii) with respect to HUBZones described under subparagraphs (D), (E), and (F) of subsection (b)(3), immediately after an area is designated as a base closure area, qualified disaster area, or Governor-designated covered area, respectively.
“(B) Data.—The online tool required under subparagraph (A) shall clearly and conspicuously provide access to the data used by the Administrator to determine whether or not an area is a HUBZone in the year in which the online tool was prepared.
“(C) Notification of update.—The Administrator shall include in the online tool a notification of the date on which the online tool, and the data used to create the online tool, will be updated.
“(8) List of qualified hubzone small business concerns.—The Administrator shall establish and publicly maintain on the internet a list of qualified HUBZone small business concerns that shall—
“(A) to the extent practicable, include the name, address, and type of business with respect to such concern;
“(B) be updated by the Administrator not less than annually; and
“(C) be provided upon request to any Federal agency or other entity.
“(9) Provision of data.—Upon the request of the Administrator, the Secretary of Labor, the Administrator of the Federal Emergency Management Agency, the Secretary of Housing and Urban Development, and the Secretary of the Interior (or the Assistant Secretary for Indian Affairs), shall promptly provide to the Administrator such information as the Administrator determines to be necessary to carry out this subsection.
“(10) Penalties.—In addition to the penalties described in section 16(d), any small business concern that is determined by the Administrator to have misrepresented the status of that concern as a ‘qualified HUBZone small business concern’ for purposes of this section shall be subject to liability for fraud, including section 1001 of title 18, United States Code, and sections 3729 through 3733 of title 31, United States Code.”
“(e) Performance Metrics.—
“(1) In general.—Not later than 1 year after the date of the enactment of this subsection, the Administrator shall publish performance metrics designed to measure the success of the HUBZone program established under this section in meeting the program’s objective of promoting economic development in economically distressed areas (as defined in section 7(m)(11)).
“(2) Collecting and managing hubzone data.—The Administrator shall develop processes to incentivize each regional office of the Administration to collect and manage data on HUBZones within the geographic area served by such regional office.
“(3) Report.—Not later than 90 days after the last day of each fiscal year, the Administrator shall submit to the Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives a report analyzing the data from the performance metrics established under this subsection and including—
“(A) the number of HUBZone small business concerns that lost certification as a qualified HUBZone small business concern because of the results of an examination performed under subsection (d)(5); and
“(B) the number of those concerns that did not submit documentation to be recertified under subsection (d)(6).”
“(m) Definitions Relating to Contracting.—In this Act:
“(1) Prime contract.—The term ‘prime contract’ has the meaning given such term in section 8701(4) of title 41, United States Code.
“(2) Prime contractor.—The term ‘prime contractor’ has the meaning given such term in section 8701(5) of title 41, United States Code.
“(3) Simplified acquisition threshold.—The term ‘simplified acquisition threshold’ has the meaning given such term in section 134 of title 41, United States Code.
“(4) Micro-purchase threshold.—The term ‘micro-purchase threshold’ has the meaning given such term in section 1902 of title 41, United States Code.
“(5) Total purchases and contracts for property and services.—The term ‘total purchases and contracts for property and services’ shall mean total number and total dollar amount of contracts and orders for property and services.”
“(V) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns for purposes of the initial contract; and
“(VI) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, small business concerns owned and controlled by women, or a subset of any such concerns;”
“(VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned and controlled by service-disabled veterans for purposes of the initial contract; and
“(VII) that were awarded using a procurement method that restricted competition to qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, small business concerns owned and controlled by women, or a subset of any such concerns;”
“(VII) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be qualified HUBZone small business concerns for purposes of the initial contract; and
“(VIII) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, small business concerns owned and controlled by socially and economically disadvantaged individuals, small business concerns owned and controlled by women, or a subset of any such concerns;”
“(VII) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned and controlled by socially and economically disadvantaged individuals for purposes of the initial contract; and
“(VIII) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by women, or a subset of any such concerns;”
“(VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned by an Indian tribe other than an Alaska Native Corporation for purposes of the initial contract;”
“(VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned by a Native Hawaiian Organization for purposes of the initial contract;”
“(VI) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned by an Alaska Native Corporation for purposes of the initial contract; and”
; and
“(IX) that were purchased by another entity after the initial contract was awarded and as a result of the purchase, would no longer be deemed to be small business concerns owned and controlled by women for purposes of the initial contract; and
“(X) that were awarded using a procurement method that restricted competition to small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, or a subset of any such concerns; and”
“(g) Business Opportunity Specialists.—
“(1) Duties.—The exclusive duties of a Business Opportunity Specialist employed by the Administrator and reporting to the senior official appointed by the Administrator with responsibilities under sections 8, 15, 31, and 36 (or the designee of such official) shall be to implement sections 7, 8, and 45 and to complete other duties related to contracting programs under this Act. Such duties shall include—
“(A) with respect to small business concerns eligible to receive contracts and subcontracts pursuant to section 8(a)—
“(i) providing guidance, counseling, and referrals for assistance with technical, management, financial, or other matters that will improve the competitive viability of such concerns;
“(ii) identifying causes of success or failure of such concerns;
“(iii) providing comprehensive assessments of such concerns, including identifying the strengths and weaknesses of such concerns;
“(iv) monitoring and documenting compliance with the requirements of sections 7 and 8 and any regulations implementing those sections;
“(v) explaining the requirements of sections 7, 8, 15, 31, 36, and 45; and
“(vi) advising on compliance with contracting regulations (including the Federal Acquisition Regulation) after award of such a contract or subcontract;
“(B) reviewing and monitoring compliance with mentor-protege agreements under section 45;
“(C) representing the interests of the Administrator and small business concerns in the award, modification, and administration of contracts and subcontracts awarded pursuant to section 8(a); and
“(D) reporting fraud or abuse under section 7, 8, 15, 31, 36, or 45 or any regulations implementing such sections.
“(2) Certification requirements.—
“(A) In general.—Consistent with the requirements of subparagraph (B), a Business Opportunity Specialist described under section 7(j)(10)(D) shall have a Level I Federal Acquisition Certification in Contracting (or any successor certification) or the equivalent Department of Defense certification.
“(B) Delay of certification requirement.—The certification described in subparagraph (A) is not required—
“(i) for any person serving as a Business Opportunity Specialist on the date of the enactment of this subsection, until the date that is one calendar year after the date such person was appointed as a Business Opportunity Specialist; or
“(ii) for any person serving as a Business Opportunity Specialist on or before January 3, 2013, until January 3, 2020.
“(3) Job posting requirements.—The duties and certification requirements described in this subsection shall be included in any initial job posting for the position of a Business Opportunity Specialist.”
“(h) Commercial Market Representatives.—
“(1) Duties.—The principal duties of a commercial market representative employed by the Administrator and reporting to the senior official appointed by the Administrator with responsibilities under sections 8, 15, 31, and 36 (or the designee of the official) shall be to advance the policies established in section 8(d)(1) relating to subcontracting, including—
“(A) helping prime contractors to find small business concerns that are capable of performing subcontracts;
“(B) for contractors awarded contracts containing the clause described in section 8(d)(3), providing—
“(i) counseling on the responsibility of the contractor to maximize subcontracting opportunities for small business concerns;
“(ii) instruction on methods and tools to identify potential subcontractors that are small business concerns; and
“(iii) assistance to increase awards to subcontractors that are small business concerns through visits, training, and reviews of past performance;
“(C) providing counseling on how a small business concern may promote the capacity of the small business concern to contractors awarded contracts containing the clause described in section 8(d)(3); and
“(D) conducting periodic reviews of contractors awarded contracts containing the clause described in section 8(d)(3) to assess compliance with subcontracting plans required under section 8(d)(6).
“(2) Certification requirements.—
“(A) In general.—Consistent with the requirements of subparagraph (B), a commercial market representative referred to in section 15(q)(3) shall have a Level I Federal Acquisition Certification in Contracting (or any successor certification) or the equivalent Department of Defense certification.
“(B) Delay of certification requirement.—The certification described in subparagraph (A) is not required—
“(i) for any person serving as a commercial market representative on the date of enactment of this subsection, until the date that is one calendar year after the date on which the person was appointed as a commercial market representative; or
“(ii) for any person serving as a commercial market representative on or before November 25, 2015, until November 25, 2020.
“(3) Job posting requirements.—The duties and certification requirements described in this subsection shall be included in any initial job posting for the position of a commercial market representative.”
“(H) Definitions.—In this paragraph—
“(i) the term ‘appropriate official’ means—
“(I) a commercial market representative;
“(II) another individual designated by the senior official appointed by the Administrator with responsibilities under sections 8, 15, 31, and 36; or
“(III) the Office of Small and Disadvantaged Business Utilization of a Federal agency, if the head of the Federal agency and the Administrator agree;
“(ii) the term ‘defense item’ has the meaning given that term in section 38(j)(4)(A) of the Arms Export Control Act (22 U.S.C. 2778(j)(4)(A));
“(iii) the term ‘major non-NATO ally’ means a country designated as a major non-NATO ally under section 517 of the Foreign Assistance Act of 1961 (22 U.S.C. 2321k);
“(iv) the term ‘past performance’ includes performance of a contract for a sale of defense items (under section 38 of the Arms Export Control Act (22 U.S.C. 2778)) to the government of a member nation of North Atlantic Treaty Organization, the government of a major non-NATO ally, or the government of a country with which the United States has a defense cooperation agreement (as certified by the Secretary of State); and
“(v) the term ‘small business exporter’ means a small business concern that exports defense items under section 38 of the Arms Export Control Act (22 U.S.C. 2778) to the government of a member nation of the North Atlantic Treaty Organization, the government of a major non-NATO ally, or the government of a country with which the United States has a defense cooperation agreement (as certified by the Secretary of State).”
“(1) under”
“(2) under section 9 of the Small Business Act (15 U.S.C. 638), and on compliance with those requirements.”
“(A) consider an award under the SBIR program or the STTR program to satisfy the requirements under section 2304 of title 10, United States Code, and any other applicable competition requirements; and
“(B) issue, without further justification, Phase III awards”
“(6) The justification and approval required by paragraph (1) is not required in the case of a Phase III award made pursuant to section 9(r)(4) of the Small Business Act (15 U.S.C. 638(r)(4)).”